Sixth Committee, 32nd plenary meeting - General Assembly, 80th session
General Assembly
Date: 31 October 2025
Language: English
Transcript: https://transcripts.un.org/en/ga/c6/80/32
Transcripts available through this tool are created by using automatic speech recognition and are not official records nor official documents of the United Nations. Official records and official documents are available on the Official Document System of the United Nations.

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6th Committee · Vice-Chair [0:04]:

Buenas tardes.

Declaro abierta la 32ª sesión de la 6ª Comisión del 80º periodo de sesiones de la Asamblea General.

Distinguidos delegados, continuemos ahora con el debate sobre el segundo grupo de—

A very good afternoon. Let us now consider the debate on the second cluster of topics concerning agenda item 80, which is the report of the International Law Commission on the work of its 80th session. The first speaker on my list for this afternoon is the distinguished representative of Finland, speaking on behalf of a group of countries. You have the floor.


Finland · Nordic Group [0:42]:

Madam Chair, I have the honor to deliver this statement on behalf of the 5 Nordic countries: Denmark, Iceland, Norway, Sweden, and my own country, Finland. In the interest of time, I will now present the main points of our joint contribution. A more comprehensive version of our intervention will be sent to the Secretariat. I will start with the topic immunity of state officials from foreign criminal jurisdiction. Let me first express our heartfelt condolences for the recent passing away of Ms. Concepción Escobar Hernández, who was the Special Rapporteur for this topic from 2012 to 2022. Her valuable contributions for international law in general and this topic in particular will remain. Madam Chair, the Nordic countries wish to express, express their deep appreciation for the work of the Commission on this important topic. We commend the dedicated work of the current Special Rapporteur, Mr. Claudio Grossmann-Gilov, as well as the valuable contributions made by the previous Special Rapporteurs. We think that the ILC has succeeded in drafting what is broadly acceptable text reflecting the applicable customary law. The draft is both satisfactorily structured and adequately detailed, successfully striking a balance between the interests of the forum state and the state of the official. In this regard, we think that the procedural provisions in Part IV are particularly important as they ensure adequate safeguards for the state of— state of the official while also observing the interest of the forum state. The Nordic countries emphasize that Part 4 not only aims to ensure fair trials safeguards for foreign state officials in the context of the exercise of criminal jurisdiction, but also contributes to optimal communication between states respecting their sovereign equality. We would therefore not be in favor of transforming Part 4 into non-binding guidelines.

or conclusions.

We would like to reiterate our consistent support for draft Article 7. We also support the suggested additions to draft Article 7 of the crime of aggression, slavery, and the slave trade as provisionally adopted by the drafting committee. All these crimes have an established status as crimes under international law. These proposed additions must be read in conjunction with the procedural safeguards in Part IV. As mentioned by the Special Rapporteur, the proposed Part IV will be crucial for avoiding politicization of draft Article 7. We have consistently underlined the importance of harmonizing the draft Articles with legal developments that have occurred over the last decades. The commission of the most serious international crimes cannot today be considered to constitute acts performed in an official capacity giving rise to immunity and thereby providing a shield against accountability. We have taken due note of the explanations of the Special Rapporteur that the purpose of the draft articles is to serve as the basis for a treaty. This means that States will have ample opportunity to express their views on the content of the possible future treaty. States will be well served in having before them a text as her suggestion. We recall our commitment to the Rome Statute of the ICC and the other treaties enumerated in the Annex of the Draft Articles, underlining the importance of harmonizing the Draft Articles with legal developments reflected in the said treaties. We hold the view that progressive development and codification of international law should respect immunities considered under this topic, without this becoming a shield for impunity for the most serious international crimes. We are also of the view that the respect for the sovereign equality of states should not hinder non-coercive collection of important information and evidence. Moreover, certain conduct clearly does not qualify as an official act triggering immunity ratione materiae. Immunity of state officials may give rise to challenging questions for prosecutorial and other domestic authorities, including judiciaries. This is why we firmly believe that the outcome, outcome in this topic will be of real practical assistance to states. Regarding the topic subsidiary means for the determination of rules of international law, I would like to thank the Commission and the Special Rapporteur, Mr. Charles C. Jaloch, for the work done thus far on the topic. We support the approach of working towards set of draft conclusions. We recall our support for the conceptual clarity and consistency in the application of the term source of law in the context of the Commission's engagement with Article 38 of the ICJ Statute thus far. While there is no single operative definition of the term source of law in international legal practice or theory, it is clear that subsidiary means referred to in Article 38 paragraph 1 are of a different nature than sources of law, insofar as this term is applied as a reference to formal sources of law. We are pleased that the draft conclusions on the nature and function of subsidiary means stipulates in clear language that subsidiary means are not a source of international law and that their function is to assist in the determination of the existence and content of the rules of international law.

Law.

We welcome the focus on the work of private and public expert bodies and the possible consideration of resolutions of international organizations and of intergovernmental conferences as subsidiary means for the determination of, of rules of international law. We agree that resolutions of international organizations and intergovernmental conferences may indeed carry analytical weight in the interpretation of legal legal norms. Further, we agree that they may serve as evidence of state practice or opinio juris and of general principles of law formed within the international legal system, and as such, they might provide evidence for determining the existence and content of rules of international law, even if they cannot themselves create such rules. We note with regret that it was impossible for the Commission to complete its first reading due to time constraints. We will continue to collaborate with the Commission on the topic with great interest. Next, turning to the topic of settlement of disputes to which international organizations are parties. We express our appreciation to the Special Rapporteur, Mr. August Reich, for this 3rd report and welcome the focus in this session on disputes between international organizations and private parties. We encourage the Commission to work towards practical solutions for dealing with such disputes. The Special Rapporteur proposed 5 new draft guidelines addressing the scope of the relevant part of the guidelines. As the Commission was not able to consider the 3rd report in plenary, we appreciate the establishment of a working group to allow for a preliminary exchange of views. As regards the scope of the work, the Nordic countries the position expressed in previous years welcoming the broadening of the scope from settlement of international dispute to which organizations are parties to settlement of disputes to which international organizations are parties. We take note of the view expressed by several members of the Working Group that distinguishing disputes based on the parties involved rather than the subject matter or applicable law may be a useful approach at the current stage of the Commission's work. We welcome the attention given to the notion of good faith and cooperation in the settlement of disputes. We take note of the views expressed in the Working Group regarding the need for the guidelines to reflect the diversity of dispute contexts and to support fair and equitable approaches. Regarding jurisdictional immunity of international organizations and the right of access to justice. We support the further development of the relevant draft guidelines. We recognize the sensitivity of achieving the right balance between immunity and access to justice. We welcome the attention given to procedural rule of law and applicable human rights in the context of disputes involving private parties. We note in particular the relevance of labor standards and other protections as highlighted in the Working Group. We take note of the discussions on practical tools, including model clauses and examples of alternative dispute settlement mechanisms. Furthermore, Nordic countries take note the view that it would be most useful for states and international organizations to identify examples of effective and reasonable alternatives to judicial and arbitral dispute settlements. We believe that it could be beneficial for both individuals and international organizations to resort to alternative dispute resolutions such as mediation, conciliation, or perhaps the use of ombudsmen or complaint boards. We look forward to the continued work and to the possible conclusion of the first reading of this topic at the 77th Session. On the topic of non-legally binding international agreements, the Nordic countries would like to thank the Special Rapporteur, Mr. Matthias Voigt, for his excellent work on this topic so far. As regards the 6 draft conclusions proposed by the Special Rapporteur, we would like to present the following comments. Firstly, concerning the purpose of the draft conclusions, we comment the approach taken in draft conclusion 1, from which it is clear that the draft conclusions are not meant to be prescriptive. Secondly, regarding draft conclusion 2 on use of terms, we recall that the use of the term agreement has sparked discussion in the 6th Committee. We are pleased that the Special Rapporteur has taken into account the diverse views expressed by States. We remain flexible on this point and agree with the Special Rapporteur in that the terminological choice should not become a sticking point. We could also support the use of the term instrument, should that be the preferred choice at a later stage, provided it is clarified that it refers to mutual commitments and not unilateral statements. Thirdly, we support the scope of the topic proposed in draft Conclusion 3 and welcome the inclusion of non-legally binding international agreements entered into by sub-state authorities. However, the Nordic countries would encourage clarifying more precisely what the term sub-state authorities refers to and whether it is intended to refer the ministries as well. This could be clarified, for example, in the commentary. Fourthly, we welcome the without prejudice clause in draft conclusion 4. Fifthly, we believe that draft conclusions 5 and 6 provide a solid basis to towards a more detailed work on identifying indicators that could be used to distinguish between treaties and non-legally binding international agreements. We welcome the emphasis placed on the intention of the parties as a key criterion and agree that the assessment on the nature of the instrument should be made on a case-by-case basis. Regarding draft conclusion 6, we agree that the fact that all the parties to an agreement expressly indicate that it is or it is not legally binding under international law is sufficient to identify their intention. It should also be clarified, for example, in the commentary, that the absence of such an express indication does not determine the nature of the agreement. We look forward to continuing our engagement with the ILC on this important topic. Turning to the prevention and repression of piracy and armed robbery at sea, let me begin with expressing our appreciation for the efforts of the Commission in this legally complex and practically important matter. We would like to thank the Special Rapporteur, Mr. Luis Savadogo, for his note in which he identified points of law which could constitute the major themes of the work of the Commission on the topic and outline general areas of inquiry based on the main features of the topic. The Nordics, as many other countries, are highly dependent on a secure global maritime domain. All states have an interest in protecting freedom of navigation and supporting maritime security. There are maritime security challenges all around the globe. We are particularly concerned about the continued high number of incidents of piracy and armed robbery at sea as well as hijackings particularly in Malacca Strait and off the coast of Somalia. We commend the Special Rapporteur for his focus on themes that are most important in practice and those that relate of the law of the sea. We agree with the Special Rapporteur that in defining the dialectical terms prevention and repression attention should be made to their meaning to ensure their proper use in the draft articles. Prevention in many instances is more effective than repression, which is why we, for example, support different preventive efforts in the Gulf of Guinea and the Horn of Africa. It is important that any reference by the Commission to a legal framework for preventing piracy and armed robbery at sea is firmly grounded in international law. With regard to the repression of piracy and armed robbery, The Nordic countries fully agree that it's essential that states take effective legislative, administrative, judicial, or other appropriate measures to achieve this goal. In this regard, we would like to stress that prevention and repression must go hand in hand. Effective and sustainable maritime security requires not only proactive measures to prevent acts of piracy and armed robbery, but also robust enforcement mechanisms to repress such acts when they occur. Furthermore, we commend the proposed schedule of work presented in the note, which sets out a timeline for submitting, submitting the draft articles to the Commission for its consideration and finally for adoption. We look forward to continuing cooperation with the Commission on this topic. Madam Chair, this concludes my intervention on behalf of the Nordic countries. I thank you for attention.


6th Committee · Vice-Chair [15:29]:

I thank the distinguished representative of Finland for her statement, and I now give the floor to the distinguished representative of India. India, you have the floor.


India [15:44]:

India has the honor to address the 6th Committee on the Work of the International Law Commission on the Cluster 2 topics. My delegation would like to make brief remarks on the following topics: immunity of state officials from foreign criminal jurisdiction, subsidiary means for the determination of rules of international law, settlement of disputes to which international organizations are parties, non-legally binding international agreements, prevention and repression of piracy and armed robbery at sea, and succession of States in respect of State responsibility. In the topic, Immunity of State Officials from Foreign Criminal Jurisdiction, we commend the work of the Commission and express our appreciation to the Special Rapporteur, Mr. Claudio Grossman-Gilov, for his second report examining draft Articles 7 to 18 as adopted on first reading. We encourage the Commission to continue its efforts with the objective of promoting trust, mutual understanding, and cooperation based on good faith between the 4th State and the State of the official, while ensuring safeguards against possible abuses and politicization in the exercise of criminal jurisdiction over an official of another State. We acknowledge the need to guarantee respect for the principle of the sovereign equality of States, which forms the foundation of the immunity of state officials from foreign criminal jurisdiction. Immunity belongs to the state and applies to official acts performed in the exercise of state authority. This topic is of great significance as it directly relates to the performance abroad of officials of a state. Its consideration requires a balanced approach taking into account existing laws and practices on related issues. On draft Article 7, we believe that the crimes listed must be supported by sufficient state practice and opino juris. It is important to note that several States are not parties to the treaties where such crimes are defined and contained in the list of the draft Article. We affirm our earlier views regarding the Commission's approach to reconciling divergent views of its members and other stakeholders during the next reading of this topic. We welcome the restructuring of draft Article 8 into 2 paragraphs and the addition in draft Article 9 for the sake of clarity. We recognize that draft Article 10 concerning the obligation to notify the State of the official provides an important procedural safeguard. However, the timing and content of such notification, particularly with regard to ongoing investigations and confidentiality, require further consideration. On draft Article 12, we support the requirement of an express waiver which reflects existing general international law and ensures legal certainty and respect for diplomatic relations, as recommended by the Special Rapporteur. And in the topic subsidiary means for the determination of rules of international law, we express our appreciation to the Special Rapporteur, Mr. Charles Ciano-Giallo, for his 3rd report, which analyzed teachings and other subsidiary means for determining rules of international law. With particular focus on the work of public and private expert bodies and the resolutions or decisions of certain international organizations. We note that the function of subsidiary means is to assist in the determination of rules of international law. On draft Conclusion 3, we believe it provides useful criteria for assessing the weight of subsidiary means, the authority of teachings was not necessarily accepted from the outset, but often emerged through a process of scrutiny and contestation. Regarding draft Conclusion 4, the current formulation which states that judicial decisions and teachings are subsidiary means may require conceptual clarity. Clarification is also needed as to whether the scope of decisions of courts and tribunals includes the decisions of quasi-judicial entities, such as human rights treaty bodies. And in the topic settlement of disputes to which international organizations are parties, we appreciate the efforts of the Special Rapporteur, Mr. August H., in compiling his 3rd report focusing on disputes between international organizations and private parties. India has consistently advocated for the peaceful resolution of disputes through dialogue and mutual consultation. As a founding member of the United Nations, India firmly adheres to the purposes and principles of the UN Charter, including the pacific settlement of disputes. This commitment is evident in India's approach to disputes in the trade and investment regimes, where we prioritize arbitration and other alternative dispute resolution mechanisms. We believe that extrapolating this concept to international organizations would contribute to the peaceful resolution of disputes between international organizations and between such organizations and States. We take note of the Special Rapporteur's 5 draft guidelines on this topic, which maintain a balance between individual human rights, access to justice, and the need for the independent functioning of international organizations. It would be useful to expand these guidelines to include consideration of diplomatic protection in disputes involving international organizations. Differentiation between arbitration based on mutual consent and unilateral arbitration, affirmation of the right to an effective remedy, and a deeper examination of compensation aspects. And in the topic non-legally binding international agreements, we welcome the work of Special Rapporteur Mr. Matthew Forough for his second report, which focuses on the general elements of the topic. Including its purpose, terminology, scope, form of outcome, and issues to be addressed through a without prejudice clause. We have taken note of the Special Rapporteur's analysis distinguishing treaties from non-legally binding international agreements based on jurisprudence, practice, and doctrine, and of the next steps to be addressed in future work. One of the questions raised in the report relates to the use of terminology, particularly the preference for the term agreement. The designation of this term requires further discussion in light of its consistency with the Vienna Convention on the Law of Treaties and its travaux préparatoires. It should not create confusion or difficulty for domestic legal systems, and there should remain openness to alternative formulations as may be agreed upon by Member States. Regarding the draft Conclusion 6, the text does not adequately address situations where no explicit provision is made, and it may therefore be useful to elaborate further in the commentary. In the topic prevention and repression of piracy and armed robbery at sea, we appreciate the efforts of the Special Rapporteur, Mr. Luis Savadogo, in identifying key points of law that could serve as major themes for the Commission's work on this topic. We take note that the Commission has provisionally adopted 7 draft articles which broadly reflect the need for a comprehensive legal framework integrating treaty law, customary international law, and evolving state practice. However, the extent of obligations to prevent and repress piracy and armed robbery, as well as the scope of humanitarian duties, warrants further discussion. Emerging issues such as the use of new technologies and the role of private armed security deserve special attention by the Commission. We believe that the Commission's approach seeks to develop and complement existing norms found in UNCLOS, thereby adding clarity and facilitating their implementation. While this work is useful, it should not undermine the existing legal framework governing the law of the sea. With respect to maritime armed robbery, it is essential to address this issue by examining relevant international laws, regional strategies, national practices, and domestic legislative and judicial frameworks. And in the topic succession of states in respect of state responsibility, India attaches great importance to this topic. We welcome the Commission's decision to establish a working group chaired by Mr. Beemal N. Patel, to consider the draft report on this subject. We take note of the Chair's expectation, and the revised draft report will enable the Working Group to proceed efficiently and conclude its work during the Commission's 77th Session. Given the complex nature of this topic, it is essential to establish clear and fair rules governing the consequences of state succession. Including those relating to state responsibility. I thank you, Madam Chair, for this opportunity.


6th Committee · Vice-Chair [24:54]:

I thank the distinguished representative of India for his statement, and I now give the floor to the distinguished representative of Germany. Germany, you have the floor.


Germany [25:05]:

Thank you, Madam Chair. Germany intends to address the topic of immunity of state officials from foreign criminal jurisdiction. and the topic subsidiary means for the determination of rules of international law. Madam Chair, I will firstly turn to the topic of immunity of state officials from foreign criminal jurisdiction. We thank the Commission for its continuous work on this topic, which remains of high relevance to Germany. I would like to thank the Special Rapporteur for his second report on this topic, which attracted a great number of comments and observations. Germany has twice submitted a written statement to the Commission on our recent German state practice. Germany is firmly convinced that the Commission, as one of the most respected and prestigious institutions in the area of international law, is well placed to handle this delicate topic with the necessary caution. We are confident that the Commission adheres to the most rigorous standards when making its determinations. We would like to reiterate that this topic should be approached cautiously. It is imperative that the right balance be struck between the need for effective criminal proceedings and the need for stability in international relations. Germany remains convinced that the Commission should adopt a consensus-based or unified approach when addressing this topic. Furthermore, the difference between the law— between what the law is and what the law ought to be should be reflected in the work by the Commission. Let me now turn to the substantive questions concerning the topic. The scope of exceptions under draft Article 7 has attracted by far the most observations by States. Germany concurs with the observation by the Special Rapporteur that there is a significant development in the practice of states toward exceptions to the principle of functional immunity. Germany has always been and will always be a strong supporter of international criminal law. Germany clearly recognizes the existence of exceptions to the principle of functional immunity. Our Parliament adopted legislation so that functional immunity cannot prevent the prosecution of core international crimes in Germany. We consider the initial set of exceptions proposed in 2022 to reflect customary law. The Commission should, however, allow for more time to thoroughly consider the observations by states, regarding the extended list of exceptions in draft Article 7 as proposed in the Second Report. Taking into account the observations by other States, we sense significant doubts regarding the customary nature of the amended list, which might slow down the further development of this topic. The work of the Commission should be properly grounded in the practice of States. A similarly cautious approach should be taken considering the question whether the list of exceptions is to be considered non-exhaustive. Please allow me to briefly touch on procedural provisions and safeguards under Part IV of the draft Articles. Further examination should be carried out as to the customary nature of some provisions under Part IV. Procedural safeguards have to bring into balance the interest of the forum state in prosecuting criminal wrongs by a state official with a mutual respect for sovereign equality of states. We reiterate our suggestion to consider provisions under Part 4 as guidelines rather than articles to properly reflect non-customary state status of some of the provisions. Regarding draft Article 11, we should like to emphasize that invocation is not a prerequisite for the application of immunity. We consider immunity to apply automatically without any need for invocation. Madam Chair, Germany would like to continue with comments on the topic of subsidiary means for the determination of rules of international law. Please allow me to thank the Special Rapporteur, Charles Jallow, for his carefully drafted 3rd report, and the Commission for the work it has undertaken on this topic during this year's session. We see considerable progress in the considerations of this topic. First of all, I would like to echo the comments made by the European Union concerning the final output of the work, which should indeed be in the form of conclusions. As such, the work of the Commission will be in line with other topics addressing the sources of international law. Secondly, I would like to make some remarks on the structure of the draft conclusions before us. Germany welcomes that the proposed structure consisting of 4 different parts. This structure follows a logical pattern from general to specific provisions and is a very significant improvement to the current order. Thirdly, turning to the substance of the draft conclusions, Germany welcomes the particular emphasis put on the International Court of Justice in draft conclusion 4. We consider the International Court of Justice as the principal judicial organ of the United Nations, the authoritative interpreter of international law in the cases submitted to it. We welcome the fact that this special role is reflected in Draft Conclusion 4. We concur with remarks by several states to provide some further explanation on the differences between a court and a tribunal in draft Article 4. Furthermore, Germany welcomes the reference to decisions on national courts for the determination of the existence and content of rules of international law in draft Conclusion 4, para 2. According to our understanding, national courts' decisions do have a limited role in the determination of rules of international law, which should, however, not be neglected. One of the main pillars of the German Constitution is the principle of its openness to international law. Our Federal Constitutional Court carries out a concrete judicial review procedure if doubt exists whether a rule of international law is an integral part of federal law and whether it directly creates rights and duties for the individual. As a matter of legal or judicial dialogue, these decisions on a national level may be enriching for the process of determination internationally. Fourthly, I think that the systematic relation between the Draft Conclusion 9 concerning the output of private expert groups and the Draft Conclusion 10 concerning the output of public expert groups merits further analysis. The distinction between private and public expert groups might not be clear-cut. Further explanatory comments could be provided. Particular emphasis should be given to the question whether the means taken into account when determining the existence and content of rules of international law follow objective and and impartial standards. Germany regrets that the Commission was unable to provisionally adopt draft conclusions 1 to 13 due to time constraints, which was a consequence of budgetary limitations. All the more, I would like to underscore the progress achieved so far. Germany is convinced that the draft conclusions will give a clear contour to the exact nature of subsidiary means as mentioned in Article 38 of the ICJ Statute. Madam Chair, I thank you.


6th Committee · Vice-Chair [33:52]:

I thank the distinguished representative of Germany for his statement, and I now give the floor to the distinguished representative of the United States of America. You have the floor.


United States of America [34:03]:

Thank you, Madam Chair. In the interest of time, I will focus on the Cluster 2 topics of immunity of state officials from foreign criminal jurisdiction, subsidiary— and subsidiary means for the determination of rules of international law. The more detailed version of our remarks, including on the topics of settlement of disputes to which international organizations are parties, non-legally binding international agreements, and prevention and repression of piracy and armed robbery, et cetera, will be circulated for the Commission's consideration and the record through e-statements. I turn first to the topic of immunity of state officials from foreign criminal jurisdiction. The United States has closely followed this topic and was pleased to provide our written comments in December 2023. We have urged the Commission not to rush the second reading of the draft articles, and we echo the concerns of members that the Commission should strive for a more consensus-based or unified approach to draft Article VII on second reading. A more useful approach to draft Article VII would have been to replace the list with criteria or considerations that States could reference in determining, based on the totality of circumstances in a particular case, whether there was a basis for not applying immunity ratione materiae. Nonetheless, the Drafting Committee endorsed the recommendation of the Special Rapporteur to expand the list of crimes to which immunity ratione materiae should not apply in draft Article 7. We continue to believe that any list of crimes in draft Article 7 does not reflect a codification of customary international law, and we note that a number of other States share this view. On this point, I will make 2 observations with respect to state practice and the need to clearly identify draft Article VII as a progressive development of the law. First, with respect to state practice, we must point out that the Special Rapporteur's report misapprehends U.S. indictments of 3 former foreign officials to suggest that, quote, immunity ratione materiae is not a bar to prosecution.

prosecution there.

To the contrary, these U.S. indictments are not evidence of state practice applying per se exceptions to functional immunity, and it is not accurate to cite them as such. The United States repeatedly has made clear that determination of the application of such immunity are fact-intensive inquiries made on a case-by-case basis, considering the totality of the circumstances and with no per se exceptions. In this connection, we echo the sentiments of those Commission members who emphasized that a more nuanced analysis of judicial decisions is called for to assess whether immunity was clearly invoked in the cases cited. Situations when a state refrains from exercising criminal jurisdiction are also relevant in identifying customary international law. State practice is very hard to discern in this area because there is little visibility into criminal investigations that do not result in prosecutions brought by national authorities, either due to immunity or for other reasons. We also agree with the sentiments of Commission members who cautioned that insufficient weight has been placed on the views of a significant number of States who made clear their concerns with the approach to draft Article VII. Second, the Commission should clearly identify draft Article VII as a proposed progressive development of the law in order to enhance transparency and minimize the risk that it will be viewed by states, domestic or international courts, or others as a codification of international law. We echo the calls of other states and Commission members on this point. The widespread, longstanding controversy around draft Article VII warrants this measure. To be clear, our views on draft Article VII should not be understood to undercut the United States' support for holding accountable those responsible for international crimes. The United States agrees that there must not be impunity for international crimes. In the United States and many other states, determinations of the applicability of immunity from criminal prosecution are fact-intensive and specific to each case. Furthermore, there is the possibility of waiver, prosecution once the individual no longer enjoys immunity, or prosecution in an appropriate domestic or international court of such crimes, depending on the specific facts and circumstances. Additionally, immunity from a foreign state's criminal jurisdiction can be critical to a state's exercise of its own criminal jurisdiction over its officials and the effective administration of its system of accountability. The United States urges the Commission to give these concerns careful consideration and revisit its work on draft Article VII. Finally, on this topic, we reiterate our general thoughts on the procedural provisions and safeguards contained in draft Articles VIII through XVIII. We regard these provisions as recommendations for new rules, that unnecessarily broaden the scope of the draft articles beyond the criminal immunity of foreign officials. The draft articles would do better to avoid drawing conclusions concerning domestic procedural obligations that do not yet reflect a consistent pattern of state practice. And we continue to have concerns that the proposed rules may be both over-inclusive by suggesting that some of the listed safeguards enjoy the same fundamental status as others, and under-inclusive by implying that the safeguards set forth represent the totality of safeguards to protect the rights of the accused. The United States continues to hope that these significant issues will be addressed with care, further deliberation, and through consensus by reconsideration of the text of the draft Articles and through the commentaries to be considered by the Commission at its next session. I turn now to the next topic of subsidiary means for the determination of rules of international law. We thank Charles Jalloh, the Special Rapporteur, for his 3rd report. We generally support the Drafting Committee's organizational changes to the structure and order of the draft conclusions and the choice to include separate conclusions on weight with specific criteria that build on the general criteria. We think these changes generally improve the coherence and logical flow of the draft conclusions. Nonetheless, the United States continues to have some concerns with the draft conclusions. As an overarching matter, draft conclusions, or any other form of ILC work product that is not adopted by States, should strive to codify existing law rather than propose elements for its progressive The United States also refers to its 6th Committee statement last year on this topic, where we expressed views concerning presently numbered draft conclusions 3, 6, and 7. We repeat those concerns. With respect to Part V on other means generally used to assist in determining rules of international law, we continue to question the inclusion of draft conclusions 12 and 13. In particular, we echo the views of Commission and Drafting Committee members who cautioned that resolutions of international organizations, as documents resulting from the work of states and expressions of political action, form part of the formation of law as evidence of state practice and opinio juris, and not its determination or application. In this sense, resolutions are fundamentally different than judicial decisions. Decisions, and teachings, which may perform dual functions. We continue to agree with those members who noted the insufficiency of practice to support the proposition that resolutions may also serve as subsidiary means. With respect to other texts produced by international organizations or at intergovernmental conferences, we are concerned that this subcategory is too broad as currently defined. The chair of the drafting committee's statement suggests that this subcategory is meant to encompass memoranda prepared by secretariats of international organizations or interpretive guides. And the further contours of this subcategory will be elaborated in the commentaries. We urge the Commission to consider some concrete limiting principles on this subcategory, which risks becoming a catch-all for an expansive variety of texts that that are not intended to contribute to the development of rules of international law, such as expressly non-binding summary reports of conferences. Draft Conclusion 10 similarly appears to conflate as expert bodies some very different types of bodies, including on the one hand bodies of experts in international law whose work and expertise may include identifying and describing international law based on state practice, and on the other, bodies of experts on other topics whose expertise may be less useful for this purpose. We encourage the Commission to address this and further define in the commentaries criteria that can differentiate among these different categories as to whether and how they can be useful as subsidiary means for the determination of international law. And this leads me to my final point on this topic. On draft Conclusion 13 and the weight of resolutions and other texts, we appreciate the effort of the Commission to craft a criterion for the weight of these other means by looking at the circumstances surrounding their production. And we also appreciate that those circumstances will be elaborated in the commentaries with the intent of taking into account, quote, the statements of states before and after, unquote, a resolution's adoption. It remains the case, however, that many resolutions are adopted by consensus without the issuance of statements, even if their production was the result of intense negotiation and political compromise. We question whether sufficient information exists to allow such circumstances to be adequately assessed in the context of resolutions. And that concludes our remarks. Thank you, Madam Chair.


6th Committee · Vice-Chair [44:33]:

I thank the distinguished representative of the United States of America, and I now give the floor to the distinguished representative of Australia. Australia, you have the floor.


Australia [44:45]:

Thank you, Chair. I have the honor to deliver this statement today on behalf of Australia. Australia thanks the Commission for its extensive work on the topic immunity of state officials from foreign criminal jurisdiction and welcomes the opportunity to provide comments and observations today. Australia would like to thank the Special Rapporteur, Professor Claudio Grossman-Gilov, for his work as reflected in the Second Report. Australia notes draft Articles 1, 3, 4, and 5 and their commentaries as provisionally adopted by the Commission. As an overarching comment, Australia urges the Commission to continue to clarify whether certain provisions reflect existing rules of customary international law, or represent proposals for the progressive development of the law. Chair, as set out in Australia's submission to the Commission in December 2023, Australia is a strong proponent of accountability for serious international crimes. It is in the interest of all states to ensure these crimes are prevented and perpetrators are prosecuted. Australia considers draft Article 7 reflects the progressive development of international law. Notwithstanding, considering recent practice, we acknowledge there is a discernible trend of the non-applicability of functional immunity for serious international crimes at the national level. In Australia's view, any exception to or limitation on functional immunity would apply to serious international crimes as a category. In this regard, we consider that the scope of crimes captured by any exception must be limited to the most serious, international crimes. We note the Special Rapporteur's proposal to include the crime of aggression, slavery, and the slave trade to the list of crimes in draft Article 7. While Australia considers these crimes to be serious international crimes, we note the lack of examples in the Special Rapporteur's report of domestic criminal proceedings in which exceptions to functional immunity were relied upon for the crime of aggression, slavery, and the slave trade. Australia welcomes towards the development of procedural safeguards as an important means to protect state officials from unsubstantiated and politically motivated prosecutions. In Australia's view, further procedural safeguards are necessary. We consider that in cases of competing claims of jurisdiction, the state of nationality or the state in the territory of which the criminal conduct was alleged to have occurred shall have primary responsibility to investigate and prosecute any alleged serious international crimes, provided it does so in a genuine and independent manner. The procedural safeguards would also benefit from clearly distinguishing between their application to functional immunity and personal immunity. Australia welcomes further engagement and looks forward to ongoing discussions on the draft articles. Turning to Chapter 7 of the report and the question of subsidiary for determination of the rules of international law. Australia would like to thank the Special Rapporteur, Professor Charles Jalloh, for his 3rd report focusing on the work of public and private expert bodies and the resolutions or decisions of certain international organizations as categories of subsidiary means for the purposes of Article 38, paragraph 1, subsection of the Statute of the International Court of Justice. We also thank the Special Rapporteur for his consideration of the relationship between Article 38 of the ICJ Statute and the supplementary means of interpretation in Article 32 of the Vienna Convention on the Law of Treaties, and confirmation of the clear difference between the purposes of the 2 provisions, the former for determining rules of international law and the latter for interpreting treaties. We thank the Commission for its ongoing work on the topic of settlement of disputes to which international organizations are parties, and Australia is committed to the effective operation of international organizations and sees them as an integral part of the multilateral system. As such, ensuring effective mechanisms are in place to facilitate the management and resolution of disputes when they inevitably arise is an important undertaking, of which we commend Professor August Reinisch, Special Rapporteur, for his work today. We welcome the continued development of the Commission's draft guidelines and commentaries as a source source of clarification of relevant standards and best practices for states and international organizations to rely upon. We lend support to efforts for the commentaries to underscore the importance of applicable human rights, both under customary international law and treaties. Australia reiterates our view that it would be instructive for the Commission to clarify which elements of the guidelines, if any, represent a codification of existing international law and which represent the progressive development of international law. Turning to Chapter 9 of the report and the topic of non-legally binding international agreements, we thank the Special Rapporteur, Professor Mathias Forteau, for his work on producing the second report on this topic. Like many states, Australia draws a distinction between legally binding international agreements and non-legally binding arrangements. In Australia's system, all legally binding international agreements are considered as having treaty status and are subject to domestic treaty-making processes. In contrast, arrangements such as memoranda of understanding reflect moral and political commitments and are considered to have less than treaty status. We agree with members of the Commission that while the work to elaborate in DISHA for the distinction between binding and non-binding instruments is valuable work, an overly prescriptive set of indicators could limit the evolution of state practice and the flexibility afforded to states in concluding non-binding arrangements with one another. In particular, we would caution against the weight to be given to express non-binding provisions within arrangements. While express indications are sometimes included for clarity and their inclusion is certainly best practice, it is not always agreeable to both parties to include such provision, nor are such provisions strictly necessary where language of the instrument overall clearly evidences its non-binding status. Australia was pleased to have the opportunity to share our practice with the Commission, and we encourage other States to do the same. Australia reiterates its support for the work and looks forward to continuing to engage on this important topic as the draft conclusions develop. Australia expresses its appreciation for the Commission's ongoing work on clarifying and providing guidance on the law regarding the prevention and repression of piracy and armed robbery at sea. We thank Mr. Luis Savadogo for his work as Special Rapporteur for this topic. Australia condemns all acts of piracy and armed robbery against vessels at sea. We recognize the crucial role of international cooperation at all levels in combating piracy and armed robbery. Piracy and armed robbery pose an ongoing threat to maritime security, particularly the safety and welfare of seafarers and the security of international navigation and commerce. We underscore the United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the ocean and seas must be carried out. This includes its provisions regarding piracy in Part VII of the Convention. Australia encourages the Commission to continue to ensure its work remains consistent with and complementary to existing frameworks and obligations under the Convention. Australia looks forward to the Commission and the Special Rapporteur continuing to work on this important topic. Thank you.


6th Committee · Vice-Chair [52:21]:

I thank the distinguished representative of Australia. For her statement, and I now give the floor to the distinguished representative of Mexico. Mexico, you have the floor.


Mexico [52:32]:

Muchas gracias, señor presidente.

Thank you very much, Madam Chair. Now, on Cluster 2, Mexico regrets that due to the fact that the session was reduced in its length, this cluster was seriously affected. On Chapter 5, Immunity of State Officials from Foreign Criminal Jurisdiction, Mexico wishes to begin its statement by paying a heartfelt tribute to the distinguished jurist Concepción Escobar Hernández, whose academic rigor and commitment to the progressive development of international law were instrumental in helping to advance our understanding of this complex topic. We will always remember her with a lot of affection and admiration. Given the fact that international crimes continue to be committed in the present day, this issue is of particular relevance for victims to be able to access justice. My delegation recognizes the work of Special Rapporteur Claudio Grossmann, whose second report reflects the observations of states on draft Articles 7 to 18. Nevertheless, we do regret that Articles 7, 8, and 9 weren't able to be adopted. And this was due to the budget restrictions that reduced the length of the session of the Commission. Mexico shares the fact that draft Article 7 is relevant because it identifies international crimes excluded from ratione materiae immunity, including the crime of aggression. This conduct, which is prohibited by international law, must be prosecuted without exception. When it comes to procedural provisions, we highlight draft Article 10 on notifying the state of the official for its contribution to legal certainty and to due process. With regards to Article 14, we agree on the needs to clarify terms such as appropriately high level and to provide examples by way of guidance to avoid ambiguities in application. Furthermore, we would suggest revising paragraph 4B in order to clarify its drafting or to accompany it with illustrative examples that can provide guidance to states on appropriate procedural measures. Finally, Mexico appreciates Articles 17 and 18, which promote the peaceful settlement of disputes by way of dialogue, negotiation, and judicial or arbitral mechanisms. We reiterate our firm belief in the need to benefit from a legally binding instrument that would regulate immunity from foreign criminal jurisdiction, providing legal certainty, respect for sovereignty, and an effective fight against impunity. On Chapter 7, which is subsidiary means for the determination of rules of international law, we thank the Special Rapporteur. Charles Jalloh for submitting his 3rd report. We take note of the substantive progress and the gradual approach that has enabled us to have a coherent set of draft conclusions that are useful for the operators of international law. We welcome the draft conclusions approved provisionally, in particular the ones on the categories of subsidiary means the general evaluation criteria, the function and nature of subsidiary means, and the absence of a legally binding precedent on the international level, and factors to consider the weight of subsidiary means. Furthermore, my delegation specifically supports the inclusion of draft conclusions 12 and 13, which provide clear and coherent development of international law. These steps forward provide methodological clarity and promote legal certainty. We received with interest the developments from 2025 of the work of expert bodies, both public and private in nature, as well as the consideration of texts from international organizations and intergovernmental conferences. We agree that such material in the right circumstances that of course must be clearly defined, do provide persuasive legal analysis without shifting or moving away from the formal sources. For— on the other hand, it would be beneficial to weigh up the weight attributable to the opinions of the bodies that supervise the application of treaties, bearing in mind on the one hand the organs created by the treaty itself And on the other hand, the organs or bodies created outside of treaties. My delegation further underscores the fact that the use or acceptance of subsidiary means by states in their practice or in their positions are an essential element to help to evaluate the weight that we should attribute to them. We regret that the first reading of the draft conclusions wasn't able to take place, the one compiled by the Special Rapporteur, and we do support his request for the ILC to carry out this first reading in the next session. Now moving on to Chapter 8, settlement dispute to which— settlement of disputes to which international organizations are parties. Mexico thanks the Special Rapporteur August Reinisch for his third report that reflects clearly the evolution of this issue since its initial conception in 2016. In relation to Guideline 7, we believe that it's useful to go into further depth into the definition of the concept of private parties in order to provide legal certainty and avoid differences in interpretation. We also agree on how important it is to distinguish between control disputes based on the parties involved, which can contribute to coherence. In all of the guidelines. On Guideline 8, we recognize that there can be asymmetries of power, imbalances of power, if you like, between international organizations and individuals. However, in some cases, the individuals are the most vulnerable party, especially when it comes to a supervisor-subordinate relationship. That's why we believe that the guidelines must address concrete cases and avoid generalizations. What's more, We would be inclined to avoid subjective qualifications such as spirit of cooperation and instead prefer the principle of legality and a more favorable interpretation to the protection of people. Well, there must be an adequate balance between immunities and access to justice, and this is on guideline 9 now. It's important to recall that as the International Court of Justice highlighted in its recent advisory opinion on the obligations of Israel in relation to the presence and activities of the UN, privileges and immunities are not granted as benefited for the United Nations or its officials, but rather they are granted in order to safeguard their functions. Moving on now to Guideline 10, we underscore the need to go into further depth into the relationship between jurisdictional immunity and effective access to justice. Achieving and striking the right balance between both principles is essential, especially when it comes to the application of immunities. Which can lead to a situation where individuals are not— do not benefit from defense, or they enter into conflict with human rights and constitutional norms. Finally, on Guideline 11, we support the inclusion of references to the rule of law, the principles of independence, impartiality, and due process, and we'd suggest strengthening the text, incorporating the principle of procedural fairness. Mexico reiterates its availability to contribute constructively to progress on this issue in order for the conclude— the Commission to conclude its first reading during the 77th session. We reiterate that non-legally binding instruments have a valuable role since they facilitate agile responses to common challenges. Moving on then to Chapter 10, which is the prevention and repression of piracy and armed robbery at sea. Mexico thanks the Special Rapporteur, Mr. Luis Zavadogo, for the presentation of his note, and we recognize the work of his predecessor, Mr. Yakuba Sise. We appreciate the fact that the note proposes a clear methodological framework with references to universal, regional, and domestic instruments. Mexico reaffirms that the UNCLOS is a departure point for the codification and progressive development of the norms on the prevention and repression of piracy. It's necessary to clarify the scope of universal jurisdiction and to continue to look at the obligations of extradite or prosecute in order to avoid impunity. From Mexico's perspective, it is important to explore the implications of Article 51 of the Charter on the use of force at sea. And self-defense, including references to the respect of human rights, respect of international humanitarian law, and effective accountability mechanisms. Finally, Mexico thanks the chair of the working group on the topic succession of states in respect of state responsibility, Mr. Bimal Patel and the rapporteurs who over the years have contributed to reflection on the succession of states in respect of state responsibility. We recognize the fragmentation in state practice and differences in methodical approach that has made it difficult to conclude the work on this topic. We invite the working group to conclude its work on this during the next session, avoiding giving the impression that this is being kept open indefinitely.


6th Committee · Vice-Chair [1:03:18]:

The Chair thanks Mexico and now gives the floor to the distinguished representative of Sierra Leone.


Sierra Leone [1:03:25]:

Thank you, Madam Chair. The delegation of Sierra Leone aligns itself for the statement made by the distinguished representative of Cameroon on behalf of the African group during the Cluster 1 period. We thank the chair of the International Law Commission— we thank the chair of the International Law Commission, Mr. Martin Paparinkis, the Bureau, the Special Rapporteurs, and the Secretariat for their continued commitment to the Commission's demanding program and for the detailed work reflected in its 2025 report. The structure and substance presented across Cluster 2 demonstrate the Commission's careful efforts to maintain inclusivity and sustain dialogue with Member States, even within the constraints of a shortened session. Sierra Leone therefore reiterates its strong support for the restoration of the 12-week calendar, as the reduced length continues to restrict deliberation on complex subjects essential to the codification and progressive development of international law. Sir William also attaches particular importance to the topics contained in Cluster 2 as they engage, as they engage foundational questions of state responsibility, immunities, desperate settlements, and the evolution of international law, all of which directly shape the legal and institutional environment for small and developing states. We recognize that the 76th Session achieved significant progress despite time constraints, notably the provisional adoption on second reading of a number of key draft articles and conclusions. Sierra Leone commends the Commission for maintaining discipline and collegiality under such conditions, ensuring that each topic moved forward on the basis of consensus and sound legal reasoning. Madam Chair, on the topic of immunities, Sierra Leone welcomes the advancement towards completion of the second reading of the draft Articles and the commentaries on the immunity of State officials for foreign criminal jurisdiction. We extend appreciation to Special Rapporteur Mr. Claudio Grossmann-Gilov and the Commission for the painstaking work reflected in the Second Report and in the debates held during the 76th Session. We note with satisfaction that the Commission provisionally adopted on second reading the initial set of draft articles 3, 4, and 5, together with their commentaries, and refer draft Articles 7 to 18 to the Drafting Committee for further refinement. These steps consolidate years of deliberation aimed at balancing state sovereignty and the imperative of accountability for international crimes. Sierra Leone remains convinced that the rules on immunity must be applied in a manner that preserves accountability and ensures that they do not become a shield for impunity. We therefore welcome the Commission's articulation of exceptions grounded in grave international crimes and the affirmation that the without prejudice clauses preserves the operation of special legal regimes such as diplomatic and and consular immunity and the Rome Statute. We further welcome the inclusion of slavery and the slave trade among the crimes under international law for which immunity ratione materiae shall not apply in draft Article 7. Sierra Leone has proposed an amendment to the Rome Statute of the International Criminal Court to classify slavery and the slave trade as crimes against humanity and war crimes. Their inclusion in the draft articles strengthens the legal coherence of the regime and reinforces the universal obligation to ensure that no person may invoke official capacity to avoid accountability for such acts. The limitation of immunity ratione personae to the heads of state, heads of government, and ministers of foreign for foreign affairs corresponds with established customary law. We welcome the Commission's clarification that such immunity applies only during the duration of office and ceases upon its termination. This position strengthens predictability and guards against politicization. Sierra Leone further appreciates the Commission's efforts to codify procedural safeguards, including notice, consultation, and the right of view, to ensure that national courts apply exceptions objectively and consistently. We particularly support the introduction of high thresholds drawn from the international criminal practice for determining whether sufficient grounds exist to override immunity in cases involving serious crimes. We also commend the emphasis on timely review, which enhances fairness and confidence in judicial processes. The identification of non-exhaustive factors to guide national authorities, together with recognition of the role of courts in final determination, reinforces impartiality. On the question of fair treatment, Sierra Leone welcomes explicit references to the rights of accused officials consistent with international human rights standards. This, this balance between accountability and due process is indispensable to safeguarding both justice and the dignity of persons subject to proceedings. In regard to transfer of proceedings and dispute settlement, Sierra Leone encourages the Commission to further elaborate on mechanisms for cooperation among forum and third states, ensuring coherence with existing treaty regimes on extradition and mutual legal assistance. We support early publication of the commentaries to facilitate states' implementation and harmonization of domestic practice. Finally, on this topic, Sierra Leone supports the appointment of a successor Special Rapporteur to maintain continuity and institutional memory as the Commission moves to final adoption at its next session. This topic's sensitivity and practical importance require steady leadership and broad state consultation. Before we close on this topic, Sierra Leone wishes to pay special tribute to Professor Concepción Escobar Hernández of Spain, the former Special Rapporteur for this topic, whose passing this year was a huge loss. Her contributions to the codification and progressive development of international law through her work on this topic and other contributions to the Commission more generally will be remembered for many years to come. We extend our condolences to her family who is pained. Madam Chair, on the topic of subsidiary means for the determination of rules of international law, Sierra Leone commends Special Rapporteur Professor Charles Jalor, our distinguished national, for his rigorous and inclusive approach to this topic, which examines the subsidiary means identified in Article 38, Section 1 of the Statute of the International Court of Justice. We recognize this 3rd report and the Drafting Committee provisional adoption of Draft Conclusions 1 to 13 on first reading as a significant achievement. Sierra Leone welcomes all the 13 draft conclusions adopted by the Drafting Committee underlining in particular the need to maintain the 3 categories of subsidiary means and the 5 logical parts into which they have been structured. We will present detailed comments on the draft conclusions next year after they are adopted by the Commission as a whole on first reading. In the meantime, we congratulate Professor Jalloh and members of the drafting committee including its chair, Mr. Mario Oyarzabal of Argentina, for the achievement for the Commission of this critical milestone on this important topic despite time constraints. We note that as Special Rapporteur, Professor Jalos submitted a full set of commentaries on this topic, but there was simply insufficient time to translate them this year. The 3rd report referenced above, which took into careful account the comments of states on this topic, deepened the analysis of teachings and scholarly writings, the work of expert bodies, and the role of resolutions of international organizations and intergovernmental conferences as subsidiary means for determining rules of law. It also addressed the relationship between subsidiary means and supplementary means of interpretation and the imperative of ensuring coherence within the international legal system. Sierra Leone notes that the adoption of these draft conclusions was postponed solely due to reduced session length. Sierra Leone reaffirms the centrality of judgments of the International Court of Justice as the principal subsidiary means of, of ascertaining rules of law. At the same time, decisions of regional and specialized tribunals, arbitral awards, and national court rulings contribute to the development and clarification of international law, especially when they reflect diverse legal traditions and practice. We commend the Commission's acknowledgment that this scholarly writing should be evaluated not only for technical authority but for representation across regions, languages, and legal systems. African jurisprudence and scholarship remain underrepresented in global citations. We therefore urge greater use of regional reports, regional law reports, continental jurisdictional organs, and academic institutions in Africa and the Global South. Sierra Leone also supports the call for transparency in the selection and weight given to subsidiary means. States must understand why certain judgments or teachings are treated as authoritative and how they influence the Commission's work. We encourage the Commission to develop non-binding guidelines or best practices for for referencing subsidiary means to enhance coherence and reduce fragmentation. The relationship between subsidiary means and supplementary means of interpretation in the area that merits continuation attention— continued attention. While the former assists in identifying law, the latter guide interpretation of treaties. Sierra Leone supports the Commission's careful distinction between the two and its recognition that they serve complementary functions in ensuring the unity and consistency of international law. Finally, we commend Professor Jalloh for integrating capacity-building consideration into his approach. The inclusion of small states and developing countries in the production and use of subsidiary means is essential to the legitimacy and the international legal order. Madam Chair, moving on to the topic of dispute settlement, Sierra Leone welcomes the continued work on this topic, which has gained relevance as international organizations expand their mandates and enter into diverse legal relationships. We note that the Commission considered the 3rd report of the Special Rapporteur focusing on disputes between international organizations and private parties and held a preliminary exchange through a working group chaired by the Rapporteur. Sierra Leone supports the broad scope of the topic covering disputes arising under international and domestic law including contractual employment and treaty-based matters. Balancing organizational immunities with the right of access to justice for affected individuals is vital. We encourage the Commission to draw on practice of the United Nations and regional administrative tribunals to identify best standards for independence, due process, and impartiality. Madam Chair, moving on to the topic of non-legally binding international agreements, Sierra Leone acknowledges the growing importance of non-legally binding international agreements in modern diplomacy. We note that the Commission had before its second report of the Special Rapporteur and established a working group for preliminary discussion owing to time constraints. We commend the Commission for clarifying terminology and scope and for proposing 6 draft conclusions to differentiate such instruments from treaties. Sierra Leone supports this work As a means to enhance transparency and accountability, while preserving the flexibility that non-binding agreements provide for cooperation, we encourage states to adopt national guidelines and registered for non-legally binding agreements, ensuring public access and preventing overlap with TT obligations. Turning on to the topic of private. piracy and armed robbery at sea. Sierra Leone also takes note of the Commission's initial consideration of this topic. We welcome the recognition that the threat of piracy and armed robbery remains acute, particularly in the Gulf of Guinea and West African waters. Sierra Leone encourages the Commission to draw upon regional frameworks such as the Yaoundé Code of Conduct and the Lomé Charter of the African Union, which exemplify African-led responses to maritime crime. We urge further research on emerging forms of piracy, including cyber-enabled and uncrewed vessel offenses, and call for technical cooperation through the International Maritime Organization, and the African Union to strengthen regional capacity. Turning to the topic of succession of states with respect to state responsibilities, Sierra Leone notes that the Commission-TWITS Working Group chaired by Mr. Bhima N. Patel held one meeting and took note of a draft report addressing possible options for future work. We acknowledge that some members favored discontinuation on the topic due to limited state practice. Yet Sierra Leone emphasizes that the question of succession and responsibility remain of real concern, especially in regions facing potential state reconfiguration. We therefore encourage the Commission to consider issuing a brief set of guiding observations summarizing lessons learned, particularly on allocation of responsibility and protection of third-party rights following secession. Codification in this area, even in skeletal form, will promote legal stability and protect victims of wrongful acts. Finally, Sierra Leone further calls on the— calls for mechanism promoting dialogue, reconciliation, and peaceful dispute settlement. As integral elements of succession processes. This approach reflects a national experience that peace and justice must, must evolve together. In conclusion, Madam Chair, throughout Cluster 2, Sierra Leone engagement remains anchored in the pursuit of justice, legal certainty, and inclusivity. We commend the Commission for maintaining transparency and for ensuring that small and developing states continue to participate meaningfully in shaping international law. We thank in particular the Special Rapporteur, Mr. Claudio Gross-Mangilov, Professor Charles Jalloh, Mr. August Lainisch, Mr. Luis Savado, and Mr. Bhimel Patel for their stewardship stewardship and technical contributions. The deliberations for this session will influence international law for years to come. Sierra Leone stands ready to contribute its perspective and expertise, ensuring that international justice and codification serve all states, large and small, developed and developing alike. Madam Chair, We thank you and all members of the BO for your continued support. Thank you.


6th Committee · Vice-Chair [1:21:54]:

I thank the distinguished representative of Sierra Leone for his statement, and I now give the floor to the distinguished representative of France. France, you have the floor.


France [1:22:07]:

Thank you, Madam Vice Chair. Madam Vice Chair, this year the ILC did not have the opportunity to address all of the topics on its agenda. I will therefore be making comments on just a number of these topics. The first topic I'd like to address is immunity of state officials from foreign criminal jurisdiction. My delegation would like to thank the Special Rapporteur, Mr. Grossman, For preparing his second report, as well as for the proposals on draft Articles 7 to 18. France takes note of the fact that the ILC has provisionally adopted draft Articles 1, 3, 4, and 5. Now, this is a longstanding topic on the ILC's agenda. I would therefore like to once again pay tribute to the work undertaken by Ms. Concepción Escobar Hernández on this topic, which is of particular interest for States. In 2023, France submitted its commentary and its observations on the 18 draft articles. My delegation has taken good note of the conclusions set forth in the ILC report. We believe that the ILC's work is on the right track, although there are some outstanding issues, of course. We've also noted the adoption of Draft Article 3, which strikes the right balance. Indeed, this draft article recognizes the well-established rule in customary international law according to which heads of state, heads of government, and ministers of foreign affairs Enjoy jurisdictional immunity, ratione personae, without prejudice to the number of persons who could effectively perform these functions within a given state. The question of the list of persons which should be included in draft Article 3 sparked significant debates, and we subscribe to the cautious approach the ILC has taken. We also note that the proposed commentary to draft Article 3, well, it states that international practice has not— is not currently sufficiently uniform to determine a rule of customary international law recognizing such immunity as applicable to other high-ranking State representatives. In relation to this draft Article, we'd like to inform you of a judgment by the Court of Cassation of France dated July 25th, 2025. Now, this judgment recalled clearly that in international law there is no exception to jurisdictional immunity ratione personae enjoyed by an acting head of state. As for Article 7, we all know that there were significant differences of opinion between states as regards the issue of the existence of jurisdictional immunity, ratione materiae, the exception to this jurisdictional immunity, and the list of crimes which might be subject to such an exception— an exception to functional immunity. Well aware of the delicate nature of these differences of opinion, as well as of the importance for the work of the ILC of immunity, for foreign criminal jurisdiction, from foreign criminal jurisdiction, from state officials, how important it is for this to reflect customary international law. We expressed a wish for the ILC to take an approach on this issue, particularly complex and sensitive, an approach that's balanced, taking into consideration the practice and the concerns of states. As we've highlighted in our written submission, the fact that there's a current trend towards recognizing certain exceptions to immunity from foreign criminal jurisdiction for officials. There is such a trend. And in fact, on this note, the French Court of Cassation on the 25th of July, 2025 delivered yet another important decision which states that this— these developments in international custom to which the Court of Cassation intends to Contribute strikes a new balance between immunity and the fight against impunity. This decision explicitly recognizes the fact that there is an exception to functional jurisdictional immunity for state officials in instances of crimes of war, crimes against humanity, and/or genocide. This decision once again illustrates that there is fertile dialogue between the ILC and domestic jurisdictions, the jurisdictions which are called upon to implement international law. Having said that, my delegation would also like to raise its misgivings regarding the list of crimes which might give rise to an exception to jurisdictional immunity, a list proposed by the ILC. The way we see it, it would have been wiser not to partake in such an exercise, which will not bolster the authoritativeness of draft Article 7. In fact, on this topic, we are expecting for the ILC to codify customary international law. In the absence of consensus on the very principle of having such a list, linked to the absence of practice and the very specific character of some of the crimes on that list, in particular the crime of aggression springs to mind, a more cautious approach is advised. Turning now to the second part of the draft articles, we call on the ILC to take the time to meticulously address procedural clauses, as they're called. Some of them have a decisive— have decisive practical scope, and therefore they should be analyzed very carefully. We note that the disquiet expressed by some states, including France, regarding draft Article 10 on notification were taken into consideration by the Special Rapporteur. The fact that there is an exception to the obligation to notify when such a notification would jeopardize the confidentiality of an ongoing investigation and the proper conduct of criminal proceedings In our view, strikes a good balance between information legitimately due to the state of the official and the inherent requirements of a criminal proceeding. As for the fate of the draft articles, France hasn't yet taken a stance. As we've indicated in the past, my delegation will express its opinion on this issue when the time comes. And with due consideration for the content of the final text tabled by the ILC, I'd like to once again thank the Special Rapporteur, Mr. Grossman, for the work he has done on this topic, which is of paramount importance for States. This brings me to my next topic, subsidiary means for the determination of the rules of international law. I'd like to thank the Special Rapporteur, Mr. Jallow, for publishing his 3rd report. Once again, we regret that the budgetary crisis has had a considerable impact on progress in this area. This can be seen in particular in the postponement until next year of the adoption by the ILC of the draft articles provisionally adopted by the Drafting Committee so far. On this note, we'd like to recall that we unswervingly support the ILC and all of its work, which cannot indefinitely suffer from such postponements. As for the issues addressed by the Special Rapporteur, my delegation has 2 comments that I'd like to make at this stage. First, we've taken note of the Special Rapporteur's proposal to classify doctrine, one of the subsidiary means for determining the rules of law, to classify it across 3 categories. According to the proposed approach, there would be that coming from academia, practitioners, and individual authors. That's the first category. The second category would include groups of authors or ad hoc groups of specialist experts acting in a private capacity. And third, expert bodies established or licensed by states or international organizations. Now, this distinction does give rise to a number of concerns of different kinds. In terms of principle, the criteria allowing us to pinpoint doctrine as a subsidiary means for the determination of the rule of law, they were covered in Draft Conclusion 3. That is, the quality of the reasoning and the competence of the persons involved. Against this backdrop, the fact that the output of doctrine is issued by a public— whether it's issued by a public or a private body does not seem to be a relevant criteria to be taken into account when assessing a subsidiary means. As some members of the ILC stated, the distinction between groups of experts, between different categories of groups of experts, should be based on their function, that is, whether that group of experts respects and implements a method that's scientific, objective, and impartial, whether this group of experts is independent. We should be focusing on that rather than the official status of the body of experts. On a more practical note, we have some questions about the scope of the distinction as proposed. Given that doctrine is not a fixed entity, rather it is an accumulation of ideas which are in circulation, fed by individual and collective endeavors, frequently the fruit of interactions between both public and private groups. For this reason, we would like to question the practical worth of such a taxonomy. Second, France has taken note of the discussions regarding resolutions adopted by international organizations and intergovernmental conferences. We'd like to reserve our position on whether to include these instruments as subsidiary means. These are specific instruments which might fit not into the category of subsidiary means, but rather into the category of sources of international law. Whether they might be considered by unilateral acts adopted by international organizations, or perhaps they could be seen as elements for identifying customary process. At this stage, we are therefore undecided on whether to maintain draft conclusion 11 in the ILC's program of work. on this topic. My delegation will be following with keen interest further work on this issue. We'd like to once again thank the Special Rapporteur, Mr. Jalloh, for all of his hard work. Madam Chair, this brings me to the topic of non-legally binding international agreements. Mr. Vice Chair, I apologize. I would now like to Thank you, Mr.

President.

We now move on to the topic of non-legally binding international agreements. We'd like to congratulate the Special Rapporteur, Mr. Forteau, on the second report and the 6 draft conclusions therein, which unfortunately were not examined by the ILC this year because of the shortened session length. As we underscored in our Written remarks submitted this year, France sees growing recourse to non-legally binding international agreements in its international relations. Now, this can be explained by the foreign policy flexibility these instruments offer states, as well as by the fact that the modalities for the adoption of such agreements frequently only require limited formalities. Now, the way we qualify some instruments entered into by States can raise serious questions, as recently illustrated in the decision delivered by the ICJ on the 19th of May, 2025, Gabon versus Equatorial Guinea. In this case, the ICJ was called to determine— called on to determine the legal nature of a text referred to as a convention entered into by the 2 parties to the dispute. The ICJ adopted an approach based on, on the one hand, a consideration of the content of the instrument in question and, on the other hand, on the prior behavior of the parties. Ultimately, the Court concluded that this convention was not a treaty would not be deemed a treaty under international law. Now, this decision confirms the approach adopted by the Special Rapporteur in the second report. We encourage the Special Rapporteur to take this into consideration in its third report, because for us it's important on these issues for the ILC and the case law of the ICJ to be in perfect alignment and consistent with one another. I would now like to make some additional remarks on the draft conclusions. First, we've taken note of the positions expressed by states regarding issues of terminology. As we stated in our oral submission in 2024 and in our written submissions this year, France generally uses the terms acte and instruments, so act and instrument, that are non-legally binding. We use that rather than expression— the expression non-legally binding agreement. Now, the term agreement belongs to the realm of international treaty law. Thus, this terminological distinction serves to avoid any confusion about the legal nature of the texts under our consideration. Nonetheless, we recognize as the Special Rapporteur himself does in the second report, that the word instrument can also be interpreted very broadly, stretching far beyond the topic at hand. Hence, we take note of the preference expressed by the Special Rapporteur, a preference for including Draft Conclusion 2 on the use of terms, which could help avoid any confusion or any misunderstandings when using the term agreement in this context. A draft conclusion dedicated to the clarification of terminology on this particular topic to us seems eminently reasonable as a way forward. Second, we welcome the fact that draft conclusions 5 and 6 on the distinction between non-legally binding treaties and agreements We're very pleased to see these articles which reflect in many respects our own practice. An explicit reference in an instrument aimed at clearly specifying whether an agreement is legally binding or not should be sufficient to determine the party's intent and to dispel any Ambiguity as to the legal value of the text in question. We'd like to thank the special rapporteur for all of the work he has accomplished. We encourage him to continue his efforts so as to finalize a set of draft conclusions that all states can put to use. Thank you very much, Mr. Chairman.


6th Committee · Chair [1:39:03]:

Moi aussi, je vous remercie. And I'm now turning to the representative of Ireland, asking him to deliver his statement.


Ireland [1:39:15]:

Mr. Chairman, thank you for the opportunity to speak today on the second cluster of topics addressed in this year's report of the International Law Commission. I will limit my remarks to the topics of immunity of state officials from foreign criminal jurisdiction, subsidiary means for the determination of rules of international law, non-legally binding international agreements, and the prevention and repression of piracy and armed robbery at sea. With regard to the topic of immunity of state officials, I would like to thank the Special Rapporteur, Professor Gilov, for his second report, which addressed the observations made by governments on draft Articles 7 to 18 and on, and on the draft annex. And contained proposals for their adjustment in, in light of these comments. We acknowledge that by the end of the session, the Commission had provisionally adopted draft Articles 1, 3, 4, and 5 and taken note of the report of the Drafting Committee on draft Articles 7, 8, and 9, with the adoption of these provisions being postponed until next year. The draft articles address a complex and highly sensitive topic that requires careful consideration, and it is important that all states have an opportunity to engage substantively with the issues. As we have said before, given the fact that many of the draft articles interact with each other, it will also be important to give states an opportunity to review the draft articles with their accompanying commentaries in their entirety. We again emphasize the need to provide adequate time for states to conduct their analysis of a full set of revised draft articles and commentaries together and as a whole. With that in mind, I will now make some brief remarks on draft Article 7. Ireland remains of the view that 2 of the crimes set out in the latest draft Article 7 fall within the ambit of crimes against humanity, namely the crimes of apartheid and enforced disappearances. We also believe that further analysis is warranted on the inclusion of slavery and slave trade, considering that their underlying acts are already prohibited as the crime against humanity of enslavement. Of course, Ireland agrees that functional immunity does not apply in the case of any of these crimes. Our concern is that an approach of listing separately specific crimes against humanity, but not others, may suggest that the latter are excluded, or that their inclusion is in some way qualified. This in turn creates confusion and uncertainty, which should be avoided. Mr. Chairman, I would like now to make some brief remarks on the topic of subsidiary means for the determination of rules of international law. Before doing so, let me thank Professor Charles Jalloh, the Special Rapporteur for this topic, for his 3rd report. That report addresses the views expressed by states to date on the first 8 draft conclusions and commentaries and proposes 5 new draft conclusions. We note that while the 13 draft conclusions have now been considered by the Drafting Committee, their adoption on first reading by the Commission has been deferred to its next session. This is because sufficient time was not available for the translation and consideration of the commentaries for reasons which with which we are all familiar. Ireland will withhold, therefore, detailed comment on the draft conclusions and their commentaries until next year. However, let me say briefly that with regard to the term weight of subsidiary means, which is used through— throughout the draft conclusions, we are conscious that this term may be confusing. We wonder whether instead the term authority might be more appropriate, as the authority to be accorded to a subsidiary means of determination of a rule of international law might more readily be expected to vary depending on a range of factors than might its weight. We are also considering carefully draft conclusion 6 on the absence of legally binding precedent in international law. We can agree that decisions of international courts or tribunals do not constitute legally binding precedent unless otherwise provided for in a specific instrument or rule of international law. However, we wonder if stating simply that such decisions may be followed on points of law where they address the same or similar issues as those under consideration fully addresses all aspects Aspects of this question. For instance, the ICJ refers to its settled jurisprudence, which it and in turn states tend to follow. Perhaps it would be possible to set out the reasons that decisions on points of law may or may not be followed, presumably by reference to the weight or authority to be accorded to them, and to make a stronger link then with draft conclusions. Conclusion 7. Again, we thank the Special Rapporteur for his thoughtful approach to this topic, and we look forward to seeing the full set of draft conclusions and commentaries adopted on first reading next year. Ireland thanks the Special Rapporteur, Mr. Louis Savadogo, for his note on the topic of prevention and repression of piracy and armed robbery at sea. We note the establishment of a working group of the whole to consider this topic, which was limited to one meeting due to the reduced length of the Commission's session. Ireland takes note of the list of issues proposed by the Special Rapporteur to be addressed under this topic and the complex questions of international law that they raise. We look forward, in due course, to undertaking a detailed examination of the future texts to be produced and to examining the results of the Special Rapporteur's work, and in this regard, we note the proposed schedule for his work over the coming years. Finally, Mr. Chairman, on the subject of non-legally binding international agreements, Ireland would like to thank the Special Rapporteur Mr. Mathias Forteau, for his second report on this most practical topic, and in particular the progress he has made in drafting 6 draft conclusions. However, with regard to his preference to retain the term agreement in the draft conclusions, as we noted last year, in Ireland's view it would be preferable for the Commission consider the topic of non-legally binding international instruments. In our view, the term international agreement is likely to cause confusion since it is widely understood to refer to an agreement that is binding in international law, a view that appears to have been shared by a majority of delegations at the 6th Committee last year. While we appreciate the Special Rapporteur's view that this issue should not be overstated, in our opinion, the title and the scope of this topic are intrinsically linked, and accordingly, the wording of the title is a matter of some significance. We understand that one of the reasons for the Special Rapporteur's preference for the term agreement is that the term instrument has a potentially very broad meaning, and in his view would need to be defined for the purposes of this topic. However, in our view, the fact that the term covers a broad range of non-binding forms is in fact an advantage, as we consider that this study should examine a wide range of instruments in order to offer the most practical value to States. In fact, Mr. Chairman, we think that the definition offered for the term non-legally binding international agreement in draft Conclusion 2.1 more than adequately defines a non-legally binding international instrument. Further, substituting the term instrument for agreement in draft Conclusion 2.1 may also eliminate the need for the explanations set out in draft Conclusion 2.2. I thank you for your attention.


6th Committee · Chair [1:48:16]:

And I thank you for your statement. And I am now giving the floor to the representative of the Czech Republic.


Czechia [1:48:31]:

Thank you, Mr. Chairman. Before commenting on topics under Cluster 2, our delegation would like to make certain general observations on the work of the International Law Commission. In the discussion under Cluster 1, we already noted our disapproval of the substantial shortening of this year's session of the Commission due to the liquidity crisis of the United Nations. Such shortening and lack of funding had significant negative impact on the work of the Commission and its outputs, including the topics under Cluster 2, which couldn't be appropriately discussed and finished in accordance with the Commission's work plan. Therefore, we are convinced that it is necessary to return to the previous practice which allowed efficient consideration of the topics on the ILC's agenda. And now let me comment on individual Cluster II topics. The Czech Republic would like to express its appreciation to the Special Rapporteur Claudio Grossmann-Guilof for his second report on the topic Immunity of State Officials from Foreign Criminal Jurisdiction, examining observations received by governments. The Czech Republic already expressed its basic positions on the topic in its previous oral and written statements. As regards this year's discussion of the Commission, we appreciate that the Drafting Committee supported draft Article 7 and that it expanded the list of exceptions from immunitas ratione materie to also include the crime of aggression, slavery, and slave trade. In this respect, we would like to reiterate that we understand the non-applicability of immunitas ratione materie as a consequence of normative incompatibility with obligations under international law providing for an extraterritorial criminal jurisdiction over crimes committed in an official capacity. Turning to the draft procedural provisions and safeguards in Part IV, we take note of the diverging views of Commission's Members on certain draft procedural articles, as well as calls of some Members for deletion or reconsideration of some of those articles. In this regard, we would like to briefly reiterate our basic concerns with respect to this part of the draft articles. The existing practice in this area is based on national laws on criminal procedure and treaties on international judicial cooperation in criminal matters. Some of those treaties directly provide for the prosecution of crimes committed in an official capacity, such as war crimes, torture, or enforced disappearances. We suggest that the Commission considers and explains the relationship of draft procedural provisions to those treaties. In this respect, we would like to reiterate our view that the draft procedural provisions in Part IV should rather take the non-binding form of procedural recommendations or good practices. Mr. Chairman, now I would like to present our observations on the topic subsidiary means for the determination of rules of international law. The Czech Republic expresses its appreciation for the 3rd report of the Special Rapporteur, Charles Szalók, and for the efforts of the International Law Commission in developing the drafting— the draft conclusions. We would like to offer the following comments on selected conclusions. We appreciate the Special Rapporteur's classification of teachings into 3 categories, particularly in relation to their value in determining rules of international law. At the same time, we are of the opinion that relevant draft conclusions provisionally adopted by the Drafting Committee require further consideration. First, we regard the categorization of different types of teachings contained in the provisionally adopted conclusions as somewhat unclear. In this respect, we support the view that draft conclusions which concern the outputs of expert bodies should be relocated to the section on teachings, with the relevant heading adjusted accordingly. Second, we note that the draft conclusions on teachings still differ in certain aspects from the text of similar conclusions adopted by the Commission previously under other topics. We encourage the Commission to reflect further on these divergences with a view to maintaining consistency with its previous work. Third, with regard to the weight of the different categories of subsidiary means, We would also like to emphasize the importance of consistency in terms of both form and substance, and express doubts concerning the inclusion of separate draft conclusions which merely refer back to draft conclusions containing general criteria for the assessment. We welcome that the Commission elaborated on the character of resolutions and other texts of international organizations and intergovernmental conferences, which we have encouraged previously. On the other hand, We are of the opinion that respective draft conclusions require further consideration. We take note of the amendments to Draft Conclusion 11, as proposed by the Special Rapporteur, including the without prejudice clause in paragraph 3. At the same time, we consider it essential to maintain and further elaborate the distinction between the evidential and potential subsidiary roles of such resolutions to the greatest extent possible. As reflected in the Commission's discussions, the role of texts adopted by international organizations or intergovernmental conferences pertains primarily to the formation of customary international law as evidence of state practice or opinio juris. Mr. Chairman, with respect to the topic settlement of disputes to which international organizations are parties, we would like to express our appreciation to the Special Rapporteur August Reinisch for his robust 3rd Report on Disputes Between International Organizations and Private Parties. We take note of the fact that, due to lack of time, the Commission was unable to consider the 3rd Report in plenary. With this in mind, our intervention will be brief. We appreciate the comprehensive study on various aspects of the topic and the wealth of information contained in the 3rd Report. At the same time, we expect the Commission to adopt more concrete and and prescriptive approach that reflects the primary objective of promoting the progressive development and codification of international law. The Czech Republic believes that the rapporteur's and Commission's work should consolidate and clarify both theoretical and practical aspects of this topic, which would benefit the practice of states and international organizations. The Czech Republic believes that the proposed guidelines shouldn't simply reiterate notorieties but rather provide concrete, practical guide. With regard to draft Guidelines 9 and 10, as suggested by the Special Rapporteur, we would be grateful if the Commission could develop and address in more detail the link between granting immunity to an international organization and providing an adequate dispute settlement in line with the right of access to justice. Mr. Chairman, let me turn to the topic non-legally binding international agreements. Our delegation welcomes the second report of the Special Rapporteur, Mathias Vogtho, addressing the distinction between treaties and non-legally binding documents. We take note of the fact that the second report was not discussed in plenary, and that newly created Working Group held only preliminary exchange of views on the report. We note with interest the discussions of the Working Group on the title of the topic. And encourage the Commission to consider this issue further, taking into account the views of a number of states, including the Czech Republic or Ireland just before our intervention, supporting the terminology of non-legally binding international instruments. As regards the criteria for the categorisation of non-legally binding instruments, we welcome the proposal that the intention of the parties should be the essential criterion for such categorisation. As we already stated, such intention is the decisive criterion in determining binding or non-binding character of the instrument. Concerning the general approach to the topic, we are convinced that the Commission shouldn't concentrate on historical and theoretical aspects of the topic. Rather, the outcome of the work of the Commission should help overcome the long-lasting legal and practical problem of a lack of clear distinction and delineation between legally binding treaties and agreements on the one hand and non-legally binding documents or instruments on the other hand. In this regard, we suggest that the debates on the topic of non-legally binding instruments in international law and the foreseen best practices compendium, which is being discussed within the Council of Europe's Committee of Legal Advisers on Public International Law, or CADI, might become an important contribution and guide for the IOC Special Rapporteur to move forward more efficiently in the work on this topic. Mr. Chairman, turning now to the topic prevention and repression of piracy and armed robbery at sea, we express our appreciation for the note prepared by the Special Rapporteur, Luis Savarogo, which compiles the major themes of the Commission's work on this topic. We consider it essential to ensure continuity with the contributions of the previous Special Rapporteur Mr. Ukuba-Sise, so that the work already undertaken is effectively built upon. We have also taken note of the proposed schedule of work. While we understand the complexity of the topic, we favour a more streamlined timeline, given the Commission's constrained schedule and the fact that 2 substantive reports have already been issued. As we have repeatedly emphasised, also in the context of other topics, The integrity of the United Nations Convention on the Law of the Sea is of the utmost importance and must remain a cornerstone of any future efforts in this domain. Furthermore, we appreciate the linkage drawn between piracy as the oldest crime under international law and the principle of universal jurisdiction. You would welcome further elaboration of this connection in order to specify the scope of permissible exercise of jurisdiction over piracy and armed robbery at sea, as well as consideration of the duty to cooperate in the repression of piracy under the Law of the Sea Convention. In this regard, we note the relevance of multilateral criminal law conventions and other international and national instruments listed in the Annex of the Special Rapporteur's Note. We trust that appropriate attention will be devoted to this issue in the Commission's upcoming work. As regards the final form of Commission's discussions on the topic, we stress that the outcome should not duplicate or alter existing legal frameworks. Therefore, we also indicate our preference for non-binding draft conclusions or guidelines. Mr. Chairman, finally, I would like to comment on the topic succession of states in respect of state responsibility. We note that the Working Group didn't have sufficient time to consider its draft report prepared by its chair, Beiman and Paddell. Nevertheless, echoing the intervention of Sierra Leone a few minutes ago, we would also like to reiterate our disappointment with the proposal by the Working Group for the decision to discontinue the work on the topic. As we already mentioned on previous occasions, this approach represents a significant departure from the usual practice of the Commission. As to the recurrent justification of the proposed closure of the topic by the lack of sufficient state practice, We can only reiterate and underline that this question must have been considered and positively assessed by the Commission when it decided to include this topic in its programme of work in 2017. That state practice could hardly have disappeared over time. Furthermore, we recall that the Commission should be guided in its work by the views of States, and that, in previous years, a number of States supported the continuation of the work on the DAP guidelines. The topic of state succession in respect of state responsibility is clearly a complex and difficult one, thus deserving the attention of this particular body of distinguished legal experts. Indeed, the Commission has been considering the topic for 8 years, using significant resources for this project, and has at its disposal almost a complete set of draft provisions. Therefore, we suggest that the Working Group and the Commission continue its work, finalize the first reading of the draft guidelines, and submit them to the States for comments. We are convinced that the finalization of the project as originally planned by the Commission is desirable and feasible. Thank you, Mr. Chairman.


6th Committee · Chair [2:00:46]:

And I thank you for that statement, and I will now turn to the representative of the Republic of Korea and ask her to deliver her statement.

The floor is yours.


Republic of Korea [2:01:00]:

Thank you for giving me the floor, Mr. Chair. The Republic of Korea would like to give a statement regarding 2 topics in Cluster 2. One is on immunity of state officials from foreign criminal jurisdiction, and the other is on subsidiary means for the determination of rules of international law. So first, regarding immunity of state officials from foreign criminal jurisdiction, my delegation would like to express its gratitude for the excellent work done by the Special Rapporteur, Mr. Claudia Grossman-Gulof, sorry, and the ILC members on this topic, which carries crucial importance for the international community. It was regrettable that due to the reduced length of the session of the ILC, the Commission was not able to complete the second reading at the session as originally planned. My delegation hopes that the Commission will be able to successfully conclude this highly complex and sensitive topic, striking a proper balance between the principle of sovereign equality on the one hand and the imperative of preventing impunity for those who commit crimes under international law on the other. At the present session, the Commission considered the second report of the Special Rapporteur, as well as comments and observations received from States. The second report contains draft Articles 7 to 18. Draft Article 7 addresses the crucial question My delegation will first address the question of whether or not to retain draft Article 7. Secondly, what Mr. Grossman calls a central issue, that is, which crimes ought to be listed in draft Article 7, will be considered. Thirdly, general comments will be made on Part 4, providing for procedural guarantees and safeguards. Concerning the first question, that is, whether to retain draft Article 7 or not, my delegation would like to align itself with the Special Rapporteur and most members of the Commission in the view that draft Article 7 should be retained. The reasons are as follows. First of all, the deletion of Article 7 draft Article 7 would risk eroding one of the most significant of the post-1945 achievements in international law. The acceptance of crimes under international law and accompanying recognition of individual criminal responsibility directly under international law was a belated but inevitable normative response to those crimes shocking the Secondly, in considering whether to retain draft Article 7, it is imperative for the Commission to maintain consistency with its own work on the same question. In this connection, one needs to refer to the 1996 Draft Code of Crimes Against the Peace and Security of Mankind. The final version of the draft code, as completed in 1996, provides a list of 5 crimes, iuris gentium, that is what is often known as the 4 core crimes, plus crimes against the United Nations and associated personnel. Regarding these crimes, the Commission, in its commentary on draft Article 8, provides for universal jurisdiction to be exercised by national courts. In particular, concerning the crime of genocide, the Commission refers to the character of the crime of genocide as a crime under international law for which universal jurisdiction existed as a matter of customary law for those states that were not parties to the Convention. Thirdly, the emerging trend in state practice concerning this question, as demonstrated in considerable detail in the second report, also supports the retention of draft Article 7. The Republic of Korea is no exception to this trend and has promulgated an Act on Punishment of Crimes Under Jurisdiction of the International Criminal Court, providing for universal jurisdiction to be exercised by the domestic courts of Korea. Now that the notion of exception to immunity, ratione materiae, is recognized, the next question is how to delineate the boundary of those crimes amenable to the exception. The difficulty of this question is amply demonstrated by the widely diverging views on the conceptual limits of crimes under international law. It is to be noted that some states have pointed out the lack of clear criteria for the selection of the crimes listed in the draft article. The importance of this question increases even more because the Special Rapporteur in his second report proposes that the crimes of aggression, slavery, and slave trading be added to the existing list. In this connection, it is essential for the Commission to be transparent and clear about the criteria for the choice of crimes urgentium to be included in draft Article 7. In this regard, it is submitted that at the present stage of development of international law, and further given the Commission's own position, on this question in the recent past, the Commission needs to consider carefully whether the ILC has provided convincing reasons for the addition of the crime of aggression to the list of draft Article 7. It was just 3 years ago that the Commission decided not to include the crime of aggression in the list of draft Article 7, citing the implications of the exercise of national jurisdiction for the international relations and international peace and security. The unique character of the crime of aggression is also confirmed by the ILC's work on the 1996 Draft Code of Crimes Against Peace and Security of Mankind. Under Article 8 of the Draft Code, while the other 4 crimes fall under the concurrent jurisdiction of national courts, and the International Criminal Court, the crime of aggression is to be referred to the exclusive jurisdiction of the International Criminal Court to be established. Once again, my delegation reiterates its first conviction that the crime of aggression is the supreme international crime and would welcome the eventual inclusion of the crime in the list of draft Article 7. However, for the reasons stated above, we would like to invite the Commission first to clearly articulate the criteria for the list, and secondly, to provide convincing rationale for the substantial change in its position, ambiguous— ambiguously adopted only 3 years ago. The Commission decided to provide for Part 4 for the purpose of avoiding possible abuse or politicization of the exercise of criminal jurisdiction by one state over an official of another state. In this sense, Part 4 constitutes an essential component of the draft articles that stands in a relationship of complementarity with other parts of the draft articles, in particular Part 2 and Part 3. It is for this reason that my delegation believes that the same normative character should be given to both substantive and procedural parts of the draft articles. To formulate Part 4 in the form of guidelines or recommendations, as some states suggest, would risk weakening the effectiveness of the procedural safeguards provided for in Part IV, thereby working as a hurdle to wider acceptance of the draft Articles. Having said that, it would be advisable for the Commission to address the concerns raised by some States about the relative lack of State practice in support of provisions contained in Part IV, in addition to ensuring the consistency of those provisions with the relevant ICJ jurisprudence. Hoping that the Commission will continue to make progress in the discussion of this crucial topic, the Republic of Korea expresses its willingness to fully cooperate with the Commission. Next, regarding subsidiary means for the determination of rules of international law, my delegation would like to express its gratitude for the Special Rapporteur's excellent 3rd report and for the work of the Commission on this topic under very challenging circumstances due to the significant shortening of this year's session. It is hoped that the Commission will bring this topic to a successful completion, which constitutes the last but not the least component of Article 38 of the ICJ Statute. First, my delegation would like to express reservations about the Special Rapporteur's overly broad view of the boundary of the subsidiary means. Despite the malleability and flexibility inherent in Article 38 of the ICJ Statutes, it would be questionable to try to turn Article 38 into a kind of catch-all category that can subsume most of the post-1920 candidates for the sources of international law within its remit. The boundary of Article 38 appears to have been substantially extended— expanded under the draft conclusions proposed by the Special Rapporteur, particularly as compared to the purview of the mandate as indicated in the syllabus of this topic. Secondly, my delegation would like to express reservations about draft Article— draft Conclusion 12. In this 3rd report, the Special Rapporteur in paragraph 214 refers to the role of the subsidiary means in promoting greater coherence of international law and carries out a very lengthy and detailed discussion on the question of unity and Coherence of International Law, from page 49 to page 72. It is to be remembered that the important question of unity and coherence of international law was already addressed by the ILC Study Group on Fragmentation of International Law. It is open to question whether the question of unity and coherence of international law falls properly within the function of the subsidiary means. Thirdly, the Special Rapporteur in his 4th report devotes the longest discussion to the question of the relationship between subsidiary means for determining rules of law and supplementary means of interpretation. However, delegation has strong reservations— my delegation has strong reservations about the Special Rapporteur's view. Despite the outward appearance, the intention of the drafters of the Vienna Convention on the Law of Treaties regarding the conceptual boundary of supplementary means for interpretation under Article 32 of the VCLT was very limited, in particular to preparatory work, that is, travaux préparatoires. This view is supported by the leading academic literature on the topic. Apart from its academic value, it is not entirely clear how this discussion may contribute to understanding or developing the main topic of the report. Therefore, the Commission is invited to seriously consider whether to retain in Draft Conclusion 13. Finally, my delegation would like to stress the need to refine the clear-cut dichotomy between private and public as it appears in Draft Conclusions 9 and 10. Hoping that Commission will continue to make its important contribution to the discussion of this topic, the Republic of Korea will participate in the consideration of the topic actively and fully cooperate with the Commission. I thank you.


6th Committee · Chair [2:14:53]:

I thank you too, and I'm now turning to the representative of the Russian Federation.

The floor is yours.


Russian Federation [2:15:05]:

Mr. Chairman, in our statement on Cluster 1, we clearly set out our position regarding the overloaded program of work of the ILC. This is equally applicable to the number of topics which we're asked to discuss within the framework of Cluster II. If we were to share all of our comments today across all 4 topics, I fear that I would have to take up an entire hour of your valuable time. For that reason, I intend to comment in detail on the issue of immunity of state officials from foreign criminal jurisdiction, and on the other topics, I will only sketch out the main elements of our position. We are compelled to once again express our disquiet regarding the direction of travel of the ILC's work on the immunity of state officials. Without a doubt, Mr. Grossman, much like the previous Special Rapporteur, Ms. Escobar-Hernández, as well as other members of the ILC which support the Special Rapporteur's approaches, we believe that without a doubt they are driven by good intentions, which we also share. We are attempting to facilitate the fight against impunity and ensure accountability war crimes, which are a cause for concern for the entire international community. However, as we all know, the road to hell is paved with good intentions. We fear that the heated discussions which were held at the ILC and in the Sixth Committee when discussing the issue of potential exceptions to the immunity of officials, ratione materiae, is but a harbinger of the kinds of conflicts that will break out between states when they attempt to, in practice, implement the exceptions the ILC is proposing to implement them against one another. That is, we believe that many will agree that the issue of potential exceptions to functional immunity is the most sensitive, the most contentious issue of all, and is therefore a central issue for this topic. The way in which the ILC drafts the relevant draft article will determine the state's attitude to the final product of the ILC and potentially the way they— their attitude to— and it will also determine the stability of interstate relations in the long term. Therefore, we'd like to once again recall An argument put forward on numerous occasions by the ICJ. This refers to the procedural nature of immunity, which does not affect the material norms of international law on the responsibility for international crimes. We stand convinced that meticulous compliance with international legal norms related to personal and functional immunity of officials should be seen not as a driver of impunity, but rather as the foundation for stable and mutually respectful states— relationships between sovereign states. Earlier, we spoke out against draft Article 7 adopted by the ILC back in 2017 in its first reading, and this via an unprecedented vote. We noted that this draft article does not reflect existing international law, nor is it an instance of the progressive development of existing international legal norms, a development in the desired direction, that is. For that reason, we certainly cannot support draft Article 7 adopted by the Drafting Committee at the previous session, containing an expanded list of exceptions from immunity in instances of slavery, the slave trade, and the crime of aggression. Russia has unswervingly been a persistent objector on the issue of exceptions, and we're not the only one. Therefore, in keeping with international law, exceptions and Article 7 itself clearly cannot be deemed to reflect a norm of customary law. This has not been formed and will not be formed in the foreseeable future. This norm, that is. In Mr. Grossman's second report, examples are cited of recent state practice which supposedly serve as rationale, further rationale for exceptions from immunity. Much like the earlier examples, the overwhelming majority of these instances are either related to cases in their preliminary stages or refer to the practice of States in just one region, that is Western Europe. According to the Special Rapporteur's logic, this supposedly should attest to a trend towards limiting not only ratione materie immunity but also ratione personae immunity. There is no such trend, and these isolated cases are nothing but a violation of existing international law. The other examples cited in the report also fail to convince. In some of the cases mentioned, well, these were cases where there were criminal prosecutions underway against foreign state officials which have permanently moved to a foreign state, and some of them moved to seek refuge, to seek asylum. Clearly, states are not particularly inclined to invoke immunities vis-à-vis their former officials, officials which are seeking refugee status or resident permits abroad, that is, in other countries. Other examples refer to the criminal proceedings initiated against former officials initiated for events which transpired decades ago under governments, the policies of which have been publicly rejected by the current authorities of the countries in question. Logically, these states did not invoke immunities. In these cases. In another criminal proceeding, the state of citizenship of the official in question opted to exchange convicted persons instead of invoking immunity. In other words, this so-called trend of limiting immunity has been illustrated with cases in which the state of nationality of the official in question did not invoke immunity. We should not forget that decisions adopted by national courts can serve as a subsidiary means for determination of rules of international law only under specific circumstances. The few examples cited cited in Mr. Grossman's report, which actually do refer to criminal proceedings against current or former foreign officials, proceedings because they committed acts when instructed by or on behalf of a current government, well, these few examples are not representative, nor are they consistent. They do not confirm that there is a general practice that has been established. What's also worth noting is that not a single one of the examples cited in the second report, examples of criminal proceedings against foreign officials, none of them refer to the 3 additional crimes which, at the behest of the Special Rapporteur, were included by the ILC in the list of exemptions.

Yes.

supposedly trigger exemptions from immunity resio ne materiae. Furthermore, as confirmation of the need for draft Article 7, the Special Rapporteur refers to instances of criminal proceedings being initiated in cases of contract killings, money laundering, and sanctions violations. What's the logic of what the Special Rapporteur is doing? It's not clear to us. We would also be grateful to Mr. Grossman if going forward he would be more accurate when citing state commentary. In paragraph 48 of his report, it says that the Russian Federation has proposed including in draft Article 7 one more category of crimes, specifically crimes committed by foreign officials. On the territory of a state exercising jurisdiction without the consent of this state. We'd like to clarify this. The Russian Federation does indeed believe that in such cases, functional immunity may not be applied. However, this applies to crimes such as espionage, sabotage, terrorism, Crimes in the instance of which invoking functional immunity is difficult and is problematic in principle. This does nothing to change the fact that we firmly believe that existing international law does not contain a general exemption from immunity of ratione materiae when it comes to crimes under international law. We believe that such exemptions can exist only as a treaty norm between states which entered into a treaty on this. As for the 4th section of the draft articles, the section which refers to procedural provisions and safeguards, our general comments on this section were submitted in writing. On draft Articles 8 and 9, provisionally adopted by the Drafting Committee in the second reading, we don't have any principled remarks. Mr. Chairman, at its last session, the ILC did not consider the issue of persons which enjoy personal immunity. Earlier, we noted that the Russian Federation does not agree to limiting this to the so-called Troika. We remain convinced that the list of high-ranking officials in draft Article 3 should not be a closed list. Against this backdrop, we'd like to inform you about Russia's practice, that is entering into bilateral agreements with other states on the mutual protection afforded to citizens. Agreements which inter alia include safeguards for upholding personal and functional immunities of foreign officials— of officials of the parties to the aforementioned agreements. Immunity ratione personae is guaranteed not only in respect of the head of state, head of government, and the minister of foreign affairs, but also other officials of commensurate rank. For instance, the Minister of Defense. Furthermore, what is envisaged is, with the mutual consent of the parties, to expand the list of such persons. We deem such agreements with our partners to be examples of best practice in international legal governance of immunities.

Mr.

Chairman, To conclude this section, we'd like to state our position clearly. Russia is prepared to respect both personal and functional immunity of foreign officials. We do not recognize exceptions to this immunity in principle, although I will not conceal the fact that we believe that some foreign officials from other states clearly deserve for this exception to be applied to them. However, states which themselves violate the immunity of official representatives, referring to so-called exemptions— exceptions, cannot count on us reciprocally respecting such immunities. Let us remind you that violations of immunities and the application of so-called exceptions will constitute an internationally wrongful act, meaning we could invoke international responsibility, and that gives rights for us to adopt countermeasures, which will not necessarily be mirrored— mirror measures.

Mr.

Chairman, We note significant progress in the ILC's work on the topic of subsidiary means for the determination of rules of international law. As a general comment, we'd like to express our support for the proposed structure for the draft conclusions. We think this is the right approach, having a separate section for general provisions related to the categories, the nature of the functions, and the general criteria for assessing the weighting the weight of subsidiary means. We also support former Draft Conclusion 6 being transferred into this aforementioned section. Draft Conclusion 6 clearly states that subsidiary means are not a source of international law. We deem it logical to merge into one section draft conclusions about potential categories of subsidiary means not mentioned in Article 38 of the ICJ statute. We'd also like to support the ICJ's decision not to include in the draft conclusions on this topic provisions regarding the consistency of court and tribunal decisions, nor information about the interlinkages between subsidiary means and supplementary means of the interpretation of treaties. We believe that these issues and not directly related to the topic at hand. Moreover, they were already considered by the ILC within the framework of other topics. What's more is Draft Conclusion 12 proposed by the Special Rapporteur could be interpreted as indirectly inciting international courts to follow earlier decisions so as to ensure consistency and coherence, which contradicts Draft Conclusion 6 regarding the absence of binding precedents under international law. In para c of Draft Conclusion 2 and also in the title of Section 5, we believe it's necessary to delete the word generally, which in our view can create an erroneous impression according to which the rules of international law as a rule of thumb are determined using relevant materials. We believe that such materials are only used in those cases when a lack of clarity persists as regards the existence and content of international legal norms or when case law and doctrine do not provide the necessary answer. Perhaps in draft Conclusion 2 regarding categories of subsidiary means, we should state from the outset that case law and doctrine are subsidiary means, whereas any other means used to determine international— rules of international law can be used as subsidiary means only under certain circumstances. This would obviate the need for separate provisions for determining the status of a specific means. For instance, this applies to para 1 of Draft Conclusion 5. To emphasize the difference between the decisions of international and national courts, perhaps it will be logical to merge Paras 1 and 2, stressing in a general provision that in contrast to the decisions of international courts and tribunals, which are generally recognized as a subsidiary means for the determination of the existence and content of rules of international law, the decisions of national courts can be used for these purposes under specific circumstances— for these purposes under specific circumstances. Having said that, we wouldn't object to including in this draft conclusion a separate paragraph recognizing in this context the special role played by the ICJ as the principal judicial organ of the United Nations. Referring to now the additional criteria for determining the weight of case law and tribunals listed in draft conclusion 6, 7, we suggest including the circumstances under which a specific court or tribunal was established, the procedure for electing judges, the independence of the judicial body, including from external political pressure. We'd like to add those. As for draft conclusion 8, we continue to believe that gender diversity is not a proper criterion for assessing whether a doctorate is representative. Moreover, we believe it would be more logical to transfer the second sentence of draft conclusion 8 regarding how representative doctrine is to— to transfer it to draft conclusion 9 regarding weight. We support the ILC's decision not to separate out into draft— different draft conclusions provisions regarding private and public expert bodies, given that in both cases Experts serve in a personal capacity. We agree that some works by expert bodies, for instance, preliminary reports drafted by special rapporteurs, do fall into the category of doctrine. In principle, we believe that some materials will not necessarily fall into only one category of subsidiary means. We have no qualms about some materials being in an interim category between case law and doctrine. Or, for instance, decisions of treaty bodies on human rights being an example, they could fall somewhere between case law and texts drafted by international organizations. Earlier, we expressed doubts regarding whether it would be worthwhile to consider the resolutions of international organizations as one of the categories of subsidiary means. In light of the materials provided by Mr. Jalloh, we believe it's necessary to include at the start of draft conclusion 12 the word some, or to include further language to clarify the fact that resolutions and other texts adopted by international organizations can be used as subsidiary means only under specific circumstances. In draft conclusion 13 on the weight, we suggest additional criteria: the purpose, the procedure for adoption, the— and the normative value of the document in question. As for resolutions and other international organization texts, we deem it relevant to include the criterion of degree, the degree to which this document remains relevant in light of subsequent events. We don't exclude the fact that this criteria might actually need to be included in draft conclusion 4 regarding criteria for assessing the weight of all subsidiary means. Additional comments on subsidiary means, well, we intend to share them after the Special Rapporteur provides the full commentary to the draft conclusions.

Mr.

Chairman, We'd like to once again express our gratitude to the Special Rapporteur on the Settlement of Disputes to Which International Organizations Are Parties. Thank you for your structured report on the basis of your analysis of the vast practice. The ILC's work on this topic logically follows on from its work on the responsibility of international organizations which merits priority consideration at the 6th Committee of the UNGA. Detailed comments on this topic will be shared by us next year when the 3rd report is presented. We'd like to make the following preliminary remarks. We're not convinced that draft guidelines 8 and 9 should be separated into a different section dedicated to Disputes involving private parties, they should apply to all draft guidelines. Furthermore, given that jurisdictional immunities of international organizations as a rule of thumb are enshrined in legally binding international agreements, we believe it would be better to replace the verb should with the verb shall and the word respect with the word Observe. In draft guideline nine, there was a mention made of international organizations' enforcement immunity. We believe that this omission needs to be fixed, at least in the commentaries. Draft guideline ten also gives ground for concerns. Once again, it groundlessly gives precedence to arbitration and judicial proceedings, although the special reporter. Himself in Paris 28 and 78 of his report, he himself states that many international organizations in disputes with private parties prefer to use informal means of dispute settlement with good reason. For instance, negotiations and consultations. From our vantage point, informal means of dispute settlement should be the object of a. In any event, we shouldn't dismiss informal means. Second, we need to clarify how the implementation of draft Guideline 10 will work in practice. After all, if an organisation already has various means for settling disputes with private parties, how can these means be made even more accessible? Or, If the courts of a state do not deviate from the immunities of international organizations, even when private parties have no other means to defend their rights— and there are such cases in practice, this is confirmed by Paras 159 and 169 of the report— in such cases, how do you intend to make judicial proceedings more accessible? A problem has cropped up again, a problem flagged by the Special Rapporteur in his second report linked to the fact that the use of some means of dispute settlement— well, that the parties prefer to maintain them confidential. We call on the ILC to avoid favoring those means of dispute settlement, the conduct and the outcome of which are covered in open documents, open source documents. We believe that the draft guidelines would benefit from including the following concepts: privileges and immunities, Parties, paragraph 117 of the report, as well as private parties. Last but not least, as the in-depth analysis conducted by the Special Rapporteur confirmed, and he covered a lot of practice, well, this practice is often heterogeneous. The concrete parameters for dispute settlement hinge on the provisions of the founding documents of international organizations, host country agreements, Private law contracts as well as case law in a specific state. Thus, draft conclusions would probably be advisable. For this reason, we don't— we're not convinced that there's demand for model clauses to be drafted in this sphere. Mr. Chairman, turning now to non-legally binding international agreements. For obvious reasons, commenting on the substance of the ILC's work is something we'll abstain from doing. We would like to make a number of general comments, however. We noted the stated intent of the ILC's— of the Special Rapporteur to draft and submit a 3rd report next year, which would consider the potential legal Implications of non-legally binding international agreements. Such haste is a cause for concern. It has prompted us to doubt whether this pursuit of this entire topic would be useful for states. In particular, it's not clear what legal implications non-legally binding international agreements might have. Since we haven't heard the opinions of colleagues and states regarding the second report, nor on the draft conclusions therein, not to mention the diversity of points of view regarding the name of the topic, its scope, and the form. I would also like to draw the Special Rapporteur's attention to the need to clarify terminology, specifically The term sub-state authority. In this context, we'd like to mention reference 143 to para 48 of the Second Report, which incorporates into this category a Russian federal executive body which enjoys the powers equivalent to a ministry, that is, the Federal Service for State Registration, Cadaster, and Cartography. as well as administrative and territorial bodies in other States, which can hardly be said to be empowered to act on behalf of the State in question as a whole. We urge the Special Rapporteur and the ILC to tread as carefully as possible on this topic. Any haste here is inappropriate in our view. Mr. Chairman, we continue to follow with a keen interest ILC and 6th Committee discussions on the prevention and repression of piracy and armed robbery at sea. We read very carefully the report of the Working Group of the Whole submitted at the previous— at the current session and would like to make the following comments. We share the position of ILC members about the importance of maintaining the freedom of the high seas, the principle of universal jurisdiction in relation to piracy on the high seas, and the need to strike a balance between the rights of the flag state and the coast state established in the UN Convention on the Law of the Sea of 1982. We'd like to once again highlight the fact that the main foundation for our work on this topic should be the 1982 Convention and the final materials of the ILC on this topic cannot in any way contradict the Convention when it comes to acts construed as piracy. We welcome the proposal for repeat consideration by the ILC of the provisionally adopted draft articles following the inquiries conducted by the ILC on this topic. We take note of the fact that discussions continue on such fundamental issues such as the final form the outcomes of the ILC's work on the topic will take, the meaning of the terms prevention and repression, prosecution of persons who committed piracy, jurisdiction in relation to piracy and armed robbery at sea, forms of cooperation with a view to combating piracy, and so on and so forth. These discussions are ongoing. Therefore, we believe it's advisable for the Special Rapporteur and the ALC to focus their attention on these discussions first and foremost. In particular, we deem it very important for the Special Rapporteur to continue his inquiry into the issue of liability for seizure without adequate grounds. Inquiries into equally important but at the end of the day secondary issues such as private security aboard vessels, rescue of victims of piracy and humanitarian assistance to such victims, hot pursuit, the duality of flags. of international naval vessels, all of these topics could be deferred until the ILC has fleshed out all of the concepts and created a substantive foundation for further work. Furthermore, at this stage of the discussion, we don't share the position some have expressed that it would be useful for the ILC to consider the issue of uncrewed aerial vehicles and maritime autonomous vessels as well as cyberattacks. Mr. Chairman, last but not least, just a few words about the succession of states in respect of state responsibility. We saw with regret that despite the decision taken by the LC at its 75th session, this work stream has not yet been completed. Although we understand that I think the fact that we are meeting after the shortened ILC session is to blame. Nonetheless, we'd like to thank Mr. Patel for his responsible approach to the task entrusted to him. Thank you for crafting a detailed draft report which reflects the history of our work on this topic and listing the objective reasons as to why this work cannot continue.

Thank you.

Our delegation has spoken about these reasons on many occasions. I will not go into that again at this stage. There should be no doubt about it. This topic needs to be closed. Having said that, the Working Group's final report should be worded in such a way so as not to create the false impression that the ILC will continue work on this topic. We agree with the opinion expressed by a number of ILC members who stated that the section of the draft regarding possible avenues for future inquiries should be either deleted or at least worded in a more provisional, laconic manner. We welcome the positive approach adopted by Mr. Patel, who intends to undertake effective work on the updated draft report next year. at the Working Group, as well as his intent to complete work on this topic during the 77th session. Thank you, Mr. Chairman.


6th Committee · Chair [2:47:04]:

Well, thank you for your statement. And noting that we have 11 minutes left, I will now give the floor to the representative of Austria.

You have the floor, please.


Austria [2:47:18]:

Mr.

Chairman, To begin with, I would like to express Austria's deep regret that the Commission's work was so strongly impacted by the liquidity crisis of the United Nations. While we fully understand the difficulties posed by this crisis and the need for all parts of the UN system to contribute to overcoming it, we nevertheless question the appropriateness of this drastic reduction. It severely hampered the efficiency of the Commission, which in turn entails further negative financial consequences. We recommend returning to a length of the ILC session next year that allows for a meaningful consideration of its programme of work. Austria thanks the Commission members for their efforts and thorough work despite the challenges they faced. As regards the future schedule of work, we recommend priority prioritizing the consideration of those topics that have been on the Commission's agenda at the present session already, with a view of finalizing them and making time available for the newly included topics. As regards the compilation of the Commission's report, we would like to reiterate one remark that we have made before on several occasions. In case draft texts are merely adopted by the drafting committee and neither discussed nor adopted in plenary, it would be most helpful if these texts could still be included in some way directly in the report. Mr. Chairman, allow me now to start with the topic immunity of state officials from foreign criminal jurisdiction and to congratulate Special Rapporteur Claudio Grossmann-Gilov on his second report. I would also like to thank the Drafting Committee and its chairperson, Mr. Mario Oyarzabal, for their diligent work. Again, the Austrian delegation would like to stress its regret that given the reduced session, the Drafting Committee only had very limited time for consideration of draft Articles 7 to 17. In the following, my remarks will focus mainly on draft Article 7 on crimes under international law, in respect of which immunity ratione materia shall not apply, as provisionally adopted by the Drafting Committee, which Austria considers of great relevance. Austria welcomes the expansion of the list of crimes by adding the crimes of aggression, slavery, and slave trade to the list, which is certainly warranted by the seriousness of these crimes. This extension of scope enhances the overall significance of draft Article 7. Austria considers the essence and the very idea of draft Article 7 as reflecting customary international law. Therefore, the extension, no doubt, will strengthen and enforce the legal certainty of this important provision. We have only one formal comment. namely that we would recommend to combine the crimes of slavery and slave trade under one subparagraph. As regards the deletion of paragraph 2 of draft Article 7 and its replacement by the phrase, quote, as defined according to the applicable rules of international law, unquote, in former paragraph 1, Austria appreciates the reasons for this deletion as explained by the chairperson of the drafting committee in his statement. However, the previous paragraph 2 appears to have been more precise in defining the applicable rules of international law concerning the crimes for which no immunity ratione materiae applies. If the Commission were to adopt the deletion of previous paragraph 2, we strongly urge to include relevant definitions of these applicable rules of international law in the commentary to draft Article 7, so as to provide clear guidance to States. As to the form of the final outcome of the topic, Austria strongly favors the ultimate goal of the draft articles to become a treaty. We fully agree with the Special Rapporteur in his opposition to the idea of splitting the outcome so that some Some provisions would be presented in the form of draft articles and others as draft principles or conclusions. Such an approach would undermine the rationale of the draft articles, which address the immunity of state officials as an integral topic. Mr. Chairman, allow me to turn to the topic subsidiary means for the determination of rules of international law. and to congratulate Special Rapporteur Charles Cialo on his 3rd report. Before addressing the substance of this topic, I would like to reiterate our disappointment that the Commission has been unable to discuss the topic fully and to adopt the draft conclusions on first reading due to time constraints. In the following, my remarks will focus on the draft conclusions as adopted by the Drafting Committee. Austria notes that the proposed Draft Conclusion 9 on weight of teachings corresponds to Draft Conclusions 7, 11, and 13, assessing the respective weight of decisions of courts and tribunals, as well as of expert bodies and of resolutions. In a situation like this, textual variations, even if minor, always raise certain concerns. First, we wonder why draft conclusion 9 includes a qualifier, as appropriate, whereas draft conclusions 7 and 11 do not include such language. The Commission may want to revert to this question at a later stage. Second, from a systematic point of view, we believe that the second sentence currently contained in draft conclusion 8 on teachings would be better positioned as second sentence to draft conclusion 9. The respective sentence I'm referring to currently reads, I quote, in assessing the representativeness of teachings, due regard should also be had to inter alia gender and linguistic diversity, unquote. In Austria's view, the elements gender, and linguistic diversity are relevant for assessing the weight of subsidiary means rather than defining teachings as such. Before turning to those draft conclusions collectively forming part of Part V, entitled Other Means Generally Used to Assist in Determining Rules of International Law, Austria would like to reiterate its hesitation to acknowledge other additional subsidiary means, going beyond what Article 38, paragraph 1, subparagraph of the Statute of the International Court of Justice states exhaustively. The term subsidiary means in this provision is based on a broad understanding of teachings and comprises the works of expert bodies, resolutions, and other texts produced by international international organizations or at intergovernmental conferences, as well as separate and dissenting opinions attached to decisions of international courts and tribunals. Their addition as other means may be confusing. Therefore, we suggest integrating the draft conclusions currently forming Part 5 into Part 4 and also elaborating a new conclusion on separate and dissenting opinions. With that proviso, I will continue commenting on the suggested draft conclusions forming Part V as adopted by the Drafting Committee. Mr. Chairman, permit me to turn now to Draft Conclusion 10 entitled Expert Bodies. Austria appreciates that there has been considerable debate within the Commission concerning the originally proposed distinction between private and public expert bodies. We generally welcome limiting the consideration to the work of experts serving in their personal capacity. At the same time, this limitation clearly approximates the work of such expert bodies. Hence, in our view, the work of expert bodies in this sense could certainly fit under Part IV dealing with teachings. From the discussion in the plenary as well as the drafting committee, as reported, Austria understands that expert bodies in the sense of Draft Conclusion 10 include both expert bodies established on the basis of treaties, such as the ILC itself or human rights— or the Human Rights Committee, and learned societies like the International Law Association or the Institut Droit International. If their work is not treated as teachings but rather as other means, this would imply, according to Draft Conclusion 10 as it is now formulated, that for instance the work of the ILC only may serve as a subsidiary means as opposed to teachings which are subsidiary means. On its face, this clearly relegates work of such important bodies to a secondary position as opposed to teachings of individuals, and we wonder whether this was really intended. I will now briefly address Conclusion 11, entitled Weight of the Works of Expert Bodies. This provision suggests additional criteria to assess such weight, additional to those contained in draft conclusion 4. Concerning the complementary or additional character, we wonder whether draft conclusion 11, subparagraph D, referring to the extent to which the body is comprised of experts with competence in international law, actually is complementary or additional to the expertise of those involved as contained in Conclusion 4, subparagraph c). Rather, it appears that competence in international law corresponds to the notion of expertise as already contained in draft Conclusion 4, subparagraph c). Mr. Chairman, permit me also to take a few remarks on the topic settlement of disputes to which international organizations are parties. At the outset, I would once again like to express Austria's regrets that the first reading of this topic could not be concluded at this year's session of the Commission due to time constraints. As a consequence, the Special Rapporteur will not be able to accompany the topic to its second reading and to finalize it during the current quinquennium, which is detrimental to the efficiency of the ILC's work. Let me now turn to the issues covered by the 3rd report of the Special Rapporteur, as briefly discussed by the Working Group of the Whole at the present ILC session. Austria supports the Commission addressing the relationship between jurisdictional immunity of international organizations and access to justice for private parties to a dispute. We regard this issue to be the most important one of this topic. In our view, it is reasonable for the Commission's guidelines to build on the principle that the jurisdictional immunity of international organizations should be respected. This jurisdictional immunity ensures the independent functioning of international organizations. At the same time, we recognize the possible impact of such immunity on the rights of private persons, in particular their human right of access to justice. Similarly, as in the case of state immunity, this aspect needs to be properly addressed. As host state to numerous international organizations and as a contracting party to the European Convention on Human Rights, we— which enjoys the status of constitutional law in Austria, and many other human rights treaties, it is vital to strike a balance between fair trial rights and the immunity of international organizations based in Austria, and to ensure that headquarters agreements meet the requirements of access to justice and fair trial standards. We expect the Commission to provide thorough guidance on this matter. We therefore think that the wording of Draft Conclusion 10 on access to justice, as proposed by the Special Rapporteur, should be reinforced. Dispute settlement mechanisms that meet human rights standards, in particular the requirements of impartiality and independence, must be available for all such cases. Additionally, we wonder whether the proposed Guideline 10 should should not be combined with the proposed Guideline 11 on dispute settlement and procedural rule of law, as well as human rights requirements. Mr. Chairman, to end my statement, I would like to express Austria's disappointment that the Commission could not adopt a report that would end its work on the topic succession of states in respect of state responsibility. While understanding this time constraints faced by the ILC this year, we would have considered it to be a priority to finalize work on a topic that is to be discontinued and to make time and resources available for new topics on the Commission's agenda.

Thank you.


6th Committee · Chair [3:01:23]:

Thank you for your statement.

Colleagues, the statement by the representative of Austria was the last statement for this meeting. We will continue with the debate on Monday, November 3rd at 10 AM in order to continue with the list of speakers on Cluster 2. I have to renew the appeal to— for shorter statements to be delivered. In fact, I would appeal for much shorter statements.

Now, a number of informal consultations are scheduled for the next week.

Please consult the website of the committee.

Also for the draft resolutions.

And that being said, I think we've made it to the end of the International Week.

Congratulations to everyone.

Thank you to the interpreters for additional minutes.

On this note, I wish everyone a pleasant weekend. Happy Halloween. This meeting is adjourned.


Speaker 28 [3:02:19]:

Thank you.