Speakers Debate Subsidiary Means for Determining Rules of International Law, as Sixth Committee Tackles Commission’s Cluster 3 from Annual Report
Delegates Stress Relevant Practice Lacking on ‘Succession of States in Respect of State Responsibility’
The Sixth Committee (Legal) continued its discussion of the third cluster of topics from the International Law Commission’s annual report today, as delegates debated the weight that should be accorded to the decisions of international courts and tribunals in the context of the body’s work on “Subsidiary means for the determination of rules of international law”. (For background, see Press Release GA/L/3702.)
While noting that the principle of stare decisis does not apply in international law, the representative of the Republic of Korea said that judicial decisions nevertheless play an important role in determining its rules. However, she pointed out that such decisions are only binding on States party to the relevant cases and that, more so, different courts and tribunals can adopt divergent reasoning to answer identical legal questions. She therefore urged the Commission to take a balanced approach when assessing such decisions in this context.
Building on that, the representative of Slovakia cautioned against establishing different standards, relevance or hierarchy between the judicial decisions of various institutions. While underscoring that “the authority of the International Court of Justice is undeniable”, he noted that, in certain cases, the decisions of other international courts and tribunals could be more relevant due to their specialized expertise.
The representative of Belarus echoed that, stating that the Court should not be the most authoritative source on all topics of international law. What should hold greater sway is the practice of specialized international courts and arbitral tribunals, which often comprise qualified jurists with relevant expertise. He also urged that greater attention be paid to subsidiary means, such as the decisions of international organizations, unilateral acts and international documents containing “soft law” norms.
While noting that judicial decisions could contribute to the formation of customary law if they reflect the traditions of various legal systems, Iran’s representative suggested that a distinction be made between those decisions and pleadings made before international courts and tribunals. Pleadings do not reflect State practice, he pointed out. In addition, judicial decisions should be given more weight than teachings, noting that the Court’s citation of the same — besides being rare — often ignores or neglects the Global South.
It is well-known in the practice of international law, said Portugal’s representative, that the decisions of certain countries’ courts and tribunals are invoked more often. Additionally, most academic books and articles are written by authors from certain regions. “There are many reasons for this,” he noted, while spotlighting the risk of universalizing certain views on — and interpretations of — international law. Emphasizing the importance of stability and predictability, he said that discussions on this topic will be useful if they provide relevant actors with a clear idea of what to expect.
The Sixth Committee also considered the International Law Commission’s work on “Succession of States in respect of State responsibility”, with many speakers pointing to the lack of relevant State practice while discussing appropriate future steps.
On that, Italy’s representative said that the scarcity and inconsistency of such practice “does not facilitate in-depth analysis” of this topic. Noting that his delegation is open to considering any options that stimulate constructive debate on issues arising from the provisionally adopted draft guidelines, he joined others in expressing support for the Commission’s decision to establish an open-ended Working Group at its seventy-fifth session.
The representative of Cuba, similarly, observed that the paucity of State practice in this area makes it difficult to take a legal position. Further, there are scant decisions from international courts and tribunals that could decisively contribute to this topic. Against that backdrop, she said that a general underlying guideline could be established, according to which a State’s responsibility is not automatically transferred to its successor except in certain circumstances.
Also offering substantive guidance was India’s representative, who called on the Drafting Committee to further examine issues relating to shared responsibility when a predecessor State continues to exist and obligations apply in relation to a composite or continuing act that occurred during the succession process. She also underlined the need to consider geographically diverse sources of State practice in this regard.
Further discussion on this topic, emphasized South Africa’s representative, would allow for greater certainty when State succession occurs and in the context of State responsibility. Work in this area will complement previous work by the Commission that resulted in the 1978 Vienna Convention on Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, she reported, encouraging further deliberations on the way forward.
Providing a tangible example was Slovenia’s representative, who recalled that those Conventions served as a cornerstone during the dissolution of the former Yugoslavia. The current topic addresses a facet additional and equally important to those covered by such instruments, he said, underscoring the need to establish clear, transparent rules to guide the complicated process of State succession. Because ongoing dialogue is essential, he voiced support for sustained efforts on this topic.
The Sixth Committee will next meet at 10 a.m. on Thursday, 2 November, to conclude its consideration of the third cluster of topics from the Commission’s report on the work of its seventy-fourth session and to conclude its debate on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Cluster 2 Statements
SCOTT TAN (Singapore), on “Subsidiary means for the determination of rules of international law”, voiced his support for the International Law Commission’s choice to omit the qualifying word “judicial” — used in article 38(1)(d) of the Statute of the International Court of Justice — and instead simply refer to “decisions of courts and tribunals” in draft conclusion 2. This broader formulation makes clear that decisions on matters of international law issued by adjudicative bodies may also fall under the scope of that draft conclusion. Further on that draft conclusion, he said that, if the Commission identifies additional subsidiary means that could fall within the “any other means” category, it should also explain how it arrived at such a conclusion. The Commission should also exercise caution to avoid undue expansion of the categories of subsidiary means beyond those that are currently widely accepted. He added that it would be clearer if the term “should” in the introductory text of draft conclusion 3 was replaced with “may”.
YOUNG JU LEE (Republic of Korea), speaking on “Subsidiary means for the determination of rules of international law”, said she agreed with the view that, although international law does not have the principle of stare decisis, judicial decisions play an important role in determining the rules of international law. Expressing her Government’s respect for the decisions of international courts and tribunals, she recalled that such judicial decisions are not binding on States that are not parties to the relevant cases. To this end, the Commission should take a balanced approach to assess such decisions by taking into account the criteria indicated in draft conclusion 3. Noting that sometimes different courts and tribunals occasionally adopt divergent reasoning for identical legal questions, she also pointed to cases in which dissenting or separate opinions prove to be more convincing than the majority view. Turning to draft conclusion 2, she encouraged the Commission to consider whether the additional category may expand the scope of the topic.
Turning to “Succession of States in respect of State responsibility”, she spotlighted a substantial divergence of views among commentators on this topic, also noting that the Commission’s “track record” on the topic is “less than impressive”. She thus questioned whether the topic is “fit or ripe enough” for a codification or progressive development in the form of draft articles, which would eventually be converted into a binding legal instrument by States. Noting that the Commission has partially addressed this concern in deciding to change the form of the final outcome from draft articles to draft guidelines, she said that its decision to continue discussions on the matter but not appoint a new special rapporteur is appropriate.
RAFAEL BERNANDES (Brazil), speaking on “Subsidiary means for the determination of rules of international law”, reiterated that such means do not constitute sources of international law. They do not create legal rules, rights or obligations to any subject of international law and should be conceived as auxiliary means for determining rules arising from the formal sources listed in article 38 of the Statute of the International Court of Justice. The Special Rapporteur could include substantive material from Portuguese-speaking countries in the multilingual bibliography, he noted, expressing concern about the expression “decisions of courts and tribunals” that is broader than “judicial decisions”. He voiced support for decisions of other international tribunals to be taken into consideration on topics that lie within their specific jurisdiction. Reiterating that there is not any system of precedent in international law, he said that teachings as subsidiary means should be restricted essentially to the contribution of collective bodies.
Turning to "Succession of States in respect of State responsibility", he took note of the recommendation of the Working Group that the Commission continue its consideration of the topic. He encouraged the Commission to conclude its work under a specific timeframe, considering its efforts over the last six years.
NICOLE THORNTON (United States), addressing “Subsidiary means for the determination of rules of international law”, urged caution on the use of resolutions or decisions of international organizations as subsidiary means given the high number of such resolutions, most of which are non-binding and often adopted with minimal debate and through consensus procedures. She further expressed support for those members who identified the cogency and quality of the reasoning as an important factor in assessing the weight of subsidiary means. To that she cited the example of when assigning weight to the decisions of courts and tribunals as addressed in draft conclusion 4, it is important to consider whether the decision is well-reasoned. She also stressed that a decision that provides evidence of any conclusions concerning the existence and content of a rule of international law — including references to the extensive State practice and opinio juris upon which it relies — should be accorded more weight than one that is simply declaratory.
On “Succession of States in respect of State responsibility”, she welcomed the incremental approach of the Commission to the topic, particularly the decision to continue consideration of the issue but not proceed with the appointment of a new special rapporteur while the Working Group takes more time to reflect on the best way forward. She looked forward to further engaging on this topic when it is ripe to do so, she said.
MAXIMILIAN GORKE (Austria), speaking on “Subsidiary means for the determination of rules of international law”, expressed appreciation for the Special Rapporteur’s work, but would have preferred more succinct commentaries. Regarding draft conclusion 2 on categories of subsidiary means for the determination of rules of international law, he said he was sceptical about the existence of additional types of subsidiary means as paragraph 5 of the general commentary appears to suggest, and as is explicitly mentioned in draft conclusion 2 subparagraph (c) referring to “any other means generally used to assist in determining international law”. Voicing support that the existing list of subsidiary means contained in article 38 paragraph 1 subparagraph (d) is sufficiently broad, he said the Special Rapporteur and the Commission would have to make a very cogent case for the existence of additional subsidiary means. To this point, he wondered whether the works of expert bodies and resolutions and decisions of international organizations would be useful candidates for such a third category of subsidiary means.
Regarding “Succession of States in respect of State responsibility”, he said it would be most valuable to have a report outlining the scarce but important practice in this field and analysing the legal problems involved.
WALTER FERRARA (Italy), speaking on “Subsidiary means for the determination of rules of international law”, said that, in regard to article 38 of the Statute of the International Court of Justice, the subsidiary means listed in that provision are not themselves sources of law. Rather, they are essential tools for determining existing norms. Turning to draft conclusion 2, he said that its first line should specify that “determination of rules of international law” includes a determination of both existence and content. Welcoming the inclusion of a “representativeness” criteria in draft conclusion 3, he said that the consideration of a variety of subsidiary means issued in different regions and juridical systems is “essential” to ascertaining the existence and content of international law norms “in a way that guarantees the cohesiveness of the international law system as a whole”. Further, he suggested that a reference to such criteria be included in draft conclusion 4.
Turning to “Succession of States in respect of State responsibility”, he said his delegation is open to considering any options that stimulate constructive debate on any issues arising from the provisionally adopted draft guidelines. He highlighted, however, the frequently mentioned scarcity and inconsistency of State practice in this area, which “does not facilitate in-depth analysis”. In the context of this practical challenge, he expressed support for the Commission’s decision to re-establish an open-ended Working Group at its seventy‑fifth session. He also welcomed the proposal for a working group-led process that aims to consider the most significant issues relating to this topic and to develop a final report thereon.
CHARLINE THIERY (France), speaking on “Subsidiary means for the determination of rules of international law”, said that the Commission’s work should not be solely dependent on the work of the Special Rapporteur, underscoring the importance of continuity, irrespective of member turnover. She also noted that the starting point on this topic should be the wording of article 38 of the Statute of the International Court of Justice. Drawing attention to the linguistic differences between “subsidiary means” and “moyens auxiliaires”, she said that the former might be interpreted as a secondary course of international law, whereas the latter implies that these “moyens” [means] cannot be considered as a genuine source of law. In this regard, she suggested conducting an analysis of different linguistic versions of that article, included in paragraph 6 of the commentary to draft conclusion 1. She pointed out that, although this article does not contain a list of subsidiary means, it is important to avoid a broad understanding of these means, which would do more to confuse than to clarify. Further, she observed that draft conclusion 3 contains certain parts that will be difficult to put in practice.
FRASER JANECZKO (United Kingdom), speaking on “Subsidiary means for the determination of rules of international law”, said that the Commission should clarify the status of specific provisions in the commentaries. For instance, the general criteria set out in draft conclusion 3 seems to be better characterized as guidelines than codification of existing law. As the same issue also applies to the second sentence of draft conclusion 5, this could be brought out in the commentary. Expressing agreement that it is important to elaborate the functions of subsidiary means and to define the meaning of determining rules, he cautioned against an undue expansion of such means. He also recalled the Special Rapporteur’s acknowledgement of the need to distinguish between subsidiary means and evidence of the existence of rules of international law. It would be helpful to consider that in more detail before the Commission explores potential additional subsidiary means, he said.
Turning to "Succession of States in respect of State responsibility", he welcomed the cautious, incremental approach adopted by the Working Group. His country remains open as to what output might best assist States going forward, he added.
MICHAEL HASENAU (Germany), speaking on “Subsidiary means for the determination of rules of international law”, stressed that a cautious approach seems advisable when discussing issues related to such fundamental aspects of the international legal system as the rules on determining the sources of international law. On draft conclusion 2, he asked what the exact definition of a “court” or a “tribunal” would be in the view of the Commission. He further questioned where the difference between “judicial decisions” in article 38 of the Statute and “decisions of a court or tribunal” in draft conclusion 2 would lie. He called on the Commission to retain the exact wording of the Statute of the International Court of Justice wherever possible in order to avoid misunderstandings in what the applicable law might be and require. On the position of draft conclusion 3, he said that it might be more appropriate to place it after the definitions of the various forms of subsidiary means.
KATARZYNA MARIA PADLO-PEKALA (Poland), speaking on the topic “Subsidiary means for the determination of rules of international law”, said she agreed on the need to define determination of rules, noting that one approach could be that determination lies somewhere between interpretation and formation of international law. In this respect, the commentary to draft conclusion 1 could elaborate on the distinction between interpretation and determination, she pointed out. Regarding the distinction between the role of international and national courts, she said conclusion 13 of the 2018 draft conclusions on “Identification of customary international law” is a good starting point for making such a distinction, also in the context of work on subsidiary means for determining rules of international law.
Turning to “Succession of States in respect of State responsibility”, she said her delegation is in favour of a working group-driven process aimed at preparing a final report to be adopted by the Commission.
PAVEL EVSEENKO (Belarus), on “Subsidiary means for the determination of rules of international law”, said that greater attention must be paid to subsidiary means other than those to which article 38 of the Statute of the International Court of Justice directly refers. These include the decisions of international organizations, unilateral acts and other kinds of international documents containing “soft law” norms, he added. International organizations and States are already using these means to govern a large portion of international relations, and they play a key role in helping to establish the rules of international law. He also expressed support for the Commission’s consideration of the issue of fragmentation, which is increasingly acute in international law. He emphasized, however, that his delegation does not agree that the International Court of Justice should be the most authoritative source on all topics. What should hold greater sway, he said, is the practice of specialized international courts and arbitral tribunals, which are often comprised of qualified jurists with relevant expertise.
Turning to “Succession of States in respect of State responsibility”, he said that the comments submitted by his delegation on this issue during the seventy‑sixth and seventy‑seventh sessions of the General Assembly “remain relevant”. Welcoming the establishment of a working group on this topic, he expressed support for the Commission’s phased approach to determining its next steps. At this stage, however, it is premature to begin work on a final report on this subject. Rather, the Commission should focus its efforts on the draft guidelines, taking into consideration a wider practice of States across different regions. He suggested a return to discussing how to continue work on this topic no later than the Commission’s seventy‑fifth session, currently scheduled for 2024.
MAREK ZUKAL (Czech Republic), speaking on “Succession of States in respect of State responsibility”, noted that, rather than appointing a new special rapporteur, the Commission decided to establish a Working Group. Observing that the Working Group has primarily focused on options that reflect a minority of views among States, he recalled that, in 1999, twenty-six draft articles with commentaries were finalized by a Working Group. Further, consideration of “Unilateral Acts of States” and “Obligation to extradite or prosecute” was completed, with a set of guiding principles applicable to unilateral declarations of States with commentaries adopted in 2006. In 2014, the Commission also adopted a final report on the second topic that summarized particular aspects of work on the topic. The ensemble of these draft guidelines amounts to a nearly complete set of provisions on the topic, the first reading of which should therefore be finalized by the Working Group. Such draft guidelines, together with commentaries, should then be submitted to the Member States for their comments and observations, including on the most appropriate way towards the completion of Commissions work on this topic.
Turning to “Subsidiary means for the determination of rules of international law”, he recalled that the Commission agreed that subsidiary means are not formal sources of international law, noting it is not necessary to produce theoretical studies on this topic. Instead, he encouraged the Commission to focus on the practical aspects of the use of subsidiary means to provide guidance to practitioners and clarify the relevance of these instruments. He also welcomed a memorandum from the Secretariat surveying the decisions of international courts and tribunals and other bodies. Further, he suggested introducing the word “teachings” in draft conclusion 4, paragraph 2, which implies an inclusive approach to the work of scholars and the doctrine of international law. In addition, the Commission should clarify its approach to article 38, paragraph 1(d) of the International Court of Justice Statute. To that end, he encouraged it to elaborate on the character of resolutions and decisions of international organizations or work of other expert bodies or treaty bodies in light of this provision.
MELINDA VITTAY (Hungary), associating herself with the European Union and speaking on “Subsidiary means for the determination of rules of international law”, welcomed the intention to include a multilingual bibliography to enhance representativeness. She expressed support for including “decisions of courts and tribunals” as subsidiary means without the qualifying word “judicial”. As the International Court of Justice refers to decisions of arbitrary tribunals, these could be mentioned in the commentary. The term “decisions” in a broad sense includes decisions of treaty bodies. Noting the diverging views on that matter, she advocated for a cautious approach. Treaty bodies are allowed to issue only non-binding interpretations and different bodies may interpret a certain right differently. She said that Hungary is ready to provide information on its national practices, if the Commission finds it useful.
LISELOT FRANCESCA EGMOND (Netherlands), taking up “Subsidiary means for the determination of rules of international law”, said that work on the topic could help to identify how soft law, including non-binding instruments agreed by States, may contribute to the identification and application of international law, which is of practical relevance. On the first category of subsidiary means, she said that the quality of decisions should be leading in the assessment of whether it is a subsidiary means. Therefore, she said she was not convinced that decisions as mentioned in draft conclusion 2 could only be judicial decisions of courts or tribunals established by law. There should be no hierarchy between decisions from different courts or bodies and decisions from national courts should not be excluded from the scope of the work. On other subsidiary means as encompassed in draft conclusion 2, subparagraph c, she questioned whether unilateral acts and legally binding resolutions of international organizations should be included as constituting as subsidiary means. "Single unilateral acts only bind the author,” she pointed out, adding that her Government would therefore appreciate further clarification on whether unilateral acts could function as both a formal source and as subsidiary means.
Turning to “Succession of States in respect of State responsibility”, she noted the preponderance of views within the Working Group favouring the conversion of the present format into a working group-based process, with the goal of producing a final report. Meanwhile, the Working Group has preferred to recommend deferring a definitive decision on the way forward to the Commission’s seventy-fifth working session in order to allow more time for reflection. She expressed support for the Working Group’s recommendation not to proceed with the appointment of a new special rapporteur, reiterating that her Government does not support an outcome in the form of draft articles, principles, conclusions or guidelines.
JOSE JUAN HERNANDEZ CHAVEZ (Chile), regarding “Subsidiary means for the determination of rules of international law”, said he agreed with the Special Rapporteur’s initial approach that the basis of the study of the topic should be Article 38 of the Statute of the International Court of Justice. He also welcomed the idea of setting other categories of subsidiary means, in addition to those noted in Article 38. This work should aim to provide guidance to States, international organizations, courts and tribunals and all those called to use subsidiary means for the determination of rules of international law. It should not become a mere repetition of what has been previously noted by the International Law Commission. Turning to the inclusion of more diverse sources and references in more languages and from different regions of the world and different legal traditions, certain common minimum standards should be established to be able to weigh and study such sources and references, he added.
SERGIO AMARAL ALVES DE CARVALHO (Portugal), on “Subsidiary means for the determination of rules of international law”, said that it is well-known in the practice of international law that the decisions of certain countries’ national courts and tribunals are invoked more often as such subsidiary means. Additionally, most academic books and articles are written by authors from certain regions. “There are several reasons for this,” he noted, underlining the need to be aware of the risk of universalizing certain views on — and interpretations of — international law. He also expressed concern over a fragmented system of international law, cautioning against providing States with undefined — or insufficiently defined — legal sources “with which different potential claims could find simultaneous and incompatible support”. Emphasizing the importance of stability and predictability in the relationship between States and other subjects of international law, he said that discussions on this topic will be useful if they succeed in providing relevant actors with a clear idea of what to expect.
Concerning “Succession of States in respect of State responsibility”, he thanked the Commission for not only providing an overview of the state of play concerning, but also for identifying more than one method by which to move this issue forward. Recalling his delegation’s 2022 statement on this topic, he noted that the codification of international law in this area is challenging due to a lack of coherent, consistent State practice. However, he said that it is “undeniable” that much valuable, enriching work has been produced since the inclusion of this topic in the Commission’s programme of work in 2017. He added that his delegation is confident that the Commission — after further deliberation next session — will find the best way to propose a meaningful, useful outcome for this topic.
MAHDAD FALLAH ASSADI (Iran), speaking on “Subsidiary means for the determination of rules of international law”, said that the provisional adoption of draft conclusions 1 to 5 seems to be premature. He noted that the argument concerning the non-exhaustive nature of article 38, paragraph 1(d) is not persuasive and lacks reasoning, emphasizing that it is not clear how the practice of international courts and tribunals would differ from judicial decisions. In addition, the practice of States could constitute a rule of customary international law if it is consistent and based on opinio juris, he said, adding that judicial decisions could contribute to the formation of customary law if they reflect traditions of various legal systems. Encouraging the Commission to make a distinction between written and oral pleadings to international courts and tribunals, he observed that pleadings and legal arguments do not reflect State practice and are used to establish “certain claims based on certain facts”. He further noted that judicial decisions should be given more weight than teachings and legal writings, observing that they can be used to elucidate the rule of the law and are regarded as “evidence of the law”. In the rare cases where the International Court of Justice referred to teachings, its citations have not been representative of the various nations and have not had sufficient diversity to be reflective of principal legal systems of the world, often ignoring or neglecting the Global South.
Turning to “Succession of States in respect of State responsibility”, he welcomed the establishment of the Working Group and commended the decision of the Commission to proceed with draft guidelines instead of draft articles.
PABLO AUGUSTÍN ESCOBAR ULLAURI (Ecuador), taking up “Subsidiary means for the determination of rules of international law”, underscored that the Commission needs to bear in mind and build upon its previous work on the topic, in particular regarding the identification of customary international law, general principles of law and jus cogens. Material or documentary sources should not be qualified as subsidiary means. Judicial decisions and teachings are such means used by courts or tribunals to determine the existence and content of rules of international law. The term “decisions” includes rulings and advisory opinions, as well as orders on procedural and interlocutory issues. Nevertheless, caution must be exercised in seeking to rely on the decisions of national courts and tribunals. While work of expert bodies could be considered as other subsidiary means for determining norms of international law, resolutions of international organizations and unilateral acts of States fall outside the topic’s scope, he said.
Turning to “Succession of States in respect of State responsibility”, he welcomed the decision to reconstitute an Open-ended Working Group during the seventy-fifth session of the Commission to analyse the way forward based on a working paper prepared by its chair. The document will set out the various complexities surrounding provisions approved by the Commission and the different options available. He also called for the establishment of a new working group, co-chaired by several members of the Commission, to work on the substantive aspects of the issue and present a final report to the Commission with a set of guidelines.
PANPAILIN JANTARASOMBAT (Thailand), speaking on “Subsidiary means for the determination of rules of international law”, said the Commission’s consideration of the topic must go beyond an academic exercise to include a careful appraisal of its utility. She stressed the importance of noting the difference between dualist and monist legal systems, noting that in dualist States such as in Thailand, international law must be transposed into national law before it can be enforced by national courts. Thus, most of the decisions by national courts in those States may not directly pertain to the application and interpretation of international law, meaning that those decisions often do not lend themselves to easy usage as subsidiary means. She recalled that the focus of article 38 (1) (d) is on the two listed items, namely judicial decisions and teachings; subsidiary means is referred to in order to describe how the two elements are to be used. Identifying additional subsidiary means risks misinterpreting the article, she pointed out.
Turning to “Succession of States in respect of State responsibility”, she took note of the Commission’s consideration of how to proceed on the topic. Should it decide to continue substantive consideration, she affirmed that the draft guidelines must be grounded on widely accepted State practice and have practical legal significance.
ALINA OROSAN (Romania), speaking on “Subsidiary means for the determination of rules of international law”, commended the Commission for establishing the role of article 38, paragraph (1) of the Statute of the International Court of Justice as a central denominator of the analysis, according to paragraph (4) of the commentary to the first conclusion. Regarding the second conclusion, by which the Commission sets out the categories of subsidiary means, she said the relevance of the decisions of the Court on questions of general international law should be emphasized, without creating a hierarchy in the sense of diminishing the relevance of the decisions of other international courts. Regarding the third conclusion, which sets out the criteria for assessing the weight of subsidiary means for the determination of rules of international law, she welcomed the use of the term "should” in the chapeau of the third conclusion, noting that recourse to these criteria should not be mandatory, but desirable.
Turning to “Succession of States in respect of State responsibility”, she recalled her delegation’s critical position concerning the inclusion of the topic in the active programme of the Commission and noted that it favours the conclusion of the discussions on the basis of a final report.
MATÚŠ KOŠUTH (Slovakia), on “Subsidiary means for the determination of rules of international law”, welcomed the division of different subsidiary means into three categories in draft conclusion 2, as well as the provision of a non-exhaustive list of such means. Further, he encouraged the Commission to clarify the relevance of each criterion for assessing such subsidiary means — contained in draft conclusion 3 — to each such category, as well as whether there is any hierarchy among the criteria. If such a hierarchy exists, then the Commission should reflect the weight of a particular criterion by the order in which it is listed. On draft conclusion 4, he cautioned against establishing different standards, relevance or hierarchy between the judicial decisions of various institutions. While “the authority of the International Court of Justice is undeniable”, he pointed out that, in certain cases, the decisions of other international courts and tribunals could be more relevant due to their specialized expertise.
Moving on to “Succession of States in respect of State responsibility”, he expressed concern over the manner in which the Commission approached the considerable work done so far on this topic. Specifically, he expressed regret that work has not moved forward since the Commission’s last session, despite being ready for adoption on first reading. Reiterating his delegation’s view that the most appropriate outcome would have been draft articles, he nevertheless expressed support for the form of draft guidelines and recalled that such change was met with significant support in the Committee’s 2022 debate on this topic. It is therefore difficult to understand why those views were not taken into account, he said, adding that his delegation expects the Working Group to steer work on this subject towards the completion of first reading. He added that his delegation will follow developments at the Commission’s next session very closely.
YARDEN RUBINSHTEIN (Israel), recalling that it is the twenty-sixth day that 240 hostages — including 33 children — have been held by Hamas, she reported that 8,500 missiles have been fired into Israel’s towns. Emphasizing that, under the Law of Armed Conflict, her country has no obligation to provide for the needs of its enemy — Hamas — she said: “Any claims regarding fuel shortages in Gaza should be addressed to Hamas, demanding it return the fuel it stole to the residents of the Gaza Strip as well as from UNRWA [United Nations Relief and Works Agency for Palestine Refugees in the Near East] facilities.” She further noted that Hamas uses civilian infrastructure to conduct its military activity, contrary to humanitarian law.
Turning to “Subsidiary means for the determination of rules of international law”, she acknowledged the distinction between sources of law and subsidiary means, noting that in draft conclusion 2 the Commission recognized that judicial decisions and teachings aid in determining these rules but are not sources of law. It may be essential to emphasize in the commentaries to draft conclusion 3 that the significance of national or municipal judicial decisions to that end should correspond to the position of the court in the domestic judicial hierarchy. She also suggested inserting "and consistently" after the term "generally" in draft conclusion 2(c). She further concurred with the criteria evaluating the weight assigned to subsidiary means in draft conclusion 3, underscoring the importance of examining the objectivity and impartiality of those involved in the Commission’s work. Similar to the previous criteria, assessing objectivity and impartiality is crucial for determining the overall credibility of a given work, which, in turn, influences the weight attributed to it, she asserted.
MIHA ŠINIGOJ (Slovenia), taking up “Subsidiary means for the determination of rules of international law”, noted that such means are essential tools of international courts and tribunals for the interpretation and application of the principles and norms of international law. As set out in Article 38(1)(d) of the Statute of the International Court of Justice, subsidiary means, such as judicial decisions and the teachings of the most highly qualified publicists, play a vital role in identifying the customary and conventional norms that govern the conduct of States and other international actors. Drawing attention to the need for greater clarity in the use of subsidiary means and their relation to sources of international law, he expressed support to the Commission’s efforts to promote a consistent methodology in this regard.
Turning to “Succession of States in respect of State responsibility”, he underscored the crucial importance of establishing clear and transparent rules to guide the complicated process of succession. Such rules, embodied in the Vienna Convention on Succession of States in Respect of Treaties and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, served as a cornerstone during the dissolution of former Yugoslavia. The current topic addresses an additional and equally important facet compared to the aspects described in those Conventions. The ongoing dialogue represents a further essential development, with the overall objective of a comprehensive codification of all relevant areas of State succession. Against this backdrop, he expressed support for the sustained efforts devoted to the matter.
JAMES KIRK (Ireland), speaking on “Subsidiary means for the determination of rules of international law”, welcomed the Commission’s articulation of the auxiliary function of subsidiary means, particularly with paragraph 6 of the commentary on draft conclusion 1. He voiced agreement that subsidiary means do not constitute a separate or distinct source of international law, but rather are means of elucidating the law. Further to the view expressed during the debate on draft conclusion 2 that a reference to “the most highly qualified publicists” could be historically and geographically charged, he suggested that this is an opportune time to examine also the reference in Article 38(1)(d) of the Statute of the International Court of Justice to publicists “of the various nations”, noting that, notwithstanding the decision to refer simply to “teachings” in draft conclusion 2, draft conclusion 5 replicates the wording “most highly qualified publicists of the various nations”.
KEKE MANTSHO ANNASTACIA MOTSEPE (South Africa), speaking on “Subsidiary means for the determination of rules of international law” and concurring with the Special Rapporteur’s observation, said it is important to consider inconsistent judicial rulings on the same legal issues. There is indeed a need to ensure a degree of uniformity and certainty, she added, welcoming further discussions on interpreting the hierarchy of decisions. On the methodology for determining the rules of international law, she voiced support for the proposal that the data to be used on methodology should rely on materials from all States, regions and legal systems. Voicing concern that draft conclusion 4 provides that rulings from national courts may be used in certain circumstances, she said it would be prudent to elaborate in the commentary on what those circumstances would be.
Regarding “Succession of States in respect of State responsibility”, she said further discussion on the topic would allow for greater certainty in the event State succession occurs, as well as in addressing State responsibility. This topic will complement previous work done by the Commission, which resulted in the 1978 Vienna Convention on the Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, she pointed out, encouraging the Working Group to continue its further deliberations on the way forward.
EVA YELINA SILVA WALKER (Cuba), on “Subsidiary means for the determination of rules of international law”, expressed concern over certain open formulations in the draft conclusions. Urging the Commission to expand on the definition of “any other means” in draft conclusion 2, she also said that the general criterion for assessing subsidiary means listed in draft conclusion 3 are questionable. Further, that draft conclusion neither indicates whether a hierarchy exists in this context, nor what should happen in the case of a contradiction between two subsidiary means. She also emphasized that “the level of generalized acceptance by States” should be prioritized as a criterion, along with previous recognition expressed by States. Further, she stressed that her delegation cannot accept or understand that States’ unilateral political decisions could be used as a means for determining international law.
Turning to “Succession of States in respect of State responsibility”, she said that the Commission’s work on this topic should be based on its draft articles on the responsibility of States for internationally wrongful acts. However, the paucity of State practice makes it difficult to take a legal position and, further, there are scant decisions from international courts and tribunals that could decisively contribute to this topic. She urged the Commission to maintain consistency with its previous work in this area — both in terms of terminology and substance — emphasizing that careful study is needed, taking into account each specific type of State succession. She added that a general underlying guideline could be established, according to which a State’s responsibility is not automatically transferred to its successor except in certain circumstances.
NATALIA JIMÉNEZ ALEGRÍA (Mexico), speaking on “Subsidiary means for the determination of rules of international law”, welcomed the adoption of three draft conclusions and the commentaries thereto, noting that the inclusion of a multilingual bibliography is helpful. She said that in draft conclusion 1 the use of the word “auxiliar” — in line with the Spanish version of the Statute of the International Court of Justice — and the word “subsidiary” in English make clear the complementary role of these types of means. Turning to draft conclusion 2, she emphasized that by only including the word “teachings” — without a qualifier on the competence of publicists related to historically and geographically charged notions — the text stresses the quality of research work. In this context, she underscored the importance of promoting regional, linguistic and gender-based diversity in the production and dissemination of teachings. She also said that the inclusion of an additional category of subsidiary means in subparagraph (c) is an innovation which leaves open a possibility of identifying other means. Noting that the criteria listed in draft conclusion 3 are indicative in nature, she said they are valuable for identifying methodology for this topic.
Turning to “Succession of States in respect of State responsibility”, she said that the work of the Commission was in line with its previous work, reiterating her flexibility regarding the form taken for the draft.
ARIEL RODELAS PEÑARANDA (Philippines), speaking on “Subsidiary means for the determination of rules of international law”, said that “courts and tribunals” encompass both international courts and tribunals and national courts or municipal courts. In the case of teachings, the quality of reasoning should prevail over the renown of an author. Reference should also be made to the degree of representativeness in the context of the draft conclusions and when assessing subsidiary means. In addition to decisions and teachings, the Commission’s work should reflect the extensive practice of international lawyers using a variety of additional subsidiary means and materials to determine rules of international law. Noting the agreement within the Commission that the main function of subsidiary means is to assist in the determination of rules, he noted that the inclusion of a draft conclusion addressing the relationship between subsidiary means and sources of international law could provide further clarity.
Turning to “Succession of States in respect of State responsibility”, he welcomed the Commission’s decision to re-establish, during its seventy‑fifth session, the Working Group with an open-ended composition to undertake further reflection on the way forward for the topic as well as to report to the Commission for further deliberation and decisions.
MARVIN IKONDERE (Uganda), addressing “Subsidiary means for the determination of rules of international law”, called draft conclusion 1 appropriate, as it is in line with the previous work of the Commission on article 38 of the Statute of the International Court of Justice, especially in the draft conclusions and general principles of law and customary international law. On draft conclusion 2, he welcomed the added discussion on the categorization of subsidiary means and agreed with the non-exhaustive nature of the categories expressed in the chapeau. In dropping the reference to “judicial” as included in article 38, the Commission is in conformity with their work on general principles of law and customary international law. He voiced support for the Commission’s choice to exclude the phrase “most highly qualified publicists” and just use the term “teachings” to describe the second well-established category of subsidiary means — as that phrase is “a historically and geographically charged notion that could be considered elitist”. He welcomed the Commission’s debate on whether to include “racial diversity” alongside “gender and linguistic diversity.”
KAJAL BHAT (India) said that the Commission’s future work on “Subsidiary means for the determination of rules of international law” would contribute to the progressive development of international law and follow its study of other sources of international law. However, the Commission should take into account limitations on such subsidiary means, particularly those set out in article 59 of the Statute of the International Court of Justice. Urging the Commission to proceed in a rigorous, prudent, inclusive and balanced manner, she said that the most important issue to address is whether subsidiary means are limited to judicial decisions and the teachings of highly qualified publicists, or if they also encompass additional means. It is imperative that the Commission bridge the gap in clarity, predictability and uniformity relating to subsidiary means for the determination of international law, she stressed, adding that her delegation looks forward to progress in this regard.
On “Succession of States in respect of State responsibility”, she took note of the proposed structure of draft guidelines for the Commission’s work, along with the Special Rapporteur’s proposals relating to the definition of “States concerned” in draft guideline 2. Further, she called on the Drafting Committee to further examine issues relating to shared responsibility when a predecessor State continues to exist and obligations apply in relation to a composite or continuing act that occurred during the succession process. She also underlined the need to consider geographically diverse sources of State practice on this topic, adding that describing the relationship between State practice and each draft guideline would indicate whether a particular provision is either supported by State practice or constitutes the progressive development of international law.
ALAN E. GEORGE (Sierra Leone), speaking on “Settlement of disputes to which international organizations are parties”, highlighted the nexus of draft guidelines 1 and 2, which sets out the use of the terms “international organization”, “dispute” and “means of dispute settlement”. He observed that addressing disputes under national law will require the Commission to examine the question of the immunity of international organizations balanced against the human rights considerations of the need for victims to obtain remedies for harm caused to them. While noting that the clarification of international legal personality is helpful, he said he does not see the need to include the notion of at least one organ capable of expressing a will distinct from that of its members.
On “Prevention and repression of piracy and armed robbery at sea”, he stressed that the draft articles could be more suitable for a topic in the realm of criminal law and would allow the Commission to provide States with a concrete objective and practical legal solutions to the problems posed by piracy and armed robbery at sea. He welcomed the Commission’s bifurcated approach regarding piracy and armed robbery at sea in draft article 1, while also welcoming its overall goal to preserve the integrity of the internationally agreed definition of piracy according to the 1982 United Nations Convention on the Law of the Sea in draft article 2. He further commended the approach taken in draft article 3 and the inclusion of offences relating to armed robbery at sea.
Turning to “Subsidiary means for the determination of rules of international law”, he welcomed the Commission’s efforts to clarify the issues that have arisen in relation to the directive included in the Statute of the International Court of Justice. Turning to draft conclusion 2, he said that “any other means” — which, in his view, merits studying — would necessarily include subsidiary means that have developed since 1945, particularly certain resolutions of international organizations and the works of expert bodies created by States. They include human rights treaty bodies and private expert bodies, including the Institute of International Law, and hybrid or mixed bodies, such as the International Committee of the Red Cross. He further concurred with the Commission’s reference to “teachings” in the second category and abandoning the “most highly qualified publicists” formulation.
On “Succession of States in respect of State responsibility”, he commended the establishment of the Working Group to consider the way forward on the topic.
NUR AZURA BINTI ABD KARIM (Malaysia), speaking on “Subsidiary means for the determination of rules of international law”, noted that draft conclusion 1 is silent on the meaning of the phrase “subsidiary means” and its effect. The word “teachings” — as referenced to in paragraph 1(d) in Article 38 of the Statute of the International Court of Justice — is not reflected in subparagraph (b) of draft conclusion 2. Concerning the categories of subsidiary means in subparagraph (c) of draft conclusion 2, the non-exhaustive formulation seems to overemphasize the broad scope of such categories. Additional qualifiers to provide clarity are needed, as the criteria outlined in draft conclusion 3 are not intended to determine whether a particular material is to be considered a subsidiary means. Since the Commission has agreed with the Special Rapporteur that “subsidiary means” are not sources of international law, the purpose of weighing them is not clear, she said.
ALESSANDRA FALCONI (Peru), taking up “Subsidiary means for the determination of rules of international law”, said the draft conclusions on the matter, together with the comments thereto, are of special relevance, as they contribute to clarifying the use of subsidiary means and their relationship with the sources of international law. Furthermore, she welcomed the systematic methodology presented for their use to determine the existence and content of rules of international law. She expressed full support for draft conclusion 2, which establishes the categories of subsidiary means, bearing in mind that Article 38 of the Statute of the International Court of Justice does not establish an exhaustive list of those means. She also recognized the valuable contribution of the decisions of courts and tribunals and of teachings as subsidiary means for the determination of the rules of international law. She further welcomed the fact that the recognition of decisions of courts and tribunals has adopted a broad and practical approach.
Turning to “Succession of States in respect of State responsibility”, she reiterated her recognition of the valuable work of the Special Rapporteur, which has made significant progress possible in the treatment of the matter. She further noted the recommendation of the Working Group to reconstitute a working group again at the seventy-fifth session of the Commission, to continue to analyse how to move forward on the issue.
EVGENY A. SKACHKOV (Russian Federation), speaking on “Subsidiary means for the determination of rules of international law”, cautioned against raising the status of subsidiary means to the level of secondary sources and giving judicial decisions the force of precedent. He welcomed the detailed description of “subsidiary” — in the sense of “auxiliary” or “supplementary” — role of subsidiary means in the commentary to draft conclusion 1, noting that it is a “right” and not a “duty” of the law enforcer. He also said that the word “determination” — used in Article 38 of the International Court of Justice Statute — in the meaning of “identification” and not “establishment of the rule” could be reflected directly in the text of draft conclusions, proposing to move away from the literal reproduction of Article 38 in draft conclusion 2. He said it was unacceptable to have an imbalance towards judicial decisions and teachings from common law countries, pointing to the particularly significant role of subsidiary means for determining legal norms in the “English speaking world”. He, thus, urged the Commission to develop criteria to ensure the use of judiciary decisions and teachings of various nations as subsidiary means.
Turning to “Succession of States in respect of State responsibility”, he said it is noteworthy that the Working Group recommended the Commission to postpone the consideration of this issue to the next session rather than appointing a new special rapporteur. In this regard, the position of the Russian Federation on the future of the Commission’s work not only remained unchanged but has been further strengthened, he said.
MICHAEL STELLAKATOS LOVERDOS (Greece), speaking on “Subsidiary means for the determination of rules of international law”, said that the Commission could analyse further the distinction between subsidiary means and the evidence of the existence of rules of international law. The term “decisions of courts and tribunals” should encompass merely decisions and judgments, including advisory opinions and orders, of organs established as courts or tribunals by relevant international instruments and not of other bodies of persons or institutions. Further clarification is needed on the treatment of the national courts’ decisions as subsidiary means and some additional criteria or requirements are needed. Resolutions or decisions of international organizations could also contribute to the determination of rules of international law. On draft conclusion 3, he encouraged the Commission to clarify further which criteria could be applied to specific categories of subsidiary means and examine the inclusion of further criteria.
MAEDA GENSAKU (Japan), speaking on “Subsidiary means for the determination of rules of international law”, said that elements which are not included in the scope of Article 38 of the Statute of the International Court of Justice as subsidiary means for interpretation cannot be added without an amendment. He, thus, requested further explanation about what is included in “any other means” and the criteria for classification in the draft conclusions and the commentary. He also expressed hope that the general criteria used to assess the weight of subsidiary means to determine rules of international law will be further discussed and explained.
Turning to the topic “Succession of States in respect of State responsibility”, he noted that the final form of the draft articles was changed to draft guidelines due to the limited State practice. He encouraged the Commission to focus on selected topics reflective of the needs of States and pressing concerns of the international community. He also said he preferred the Working Group to prepare the report on this topic.
EDGAR DANIEL LEAL MATTA (Guatemala), speaking on “Subsidiary means for the determination of rules of international law”, noted that they play an irreplaceable role in the international system. The Commission’s work on this topic will help strengthen the performance of the functions of the main judicial organ of the United Nations — the International Court of Justice — and other jurisdictional bodies to which States have entrusted their most important disputes. In this way, the Commission’s work can contribute to making the application of international law more predictable and certain in specific cases. He further emphasized the Commission’s enormous responsibility in allowing delegations to delimit which subsidiary means can effectively contribute to the determination of rules of international law — a sphere of legal theory that lacks certainty and uniformity of opinion. Recognizing that one of the Commission’s roles is the progressive development of international law, he welcomed the idea of studying other categories of subsidiary means in addition to those indicated in article 38 of the Statute.