In Annual Visit to Sixth Committee, International Court of Justice President Stresses ‘Ultimate Concern of International Law Is Indeed the Human Being’
During the International Court of Justice’s annual visit to the Sixth Committee (Legal), its President emphasized that people’s rights are the ultimate concern of international law, as he spoke about the place of the individual in the Court’s jurisprudence and highlighted the significant increase involving human rights aspects.
Welcoming Nawaf Salam, President of the International Court of Justice, along with other members of the Court, the Sixth Committee Chair Rui Vinhas (Portugal) underscored that the Court’s jurisprudence is of the utmost importance for the progressive development and codification of international law. “We are keen observers of the Court and always appreciate receiving a description of its activities from the perspective of the Court,” he added.
Addressing the Committee, Justice Salam emphasized that, in line with the Pact for the Future, people should be at the centre of all UN actions. Only States may be parties to proceedings before the Court, yet there are ways by which individuals can see their rights protected. Although the Court has witnessed a significant increase in cases involving human rights treaties, it does not lose sight of the rights and interests of human beings in the exercise of its judicial dispute settlement function, he said.
The increase of cases regarding human rights treaties in the context of armed conflict and requests for conservatory measures is “a sign that States do not hesitate to approach the Court even in times of war,” he said. To determine a risk of irreparable prejudice to the rights of a State which are at issue in proceedings brought based on a human rights treaty, the Court examines if such prejudice could cause harm to the protected rights of the persons concerned. In several cases brought on the basis of the International Convention on the Elimination of All Forms of Racial Discrimination, the Court decided that the rights conferred by this Treaty are such that harming them could be considered irreparable. Furthermore, psychological distress and abuse could also cause such prejudice as seen in cases Armenia v. Azerbaijan and Qatar v. the United Arab Emirates.
The ultimate beneficiaries of human rights treaties are individuals; these rights are protected, along with those of States, when the Court indicates the need for conservatory measures, he noted. He further detailed cases with individuals as ultimate beneficiaries, including Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. the Russian Federation) and Azerbaijan v. Armenia, provisional measures, order of December 7, 2021, among others. Turning to South Africa’s recent case against Israel — Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip — he said the Court ordered Israel to take immediate measures to enable provision of humanitarian assistance.
Highlighting the Court’s jurisprudence to recognize individuals’ rights in its judgments, he said that Ahmadou Sadio Diallo (Guinea v. the Democratic Republic of the Congo) is a “milestone” in that trend. In its judgement, the Court expanded the scope of diplomatic protection and encompassed internationally guaranteed human rights. If the parties fail to find agreement on reparations within six months, the Court then determines compensation. In this regard, the Court’s ruling on Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) was the first time the Court had to fix reparations for damages involving a large group of victims in a large-scale armed conflict by awarding a global sum.
He also noted that, in its advisory opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory — rendered 20 years ago — the Court found that Israel had an obligation to make reparation for the damage caused to all the natural or legal persons concerned. In its advisory opinion on this topic of 19 July 2024, the Court stated that Israel has an obligation to make reparation for the damage caused.
On many occasions, the Court has taken the view that “peoples”, and not only States, can be holders of rights and obligations under international law, he continued. Its advisory opinion on Western Sahara in 1975 referred to self-determination not only as a “principle” but as a “right of peoples”, which later “crystallized” as a binding customary rule. In cases of foreign occupation, the right to self-determination constitutes a peremptory norm of international law. In its latest advisory opinion, the Court stated that the scope of application of this right is the right of a people to determine freely a political status and to pursue an economic, social and cultural development. “The ultimate concern of international law is indeed the human being,” he emphasized.
Representatives, including Canada, Sri Lanka, El Salvador and Colombia commented, among other points, on the Court’s proposed programme budget for 2025, acknowledging that the Court needs more resources to discharge its duties.
Justice Salam — while noting that “doing more with less” is “a beautiful slogan” — added: “But, unfortunately […] we are not asked to do more. We are asked to do much more.” He recalled that 25 States intervened in the Court’s proceedings concerning the Occupied Palestinian Territory, and that 91 did so when its case related to climate change. Spotlighting the translation, interpretation and legal-support services required for this huge volume of submissions, he detailed the Court’s request for a “modest increase” of $1.1 million in its 2025 proposed budget. “I don’t think that is the moon,” he commented, noting that the Court’s entire budget represents less than 1 per cent of the entire Organization’s budget.
Philippe Gautier, the Court’s Registrar, noted that the Advisory Committee on Administrative and Budgetary Questions only recommended that two out of the seven posts the Court requested be filled. “We are not going to be directly affected if the Fifth Committee [Administrative and Budgetary Questions] does not approve the posts we are requesting,” Mr. Salam said. “It is, in fact, you that will be directly affected.”
The Sixth Committee then took up Cluster II of the International Law Commission’s report, including “Settlement of disputes to which international organizations are parties” and “Subsidiary means for the determination of rules of international law”.
Settlement of disputes to which international organizations are parties
Austria hosts numerous international organizations, that country’s delegate noted. Thus, while questioning whether the reference “good faith and the spirit of cooperation” is useful in the present context, he said that the choice of dispute settlement should be guided by the dispute’s nature to determine if negotiation or adjudication is more appropriate in a dispute between an international organization and a State. Further, the availability and practical accessibility of adjudicatory forms of dispute settlement is conducive to informal dispute settlements, he added.
Meanwhile, Denmark’s representative, also speaking for Finland, Iceland, Norway and Sweden, observed that the draft articles include a “slightly modified” definition of “international organization” compared to the one in the text on the responsibility of international organizations. To ensure consistency, he suggested the previous definition be used, also aligning with the Commission that the lack of use of third-party adjudication may often be a policy choice rather than an effect of existing laws’ shortcomings. Regarding the accessibility of dispute settlement means, he said that highlighting arbitration and judicial settlements may leave the impression that this is preferable to other means.
Subsidiary means for the determination of rules of international law
Brazil’s delegate, encouraging the Commission to reconsider the meaning attributed to the terms “courts and tribunals”, urged that paragraphs 8, 9 and 10 of draft conclusion 8’s commentary be redrafted to remove references to findings of non-judicial bodies, such as human rights commissions. Further, instead of stating that teachings are subsidiary means, the Commission should redraft draft conclusion 5 to indicated that teachings “may be used” as such. However, he welcomed the reference to gender and linguistic diversity in this draft conclusion.
The representative of Cuba said that the open-ended wordings on draft conclusions were not clear, including in draft conclusion 2(c). She encouraged the Commission to extend its definition on “any other generally used means”. The general criteria for assessing a subsidiary means, listed in draft conclusion 3, are debatable and should be questioned. Among other points, she also said that as a criterion for determining a subsidiary means, the level of generalized acceptance of States should prevail. While unilateral judicial could generate norm of international law, unilateral political decisions cannot determine international law.
Meanwhile, Charles Chernor Jalloh (Sierra Leone), Special Rapporteur on this topic, emphasized that the Commission “follows every single word that you are stating here in the Sixth Committee”. Welcoming the 53 submissions from the floor and additional written comments from the Committee’s 2023 debate, he looked forward to more submissions in the coming days. “Rest assured that I am taking very careful note,” he added.
Sea-level rise in relation to international law
The Sixth Committee also concluded its consideration of Cluster I topics from the International Law Commission’s report, with Serbia’s delegate, on sea-level rise, noting that, although his country is not directly affected, the phenomenon has far-reaching implications. The 1982 United Nations Convention on the Law of the Sea does not provide answers to all the concerns States face, but most of its provisions reflect the rules of customary international law, he said.
Armenia’s representative, while concurring that “the emphasis should be placed on the interpretation and innovative application of existing treaties and arrangements” in State practice, invited the Commission to reconsider its decision, in 2018, not to propose amendments to the “constitution of the oceans”.
Patrícia Galvão Teles (Portugal), Co-Chair of the Study Group on sea-level rise, acknowledging the 80 delegations who spoke, said she was encouraged by such an overwhelming response. Spotlighting the high-level General Assembly meeting on sea-level rise in September, she also pointed to ongoing advisory proceedings before the International Criminal Court and the International Court of Justice. The final consolidated report with a set of conclusions will be issued in 2025.
At the outset of the meeting, the Committee observed a moment of silence in memory of several distinguished jurists connected to both the Commission and the Court. Mr. Vinhas observed: “The passing of Judges Vereshchetin and Elaraby and Verhoeven is a sad loss for the community of international lawyers”.
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