Sixth Committee Concludes Review on International Law Commission’s Annual Report, Debating Topics on Piracy, Non-legally Binding Agreements, Succession of States
Request for Observer Status of International Coffee Organization Approved by Delegations
Underscoring the important contribution of the International Law Commission to the progressive development and codification of international law, the Commission’s Chair says it also offers adequate answers to the new challenges faced by the international community, as the Sixth Committee (Legal) concluded today its debate on the third cluster of topics of the Commission’s annual report.
At the outset of the meeting, the Committee took up the agenda item “Observer status for the International Coffee Organization in the General Assembly” (document A/C.6/79/L.4) and approved the text, by which the General Assembly decided to invite the International Coffee Organization to participate in its work in the capacity of observer. The representative of Brazil, addressing the Committee before action, reported that since the introduction of the text, five delegations joined its co-sponsorship. (For background, see Press Release GA/L/3722).
Prevention and repression of piracy and armed robbery at sea
As a maritime nation, Japan has been promoting the international order in maritime security and safety for a free and open Indo-Pacific, said its representative. Noting that her Government has contributed to freedom of navigation and overflight, as well as safe maritime transport in Asia and Africa, she reported that it has also dispatched its Self-Defense Forces surface vessels and maritime patrol aircraft to the Gulf of Aiden and the coast of Somalia. Expressing support for the Commission’s approach of maintaining the legal norms on piracy established in the 1982 United Nations Convention on the Law of the Sea, she said that the Convention’s current provisions are key to preserving legal stability.
The Convention on the Law of the Sea should be a starting point in developing and complementing norms addressing piracy and armed robbery at sea, stated Indonesia’s delegate, observing that it remains the “compass for all activities in the ocean”. Highlighting the importance of distinguishing between ‘piracy’ and ‘armed robbery at sea’, he said that the Commission should adopt separate approaches for each act in distinct articles or sections, adding that its draft articles on this topic are a “vital step in translating the Pact [for the Future] into concrete action”.
Similarly, Thailand’s delegate, addressing the distinction between the two acts, said that while ‘piracy’ is a crime under international law, it rests upon each State whether and how to criminalize ‘armed robbery at sea’. The draft article on criminalization under national law implies that States can commit piracy and armed robbery at sea, while article 101 of the Convention on the Law of the Sea states that piracy consists of acts “committed for private ends”. On the statute of limitations, he said that given States’ policy differences on crimes committed in their jurisdictions, it may be challenging, if not impractical, to garner consistent State practice in support of the provisions and opinio juris.
The representative of Eritrea, while highlighting the decline of piracy activities in Somalian waters, said that acts of armed robbery at sea still endanger the safety of international navigation and trade. Observing that the root causes of these crimes can be traced to socioeconomic factors, she stressed that coastal countries should be supported in strengthening their domestic legal frameworks to combat these acts. However, the scope of the draft articles should safeguard the coastal States’ sovereignty, she said, adding: “Littoral States have a vital and indispensable role in securing and promoting a sustainable and stable maritime ecosystem.”
Non-legally binding international agreements
The representative of France said the Commission’s work highlights the difficulty in establishing a legal regime for instruments that do not form a part of treaty law. However, some aspects of non-legally binding international agreements can serve as means of interpreting treaties or help identify opinio juris. The fact that such non-legally binding instruments are ‘non-binding’ in effect, does not mean that they are not mandatory. In this context, he encouraged the Commission to draw from practices of different regions and legal systems, including the Committee of Legal Advisers on Public International Law of the Council of Europe that is reviewing the same issues.
Guatemala’s representative also underscored the importance of considering regional aspects of this question, recalling that the Inter-American Legal Committee and other regional bodies have already dealt with this issue. The Special Rapporteur should be reminded about that Committee’s work as to not cause fragmentation and conflict between the universality and regionality of the matter. While the Special Rapporteur did not consider the 1928 Interamerican Convention on Treaties, which contemplated other mechanisms and concepts for treaties to be terminated, it created a disparity in the application of international law and in the interpretation and application of treaties that Guatemala has signed, he said.
For his part, the representative of Cyprus observed that the title of the document is not the “determining criterion” of the nature of that document, also noting that the use of the term ‘agreements’ in either the title or the substance could be misleading. The Commission’s study should be limited to instruments that would otherwise qualify as treaties but for the legally non-binding nature — instruments adopted between States and international organizations. To that end, Cyprus carries out a careful legal scrutiny to ascertain the nature of legal documents; the intention of the parties and performs legal assessment of specific provisions in accordance with the country’s Constitution and national legislation.
The representative of the Federated States of Micronesia, while noting the Special Rapporteur’s suggestion to limit the draft articles’ scope to agreements where States have “agreed to make a commitment”, emphasized that the Pacific Islands Forum and the Alliance of Small Island States are ‘groups of States’. While the declarations they adopt are not treaties, they express agreements of each group to commit to particular approaches on sea-level rise. He, thus, encouraged the Commission’s specific examination of whether acts made by conferences of States Parties to treaties as governing bodies fall within the scope of this topic.
Mathias Forteau (France), Special Rapporteur on the topic “Non-legally binding international agreements”, said that he views his role as “an investigator who needs to look into State practices”, noting that his first report was preliminary in nature to afford time to define focus, approach and scope. The second and subsequent reports will maintain the same approach and “spirit of openness and collaborative work with the Sixth Committee”, he said.
Succession of States in respect of State responsibility
The Czech Republic’s delegate, voicing concern the Commission’s decision to complete its work on the topic in 2025, noted his delegation was disappointed by that decision. This approach represents a departure from the Commission’s usual practice, he said, recalling that the question of sufficient State practice was also posed during an online working group’s meeting in December 2023. Recalling that the Commission, considering the criteria for inclusion of topics on its programme of work, concluded that there was sufficient State practice, he observed: “State practice could hardly disappear over time. So, we have to ask ourselves whether the Commission was wrong then or whether it is wrong now.”
Slovakia’s delegate also expressed disappointment with the Commission’s decision to discontinue the standard process of this topic’s consideration before the completion of the first reading of draft articles. The outcomes of the Working Group’s considerations in 2023 raises even more serious concerns. Recalling that the change from ‘draft articles’ to ‘draft guidelines’ was met with significant support in 2022, he said that some States’ views were not considered. More so, based on the Commission’s previous products, calls for clearer distinction between the progressive development and codification were hardly a reason to discontinue its work on any of them.
Countering those views, the Russian Federation’s representative said that there is no need for progressive development of this topic because States’ practice in this regard is poultry and teachings give contradictory interpretations to it. She expressed support for the Commission’s decision to create a working group on this topic to draft a report to terminate its work. However, the Commission’s conclusion of its work on the topic, which did not lead to any substantive product, is not a reason for regret. Rather, a conclusion that the Commission is not expedient to continue its work is valuable and important for the international legal institution that is the succession of States.
The representative of Algeria observed that “this is not a subject of broad interest” for Member States, given that few have ratified the Vienna Conventions on Succession of States in respect of Treaties and in respect of State Property, Archives and Debts. He further noted that the topic is “a complex one and has numerous ramifications”, that State practice in this area is “paltry” and that it is linked to many other areas still being codified — including State responsibility for internationally wrongful acts. Against that backdrop, he stressed that the draft articles adopted by the Commission on such responsibility must be considered as guidelines for work on this topic.
Meanwhile, the representative of the Philippines said that her country’s Supreme Court addressed this topic in 1949, when it ruled that a State — after an assumption of sovereignty — continues to be bound by the international rights and obligations of its colonizer. The Supreme Court held, in Shigenori Kuroda v. Rafael Jalandoni, that, at the time in question, the Philippines was under the sovereignty of the United States and, thus, equally bound with the United States and Japan to the rights and obligations contained in the treaties between the belligerent countries. “These rights and obligations were not erased by the assumption of sovereignty,” she pointed out. Nevertheless, she expressed support for the “prevailing tendency” of Commission members to favour a report summing up the challenges inherent in addressing this topic.
Marcelo Vázquez-Bermúdez (Ecuador), Chair of the International Law Commission, noted that the Commission highly appreciated the contributions of States, which are extremely useful for “informing and guiding” its work. As the Commission celebrates its seventy-fifth anniversary with many accomplishments since its establishment in 1949, he recalled that a large part of what are considered today to be the main components of the international legal system found their origins in the Commission’s work. “At a time when the international community is facing serious challenges, international law is key in promoting international cooperation in many areas of international relations,” he said.
Ammar Mohammed Mahmoud Mohammed (Sudan), Vice Chair of the Sixth Committee, echoed the words of gratitude and praise expressed by delegates to the Commission for its successful work outcome, adding: “The important contribution of the International Law Commission to the progressive development of international law, and its codification, speaks for itself.”
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