Concluding Cluster 2 of International Law Commission Report, Sixth Committee Speakers Deliberate over Definitions for International Organizations, Piracy

Delegates Begin Third Cluster of Topics 

As the Sixth Committee (Legal) concluded its review of the second cluster of topics from the International Law Commission’s annual report, many speakers underscored the need for developing clear definitions of concepts and terms in both the settlement of disputes to which international organizations are parties and the prevention and repression of piracy and armed robbery at sea.

The representative of Singapore underscored that the key feature of an international organization is that it is an entity possessing its own international legal personality and is established by a treaty or other instrument governed by international law.  His country, as a host and venue for the settlement of international disputes under the auspices of various intergovernmental organizations, is engaged in updating dispute-resolution rules, he added.

The representative of Mexico emphasized the importance of considering non-international disputes, as referenced to in the commentary to draft guideline 1.  He recalled his country’s experience with cases for which there was a lack of effective mechanisms to provide access to justice. This issue is closely related to the administration of justice at the United Nations, particularly in guaranteeing dispute-settlement mechanisms for non-staff personnel, he commented.

On that, Cameroon’s delegate observed that international organizations protected by privileges and immunities often derogate from the common law to avoid certain commitments.  He suggested establishing clear regimes for staff recruited by such organizations who do not have the status of international civil servants and applying national laws of the host country if a dispute between the two parties cannot be resolved at the level of the organization.

Delegates also deliberated over definitions of certain terms used in the respective draft articles, with some underscoring that clear definitions are pivotal in assisting Member States address disputes where international organizations are parties.  Many speakers underlined that the definition of “international organizations” builds on the 2011 “Responsibility of international organizations” draft articles.

The representative of Colombia, stressing that the definition of international organizations is vital, pointed out that the definition in the draft articles “Responsibility of international organizations” is not exactly the same as the one in the draft texts before Member States.  She thus called for the matter to be studied in greater detail to ensure the definition captures the reality of international organizations in their various configurations and capacities.

On that, the Permanent Observer of the Holy See expressed concern over the Commission’s inaccurate characterization of the sovereign entity.  From the early Middle Ages, the Holy See has had an autonomous legal personality and has been active in international affairs, concluding treaties and sending representatives to other sovereigns.  It enjoys sovereign immunity of a State, as all States do, he said, adding that, at the international level, the Holy See is recognized as a State.

Speakers also took up “Prevention and repression of piracy and armed robbery at sea”, with many investigating the modern elements of piracy, weighing in whether to include in such definitions cyberattacks at sea and drones.

Estonia’s delegate, commending that the definition of piracy is identical with that which is in the United Nations Convention on the Law of the Sea, noted that the commentaries point out new developments in modern piracy.  In that regard, she suggested some examples be added to the text, if available, including how cybermeans have influenced the piratical acts and ships.

Along those lines, Canada’s representative, noting the lack of a definition for “ship” in the draft articles, said that changing practices by pirates and new technology “require us to adjust our understanding of what constitutes a ship for the purposes of piracy”.  Canada’s Oceans Act defines a ship as “any description of vessel, boat or craft designed, used or capable of being used solely or partly for marine navigation without regard to method or lack of propulsion”.

On another point, the representative of Romania affirmed that, from antiquity, pirates have been considered “enemies of mankind”, as piracy is the prototype of an international crime.  Observing that — given the age of the issue — there is currently not one single international law instrument that deals with piracy in a comprehensive manner, she said that States affected by piracy have concluded non-legally binding instruments to that end.

Thailand’s representative, stressing that an anti-piracy regime should not only cover prevention and repression, encouraged the Commission to address humanitarian aspects, including for victims of these crimes — especially those held hostage for ransom — and explore international humanitarian law and international cooperation in the areas of rescue, repatriation and compensation.

In a similar vein, South Africa’s delegate suggested that the root causes of piracy should be factored in, including the social, economic and environmental impact of illegal fishing and toxic-waste dumping in vulnerable regions of the world.  She also noted such crimes have decreased in the Indian Ocean in recent years — largely due to enhanced patrols that have also resulted in a substantial decline in maritime crime in the region.

The representative of Djibouti also recommended considering the sociocultural causes and local geographical specificities which have contributed to the emergence and persistence of piracy.  Emphasizing the importance of the issue to his country, which is committed to re-establishing security in the Red Sea and Gulf of Aden, he spotlighted Djibouti’s fundamental role in the international mobilization against piracy and its significant contribution to the adoption of the Djibouti Code of Conduct in 2009.

The Sixth Committee also commenced its consideration of the third cluster of the International Law Commission’s annual report, including “Subsidiary means for the determination of rules of international law” and “Succession of States in respect of State responsibility”.

The Sixth Committee will next meet at 10 a.m. on Wednesday, 1 November, to continue its discussion of the third cluster of topics from the International Law Commission’s report on the work of its seventy-fourth session.

Cluster 2 Statements

RAFAEL BERNANDES (Brazil), speaking on “Settlement of disputes to which international organizations are parties” said that the International Law Commission should maintain the definition of international organizations contained in its draft articles on “Responsibility of international organizations”, adopted in 2011.  He, however, said that he is not convinced that the ability of at least one of its organs to express the will of the international organization — distinct from that of its members — is a relevant element in the definition of such organizations, adding that he cannot agree with this being a “generally accepted view”, as argued in draft guideline 3, paragraph 13.  Further, it is unclear what would be the “will” of an international organization, how it would be formed and what could be its role in the formation of international law rules.  For this reason, he encouraged the International Law Commission to delete the final part of draft guideline 2(a).  He welcomed the definition of an international dispute based on the Mavrommatis definition in draft guideline 2(b), commending the Commission for not adopting the controversial criterion of prior awareness, which does not reflect the jurisprudence constante of the International Court of Justice. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he encouraged the Commission to focus its efforts on codifying the existing rules based on general and reiterated practice of States, emphasizing that the guidelines may not be appropriate for the development of the topic.  In addition, the inclusion of “threats” in the definition of armed robbery at sea in article 3(a) does not correspond to State practice and presents a substantive distinction from piracy.  Recalling that every State may seize a pirate ship or aircraft on the high seas — as an area outside the jurisdiction of any State — he highlighted the recent evolution of the res communis concept under the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This High Seas Treaty is governed by the principle of common heritage of humankind, he noted, emphasizing that that principle should be considered when discussing the activities in areas beyond national jurisdiction, such as the high seas. 

NICOLE THORNTON (United States), taking up “Settlement of disputes to which international organizations are parties”, welcomed the approach to elaborate a set of draft guidelines as the form for the Commission’s output on that topic.  She acknowledged the commentary’s explanation that such guidelines are intended to restate the existing practices of international organizations concerning the settlement of their disputes and to develop recommendations for the most appropriate ways of handling them. 

On “Prevention and repression of piracy and armed robbery at sea”, she reported that her country provided information to the Commission regarding the law and practice of the United States and its support for efforts at the international, regional and subregional levels to prevent and counter piracy and armed robbery at sea.  She commended the report’s survey of the abundant State practice in this area, both regarding the well-established international law crime of piracy, codified in article 101 of the United Nations Convention on the Law of the Sea, and States’ treatment of crimes occurring at sea that fall outside that definition.  The definition remains fit for purpose and serves important functions, she stressed, questioning whether draft articles are the most appropriate or useful form for this particular topic.   

STEFAN PRETTERHOFER (Austria), speaking on “Settlement of disputes to which international organizations are parties”, said that work on this topic is particularly valuable for States hosting international organizations.  Austria is often faced with potentially conflicting obligations.  It must, on the one hand, respect the broad jurisdictional immunity enjoyed by international organizations under certain agreements. On the other, the European Convention on Human Rights obliges it to grant access to its courts in cases where civil rights are claimed by individual litigants.  Austria has therefore worked with international organizations headquartered there to provide effective alternative forms of dispute settlement. He also expressed support for the Commission’s plan to produce a set of draft guidelines on this topic, welcoming that the element “possession of at least one organ capable of expressing a will distinct from that of its members” has been included in the definition of “international organization”.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he said that the distinction between the two in draft article 1 is necessary, as the basis for the definition of “piracy” is the United Nations Convention on the Law of the Sea — which only deals with piracy on the high seas.  He suggested, however, that the Commission consider extending the definition of “piracy” to include acts for private ends committed by Government officials on Government ships and aircraft.  He also pointed out that the present wording of draft article 3 — which defines “armed robbery at sea” — creates uncertainty regarding the precise definition of this term.  It could be argued that “in view of a systematic interpretation” all acts listed in the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation that are in addition to “acts of violence” are excluded from the definition in draft article 3, he said.

WALTER FERRARA (Italy), addressing “Settlement of disputes to which international organizations are parties”, noted certain minimum requirements are necessary for an organization to prove its international legal personality — particularly the distinguishing feature of a body capable of expressing the entity’s own will as distinct from that of its members.  International organizations may also be parties to disputes of a private law character, such as those resulting from breaches of contracts or arising from wrongful acts.  He pointed out that the right to a remedy applies to all types of disputes; however, where international organizations are concerned, their functional immunity could in practice prevent a private party from obtaining reparation within the domestic judicial system.  Thus, it is unquestioned that the parties are free to choose the means of settlement which they consider most appropriate to resolve the dispute. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he voiced agreement on the importance of preventing and repressing acts of piracy, which is considered the most ancient international crime.  On the recent introduction of the second paragraph in draft article 2, which provides as follows:  “Paragraph 1 shall be read in conjunction with the provision of article 58, paragraph 2, of the United Nations Convention on the Law of the Sea”, he expressed preference for a rewording to explicitly clarify whether and to what extent offences perpetrated in the exclusive economic zone of a coastal State may fall within the definition of piracy.  On the principle of universal jurisdiction, he voiced agreement for setting a clear distinction between the crime of piracy and the crime of armed robbery at sea, to limit the reference to universal jurisdiction only to the offences perpetrated on the high seas. 

CHARLINE THIERY (France), speaking on “Settlement of disputes to which international organizations are parties”, took note of the provisional adoption of draft articles 1 and 2 and the associated commentaries. However, she questioned why the definition of an “international organization” in draft guideline 1 is distinct from that the definition contained in the 2011 draft articles on “Responsibility of international organizations”.  She thus asked what justifies the addition of this condition to the definition set out in the current draft guidelines, noting that it risks becoming meaningless.  She also questioned the criteria for the existence of a body “with a will distinct from that of its members”, encouraging the Commission to adopt a common definition of the broad concepts of international law to ensure consistency. Turning to the notion of “dispute”, she suggested distinguishing between the disputes to which international organizations and their agents are parties and other disputes involving such organizations.  Disputes between international organizations and their staff raise specific issues in terms of international civil service law and the respective procedural guarantees, she added. 

Turing to “Prevention and repression of piracy and armed robbery at sea”, she said that the United Nations Convention on the Law of the Sea should remain the common reference framework for States in addressing questions linked with the oceans and the seas.  In this regard, she welcomed the reference to the Convention in draft article 2, which also states the definition of “piracy”, emphasizing that the codification of this issue entails consolidating existing norms to ensure legal predictability.  With regard to the definition of “robbery at sea” in draft article 3, she pointed to a “very restrictive” nature of that definition that seems to exclude from armed robbery at sea acts committed in contiguous zones and in exclusive economic zones of States.  To this end, she suggested that the Commission consider the practice of States relating to this topic. 

FRASER JANECZKO (United Kingdom), speaking on “Settlement of disputes to which international organizations are parties”, welcomed the clarity provided in the definition of the term “international organization”.  He expressed agreement that a body having an independent legal personality and “at least one organ capable of expressing a will distinct from that of its members” are important criteria for ensuring the topic’s correct scope.   The definition of the term “dispute” is sufficiently broad to encompass a wide range of issues relevant to this topic, he added.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he reported that his country, having played a leading role in the international effort to suppress piracy from Somalia, continues to work multilaterally and bilaterally to support regional countries in the fight against cross-border maritime crime and piracy.  He commended the breadth given by the Commission to the term “repression”, which should not be understood as requiring piracy invariably to be met with criminal investigation or prosecution.  He also called for more clarity on the Commission’s understanding of the meaning of “any illegal act of violence or detention, or any act of depredation”.  The Commission could include in the commentary that the categorization of an act as armed robbery at sea neither enlarges nor limits the jurisdiction of the coastal State within whose waters the act occurs, he said. 

SCOTT TAN (Singapore), on “Settlement of disputes to which international organizations are parties”, noted that his country is host and venue for the settlement of international disputes under the auspices of various inter-Governmental organizations, such as the Permanent Court of Arbitration, the International Centre for Settlement of Investment Disputes and the International Tribunal for the Law of the Sea.  As an international-dispute-settlement hub, Singapore remains engaged in efforts to update dispute-resolution rules to account for relevant developments.  Expressing support for the Commission’s definition of an “international organization” in its 2011 draft articles on “Responsibility of international organizations”, he said that an update thereto is not necessary.  The key feature of an international organization is that it is an entity possessing its own international legal personality and is established by a treaty or other instrument governed by international law.

On “Prevention and repression of piracy and armed robbery at sea”, he expressed support for the Commission’s objective of avoiding the alteration of any rules set forth in existing treaties, including the United Nations Convention on the Law of the Sea.  The integrity of existing treaties must be preserved.  The definitions in draft articles 2 and 3 “generally reflect” existing international law, he said, adding that Singapore will engage with the Commission’s forthcoming work on how these definitions will be used.  He also welcomed the clarification, in draft article 2, that actions carried out by drones, unmanned aerial vehicles and maritime autonomous vehicles can fall within the scope of the definition of “piracy”, as can the use of other devices for carrying out cyberattacks at sea.  Further, he agreed with the observation in the commentary to draft article 3 that universal jurisdiction applies to piracy, but not to armed robbery at sea.

KATARZYNA MARIA PADLO-PEKALA (Poland), taking up “Settlement of disputes to which international organizations are parties”, spotlighted the change of the title, noting that her delegation understands the justification for this step based on the lack of a crystal-clear distinction between international disputes and non-international ones.  However, she cautioned the Commission against overstepping its mandate, which is the promotion of the progressive development of international law and its codification.  The commentary to draft guidelines 1 expressly indicates that the most frequent types of disputes to which international organizations are parties are often governed by a specific national law or general principles of contract law.  Against this background, such a practice can only be considered as pertinent if it informs about the existing or purported state of international and not national law. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, she noted that the Commission provisionally adopted three draft articles:  on the scope of the draft articles, on the definition of piracy and on the definition of armed robbery at sea.  As those definitions are in principle uncontroversial and have found broad support among States, she noted that when the topic syllabus was included in the Commission’s report, its author — while not prejudging what form the outcome would take — indicated that work on this topic should not alter the Convention’s provisions and should rely also on other universal legal instruments and relevant resolutions.  With this in mind, she said it was surprising that the Drafting Committee decided this year that it was premature to make a recommendation on the format of the Commission’s work on the topic.  This issue is of fundamental importance, and she voiced regret that the Commission could not decide on what type of legal instrument it is drafting.

MICHAEL HASENAU (Germany), speaking on “Settlement of disputes to which international organizations are parties”, noted that the number of international organizations has increased over the past two decades.  In this regard, he found the Commission’s focus on the issue of disputes to which international organizations are parties “fitting”, welcoming its intent to gather best practices and maybe develop model clauses for future use. Acknowledging that the Commission has already provisionally adopted two draft guidelines, he welcomed the inclusion of “non-international disputes” in its future work.  In this regard, he stressed the importance for the Commission to keep in mind its prior work on international organizations and avoid contradictions and misunderstandings in the applicable law.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he noted with concern that piracy remains a reality in today’s world and — whenever it may occur — influences all States.  Germany, as a trading nation, has a special interest in upholding the safety of all sea-lanes, he said, stressing that it has always been a staunch supporter of fighting piracy.  Commending the Commission’s decision to also focus on preventing piracy, he noted with appreciation that it based the definition of “piracy” on the Law of the Sea Treaty, thus averting fragmentation.

KRISTEL KAEVAL (Estonia), associating herself with the European Union, speaking on “Settlement of disputes to which international organizations are parties”, said that clarification of the guidelines’ scope and definition of international organization is paramount.  Noting that the proposed scope is very ambitious, she expressed support for keeping the document as a general guidepost for effective communication on minimum requirements for dispute settlement mechanisms. 

Regarding “Prevention and repression of piracy and armed robbery at sea”, she welcomed that the report gives an impressive overview of national legislation and judicial practice of many States.  Commending that the definition of piracy is identical with its definition in the Law of the Sea Convention, she further noted that the commentaries point out new developments concerning modern piracy and explain elements of the definition in that regard.  The commentaries could mention some examples, if available, how cyber means have influenced the piratical acts and ships.  In addition, an explanation would be appreciated on the conditions for and limitations of the application of article 101 of the Convention in the exclusive economic zone as well as on the meaning of mutiny.  She welcomed that, in the draft articles, the term “armed robbery at sea” is used instead of “armed robbery against ships”, as it also covers the acts against aircraft, persons and property. 

JOSE JUAN HERNANDEZ CHAVEZ (Chile), on “Settlement of disputes to which international organizations are parties”, welcomed the Commission’s decision to change the original title of this topic to exclude the word “international”.  In Chile’s experience, most disputes in which international organizations are involved relate to private individuals — particularly in the context of labour matters.  For this reason, he said his delegation concurs with the commentary to draft guideline 1 that the disputes involved are not necessarily international in nature.  Further, given the diversity among international organizations and the commitments they have made under international law, it is more appropriate for the Commission to focus on reaffirming the such organizations’ existing dispute-settlement practice.  Noting the need to balance the immunities from which such organizations benefit and the protection of certain fundamental rights, he said that the Commission could develop an additional set of model clauses to be included in treaties or other instruments governed by international or national law.

ERIK LAURSEN (Denmark), also speaking for Finland, Iceland, Norway and Sweden, took up “Settlement of disputes to which international organizations are parties” — noting that the Commission has decided to modify the topic from “Settlement of international disputes to which organizations are parties” to “Settlement of disputes to which international organizations are parties”. He welcomed the change to enable the Commission to address all relevant public international law aspects of disputes involving international organizations.  On the use of the term “international organization”, he noted that the Special Rapporteur has suggested a slightly modified definition, compared to the one used in the Commission’s previous work on the draft articles on “Responsibility of international organizations”.  In the interest of consistency, he said there would be merit in proceeding with the previous definition, with room for further elaboration in the commentaries as regards certain aspects identified by the Special Rapporteur. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he approved of the broader scope of the draft articles by including the topic of “armed robbery at sea”.  He urged the Commission to take into account relevant practice, recommendations, and guidance provided by the International Maritime Organisation and the United Nations Office on Drugs and Crime (UNODC), including through its Global Maritime Crime Programme, on preventing and suppressing piracy and armed robbery at sea.  He further called on all Member States to criminalize piracy and armed robbery at sea under their domestic laws, reiterating concern over the threat that piracy and armed robbery at sea posed to the global economy and safety of seafarers — including through the human cost of them being taken hostage or kidnapped, as well as over the violence employed by pirates and persons involved in piracy and armed robbery at sea. 

SERGIO AMARAL ALVES DE CARVALHO (Portugal), speaking on “Settlement of disputes to which international organizations are parties”, said that the proposed guidelines’ scope of applications is broad enough to encompass all relevant aspects, also concurring with the Commission’s decision not to include the word “international” before “disputes”.  All kinds of disputes to which international organizations are parties shall be covered by these draft guidelines. However, disputes of a private law character — to which international organizations are parties — should also be addressed.  On draft article 2, acknowledging that the definition of “international organization” builds on the definition contained in the “Responsibility of international organizations” draft articles, he pointed out that the difference between the two lies in the final part of the definition.  It adds the requirement that an international organization must have “at least one organ capable of expressing a will distinct from that of its members”, he noted, welcoming this inclusion.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he said that Portugal is involved in multilateral and bilateral initiatives in this regard, underlining the importance of maritime security, including in the Gulf of Guinea within the framework of the Yaoundé Architecture. Noting that the commentaries on draft articles 2 and 3 could be further substantiated, he welcomed that the scope of draft articles includes the prevention of piracy and armed robbery at sea.  Because both phenomena are intertwined with economic and social conditions, the Commission should further analyse successful initiatives to that end in a holistic manner.  Detailing several other points, he also turned to draft article 3(a), noting that the expression “other than an act of piracy” can be deleted.  The expression “within a State’s internal waters, archipelagic waters and territorial sea” is sufficient to distinguish armed robbery at sea from an act of piracy without the fear of overlap, he pointed out.

MA XINMIN (China), speaking on “Settlement of disputes to which international organizations are parties”, noted that the disputes studied under the topic should be limited to international disputes only.  Disputes involving non-governmental international organizations or entities, or disputes of a private law nature regulated by domestic law, should not be covered. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he stressed that it is important to appropriately address the relationship between universal jurisdiction, sovereignty, sovereign rights and jurisdiction of coastal States and the exclusive jurisdiction of flag States.  Welcoming the expansion of the scope from piracy to also include armed robbery at sea based on the United Nations Convention on the Law of the Sea, he expressed support to the interpretation of violence as including both physical and psychological violence.  The place of piracy should be defined as on the high seas or beyond the jurisdiction of any State, while stipulating that it could also take place in the exclusive economic zone.  To combat piracy in such zones, States should strengthen cooperation with coastal States without prejudice to the sovereign rights and jurisdiction of the latter in their exclusive economic zones. 

On “Subsidiary means for the determination of rules of international law”, he noted that the Commission has — on the basis of the Statute of the International Court of Justice — actively examined international and domestic judicial practice and academic teachings as well as appropriately expanded the scope of subsidiary means to adapt to current situation.  He expressed support for the adoption of the draft conclusions as an outcome of that topic as well as for appropriately expanding the term jurisprudence to decisions of courts and tribunals.  These should include not only judgements but also other decisions, such as advisory opinions. Nevertheless, the inclusion of the domestic courts’ views as subsidiary means requires particular caution.  More so, he stressed that there is a difference between judicial bodies, on the one hand, and human rights and other treaty bodies, on the other. 

Regarding “Peremptory norms of general international law”, he said that the draft conclusions adopted by the Commission on second reading were highly controversial during the discussion in the Sixth Committee, in particular regarding the possible conflict of jus cogens in article 16 with Security Council resolutions.  A correct understanding of jus cogens should begin by clarifying its relationship with obligations erga omnes and the primacy of the Charter of the United Nations.  The identification of a norm as jus cogens should be made based on positive law within the framework of the Charter.  Identifying special rules as jus cogens outside that framework would undermine the Charter-based international legal order.  Criteria for their identification as proposed in draft conclusion 7 do not take the Charter as the basic framework, are inconsistent with the Vienna Convention on the Law of Treaties and are lower than the customary international law criteria for identifying jus cogens, he stressed. 

PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico), on “Settlement of disputes to which international organizations are parties”, underlined the link between this topic and the “Responsibility of international organizations” draft articles.  This reaffirms the importance of the Sixth Committee discussing this matter seriously, which should be reflected in the relevant resolution that the General Assembly will adopt later this session.  Also noting the importance of considering non-international disputes — referred to in the commentary to draft guideline 1 — he recalled his country’s experience with cases for which there was a “clear lack of effective mechanisms to provide access to justice”.  This issue is closely related to the administration of justice at the United Nations — particularly the need to guarantee access to effective dispute-settlement mechanisms for non-staff personnel.  He therefore invited the Commission to further study this issue in its subsequent reports.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he cited the definition of “piracy” in Mexico’s federal criminal code, which does not distinguish between two distinct criminal conducts as is done by draft articles 2 and 3.  On that, he noted the relevance of the commentary to draft article 3, which states that there is no substantive difference between piracy and armed robbery at sea as far as the conduct is concerned.  Rather, the main difference lies in the location of the act. Concurring with the Commission that universal jurisdiction applies to cases of piracy, he recalled the General Assembly’s position that both piracy and armed robbery at sea refer to criminal conduct distinct from the illicit trafficking in substances, migrants or firearms; threats to maritime safety and security; smuggling; and terrorist attacks against shipping.  On that, he underlined the need to maintain this distinction, as such acts are subject to different legal regimes.

ALINA OROSAN (Romania), speaking on “Settlement of disputes to which international organizations are parties”, noted that international organizations are increasingly prevalent in the international arena, and their presence is only growing.  As such, their interaction with both domestic and international actors inevitably gives rise to disputes.  However, the existing legal framework does not adequately address instances where international organizations are parties to the dispute. The work of the Commission on the topic is therefore timely.  She welcomed the prospect of the Commission developing a set of model clauses that may be used in treaties or other instruments governed by international law, as well as in contracts or other domestic law instruments for purposes of establishing the dispute settlement legal regime relevant for international organizations.  These clauses have the potential to further harmonize the practice in the field of dispute resolution, actively reducing the phenomenon of fragmentation in international law.

Turning to “Prevention and repression of piracy and armed robbery at sea”, she affirmed that from antiquity, pirates have been considered “enemies of mankind”, as piracy is the prototype of an international crime.  In that vein, it is somewhat surprising — given the age of the issue — that there is currently not one single international law instrument that deals with piracy in a comprehensive manner.  She therefore affirmed that “a dedicated instrument would strengthen the ability of States to protect merchant vessels and their crews against piratical acts”.  She noted that States affected by piracy have concluded non-legally binding instruments such as the Djibouti Code of Conduct of 2009 in order to cooperate to the fullest extent in the fight against piracy and armed robbery at sea.  She also cited maritime missions such as the European Union Naval Force Operation ATALANTA, which have proven remarkably effective in the fight against piracy. 

PETER KLANDUCH (Slovakia), speaking on “Settlement of disputes to which international organizations are parties”, welcomed the broadening of the scope and the change of the title, which allow for encompassing disputes of non-international nature.  Acknowledging that the exclusion of national disputes would undesirably limit the comprehensive nature of the outcome intended to guide States, international organizations and other entities, he emphasized that the draft guidelines should specify if and to what extend they relate to one or both types of disputes.  Turning to draft guideline 2, he said he does not see a need to alter the well-established definition of an “international organization” used in the “Responsibility of international organizations” draft articles.  On the definition of “dispute”, he said he was trying to understand whether the refusal of a claim or the denial of an assertion as a constitutive element of a dispute is fully in line with the established jurisprudence of the International Court of Justice and its predecessor.  He thus invited the Commission to clarify if the refusal and denial must be explicit or can also be implicit, while expressing support for elaborating model clauses as a practical outcome of the Commission’s work. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he emphasized that the customary nature of the definition of “piracy” according to the United Nations Convention on the Law of the Sea is widely accepted, concurring with the distinction between piracy and armed robbery at sea.  He shared the view that only maritime violence that lacks public authority could be qualified as violence for private ends, while also acknowledging that a private gain or profit may be, and in practice frequently is, attached to an ideological or political motivation.  On draft article 3, he encouraged the Commission to consider one more element of the actus reus of armed robbery at sea, as contained in article 8 paragraph b of the resolution of the Institute of International Law on piracy of 30 August 2023.

MAREK ZUKAL (Czech Republic), speaking on “Settlement of disputes to which international organizations are parties”, noted that the title now adequately reflects the intended broadening of the topic’s scope.  Disputes of a private law character may raise important issues determined by international law, such as the relationship between the jurisdictional immunity of international organizations and human rights obligations, in particular the access to justice.  Noting that the commentary to draft guideline 2 clarifies the concept of international organization and its basic characteristics, he encouraged the Commission to reflect more on the differences between the suggested definition and the definition in the draft articles on “Responsibility of international organizations”, as well as on possible effects of their divergence.  It would also be useful to clarify whether the draft definition covers all aspects of specialized international organizations or institutions such as the International Criminal Court or certain other international tribunals, he added. 

On “Prevention and repression of piracy and armed robbery at sea”, he welcomed the Commission’s conclusion that its work on the topic should not duplicate, or even alter, existing legal frameworks, but instead aim at identifying and clarifying new issues of common concern. He also commended the Commission’s intention to explain certain elements of modern piracy, while respecting the integrity of the generally accepted definition of piracy contained in the Law of the Sea Convention.  Still, some of those elements, such as the expression “committed for private ends”, the status of offshore oil platforms or the scope of permissible exercise of jurisdiction over piracy, merit deeper analysis.  The Commission should further explain its intentions concerning the character of the final outcome of its work on the topic, he said. 

CHEIKH GUEYE (Senegal), noting that the Commission provisionally adopted draft guidelines on “Settlement of disputes to which international organizations are parties”, said his delegation will continue to closely follow the Commission’s work on this topic.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he emphasized that this topic is important to Senegal due to the challenges to maritime safety and security that exist in the Gulf of Guinea.  Taking note of the link established in draft article 2 between the definition of “piracy” therein and the definition of such term in the Law of the Sea Convention, he said this definition is also reflected in the African Charter on Maritime Security and Safety and Development in Africa.  In the context of armed robbery at sea, he spotlighted the Yaoundé Code of Conduct for the Repression of Acts of Piracy, Armed Robbery against Ships and Illicit Maritime Activities in West and Central Africa. That instrument, which set up the Yaoundé Architecture, calls for the sharing of information, harmonization of national legal procedures and the creation of procedures for strengthening cooperation with multilateral institutions, he pointed out.

Also welcoming the Commission’s adoption of 11 draft conclusions on “General principles of law”, he said such principles are acknowledged by a majority of national legal systems.  Further, he took note of the Commission’s commentary regarding the term “community of nations”, underlining the need to ensure that equivalent terms are found in other languages if this expression is retained.  Building on that, he called on the Commission to continue drawing from a broad range of doctrinal approaches and legal cultures and to preserve multilingualism in its work.

MIHA ŠINIGOJ (Slovenia), addressing “Settlement of disputes to which international organizations are parties”, noted that the draft guidelines show significant progress, covering the scope and use of terms related to international organizations and disputes and providing essential definitions and concepts.  The proposed guidelines emphasize the fundamental need for organizations to have international legal personality in order to enter into treaties and assume international responsibilities, reflecting their evolving role and responsibilities on the global stage.  He welcomed the Commission's objective to guide States, international organizations and users towards effective dispute management, emphasizing appropriate methods of resolution to promote peaceful outcomes. He further agreed that international organizations, in addition to States, may be parties to disputes, and that their legal responsibility may derive from various sources, such as constituent instruments and international agreements. 

On the topic of “Prevention and repression of piracy and armed robbery at sea”, he affirmed that the resurgence of piracy in maritime areas has heightened concern about the issue and highlighted it as a prominent challenge to maritime security.  In addition, the emergence of new technologies has revealed some significant shortcomings in the legal framework that are hampering the international community’s ability to combat piracy in its modern form.  There are certain elements of the definition of piracy contained in article 101 of the Law of the Sea Convention that require clarification in its interpretation and application, he said, adding that he fully agrees with that assessment.

JAMES KIRK (Ireland), speaking on “Settlement of disputes to which international organizations are parties”, noted the scope of the draft guidelines and the Commission’s decision to change the title of the topic by deleting the word “international” before “disputes”.  He also said that the definition of the word “dispute” in draft guideline 2(b) combines aspects of different interpretations of that term by the International Court of Justice and its predecessor, the Permanent Court of International Justice in the South-West Africa and Mavrommatis Palestine Concessions cases respectively.  He questioned whether this draft definition is sufficiently broad to capture circumstances in which one of the parties to a dispute fails to respond to the assertions of the other, as contemplated in the recent judgement of the International Court of Justice in The Gambia v. Myanmar case. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, he welcomed further information about the purpose of the draft articles, acknowledging the intention to present them to States with a view of negotiating a Convention.  Noting that piracy is already defined in the Law of the Sea Convention, he emphasized that this treaty sets out the legal framework within which all activities in the oceans and seas — including piracy and armed robbery at sea — must be carried out.  On draft article 2, he questioned whether a draft definition of piracy, taken directly from the Convention, might create some legal uncertainty and could potentially undermine the “Constitution of the oceans”.  In this regard, he proposed that draft articles be limited to defining and addressing armed robbery at sea, which the Convention does not define.  Recognizing that piracy and armed robbery at sea remain “a scourge on our oceans and seas to this day”, he said that as an island State, Ireland appreciated the importance of maritime security.

LIGIA LORENA FLORES SOTO (El Salvador), speaking on “Settlement of disputes to which international organizations are parties”, noted that the definition of “international organization” could exclude the reference to the condition of having at least one organ capable of expressing a will independent of that of its members. One of the legal characteristics that best defines the nature of an international organization is the exercise of partial attribution of sovereign competencies that the organizations’ constituent States define in the constitutive treaty or instrument protected by international law.  Nevertheless, the principle of supranationality is not suitable when the membership of the international organization refers to entities other than States.  While welcoming that the list of dispute settlement means corresponds to Article 33 of the Charter, she suggested that the draft guidelines could also explore other means that would better fit the nature of some disputes. 

KEKE MANTSHO ANNASTACIA MOTSEPE (South Africa), on “Settlement of disputes to which international organizations are parties”, said she agreed with the Commission’s approach of developing draft guidelines — rather than draft articles — on this topic.  Although the Commission is not precluded from entering the field of private international law, it has only done so to a limited extent and, therefore, should be cautious when preparing model clauses for disputes that are contractual in nature or arise out of the application of national law.  She welcomed the Commission’s emphasis on international legal personality as the core feature of an “international organization”, as defined in draft guideline 2.  However, South African law aligns more with the restrictive definition contained in the Vienna Convention on the Law of Treaties.  While adding that draft guidelines 1 and 2 “appear largely acceptable”, she said that it will be necessary to have a full understanding of the draft guidelines’ scope before her delegation will be able to express a “firmer” view.

Turning to “Prevention and repression of piracy and armed robbery at sea”, she welcomed the “comprehensive” first report on this topic but suggested that the root causes of piracy should also be factored in, including the social, economic and environmental impact of illegal fishing and toxic waste dumping in vulnerable regions of the world.  Detailing legislative and other steps taken by South Africa to address piracy, she noted that such crimes have decreased in the Indian Ocean in recent years — largely due to enhanced patrols that have also resulted in a substantial decline in maritime crime in the region, particularly illegal fishing.  She stressed that a comprehensive approach is required to address the poverty and instability that create conditions conducive to piracy.  Further, such an approach must include strategies for effective environmental conservation and fisheries management.  She added that the Commission should consider whether its definitions sufficiently encompass modern piracy.

NAOMI MASON (Australia), taking up “Prevention and repression of piracy and armed robbery at sea”, noted that the United Nations Convention on the Law of the Sea recognizes that international cooperation is necessary for the repression of piracy.  She welcomed the Commission’s decision to ensure the integrity of the definition of piracy under the Convention.  Further, the Commission’s consideration of State practice and clarification of areas of uncertainty, such as the difference between piracy and armed robbery, supports ongoing international cooperation in this regard.  She further encouraged the Commission to continue ensuring that its work remains consistent with, and complementary to, existing frameworks and obligations under the Convention. 

Turning to “Settlement of disputes to which international organizations are parties,” she noted that past consideration of the topic has been limited to particular and specific scenarios, leaving development of a global approach somewhat piecemeal. Comprehensive consideration of historical work on particular elements of this issue — as has been undertaken by the Special Rapporteur in his report — “will assist States and international organizations to approach and address any disputes between them more confidently,” she said.   Affirming the importance of multilateralism and the international rules-based order, she welcomed the draft guidelines and commentaries, as they provide useful clarification to States and international organizations.  However, when preparing instruments of this kind, it would be helpful for the Commission to clarify which elements of these draft guidelines — if any — represent the codification of existing international law, and which represent the progressive development of international law. 

EVA YELINA SILVA WALKER (Cuba), speaking on “Settlement of disputes to which international organizations are parties”, welcomed the format of the beginning of this study.  Noting that this topic is closely related to the draft articles on “Responsibility of international organizations”, adopted in 2011, she said that she would prefer the definition of “international organization” — already adopted by the Commission in 2011 — to be maintained.  She also pointed out that this concept has evolved over the past years, while emphasizing the importance of addressing the required level of subordination of an organization to the will of its members. 

Turning to “Prevention and repression of piracy and armed robbery at sea”, she said that the scope of the term “piracy” must remain in line with the United Nations Convention on the Law of the Sea, the Convention against Transnational Organized Crime and other counter-terrorism conventions since they are internationally recognized terms that ensure safe navigation.  She also said that States should continue working on the definition of “private ship”, encouraging the Commission to provide more technical and legal elements.  Noting that Cuba’s criminal legislation already provides for these kinds of international crimes, she reported that in Cuba’s criminal law they are contained as “terrorism crimes”. 

MAHDAD FALLAH ASSADI (Iran), taking up “Settlement of disputes to which international organizations are parties”, noted that it would be more useful to begin the report by identifying problems of practical concern to States and international organizations on which the Commission could provide clarification or guidance.  As the definition of “international organizations” should cover only intergovernmental organizations, with non-governmental organizations and business entities excluded, the words “and/or other entities” should be deleted.  More so, it is necessary to determine how the topic relates to the law of immunities. The disputes should be limited to legal disputes and exclude policy disagreements.  In addition, the scope of “disputes of a private law character” must be clearly delineated.  Such disputes could also raise important issues related to immunity from jurisdiction and execution, he stressed, also suggesting adding “good offices” to the definition of “dispute settlement”.

Turning to "Prevention and repression of piracy and armed robbery at sea", he clarified his country’s legislative practice, in particular articles 185, 653 and 683 of its Penal Code, referred to by the Special Rapporteur.  A draft law on maritime robbery was approved by Iran’s parliament last year and is currently under consideration in its specialized commissions.  Given the current legal uncertainty surrounding various legal aspects of the deployment of private security personnel on-board merchant ships, the issue merits further consideration and scrutiny.  When defining “piracy” and “armed robbery at sea”, due regard should be given to all manifestations of “piratic” practices, including those conducted by States.  Detailing the seizure of Iranian cargoes on the high seas by the United States in 2020 and 2023, he stressed that those seizures were a clear example of such unlawful practice.  Further, the United States' forcible seizure of Iranian commercial ships contains all the elements of an “act of piracy” as identified in the United States domestic law as well, he pointed out.  He reported that, for its part, Iran undertakes efforts aimed at countering piracy, recognized by the Secretary-General. 

PANPAILIN JANTARASOMBAT (Thailand) emphasized that the Commission’s work on “Settlement of disputes to which international organizations are parties” should be as practically oriented as possible. Citing a relevant 2016 syllabus, she encouraged the Commission to explore the issues of international organizations’ limited access to the dispute-settlement mechanisms available to States; their capacity to exercise functional protection on behalf of their staff; and the inadmissibility of cases due to the immunity that they enjoyed. She also welcomed that private-law disputes were not excluded from the scope of the Commission’s work, as “a diametric distinction between disputes of a private and public nature is infeasible”. Urging a definition for “international organization” that is flexible and grounded in State practice, she said that, in her country’s experience, the legal personality of such organizations may be granted — to varying degrees — by the host country.  She added that her delegation looks forward to further elaboration on such legal personality, including possible implications for access to international courts and tribunals.

Turning to “Prevention and repression of piracy and armed robbery at sea”, she said that future Commission reports on this topic should identify new and emerging issues of concern to States that were not previously addressed by the Law of the Sea Convention or other relevant instruments — as well as practical solutions to address them.  Further, the Commission could address how its draft articles will fit into the existing international legal landscape governing piracy and armed robbery at sea.  More so, an effective anti-piracy regime should not only cover prevention and repression but should also address humanitarian aspects, including for victims of these crimes, especially those held hostage for ransom.  On that, she encouraged the Commission to explore international humanitarian law and international cooperation in the areas of rescue, repatriation and compensation as it proceeds further with this topic.

ELENA MELIKBEKYAN (Russian Federation), speaking on “Settlement of disputes to which international organizations are parties”, said that, although she is not against any definition of the disputes provided by the Special Reporter as a guideline, it was unclear what added value such definition would provide.  However, she voiced support for the Commission’s approach stating that this definition is not applicable to simple political disputes, adding that a possible existence of political motives in legal disputes does not deprive the legal nature of such.  Pointing out that the Organization for Security and Cooperation in Europe (OSCE) — the former Conference on Security and Cooperation in Europe — now has its own bodies and has become an organization, she highlighted the ongoing disputes as to whether this forum is an “organization” as such.  The Special Rapporteur’s conclusion that OSCE is a legal subject is incorrect, she said, encouraging him to “stick to the correct approach” in the future.

Turning to “Prevention and repression of piracy and armed robbery at sea”, she said she did not agree with many provisions of the draft commentaries provisionally adopted by the Commission.  She expressed concern over broadening the interpretation of piracy in the absence of any basis and arguments in favour of such, also noting that the English text takes its wording from the Law of the Sea Convention. The text in Russian does not correspond to the official wording of this article in that language, she pointed out, asking the Commission to consider this in its future reports.  Among other points made, she said she could not justify the position that a wrongful act committed for personal purposes on board of a State vessel can be classified as piracy as noted in the commentary to draft article 2.  Regarding paragraph 10 of this article, the use of information and communications technologies is new and has not been regulated.  Thus, it is premature to talk about cyberattacks and drones as part of piracy and should be discussed in the future. 

KAJAL BHAT (India), taking up “Settlement of disputes to which international organizations are parties”, underscored that any topic studied by the Commission needs to be delimited for it to remain sufficiently focused.  Accordingly, the scope of the topic should be limited to studying the aspects pertaining to intergovernmental organizations, excluding non-governmental organizations and other business entities.  Also relevant is to indicate which form of disputes and dispute settlement should be included in the definition part.  Inclusion of disputes of private law character needs a careful consideration. Because of the diversity of international organizations and their legal relationships with other entities, it would not be appropriate to aim at uniform treaty language, she said.

Regarding "Prevention and repression of piracy and armed robbery at sea", she drew attention to an unprecedented upsurge in these phenomena in her region, noting that the overwhelming majority of incidents are armed robberies.  She spotlighted the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, the first regional intergovernmental agreement of such kind.  It enhances regional cooperation through information sharing, capacity-building and cooperative arrangements.  The phenomena should be addressed primarily within the framework of existing applicable international law, regional approaches, State practice, as well as national legislative and judicial practice.  The Code of Practice for the Investigation of Piracy and Armed Robbery against Ships of the International Maritime Organization could provide illustrations regarding implementation of international law in this area.  The definitions should draw a necessary distinction between maritime piracy and armed robbery at sea, she stressed. 

LUCIA TERESA SOLANO RAMIREZ (Colombia), taking up “Settlement of international disputes to which international organizations are parties”, said she agreed with the title change to leave aside the reference to “international disputes”, as many disputes are dealt with before national courts. The definition of international organizations is vital.  However, the one in the draft articles “Responsibility of international organizations” is not exactly the same as the one in the draft texts before them, something that the Commission should review.  She further called for the matter to be studied in greater detail to ensure the definition captures the reality of international organizations in their various configurations and capacities.  The report focuses on such academic points, but it is important for States to provide the Commission with more practical information. 

On “Prevention and repression of piracy and armed robbery at sea”, she noted the use of the word “repression” in the title, a concept that is in line with the Law of the Sea Convention but creates some confusion as to the content of the report.  There is a need to define the word within the context of the articles, by including in the draft a section on the use of terms.  Voicing concern regarding draft article 2, she said it seems to want to adhere to the language of the Convention yet introduces some more up-to-date issues.  She expressed support for interpretation of the treaty, which is within the Commission’s remit, but called for it to be clearer about its intent.  On draft article 2.2, she asked for clarification on the meaning of “in conjunction with”.

NUR AZURA BINTI ABD KARIM (Malaysia), on “Settlement of disputes to which international organizations are parties”, welcomed the draft guidelines as they offer a step towards clarity by defining “international organization”, “dispute” and “means of settlement of disputes”.  Clear definitions are pivotal in assisting Member States with addressing disputes where international organizations are parties, she emphasized.  Spotlighting the challenge of enforcing decisions against such organizations — when, for example, they enjoy immunity from legal processes in their countries of operation — she urged a balance between the need for immunity and the need for accountability and justice.  Thus, an in-depth analysis is required to provide a clearer understanding of the scope of this topic.  She expressed hope that subsequent reports will provide clarity and, consequently, allow Member States to make more informed decisions.

Turning to “Prevention and repression of piracy and armed robbery at sea”, she pointed out that the core aspects of this topic have already been codified in the Law of the Sea Convention, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and other treaties.  “As such, the need for another convention on piracy and armed robbery requires careful study,” she said, nevertheless noting that her country is “amenable” to the draft articles being regarded as guidelines or reference for States to further develop their legal frameworks and national legislation in this area. Adding that her country remains committed to the Commission’s “noble mission” to advance international law, she said work in this area will contribute significantly to the global legal framework and foster shared commitment among States to effectively address the challenges posed by these crimes.

ZACHARIE SERGE RAOUL NYANID (Cameroon), speaking on “Settlement of disputes to which international organizations are parties” suggested replacing the indefinite article “des” with the definite “les” in draft guideline 1, which is more adapted for the sentence in question.  On draft guideline 2, the Commission should provide a definition of a dispute prior to listing the means of dispute settlement. The legal nature of international organizations in the draft commentary to draft guideline 1 facilitates dispute settlement between them and their members, host States, third countries or other such organizations.  Thus, the Commission should establish a balance between the rights of parties involved under national law and international organizations protected by treaties on privileges and immunities, observing that such organizations often invoke the regime of derogation from the common law to avoid certain commitments.  Furthermore, if a dispute between an international organization and its staff cannot be resolved at the level of the organization, the national law of the host country should be applied, he added, suggesting establishing clear regimes for staff recruited by international organizations who do not have the status of international civil servants.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he pointed out that the definition of “act of piracy” in draft article 3(a) may suggest that armed robbery at sea is an “act of piracy”, which does not corroborate with the definition of piracy in draft article 2.  Because armed robbery at sea — a maritime crime — most troubles the coastal States of the Gulf of Guinea, the Yaoundé Code of Conduct was created, constituting a legal framework against illegal maritime activities.  In addition, in the era of artificial intelligence, it is difficult to classify illegal activities that can be inherently public but endorsed by private actors and driven by public policies.  More so, such illegal maritime acts can also be committed by drones. In this regard, he emphasized that cyberattacks at sea should also fall within the scope of the draft articles, also noting that piracy should not be limited to acts committed against vessels. He suggested to include oil platforms that are positioned in the sea for the purpose of exploitation, exploration and scientific research, encouraging the Commission to consider that piracy can also be motivated by political and ideological objectives.

ANDY ARON (Indonesia), speaking on “Settlement of disputes to which international organizations are parties”, said that the change of the topic’s title will accommodate disputes of a private law character.  Those, in practice, form an important part of disputes to which international organizations are parties.  The formulation "other means of dispute settlement” in draft guideline 2(c) serves as a straightforward delineation, steering clear of any potential misrepresentation of its intended purpose.  That is essential to retain such lucidity in interpretation, ensuring a precise understanding that avoids the imposition of obligations related to dispute resolution of international organizations, he emphasized.

Turning to "Prevention and repression of piracy and armed robbery at sea", he welcomed the Special Rapporteur’s first report that provides a comprehensive outlook on the history, socioeconomic and legal aspects of piracy and armed robbery at sea. As the maritime industry is a linchpin of the global economy, providing for the safety and security of these waterways is paramount.  The three draft articles adopted by the Commission provide a clear scope and definitions of the phenomena.  In addition, the Commission’s work in addressing the issue will further clarify the existing international legal norms and harmonize legal responses, securing an effective international approach to maritime security, he said. 

MOUSSA MOHAMED MOUSSA (Djibouti), addressing “Prevention and repression of piracy and armed robbery at sea”, noted the geographical classification effort undertaken in this first report, but recommended taking into greater account the sociocultural causes and local geographical specificities which have contributed to both the emergence and persistence of these phenomena.  East Africa and Southeast Asia share many more common denominators in terms of piracy than they do with Europe which, according to the report, has not experienced any acts of piracy since 2018.  He therefore affirmed that Polish piracy has few features in common with piracy in the China Sea or off the coast of Somalia.  Stressing the importance of the issue to his country, which is committed to re-establishing security in the Red Sea and Gulf of Aden, he recalled Djibouti’s fundamental role in the international mobilization against piracy and its significant contribution to the adoption of the Djibouti Code of Conduct in 2009. 

Turning to “Sea-level rise in relation to international law”, he stressed that it is a very important subject for Djibouti, which has been classified as the seventh most vulnerable state to climate change among small developing States, and continues to be strongly impacted by the effects of climate change affecting the oceans.  Despite this situation and the economic constraints it faces, Djibouti is taking its part in the global effort to combat climate change and is acting with determination to rapidly develop renewable energies and thus mitigate the disastrous and consequent effects of climate change.  He further noted the country’s commitment on the matter, resulting in its participation as a State party to the United Nations Convention on the Law of the Sea and the advisory opinion submitted to the International Tribunal for the Law of the Sea this year.

EDGAR DANIEL LEAL MATTA (Guatemala), on “Settlement of disputes to which international organizations are parties”, noted that the commentary to draft guideline 1 highlights the difficulty of distinguishing between disputes of an international and national nature. 

The Commission should offer guidance to States, international organizations and other users by proposing recommendations rather than rigidly binding norms.  Draft guideline 2 provides a description of elements that characterize international organizations, which contributes to delimiting the draft guidelines’ scope. He voiced his support for the Commission’s view that the legal fundament of international organizations is found in international law, which distinguishes them from other organizations, as well as from transnational or multinational companies.  He also added his agreement with the reference to Article 33 of the Charter of the United Nations, which sets out possible methods for dispute settlement at the national and international levels.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he underlined the need to consider the issue of piracy within the framework of the United Nations Convention on the Law of the Sea, while also taking into consideration applicable international law and State practice.  He also voiced his support that the definition of “piracy” should include any act or damage committed for personal aims by the crew of a private vessel or airplane.  Additionally, he noted that the term “repression” reflects the requirement in the Convention that States should cooperate to counteract piracy on the high seas or any other place not under the jurisdiction of any State.  Guatemala will continue participating in discussions on this issue so that, together with other delegations and the Commission, the Committee can arrive at a text that enriches the relevant international legal framework, he said.

MERON HABTE ESSAIAS (Eritrea), associating herself with the African Group and speaking on "Prevention and repression of piracy and armed robbery at sea", noted that there is a decline in such activities in Africa.  Nevertheless, such acts still seriously impact the stability of international waterways.  Welcoming the draft articles, she noted that they should be read as part of an approach that deals with the phenomena in a comprehensive manner.  The fight against them can be more effective by collective action in building capacities of coastal States, particularly on the African continent.  Regarding piracy and the various maritime spaces in which different rights and obligations apply, she expressed concern about the intersection in maritime zones that could possibly lead to a conflict in determining jurisdiction.  The scope of the draft articles should safeguard the principle of sovereignty of coastal States, she underscored. 

MICHAEL STELLAKATOS LOVERDOS (Greece), taking up “Settlement of disputes to which international organizations are parties”, noted the modification of the title, which is desirable in view of the increasing activities of international organizations.  With regard to the definition of “international organization”, it is appropriate that this be based on the definition given in the draft articles on “Responsibility of international organizations”, thereby continuing the work of the Commission.  He said it is appropriate to highlight an essential element of the notion of “international organization”, namely the possession of its own international legal personality, adding to this the new element identified in the draft guideline in question.  Regarding the phrase “[entity] established by a treaty or other instrument governed by international law”, he welcomed the explanations included in the relevant part of the commentary. 

On “Prevention and repression of piracy and armed robbery at sea”, he affirmed that any consideration on the topic should be consistent with the United Nations Convention on the Law of the Sea, which constitutes the appropriate legal framework within which all activities in the oceans and seas are carried out.  Regarding the extent of the codification, he called for a cautious approach, so as to safeguard the established legal framework contained in the Convention and not to deviate from it, in a direct or indirect way.  In this light, he stated that the general reference as contained in article 2 to “Any other illegal act committed at sea or from land that is defined as an act of piracy in domestic law or in international law” may entail such a risk. 

ÇAĞLA TANSU-SEÇKIN (Türkiye), on “Settlement of disputes to which international organizations are parties”, said she agreed with the commentary to draft guideline 1, which notes that a sharp distinction between international and non-international disputes “is often not feasible”.  The new title for this topic, therefore, better reflects the subject matter at hand. While noting the Commission’s suggestion that a set of draft guidelines is the most suitable form for its output on this topic, she pointed out that disputes of a private nature may not fall within the Commission’s purview.  Further, despite the merit of a suggestion to develop a set of model clauses that may be used in treaties or other instruments governed by international law, that development might encounter difficulties relating to model clauses to be used in contracts or national-law instruments due to the variety inherent in these areas.  “We therefore call for caution before embarking on such work,” she said.

On “Prevention and repression of piracy and armed robbery at sea”, she noted that rapidly developing technology has resulted in some activities that elude the traditional definition of piracy, such as acts committed by autonomous vehicles or cyberattacks.  It is therefore important for the international community to develop the necessary technical and legal infrastructure to face these new challenges.  Stressing that her country has always been a “resolute supporter” of the rule of law at sea, she said that preserving freedom of navigation, the safety of life and property and ensuring the peaceful use of seas and oceans are “priority objectives” for Türkiye.  Further, the Government attaches special importance to the development of international cooperation in the fight against piracy and armed robbery, she said, detailing her country’s support in this area.  She added that the Commission’s contributions on this topic will provide added value to common efforts to tackle these crimes.

NAGANO SHUNSUKE (Japan), speaking on “Prevention and repression of piracy and armed robbery at sea”, said that as a maritime nation, Japan depends on maritime transportation for its energy imports, and thus considers the stability of sea lanes critical.  It also attaches importance to the promotion of the international order in maritime security and safety to realize the Free and Open Indo-Pacific strategy, he stressed, emphasizing that Tokyo is countering piracy through dispatching Japan Self-Defense Forces’ escort ships to the ocean off the coast of Somalia and the Gulf of Aden.  He pointed out that the clarity added in the commentary regarding the definition of piracy and armed robbery at sea will help the international community understand what measures should be taken to prevent and repress those activities, expressing hope that States will take more substantive measures against piracy and armed robbery at sea, with an aim to the realization of the rule of law at sea.

YOUNG JU LEE (Republic of Korea), speaking on “Settlement of disputes to which international organizations are parties”, pointed out that the change in the title alters the scope to be covered by the draft guidelines from “international disputes” to “disputes” and recalled the suggestion that the Commission’s work be restricted to those disputes of a private law character that “arise from a relationship governed by international law”.  Given that not all disputes fall into that category, the Commission may need to further clarify the scope of disputes covered by the topic.  It would be more appropriate for the Commission to include certain categories of “disputes of a private law character” that carry substantial international law implications rather than address all of them.  Such an approach would be instrumental in carrying out the Commission’s mandate on the topic, she underscored. 

Turning to "Prevention and repression of piracy and armed robbery at sea", she noted that the Commission is required to maintain a delicate balance on the topic.  While its work should be based on the Law of the Sea Convention, it also needs to update the Convention’s regime on piracy for it to meet the contemporary needs.  The commentaries to draft article 2 will help the international community implement the international regime on piracy in an evolutionary manner.  As piracy and armed robbery at sea are distinguished based on the geographical space where they take place, there needs to be symmetry between their definitions.  She pointed out that, although the Commission has decided not to deal with the new forms of the phenomena employing novel technological means in its definitional exercise, it may need to consider addressing them in its future work.

KEVIN TIMOTHY MEAD (Canada) said his delegation understands the decision not to include a definition of the term “ship” in the draft articles, but pointed out that changing practices by pirates and new technologies “require us to adjust our understanding of what constitutes a ship for the purposes of piracy”.  The definition of a ship in Canada’s Oceans Act is intended to be as broad as possible by incorporating “any description of vessel, boat or craft designed, used or capable of being used solely or partly for marine navigation without regard to method or lack of propulsion”.  If there is ultimately a need to define what constitutes a ship, or an aircraft, in the draft articles, he suggested it should be done in similarly broad terms. In defining armed robbery at sea, he noted that since the relevant acts take place within waters subject to the sovereignty of the coastal State, it is ultimately the wording of the latter’s domestic legislation that will be most relevant in defining them.

ARMAN SARVARIAN (Armenia), on “Prevention and repression of piracy and armed robbery at sea”, said that the Special Rapporteur’s approach of providing an historical overview of this topic is “sound”.  He encouraged the Commission to continue its deliberations concerning the shortcomings of the applicable international legal framework with a view to identifying potential reforms.  Such reforms could include potential amendments to the United Nations Convention on the Law of the Sea.  Noting that the three draft articles on this topic are written, in classical language, as the beginning of a cohesive text, he said that the “value and authority of such a text is not yet clear”.  The Commission should take time to debate and formulate the exact legal problems to be addressed, as well as the function of any proposed outputs in relation to existing treaty law.  He also said further reflection on the definition of “piracy” with respect to “acts for private ends” could be beneficial.

Turning to “Settlement of disputes to which international organizations are parties”, he said he looked forward to a separate report that would analyse the practice of international organizations and States in this area.  Examples of international organizations before national courts — such as on the question of immunity — would be useful to consider alongside the primary focus on international practice, he added.  Noting that the scope of the Commission’s project remains to be defined and that the question of output remains open, he suggested that the elaboration of draft guidelines or similar provisions be postponed until full discussion has taken place.  The principal question is the value and authority of any Commission product in this area, and a final report containing State practice, the identification of issues and suggested solutions could be a useful medium to guide international courts and tribunals.

Regarding “Subsidiary means for the determination of rules of international law”, he welcomed the Special Rapporteur’s approach to address the scope and main issues but noted that the proposal to elaborate draft conclusions is premature for this fundamental, intricate topic. Rather, the Commission should view it as one that requires more than a single quinquennium for completion, as the consideration of a wide range of practice is necessary to analyse the “subtle dynamics” concerning the treatment of the opinions of international courts and tribunals.  In this context, questions include the extent to which a particular judgment or award — rightly or wrongly — becomes canonical and, further, there is a need to consider the formal distinction in the procedural law of inter-State courts and tribunals between the dispositive parts of a judgment or award and its reasoning.

Taking up “Succession of States in respect of State responsibility”, he spotlighted the relative dearth of State practice available to analyse and underpin any conclusions reached by the Commission.  He therefore concurred with the majority view expressed within the relevant working group that the Commission — rather than appointing a new Special Rapporteur — should continue its consideration of this topic.  The working group should produce a final report by the end of the current quinquennium that does not require action by the General Assembly, which could guide burgeoning – but nascent – State practice.  He added that the Commission could return to the topic at “a time when State practice will have gestated”.

MARTÍN JUAN MAINERO (Argentina), taking up “Settlement of disputes to which international organizations are parties”, said that international organizations can be parties to disputes at both international and national levels.  In light of that, he observed that the Commission decided not to add the adjective “international” after “disputes” in draft guideline 1. Often, a clear distinction cannot be made between international and non-international disputes involving international organizations.  He expressed support for including disputes of a private law character in the topic’s scope, noting that they can raise important questions of international law. When harm is caused to an individual and there is no mechanism for them to obtain reparation, their access to justice is weakened.  Noting that the definition explicitly clarifies that “international organization” is an entity possessing its own international legal personality, he stressed that the formulation that its members can include “other entities” merits further analysis. 

AZELA GUERRERO ARUMPAC-MARTE (Philippines), speaking on “Settlement of disputes to which international organizations are parties”, voiced agreement that a sharp distinction between international disputes and non-international ones is often not feasible.  She voiced her support for the non-inclusion of the word “international” before “disputes” to ensure that disputes of a “private law character” and any disputes that may be qualified as “non-international” fall within the scope of the draft guidelines.  She also expressed support for the explicit inclusion of the phrase “at least one organ capable of expressing a will distinct from that of its members”, which emphasizes that an international organization must have at least one organ with a will of its own, noting the relation with the concept of an organization’s “international legal personality.” 

On “Prevention and repression of piracy and armed robbery at sea”, she cited differences between separate presidential decrees regarding piracy committed within Philippine waters, and acts done in the high seas.  The intention of perpetrators is immaterial, meaning, the acts may be committed in furtherance of private or political ends.  Hence, the counterpiracy regime of the Philippines is even broader in scope and does not have the limitations indicated in the United Nations Convention on the Law of the Sea.  Nevertheless, she expressed support for the Commission’s approach to preserve the integrity of the definition of piracy contained in article 101 of the Convention. Also acknowledging the Commission’s view that certain elements of the definition of piracy contained in article 101 posed questions of interpretation and application, in view of the evolving nature of modern piracy, she suggested that the Commission proceed with caution in this regard.

TIÉMOKO MORIKO (Côte d’Ivoire), aligning himself with the African Group and speaking on “Settlement of disputes to which international organizations are parties”, took note of the two draft guidelines on this topic. He encouraged the Commission to add to this study by closely cooperating with States and other regional legal commissions, such as the African Union Commission on International Law.

Turning to “Prevention and repression of piracy and armed robbery at sea”, he noted that his country — a coastal West African State — is home to two successful ports that have sometimes fallen victim to piracy and armed robbery.  Further, the Gulf of Guinea and the Gulf of Aden have “paid a heavy price” as a result of these crimes.  To prevent and repress these acts, the Government adopted a new maritime code in 2017 that largely draws on elements contained in the United Nations Convention on the Law of the Sea.  Further, it promotes cooperation in this area at the subregional level.  He called on all States parties to the Yaoundé Architecture to redouble efforts to eradicate piracy and armed robbery by establishing relevant jurisdiction for purposes of repression.  While welcoming the draft articles and associated commentaries, he encouraged the Commission to study this topic in further depth on the basis of relevant State practice.

GABRIELE CACCIA, Permanent Observer for the Holy See, speaking on “Settlement of disputes to which international organizations are parties”, welcomed the Commission’s approach to base its guidelines and recommendations on existing practice.  While the Commission currently favours the adoption of guidelines rather that a treaty, the question should remain open for future consideration.  He expressed concern over the inaccurate characterization of the Holy See contained in paragraph 8 of the commentary to guideline 2.  From the early Middle Ages, the Holy See has had an autonomous legal personality and has been active in international affairs, concluding treaties and sending representatives to other sovereigns.  It enjoys sovereign immunity, as all States do.  At the international level, the Holy See is recognized as a State, not as a sui generis subject of international law. Against this backdrop, he requested the Commission to issue a correction of this part of the report.

Turning to "Prevention and repression of piracy and armed robbery at sea", he recalled that piracy was one of the earliest global issues to be addressed by the international community and to receive a common response.  As it continues to evolve, responding to novel strategies, methods and schemes used by pirates requires new legal provisions and approaches.  Welcoming the Commission’s proposal to include within the scope of the draft articles conducts currently not covered by the United Nations Convention on the Law of the Sea, he drew its attention to other contemporary maritime challenges such as the unauthorized use of a State’s flag to commit illicit acts.  That phenomenon, often linked to piracy as well as trafficking in human beings and terrorism, is detrimental to international maritime security, he stressed. 

Cluster 3 Statements

THOMAS RAMOPOULOS, representative of the European Union, in accordance with resolution 65/276 and in its capacity as observer, took up “Subsidiary means for the determination of rules of international law”, concurring that the subsidiary means referred to in Article 38(1) (d) of the Statute of the International Court of Justice are not sources of law that “may apply in and of themselves” but “are used to assist or to aid in determining whether or not rules of international law exist and, if so, the content of such rules” (paragraph 6).  He suggested that the Commission may consider further developing the arguments in support of the above by referring to the fact that each source of international law is based on the will and/or consent of the subjects of international law.  Raising the issue of the level of national courts, whose decisions should be taken into account, he said that not all court decisions necessarily carry the same weight and that the context of the decision, including the placement of a court within the national system, should be taken into account. 

SEBASTIAN BYTH-VISHOLM (Denmark), also speaking for Finland, Iceland, Norway and Sweden, spoke on “Subsidiary means for the determination of rules of international law”, expressing support for working towards a set of draft conclusions.  The Commission has made important contributions in promoting conceptual clarity and consistency in the application of the term “source of law” in the context of its engagement with Article 38 of the Statute of the International Court of Justice.  While there is no single definition of that term in international legal practice or theory, he said that it is clear that the “subsidiary means” referred to in that Article are of a different nature than “sources of law”.  As the Commission rightly pointed out in the commentaries to draft conclusion 1, a careful study of various language versions of the provision sheds important light in this regard.

On that, he noted that the French text of article 38 speaks of “moyen auxiliaire”, while the Spanish version, similarly, speaks of “medio auxiliar”.  Both underline the auxiliary character of such means for the determination of rules, he said, commending the Commission for applying such a multilingual effort. He also stressed the importance of promoting clarity in distinguishing between analysis lex lata and theoretical assessments of the practical effects of decisions and teachings as seen from a sociological or anthropological perspective.  On that, he emphasized that the causes of law — the factors that may influence the growth of international law — must not be confused with formal sources of law.  Further, while agreeing that the Court’s practice has strongly impacted the clarification and progressive development of international law, he stressed that this is not to be confused with a claim that such practice is itself a formal source of rights and obligations for States not party to a dispute.

Turning to “Succession of States in respect of State responsibility”, he noted with interest the different views expressed regarding the future direction of this topic.  However, he said that there is “merit” in pausing for reflection regarding the way forward, stating that the continuation of such reflection in a working-group format during the seventy-fifth session “appears as a sensible choice”.  State succession is a rare occurrence, and the availability of State practice is limited. He therefore encouraged the Commission to maintain a prudent approach as work on this topic continues, adding that he looked forward to further collaboration with the Commission.