Continuing Review of International Law Commission Report, Sixth Committee Speakers Debate Sea-Level Rise’s Impact on States’ Rights, State Officials’ Immunity
Continuing their debate on the first cluster of topics from the International Law Commission’s annual report, speakers in the Sixth Committee (Legal) today weighed in on how international law should address novel topics — such as how rising sea levels will affect the rights of States submerged — and complex ones, such as how to uphold immunity while avoiding impunity.
Sea-level rise in relation to international law
“In this era of unprecedented and relentless sea-level rise, international law must evolve to meet the climate crisis and the disproportionate effect that it has on SIDS [small island developing States],” stressed the representative of Samoa, speaking for the Alliance of Small Island States. Many of the tools to do this exist, but they must be interpreted and applied to current circumstances. The Commission’s work, she noted, “is one indication that the law is incorporating the reality that we are facing on the ground”.
Small island developing States face no existential threat to their statehood from sea-level rise, she declared, adding: “We must not conflate the physical reality of land territory disappearing or becoming uninhabitable with the legal rules concerning statehood and sovereignty.” Tonga’s representative — speaking for the Pacific Islands Forum — added his agreement, noting that while climate change represents “the single greatest threat” to livelihoods, security and well-being of Pacific peoples, “such a threat does not extend to the status of our members as States under international law.”
The growing attention paid to this issue speaks to the importance of ensuring legal and political approaches that work in harmony to benefit those most affected by this phenomenon, said Liechtenstein’s representative. States whose land is most affected by rising sea levels must be given legal certainty to uphold their right to self-determination, he stressed, expressing support for the establishment of criteria for the continuity of statehood that reflect the novel legal challenges in this area.
The representative of the United Kingdom noted that the implications of sea-level rise — including those relating to statehood and the protection of persons affected by the phenomenon — “represent fundamental aspects of international law beyond the issue of sea-level rise”. She therefore expressed support for approaches to addressing these issues that are “grounded in international law, with a view to potential broader consequences”. “The ultimate goal is that this product be useful for States,” Colombia’s representative emphasized, “but there must be sufficient legal foundation.”
States’ sovereign rights over their territory and surrounding maritime zones should be preserved according to international law, said Nigeria’s representative. Further, while emphasizing the obligation of international cooperation in this area, she underscored that international intervention — in any form — must be done with the consent of the States concerned and be guided by international law. Further, she urged the Commission to deepen its collaboration with Member States and regional and international legal commissions on relevant topics of international law.
On the Commission’s recognition of the slow and set nature of sea-level rise, Hungary’s representative welcomed the scenario-based approach in its analysis of general human rights obligations. “We find this structure both practical and forward-thinking,” he said. Urging a unified approach to clarify States’ duties and responsibilities in this context, he said that his Government remains cautious about referencing soft-law instruments that provide guidelines for the protection of persons displaced by rising seas. While such instruments may reflect States’ opinio juris, they remain “essentially” policy driven.
Meanwhile, the representative of El Salvador said that future work on the protection of those affected by sea-level rise would preferably take the form of a legally binding instrument that has “general principles of human dignity as its cornerstone”. Human dignity, she emphasized, should be the “core focus” of any measure or norm considered in the future. Quoting Brazilian jurist Antônio Augusto Cançado Trindade, she declared: “Above the will of States as rightsholders and bearers of obligations lies the conscience of humankind.”
Immunity of State officials from foreign criminal jurisdiction
The representative of the Republic of Korea, noting that the draft articles on this topic “took a rather long period” before being adopted on first reading, said that they “appear to contain some inconsistencies” that need to be addressed. For example, many judicial decisions cited in the draft articles’ commentaries address immunity from civil — rather than criminal — jurisdiction. “Mixing the two different regimes of immunity can negatively impact the work on this sensitive topic,” she warned.
Pointing to another issue, Eritrea’s representative said that, when the Commission identified a “discernible trend” towards limiting the applicability of immunity from jurisdiction ratione materiae to certain types of behaviour constituting a crime under international law, it consulted the domestic law of 10 States. Emphasizing that the Commission thus failed to give equal consideration to the views of States from all regions, she said: “This leaves us with the question of the standard that the [Commission] is using to define ‘prevailing trends’.”
Egypt’s representative, building on that, stated that the Commission used a non-representative selection of judicial decisions that are not reflective of widespread practice to confirm the outcome it decided to adopt through a process of deduction. Noting that this is a “flawed methodology”, he stressed: “Allowing international law to be generated by deduction from preconceived ideas — where an inductive inquiry into practice and opinio juris is only used as an aid to deductive reasoning — would be an unfortunate shift in the process of international law-making.”
Similarly, Cameroon’s representative urged the Commission to tackle this topic with the greatest possible caution, “and not to refer to the practice of a marginal number of States to then conclude that there is existent practice”. Further, the Commission should clearly indicate which of the draft articles reflect customary international law, and which constitute the progressive development of international law. He also urged the Commission to take a wide view, guided by the world’s major legal systems, and to get more information from States to have a clear outline of this topic.
Along those lines, Viet Nam’s representative pointed to varying State practice regarding the officials who enjoy immunity ratione materiae. In some States, leaders such as religious figures possess significant authority that is comparable to, or even exceeding that of the “troika” (Head of State, Head of Government, Minister for Foreign Affairs). As such, he suggested that the draft articles expand the list of persons entitled to immunity from jurisdiction ratione materiae.
Stressing the importance of striking the right balance between the principle of sovereign equality of States on the one hand and the fight against impunity on the other, the representative of Switzerland underlined the need for stable, predictable relations between countries and for State officials to be independent. “However, it is also essential that State officials who have committed offences or crimes — in particular violations of human rights, international humanitarian law or other international crimes — are held accountable for their actions,” she said.
Speaking at the end of the meeting, Claudio Grossman Guiloff (Chile), the Commission’s Special Rapporteur on this topic, also underlined the importance of balance between sovereign equality and the measures to be taken to address impunity for the most serious crimes. Encouraging States to comment on the Commission’s work, he highlighted the new window of opportunity for doing so and added: “We welcome anything you have to say because it would enrich our work and the decisions we can take."
Other decisions and conclusions of the Commission
Delegations also addressed the two new topics on the Commission’s long-term programme of work — “Compensation for the damage caused by internationally wrongful acts” and “Due diligence in international law”.
Iran’s representative said that consideration of the former is “timely” and “useful” given existing lacunae in this area, noting: “A wide array of wrongful acts remains without reparation, partly due to a lack of established mechanisms for clear and well-defined compensation procedures.” As a result, in certain cases, a lack of compensation could give rise to new disputes that, at times, may threaten peace and security. Suggesting that this could be a possible reason for the Commission’s enumeration of diverse forms of reparation in its draft articles on the responsibility of States for internationally wrongful acts, he added that these have been a “source of reference” for the International Court of Justice.
However, the representative of the United States, on the topic of compensation, cautioned against “overreliance on decisions of courts and tribunals that are not well-reasoned or grounded in State practice and opinio juris”. On the other new topic, she said that there is not enough State practice and opinio juris to support a claim that there is a general obligation of “due diligence” under customary international law that applies to a State’s conduct outside of certain primary obligations. “Other States have expressed similar views,” she added.
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