Reviewing International Law Commission’s Report, Sixth Committee Speakers Debate State Officials’ Immunity beyond ‘Troika’, Sea Level Rise’s Impact on Statehood
The Sixth Committee (Legal) continued its discussion of the first cluster of topics from the International Law Commission’s annual report today, with statements centring on the nature of States as legal entities — be that in the context of their continuity amidst rising seas, or their ability to effectively conduct their affairs by guaranteeing certain immunities to officials acting on their behalf.
Immunity of State officials from foreign criminal jurisdiction
Stressing the importance of striking a balance between respect for States’ sovereign equality and the need to combat impunity when international crimes are committed, the representative of Equatorial Guinea also underlined the need to protect State officials against politically motivated and “illegitimate” exercises of criminal jurisdiction. While also expressing support for the Commission’s decision to limit immunity ratione personae to the “troika” (Head of State, Head of Government, Minister for Foreign Affairs), she urged the Commission to provide additional guidance for other high-ranking officials carrying out important international functions.
The representative of the United Arab Emirates, on that, emphasized that immunity ratione personae should extend beyond the troika. In their current form, the draft articles do not accurately capture “the very rationale” of this form of immunity, he said, “which is to preserve the State’s prerogative in conducting its international relations”. Also expressing support for the proposal to provide further explanation on the relation between the rules of attribution under the law of State responsibility and the immunity of State officials — concepts that are “indisputably linked” — he said: “Sovereign equality precludes the possibility of circumventing States’ immunities by subjecting agents who act on their behalf to foreign domestic proceedings.”
Similarly, Algeria’s representative underscored that the exercise of criminal jurisdiction must not be abused for political purposes against national leaders to prevent them from carrying out their duties or to interfere in another country’s affairs. The progressive development and codification of international law in this area must be established “using a general approach that respects States’ equality as to their sovereignty when criminal jurisdiction is being exercised”, he urged. But, while sovereign equality must be promoted, he also expressed support for combating impunity “because this undermines the stability of international relations”.
Sea level rise in relation to international law
Noting the “significant” legal issues related to sea level rise, the representative of Estonia pointed to the need to find innovative legal and practical solutions to address the continuity of statehood in this context. One option is to organize or strengthen digital platforms to connect nationals of an affected State. Estonia, for example, offers more than 600 e-services to its nationals, residents and businesses, and 99 per cent of public services are available online. “Estonia’s experience as a digital society confirms that this is a measure that is not difficult to implement and may be suitable for small States affected by sea level rise,” she said.
Similarly, India’s representative emphasized that transformative adaptation and mitigation approaches are needed to address the impact of rising sea levels. India — a country with a long coastline — is cognizant of the “immense challenge” of understanding the complex legal issues associated with the phenomenon. However, on the issue of continuity of statehood, she emphasized that “greater caution must be exercised in considering the presumption of continuing statehood in favour of the States directly affected by sea level rise” — particularly in light of the criteria stipulated in the Montevideo Convention.
Yet, Jamaica’s representative said that the Montevideo Convention does not address the loss of statehood, underlining the need to distinguish between the criteria for the creation of a State and those for its continuity. Discussions on maritime issues must be anchored, rather, on the 1982 United Nations Convention on the Law of the Sea and must prioritize legal stability, security and certainty. Spotlighting the direct threat that sea level rise poses to his country, he stated: “Without shoreline defences, our capital city Kingston could permanently lose 5 per cent or more of the city by the end of the century.”
“Statehood cannot be extinguished except through a voluntary act by the population constituting the relevant State,” underscored the representative of the Federated States of Micronesia, adding: “This is a necessary bar to clear if international law is to remain stable, equitable and just.” He therefore urged the Commission to exercise greater caution when using language regarding the “existential” threats to States in connection with climate change-related sea level rise. He also cautioned against an “overreliance” on the draft articles on the protection of persons in the event of disasters in this context.
“We take everything down that you are saying,” noted Juan José Ruda Santolaria (Peru), the Special Rapporteur for the topic. “We take this job very seriously because we know how important this topic is and how great our responsibility is,” he said, emphasizing that the Commission always bases its work on the foundation of international law.
Other decisions and conclusions of the Commission
On one of the topics included in the Commission’s long-term programme of work — “Compensation for the damage caused by internationally wrongful acts” — the representative of Chile recalled that draft articles on the responsibility of States for internationally wrongful acts were adopted in 2001. Since then, sufficient jurisprudential development has occurred on both the regional and international levels. Supporting further work on this issue, he said that it should consider that the issues of “compensation” and “causality” have been relevant topics in the International Court of Justice’s discussions on climate change.
More specifically, Argentina’s representative underscored that — if the Commission makes headway on this topic — the issue of the interest rate to be set should be dealt with very carefully. The Commission should not limit itself to “blindly recite” what has been said in various awards by arbitral tribunals examining disputes between investors and States, she said, noting State criticism of some tribunals’ practice of fixing compound interest rates in this context. It would not be for the Commission, therefore, to affirm that the practice of compound interest is an accepted practice — even in the limited area of investor-State disputes.
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