Concluding International Law Commission’s Cluster II, Sixth Committee Speakers Begin Cluster III, Debating Interpretations of Expanding Legal Universe
Concluding their debate on the second cluster of topics from the International Law Commission’s annual report — and beginning discussion of the third — speakers in the Sixth Committee (Legal) today covered a wide variety of issues to which international law applies while also contemplating the sources that may inform such law in an expanding legal universe.
Subsidiary means for the determination of rules of international law
“In the late nineteenth and early twentieth centuries, most of the so-called ‘highly qualified’ publicists were old, white European and North American men,” observed the representative of Egypt. “Today, the world is more colourful and diverse,” he noted, adding that today’s legal landscape is populated by multiple international and regional courts and many other actors involved in the processes of international law. The Commission’s study of this topic, then, should provide guidance on how to achieve coherence in the international lawmaking process. The point of departure, he stressed, should be that “States remain the principal authors of international law”.
Nevertheless, the representative of Türkiye joined others in calling for caution regarding the use of decisions of national courts as a subsidiary means. National courts sometimes lack international law expertise, she said, adding that the decisions of lower national courts can be overturned by higher ones. “This is indeed an important difference between national court decisions and decisions of international courts, as the latter could — in certain circumstances — become binding once rendered,” she pointed out.
Similarly, Greece’s representative said that decisions by national courts should be treated with caution, as their findings on questions relating to international law may be specific and limited. “In this context, we recognize that the criteria for assessing their weight are crucial, including — in particular — whether a decision was issued by a higher national court,” she said. Additionally, she welcomed that a more contemporary formulation is used to refer to “teachings” as subsidiary means, which should be understood broadly to reflect diversity and representativeness.
Also suggesting caution in referring to the decisions of domestic courts as a subsidiary means for determining the rules of international law was Colombia’s representative. Such decisions are important in determining the practice of State organs in a particular legal system under conditions specific to that State — rather than representatively reflecting a universal interpretation. Nevertheless, she observed that such decisions can be useful when they clarify relevant national positions on international law or concern the relationship between international and domestic law.
For her part, the representative of El Salvador welcomed that the Commission accorded special relevance to the decisions of the International Court of Justice. To provide greater clarity and to promote dialogue with other regional and international tribunals, she suggested that the Commission add language regarding the decisions of such bodies. For example, the jurisprudence of the Central American Court of Justice could be used as a reference in determining the content of applicable international law.
Settlement of disputes to which international organizations are parties
“The constantly evolving landscape of international relations and the increasing role of international organizations call for robust and equitable dispute-settlement mechanisms,” said the representative of Bulgaria. Welcoming the Commission’s reference to the means for dispute settlement — those “appropriate to the circumstance and the nature of the dispute” — she said this formulation takes due account that, in some situations, specific settlement means may be obligatory under certain agreements. She urged caution, however, in singling out “arbitration” and “judicial settlement” at the expense of other means.
India’s representative also said that the choice of settlement mechanism should be guided by the circumstances and nature of the dispute, taking into account factors such as subject-matter, the parties involved and the urgency of the issue. For its part, India’s commitment to the pacific settlement of disputes is evident in its approach to resolving trade and investment disputes, she noted, “where we prioritize arbitration and other alternative dispute resolution mechanisms”. She added that extrapolating this concept to international organizations would be beneficial.
The representative of Sierra Leone also expressed support for the Commission’s approach of allowing parties to choose methods appropriate to the circumstances and nature of the dispute. On another aspect, he welcomed the Commission’s recognition that smaller or less-resourced parties may face challenges in accessing arbitration and judicial settlement. “International organizations, particularly those operating in developing regions, should not face prohibitive costs or procedural barriers preventing them from accessing justice,” he stressed.
Also addressing access to justice, Malaysia’s representative pointed out that immunity poses significant challenges in disputes involving international organizations. The need to balance immunity with accountability, then, is a complex issue that requires careful consideration. “While immunity is crucial for the effective functioning of these organizations”, she stressed that “it should not obstruct access to justice”. Any mechanisms to address this challenge — including potential amendments to the Statute of the International Court of Justice — should be carefully explored.
August Reinisch (Austria), Special Rapporteur for this topic, took the floor as the Committee concluded its morning meeting to thank delegations for their comments. “This is very important, as it helps the Commission to improve its work,” he said.
In the afternoon, the Sixth Committee turned to the third cluster of topics from the annual report of the International Law Commission, concerning “Prevention and repression of piracy and armed robbery at sea”; “Non-legally binding international agreements” and “Succession of States in respect of State responsibility”.
Prevention and repression of piracy and armed robbery at sea
The representative of Romania, noting that the Commission’s report provides a useful survey and analysis of operations by States and international organizations to prevent and fight piracy and armed robbery at sea, emphasized that it is “obvious” that global collaboration remains essential in addressing these transborder crimes. As Romania is a member of both the North Atlantic Treaty Organization (NATO) and the European Union, he welcomed that the report acknowledges the achievements of these organizations, “which have improved security in high-risk areas”.
Portugal’s representative, for his part, underlined the importance of addressing this issue not only from the point of repression, but also prevention. “Piracy and armed robbery at sea are, in fact, also the result of complex and sensitive economic and social conditions — including those of the perpetrators,” he observed. Urging a holistic approach to this and other maritime-security issues, he added that, as the first line of repression is often carried out by private military and security companies, it is important to gather information on current regulation of such companies’ activities.
Non-legally binding international agreements
Latvia’s representative, also speaking for Estonia and Lithuania, noted both the significant increase in such agreements concluded at the international level and their crucial role in fostering international cooperation — particularly in the context of urgent global challenges. However, she also acknowledged potential concerns regarding lack of oversight of such agreements and their possible implications on existing treaties. Nevertheless, she welcomed the Commission’s “balanced” approach in clarifying the nature and legal effects of such agreements while respecting States’ liberty to use them.
However, the representative of Austria, noting that the terminology currently used by the Commission “is not ideal”, joined others in noting that the term “agreement” may be confusing in the context of this topic. “There is no doubt that the English expression ‘agreement’, for most people, implies a text of a legally binding nature,” he said, suggesting that “instruments” would be the more-suitable term. It is in practitioners’ interest to clearly differentiate between legally binding agreements and texts that are not legally binding, he emphasized.
Regardless of what parties choose to name a document, said Singapore’s representative, “whether it is legally binding or otherwise depends on its contents and the parties’ intent”. Further, she voiced her agreement with the Special Rapporteur that it is imperative to clearly establish — “regardless of which term is used in the title of the topic” — that such term is without prejudice to either the nature and effects of the agreements examined or “the terminological choices that some States may make to guide their own national practice with regard to international instruments”.
Succession of States in respect of State responsibility
Given the variety of views and approaches — and the small amount of practice on this issue — the representative of Belarus suggested that it would be better for the Commission to focus primarily on the codification of existing customary norms of international law, rather than lex ferenda. “In this connection, Belarus has doubts about how appropriate it would be, at this stage, to develop any guiding articles or principles,” he stated.
Similarly, Armenia’s representative suggested that the Commission “emphasize that the working documents prepared in the course of the project should not be accorded the same value as texts that are adopted by the Commission”. As neither the draft articles with commentaries nor the draft guidelines were adopted by the Commission at first or second reading, this should be expressly stated to “facilitate understanding of [their] status in doctrine and practice”. He also remarked: “Incidentally, this point is also relevant for the project on ‘subsidiary means for the determination of rules of international law’.”
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