Continuing Debate on International Law Commission’s First Cluster, Speakers Address Criteria for Identifying General Principles of Law
Delegates Highlight Law of Sea Convention as Framework for Tackling Sea-Level Rise in Relation to International Law
As the Sixth Committee (Legal) continue reviewing the first cluster of the International Law Commission’s annual report, many speakers addressed the juridical nature of general principles of law and its distinction within the international legal system and rules of customary law. (For background, see Press Release GA/L/3698.)
Switzerland’s representative, welcoming the Commission’s draft conclusions that treat the topic in a definitive, logical and exhaustive fashion, noted the two-step analysis regarding the criteria for identifying the principles derived from national legal systems. Not all such principles are suitable for transposition to the international legal system, she pointed out.
Offering a different viewpoint, Estonia’s delegate underscored that the essence of general principles of law should not change despite the modernization of terminology. Further, the principles must be recognized as “intrinsic to the international legal system”, thus ensuring that they meet the criteria set for general principles of law as a source of international law and have passed the scrutiny by the community of nations.
Speakers also deliberated on “Sea-level rise in relation to international law”, with many pointing to the 1982 United Nations Convention on the Law of the Sea as a foundation and framework for addressing the impact of the climate crisis on maritime borders and baselines.
In that regard, the representative of Belarus underlined the importance of adopting a uniform approach to interpreting the Law of the Sea Convention when determining baselines and outer limits of the territorial sea, the contiguous zone and the exclusive economic zone. He underlined the treaty’s central role in the settlement of any issues related to the delimitation of maritime zones in the case of sea-level rise.
On that, Germany’s delegate stressed that the principle of legal stability should equally apply to baselines and maritime zones derived from islands and rocks when these natural land features are subsequently submerged due to sea-level rise. She further observed that there is no obligation for coastal States to regularly review and update baselines, pointing out that no single State has contested this approach.
Similarly, Chile’s representative said “legal stability” is intrinsically linked to preserving maritime areas as they were established before the effects of sea-level rise. Noting that States have decided not to update their map coordinates setting out their baselines — including when the physical coast is moving inland due to sea-level rise — emphasized that no nation has questioned the proposed interpretation that would allow to establish fixed baselines.
Regarding the topic “Other decisions and conclusions”, several delegates touched upon the draft articles on the immunity of State officials from foreign criminal jurisdiction, expressing divergent opinions regarding draft article 7.
Austria’s representative, while voicing support for draft article 7 as a central provision and a contribution to the fight against impunity, pointed out that the list of exceptions to functional immunity is incomplete and should contain a reference to the crime of aggression. Noting that, according to Austrian practice, no functional immunity exists for international crimes — including the crime of aggression — he called for draft article 7 to be amended accordingly.
Countering this view, the representative of the United States recalled longstanding concerns with the draft articles under this topic, stressing that article 7 is not supported by consistent State practice and opinio juris and therefore does not reflect customary international law. Yet, despite the concerns his delegation and others have articulated, the Commission adopted the draft articles at the first reading last year, he added.
Speakers also welcomed the Commission’s decision to commemorate its seventy-fifth anniversary in Geneva in 2024, while some expressed support for holding the first part of the Commission’s seventy-seventh session in New York in 2026. Others highlighted the Commission’s programme of work, including Poland’s delegate who observed that "half of the Commission’s agenda concerns utterly new issues — a unique situation".
To that, the representative of Portugal, observing that the Commission’s products may have different formats and outcomes, highlighted the Sixth Committee’s decision to prioritize consensus — even when only a few States oppose moving forward — when the Commission has “expressly” recommended the adoption of draft articles as a convention. Stressing that States should always strive for consensus, he added: “It is not a procedural rule or a dogma, and it cannot be used as a veto.”
The Sixth Committee will meet again at 10 a.m. on Wednesday, 25 October, to continue its discussion of Cluster 1 from the International Law Commission’s report on the work of its seventy-fourth session.
https://press.un.org/en/2023/gal3699.doc.htm
