Sixth Committee Continues Debate on Cluster I of International Law Commission’s Report, Tackling State Officials’ Immunity, Sea-Level Rise, Working Methods
As the Sixth Committee (Legal) continued its debate on Cluster I of the International Law Commission’s annual report, some delegates called for the list of crimes relating to the immunity of State officials from foreign criminal jurisdiction to be expanded, others underscored the importance of international cooperation in tackling sea-level rise, while still others urged the Commission to consider the plurality of different legal systems in its future work.
“There is no superior or inferior civilization or legal system. They are just different”, said the representative of China at the outset of the meeting. Thus, future codification and the Commission’s work should pay greater attention to the developing countries — non-English and French-speaking countries and non-Western civilizations — to ensure that the outcome of its work reflects opinio juris and the plurality of legal systems. Noting that the selection of topics “should be aligned with the times” and focus on diplomatic problems of States, he emphasized that the Commission should be “client-oriented” and reflect State practices of all major civilizations and legal systems.
Immunity of State officials from foreign criminal jurisdiction
Australia’s representative encouraged the Commission to reflect new and relevant developments in State jurisprudence as the draft articles on the immunity of State officials from foreign criminal jurisdiction and their commentaries continue to mature. Noting that his country is a strong proponent of accountability for serious international crimes, he acknowledged that there is a discernible trend of the non-applicability of functional immunity for serious international crimes at the national level. He welcomed steps towards the development of procedural safeguards to protect State officials from unsubstantiated and politically motivated prosecutions, noting that in cases of competing claims of jurisdiction, the State of nationality or the State in the territory of which the criminal conduct was alleged to have occurred shall have primary responsibility to investigate and prosecute any alleged serious international crimes.
For her part, Croatia’s delegate expressed support for draft article 7 as a central provision for ensuring accountability for the most heinous crimes. Emphasizing that the crime of aggression is the "mother of crimes", during which numerous war crimes and crimes against humanity are committed, she stressed that the list of exceptions to functional immunity in draft article 7 should also contain a reference to the crime of aggression. Recalling that Croatia was a victim of aggression during the 1990s, she encouraged States to reconsider the inclusion of this crime in that draft text. “It is a leadership crime which requires to overcome immunities in order to ensure accountability,” she added.
Sea-level rise in relation to international law
The representative of Cuba noted that “while the planet is showing alarming symptoms of disease” caused by unsustainable patterns of production and consumption, countries in the “developed north” continue to expand their fossil fuels industry. Although the 1982 United Nations Convention on the Law of the Sea does not provide responses to questions posed relating to the consequences of sea-level rise due to the historic time when it was adopted, States should ensure respect for its provisions on maritime limits and boundaries even if they undergo physical changes due to sea-level rise. To that end, Cuba has various national plans, including an ambitious policy to address climate change, “Tarea Vida” [Life Task], she reported, adding: “International cooperation must become the basic fundamental premise for the consideration of this issue.”
Echoing that stance, South Africa’s delegate called on States to engage in international cooperation through the provision of technical or logistical assistance, qualified human resources or financial assistance. She highlighted the potential threat to human rights enjoyed by a population or a community of people as a consequence of sea-level rise. This presents a new challenge that current legal frameworks are not equipped to resolve or address, she said, encouraging directly-affected States to start concluding bilateral or multilateral agreements and define instruments that could be adopted within the framework of regional or universal international organizations.
On the question of sea-level rise in relation to statehood, the representative of the Netherlands observed that when large parts of the land surface of a State or its entire land surface are submerged by the sea, the actual exercise of authority over the State’s original territory may become complex and sometimes even impossible. However, given the continuity of the right of self-determination of the population of the State affected by sea-level rise — and presuming that this population has expressed the wish to continue the independence of the State — it could be argued that the Government continues to possess an exclusive title to exercise authority over the area within the formal boundaries of that State and over the people of that State even if and when they are displaced as a result of sea-level rise. “This would constitute a sound legal basis of the presumption of the continuity of Statehood, at least in these particular situations,” he said.
Other decisions and conclusions of the Commission
The representative of the Czech Republic noted with interest the inclusion of the two new topics in the Commission’s long-term programme of work — compensation for damages caused by internationally wrongful acts and due diligence in international law. He recalled that his delegation, together with other States, proposed that the Commission refer to the topic “Universal criminal jurisdiction” as this topic is subject to intense discussions and has already been included in the Commission’s long-term programme for some time.
Thailand’s representative, also taking note of the two new topics included in the Commission’s long-term programme of work, underscored the importance of capacity-building and spotlighted the “unique opportunities” that the International Law Seminar provides for young international lawyers. Reiterating a call for the Commission to provide greater clarity on international law principles of international investment treaties, she said this would be most beneficial for developing countries. “Clarity in international investment law is essential to help developing countries to get closer to achieving the SDGs [Sustainable Development Goals],” she stated.