Delegates Praise Inclusion of New Topic on Sea‑Level Rise, as Sixth Committee Continues Review of International Law Commission

GA/L/3608
31 October 2019
Seventy-fourth Session, 26th & 27th Meetings (AM & PM)

Delegates Praise Inclusion of New Topic on Sea‑Level Rise, as Sixth Committee Continues Review of International Law Commission

Speakers Argue about Definition of ‘Gender’ in Crimes against Humanity Draft Texts

Delegate after delegate commended the International Law Commission for including “Sea‑level rise in relation to international law” in its programme of work and called for urgent action to address the legal implications of climate change and its effects on maritime borders, as the Sixth Committee (Legal) concluded consideration of the first cluster of topics from the Commission’s annual report and took up the second cluster.

The representative of Fiji, speaking for the Pacific Small Island Developing States, highlighted the vulnerability of island States and atolls in the Pacific.  With saltwater inundation and coastal erosion limiting access to fresh water and food, economies and livelihoods were at stake.  The situation also posed serious questions about the regulation of maritime entitlements, delimitation of maritime zones and the rights of coastal States, he said, noting the efforts of the Pacific Island Forum to address this legal quandary.

Speaking for that Forum, Tuvalu’s delegate recalled a meeting in his country in which the Forum’s leaders committed to a collective effort to ensure that once a member’s maritime zones are delineated in accordance with the 1982 United Nations Convention on the Law of the Sea, those zones could not be challenged due to sea‑level rise.  Thanking the Commission for “listening to our call” and putting sea‑level rise in its programme of work, he urged it to consider the interests of small island developing States, who were most affected by and least responsible for climate change.

Jamaica’s delegate noted that an estimated 90 per cent of her country’s gross domestic product (GDP) is produced within its coastal zone.  The last five years of beach erosion in that zone has led to significant sustainable development challenges.  Calling on the Commission to address the possible complete inundation or loss of parts of a State’s territory or maritime zones due to sea‑level rise, and the impact on Statehood, nationality and human rights, she stressed:  “We cannot live in the past”.

Honduras is a coastal State significantly affected by climate change, that country’s representative said, thanking the Commission for not only including the topic in its work, but also establishing a study group.  Urging the Commission to look at this topic within the framework of the Paris Agreement on Climate Change as well as the 1982 United Nations Convention on the Law of the Sea, she reminded the international community that, for her people, this is a question of survival.

The representative of New Zealand underscored that, for many Pacific countries, their ocean spaces and rights are the pathway to sustainable development.  It would be inequitable for these countries to have their rights eroded because of a phenomenon they have done the least to cause, she pointed out.  She also addressed the draft articles on the Cluster I topic, “Crimes against humanity”, praising the decision to remove the definition of “gender” from the texts.  That reflected the diversity of gender identity concepts across the world and removed the risk of such a definition being at odds with national legislation.

Belgium’s delegate, along with other delegates, also weighed in on the same question.  Noting her support for a convention based on the draft articles, she also commended the removal of the Rome Statute’s definition of “gender” from the texts.  The Commission’s work on “Crimes against humanity” highlights the importance of the fight against impunity for perpetrators of the most serious crimes that affect the entire international community, she said.

Canada’s delegate observed that the international community’s understanding of what constitutes “gender” has evolved since the Rome Statute, from where the definition was taken.  In the event of the international community moving towards negotiations of a convention, his Government would need to further consider several issues stemming from the treatment of gender, he added.

On the other hand, the representative of Senegal, as well as several other delegates, urged the Commission to rethink its decision to delete that definition, warning that the work of the Commission should not be based on a single doctrine or legal culture.  The deletion of the definition of “gender” in the final version remains one of the main obstacles in the elaboration of this instrument, he said.

Togo’s delegate also expressed his regret about the Commission’s decision to not include a traditional definition of the term “gender”.  It should have avoided approaching gender as a social construct and not a biological one.  That approach, he pointed out, was not unanimous and his country’s domestic code has a divergent approach to that.

Echoing that, the representative of Uzbekistan also said he did not agree with the departure from the Rome Statute’s definition of “gender” in the draft texts.  Given the sensitive nature of this issue, it would be better to adhere to internationally agreed upon wording.  In that way, the universality of the draft articles would be ensured, he stressed.

However, Estonia’s delegate applauded the Commission’s decision, stating that it had positively reacted to the outcall of many commentaries to the draft articles to leave out the definition of “gender”.  This development takes into account principles of human rights and equal treatment, she emphasized.

Also speaking today were representatives of Egypt, India, Spain, Japan, Viet Nam, Republic of Korea, Armenia, Turkey, Malaysia, Bulgaria, Chile, Cote d'Ivoire, Ukraine, Sierra Leone, Cyprus, Iran, Indonesia, Ecuador, South Africa, Philippines, Cameroon, Paraguay, Peru, Norway (also for Denmark, Finland, Iceland and Sweden), China and Austria.

The Committee also heard from the observers of the Holy See, the Permanent Council of Arbitration and the Council of Europe.

The Sixth Committee will next meet at 10 a.m. on Friday, 1 November, to listen to an address by the President of the International Court of Justice and continue its consideration of topics in the second cluster of the report of the International Law Commission.

Statements on Cluster I

AHMED ABDELAZIZ ELGHARIB (Egypt), aligning himself with the African Group, said the International Law Commission’s work on “Crimes against humanity” constitutes an important input into the international legal structure for creating accountability for such crimes.  However, the General Assembly should not hasten to adopt a resolution on the prospect of elaborating a convention based on the draft articles.  Instead, the international community should allow appropriate time and space for Member States to examine the draft articles and align them with their national legal systems.  Echoing other delegations who questioned whether it was appropriate to take a decision on the draft articles at the current session, he noted that draft article 7 explicitly advocates for the principle of universal jurisdiction, which is a matter of divergent opinion, including within the Sixth Committee.

Turning to “Peremptory norms of general international law (jus cogens)”, he reaffirmed his delegation’s position on draft conclusion 11 concerning separability of treaty provisions conflicting with a peremptory norm.  Further, the formation of jus cogens affects existing legal agreements.  Therefore, it is essential to define the standards regarding the emergence of new jus cogens.  His delegation will be sending more detailed observations to the Secretariat, he said.

Turning to “Other decisions”, he noted his preference for the inclusion of “Prevention and repression of piracy and armed robbery at sea” in the Commission’s work over other topics.  Noting the multitude of topics on the Commission’s agenda, he also added that it would be inappropriate to move the topic of “Universal jurisdiction” from its long‑term programme of work to short‑term programme work.

UMA SEKHAR (India), addressing “Peremptory norms of general international law (jus cogens)”, said the existence and definition of regional peremptory norms has been a subject of much debate among international law scholars.  While peremptory norms could be influenced by the regional practice of States, the idea is that they are universal in nature and application.  Whether peremptory norms will still be peremptory if they apply to some but not all States is a question that merits careful examination.  In regards to draft conclusion 23, which provides for a non‑exhaustive list of peremptory norms, she said some of the identified norms are not well‑defined in international law.  For instance, there is no definition of genocide, right to self‑determination and racial discrimination, she said.

Turning to “Crimes against humanity”, she said that considering the international mechanisms that are already dealing with the matter, including the International Criminal Court, the necessity of having a convention exclusively addressing crimes against humanity needs to be examined.  The Rome Statute provides sufficient legal basis for the domestic criminalization and prosecution of crimes against humanity.  Further, any work on this topic could lead to duplication of efforts already undertaken in existing regimes, she said.

CARLOS JIMÉNEZ PIERNAS (Spain), aligning himself with the European Union, encouraged the promotion of a convention based on the draft articles on “Crimes against humanity”.  He cautioned, however, that such efforts will only be successful — and their result valuable — if they are based on consensus among Member States.

Turning to “Peremptory norms of general international law (jus cogens),” he said he agreed with the definition of such a norm proposed in conclusion 2, as well as conclusions 3–9, which propose criteria to identify these norms in current international law.  For a peremptory norm to exist, it must be accepted and recognized as such by a wide majority of States; in other words, unanimity is not necessary.  He also noted his agreement in general terms with the list of norms in conclusion 23, calling for inclusion of those norms that prohibit massive pollution of the atmosphere or sea.  Further, although these are draft conclusions, he called on the codifying body to clearly and firmly propose the idea to States that any dispute regarding the interpretation and application of a peremptory norm should be resolved by a dispute-resolution body able to so resolve in a binding manner.

Mr. KESSEL (Canada) said States cannot simply leave it to the academic world to develop the thinking on the issues under consideration by the International Law Commission.  They must evaluate the work of the Commission, comment on it and use it as a starting point in negotiations.

On the proposed convention on “Crimes against humanity”, he remained concerned with the definition of gender in the first version of the draft convention, he said, noting that the international community’s understanding of what constitutes “gender” has evolved since the Rome Statute, from where the definition was taken.  Should the decision be taken to move forward with the negotiation of a convention, the Government of Canada would need to further consider several issues stemming from the treatment of gender, he said.

DEKALEGA FINTAKPA LAMEGA (Togo), aligning himself with the African Group, said that the current title of the draft articles, “Prevention and punishment of crimes against humanity” is more expressive than previous ones.  Stating his regret about the Commission’s decision to not include a traditional definition of the term “gender”, he said that it should have avoided the approach according to which gender is a social construct and not a biological one.  That approach is not unanimous, he said, highlighting the Togolese domestic code’s divergent approach to gender.  Further, the criminal code of his country covers and severely punishes all acts considered crimes against humanity whether committed on the country’s soil or outside it.  If the draft articles take the form of a convention, it should include various guarantees to reflect fundamental principles.  That instrument should also address the prevention of launching inappropriate judicial proceedings, he said.

Turning to “Peremptory norms of general international law (jus cogens)”, he expressed support for draft conclusion 3 on the general nature of peremptory norms.  Noting that peremptory norms are universally applicable, he also added that draft conclusion 16 should clarify that even the United Nations Security Council is concerned by its obligation to ensure that its resolutions are in conformity with the norms of international law.

On “Other decisions”, he noted his doubt about the inclusion of the topic “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, given that there are international and national courts who can deal with such violations.  However, as a coastal country, the topic, “Prevention and repression of piracy and armed robbery at sea” is of great importance to Togo.  Adding his support for including it in the Commission’s work, he noted that piracy affects both coastal and landlocked States.

FARKHOD AZIMOV (Uzbekistan), regarding “Crimes against humanity”, said that the codification of norms relating to the prevention and punishment of those crimes could help States harmonize and adopt relevant law.  However, he said he did not agree with the departure from the Rome Statute’s definition of “gender” in article 2; given the sensitive nature of this issue, it would be better to adhere to internationally agreed‑upon wording to ensure the universality of the draft articles.  He underscored the importance of article 5, as the principle of non‑refoulement is a long‑standing part of international law.  He also commended provisions relating to mutual legal assistance as these crimes often transcend borders.

On “Peremptory norms of general international law (jus cogens),” he called for clarification of conclusion 7 and the reference to a “very large majority of States”, as specific criteria for measuring that threshold was not provided.  Further, the non‑exhaustive list of peremptory norms must be studied to make sure that each norm listed exists as such in the realm of State practice.  This will help to ensure that legal certainty exists regarding the hierarchy of norms in international law.

Turning to “Other decisions”, he remarked that it was not appropriate for the Commission to include in its programme of work topics that do not meet the criteria for such inclusion.  Expanding the number of subjects the Commission studies can have a negative effect on its work, he added.

YUKIYA HAMAMOTO (Japan), noting that the output documents of the Commission have become voluminous, said it may not always be possible to thoroughly examine them all. Further, the Commission’s work increasingly takes the form of draft conclusions or draft guidelines, which, unlike draft articles of a treaty, will not be subject to diplomatic negotiations.  Also stressing the distinction between progressive development of law and codification, he added that treaties drafted by the Commission and adopted by States should leave room for flexibility, so that States can change their rights and obligations within bilateral agreements.

Commenting on the Commission’s long-term programme of work, he welcomed the proposed new topic, “Sea-level rise in relation to international law”.  The inclusion of “Evidence before international courts and tribunals” may also be useful for States.  However, “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” and “Prevention and repression of piracy and armed robbery at sea” should not be included, given that the Commission already has many topics under consideration, he said.

On “Crimes against humanity”, he said that in order for the draft articles to be adopted as a treaty and receive broad support among States, national criminal laws of States need to be taken into account.  Highlighting article 2, which contains the definition of crimes against humanity, and article 6, which obliges State parties to criminalize under national laws, he said “it would be beneficial to grant States some discretion in the process of criminalization.”

Turning to “Peremptory norms of general international law (jus cogens)”, he noted that it was not until the completion of the first reading that all the commentaries were made available for States to examine.  Draft conclusion 8 on evidence of acceptance and recognition is much the same as draft conclusion 10 of “Identification of customary international law”, he observed.  It is questionable whether the same evidence can be used to identify general international law and jus cogens.  Finally, it is questionable whether consensus exists among States that those norms listed in the annex of draft conclusion 23 enjoy status different from other norms.  Therefore, it is advisable to delete the list at the second reading to avoid controversy, he said.

Mrs. LE DUC HANH (Viet Nam), on “Crimes against humanity”, said while she supported the repression and punishment of such crimes, she remained unconvinced that the analysis based on International Criminal Court practice reflects the consensus on an international treaty dealing with crimes against humanity.  Moreover, should there be an international treaty on this matter, there are differences among the criminal legal systems of States.  In addressing this issue, there must be the possibility for State reservation against provisions which are not in contravention to the objects and purposes of the treaty.

Turning to “Peremptory norms of general international law (jus cogens)”, she noted that States with limited resources may be prevented from fully participating in creating materials serving as evidence of acceptance and recognition of jus cogens.  The notion of “a very large majority of States” should be carefully interpreted to ensure the community of States is represented in acceptance and recognition of jus cogens.  Noting the Special Rapporteur’s non‑exhaustive list of peremptory norms, she said this has caused concern over whether unlisted principles may not be considered as jus cogens, despite their worldwide recognition as a general principle of law, and that such a norm is accepted and recognized as one from which no derogation is permitted.

JUYEONG JANG (Republic of Korea) said that, if adopted, the draft articles on “Crimes against humanity” could provide a suitable legal basis for strengthening law-enforcement cooperation among States, particularly in the absence of bilateral treaties on extradition or mutual legal assistance.  Stressing that the articles should be in line with the Rome Statute of the International Criminal Court as much as possible, he added that changing contexts and their attendant interpretation should be approached in a way that will not erode the current system under the Rome Statute but rather strengthen it.

Turning to “Peremptory norms of general international law (jus cogens)”, he said that further reflection is needed on whether to include an illustrative list of jus cogens norms in the annex.  He urged the Commission to approach this topic with caution and to revisit this matter on a second reading.

On “Other decisions”, he said that “Reparations to individuals for gross violations of international human rights law and serious violations of international humanitarian law” could be useful in identifying existing State practice.  Further, the topic “Prevention and repression of piracy and armed robbery at sea” has important implications for seafaring nations.  Stressing that the main purpose of the Commission is the progressive development of international law and its codification, he said it should endeavour to more fully reflect the opinions of States.

Mr. SARVARIAN (Armenia), on “Crimes against humanity”, said that the question of priority of jurisdiction needs to be addressed regarding three bases for the assertion of jurisdiction prescribed in draft article 7, paragraph 1.  Those included territoriality, active personality or passive personality.  The potential for conflicts of jurisdiction arising from the current version of the draft articles is exacerbated by the frailty of the dispute settlement mechanism proposed in draft article 15.  The notion of “fair treatment” in draft article 11 needs to be clarified, he said, suggesting that “fair trial” be substituted.

Regarding “Peremptory norms of general international law (jus cogens)”, he said he had some concerns with draft conclusion 4.  A natural or moral law basis, cross‑referring to conclusion 3, was preferred in this case.  The Commission should consider whether the definition of genocide as a peremptory norm needs to be enlarged beyond the definition of article II of the Convention on the Prevention and Punishment of the Crime of Genocide.  There were also concerns regarding draft conclusions 7(2), 8 and 9, respectively.  In conclusions 8 and 9, “subsidiary means of interpretation” inverts the process by which peremptory norms have been recognized in practice.  Courts, not States, have been the leaders on this, as well as the Commission itself.

Commenting on “Reparations to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, he said that the idea was useful.  The topic seemed oriented towards greater elaboration on the modes of reparation, rather than access to dispute settlement mechanisms.  In this case, rather than draft guidelines, it is worth considering proposing amendments to the range of treaties that presently exist to provide criteria on reparations.

Mr. SUNEL (Turkey), on “Crimes against humanity”, said more time is needed to discuss the proposed elaboration of a convention, as the draft articles and their commentaries have just been completed.  Noting that the Rome Statute stipulates that “persons” are responsible for the crime of genocide — language echoed in the Convention on the Prevention and Punishment of the Crime of Genocide — he said that because “States” cannot be perpetrators of genocide, they cannot be perpetrators of crimes against humanity either.  Draft article 3 is therefore insufficient and its first paragraph should be deleted.  However, he advocated for the addition of language on non‑retroactivity.

On “Peremptory norms of general international law”, he said he was hesitant about the need for progressive development of that concept.  Clear and specified rules on that topic have not yet been formed, as well as concern about the non‑exhaustive list in the annex.

Turning to “Other decisions”, he said that, with regards to the “Provision of application of treaties”, rules should not create legally binding obligations. On “Reparations to individuals for gross violations of international law and serious violations of international human rights”, he said it is difficult to clarify the matter as there is still insufficient practice and case law on it.  “In the current multilateral environment [there] is a very low possibility to reach a consensus, especially on some political aspects,” he said, urging the Commission to take a cautious and balanced approach.  Finally, on the “Prevention and repression of piracy and armed robbery at sea”, he said the Commission’s future work will prove beneficial.

Ms. VESKI (Estonia), noting that the Commission’s process of preparing the draft articles on “Crimes against humanity” has been transparent and inclusive, said that this is the first time Estonia entered actively into such a process.  Adding her support for a convention based on the draft articles, she said that the inclusiveness of the drafting process will ensure a universally accepted and ratified convention.  Specifically, on draft article 2, she noted that the Commission had positively reacted to the outcall of many commentaries to the draft articles to leave out the definition of “gender” from draft article 2.  This development takes into account principles of human rights and equal treatment.

Turning to “Peremptory norms of general international law (jus cogens)”, she offered a detailed overview of the draft texts. Among other comments, she expressed support for draft conclusion 3.  The analysis of international and national case law as well as State practice brings forth that the jus cogens norms are upholding the most fundamental values of the international community.  However, draft conclusion 7 and what is meant by “the international community of States as a whole” could be further substantiated, she said, calling for additional examples of international case law.

She also expressed support for the inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” and “Prevention and repression of piracy and armed robbery at sea” in the Commission’s long‑term programme of work.

GABRIELLE RUSH (New Zealand), aligning herself with a statement to be delivered on behalf of the Pacific Islands Forum during the debate on Cluster II, said that she will, for the sake of brevity, give only one statement in the Committee’s debate on the report of the International Law Commission.  Full statements on each of the three clusters will be available on PaperSmart.

She commended the Commission’s decision to move “Sea‑level rise in relation to international law” to its active work programme and form a study group.  An increase in tropical cyclones, extreme waves and sea‑level rise are expected to combine and exacerbate extreme sea‑level rise events and coastal hazards.  Her Government is particularly focused on the implications of sea‑level rise for maritime zones under the 1982 United Nations Convention on the Law of the Sea.  These zones are critical to Pacific countries’ economies and societies and, for many, their ocean spaces and rights under the Convention are their pathway to sustainable development.  It would be inequitable for these countries to have their rights to maritime zones eroded because of a phenomenon they have done the least to cause and that the drafters of the Convention knew nothing of.  All States have an interest in preserving the balance of rights and responsibilities in that Convention, and in ensuring certainty over maritime zones to avoid potential disputes, she added.

On “Crimes against humanity”, she commended the clarity provided by the inclusion in article 3 of an explicit obligation for States not to engage in acts that constitute these crimes.  She also praised the Special Rapporteur’s decision to remove the definition of “gender” from the draft articles, which reflects the diversity of gender‑identity concepts across the world and removes the risk of such a definition being at odds with national legislation.  As well, the elaboration of a convention based on the Commission’s work would complete the important exercise of codifying the most serious crimes of international concern.

In response to the Commission’s call for information on State practice regarding “Protection of the environment in relation to armed conflicts”, she said that New Zealand’s Manual of Armed Forces Law prohibits attacks on the natural environment.  The obligations under which her country operates as a matter of policy for international armed conflict also apply to non‑international armed conflicts.  Those include prohibition of the use of methods or means of warfare that are intended or may be expected to cause widespread, long‑term and severe damage to the environment.

YOLANNIE CERRATO (Honduras) welcomed the adoption of 23 draft conclusions on the “Peremptory norms of general international law (jus cogens)”.  Turning to “Crimes against humanity”, she said the draft convention, comprised of the preamble, articles and annex, complements international human rights law, international criminal law and international humanitarian law.  Article 139 of her country’s new criminal code addresses crimes against humanity and regulates the territorial and extraterritorial application of criminal law.  She said she supported the recommendation to elaborate a convention based on the draft articles.

Welcoming the 28 draft principles the Commission adopted on the “Protection of environment in armed conflict”, she also expressed appreciation for the inclusion of “Sea‑level rise in relation to international law” in the Commission’s work.  Noting the efforts of the study group established by the Commission, she said that Honduras is a coastal country which is significantly affected by climate change.  Therefore, this is a matter of survival for her country.  She urged the Commission to look at this topic within the framework of the Paris Agreement on Climate Change as well as the Convention on the Law of the Sea.

Ms. HEYVAERT (Belgium), aligning herself with the European Union, said that the topic, “Crimes against humanity”, highlights the importance of the fight against impunity for perpetrators of the most serious crimes that affect the entire international community.  Supporting the elaboration of a convention based on the draft articles, she commended the removal of the Rome Statute’s definition of “gender” therefrom.  She also spotlighted the Mutual Legal Assistance initiative as a modern operational framework that facilitates effective international cooperation for national prosecution of genocide, crimes against humanity and war crimes.  That initiative and the draft articles are different but complementary projects that pursue the same goal of combating impunity for such crimes.  Their approach and scope differ, however, as the draft articles take a holistic approach to address a large range of rules and concepts while the initiative focuses on the creation of a modern, detailed framework for mutual legal assistance and extradition regarding genocide, crimes against humanity and war crimes.  She stated that these two instruments can coexist and continue to develop in parallel.

NORIZAN CHE MEH (Malaysia), commenting on “Crimes against humanity” and the adoption of the draft articles, said that her delegation is flexible with the recommendation to elaborate a convention by the General Assembly or by an international conference of plenipotentiaries based on the draft texts.

Regarding “Peremptory norms of general international law (jus cogens)”, she spotlighted the issue on whether a non‑State party to a treaty could invalidate a treaty on the grounds that the treaty was in conflict with jus cogens.  In the larger framework of treaty law, only State Parties to a treaty should be able to make the determination of invalidity on the basis of the treaty’s conflict with jus cogens.  Noting that a large number of the draft conclusions were rooted in doctrine rather than international practice, she called for greater analysis on various methodologies used in the identification of peremptory norms, specifically an example where a peremptory norm modifies another, as envisaged under article 53 of the Vienna Convention.

DIMANA DRAMOVA (Bulgaria), aligning herself with the European Union’s statement on Cluster I, turned to “Crimes against humanity” and welcomed the adoption of the draft articles, adding she strongly supported the Commission’s proposal for the elaboration of a convention by the General Assembly.  Her Government reiterated its commitment to the fight against impunity and to strengthening the international legal framework for prevention, prosecution and punishment.  She stated that adoption of a comprehensive treaty on crimes against humanity is a significant step that can help fill an existing gap in international criminal law.  She acknowledged that the draft articles make no compromise with upholding human rights standards, as no justice can be served without taking into account the rights of the accused.  All stakeholders should rest assured there will be no safe haven for perpetrators of the most serious international crimes.

Addressing the topic, “Peremptory norms of general international law (jus cogens)”, she said the approach in the conclusions by the Special Rapporteur sought a balance between State practice and theory.  However, the Commission should be consistent with its previous practice and phrasing, particularly regarding the responsibility of States for internationally wrongful acts.  She also expressed concerns about the illustrative listing of jus cogens and the need for more detailed analysis of the character of such norms and requested the Commission to clarify the theoretical controversy on the concept of regional jus cogens.

MARIANA DURNEY (Chile), on “Crimes against humanity”, said the Commission has prepared a draft that would eventually oblige States that accept it to adopt a series of specific measures which prevent those wrongful acts and effectively punish them.  The text accurately reflects the basic obligations derived from the customary prohibition of crimes against humanity and also suggests a basic definition of these crimes which reproduces almost verbatim the corresponding definition in the Rome Statute.  Noting that there is no treaty on the prevention and punishment of crimes against humanity, she called on the Sixth Committee to recommend to the General Assembly the convening of an international conference of plenipotentiaries to draft a convention, using the draft articles as the basis for its negotiation.

Turning to “Peremptory norms of general international law (jus cogens)”, she noted that the Special Rapporteur himself has previously been hesitant about the possible existence of regional jus cogens norms.  Agreeing that this notion has no support in the practice of States, she said the inclusion of an illustrative and non‑exhaustive list may be useful for identifying which type of norm would meet the criteria specified in draft conclusion 4.  However, such a list must be compatible with the methodology followed in this work by the Commission, she stressed.

Turning to “Other decisions”, specifically “Provisional application of treaties”, she said the draft guidelines adopted by the Commission will provide a very useful guidance in this area to States and international organizations.

Mr. RABE (Côte d'Ivoire), aligning himself with the African Group, commended the inclusion of the subject, “Prevention and repression of piracy and armed robbery at sea” in the Commission’s long‑term programme of work.  Transboundary crime is a serious threat to international navigation, the maritime economy of States, human life at sea and collective security.  The Gulf of Guinea, the Gulf of Aden and areas off the coast of Somalia have in recent years paid a high price for worsening crime and armed robbery at sea.  He therefore called for further study of this subject’s legal, political, diplomatic, military and geostrategic dimensions to establish a peaceful, durable international maritime public order.  As a coastal country in West Africa that has two of the highest‑performing ports on the African continent, he pointed out that Côte d'Ivoire has fallen victim many times to piracy and armed robbery off its coast.  Detailing domestic efforts to address this issue, he again commended the Commission’s decision to include this topic among those that concern the international community.

OKSANA ZOLOTAROVA (Ukraine), highlighting her Government’s contribution to the Commission’s work on “Crimes against humanity”, she underscored the crucial importance of bringing to justice perpetrators of serious violations of international law.  Thanking the Commission, she added her support for the recommendation to elaborate a convention in the basis of the draft articles.

Turning to “Protection of the environment in relation to armed conflicts”, she said this is a topic of enormous relevance to her country.  The ongoing foreign military aggression against Ukraine has already caused significant environmental damage that has affected civilian health and ecosystems.  Spotlighting draft principle 8 on human displacement, she noted the proposed measures to prevent and mitigate environmental degradation in areas where persons displaced by armed conflict are located.  However, the geographic areas should be expanded to areas that displaced people cross, as such territories also need protection, she stressed.

DIEDRE MILLS (Jamaica), focusing on the Cluster II topic, “Sea‑level rise in relation to international law”, said she hoped her country’s concerns would be addressed by the Commission as they began their deliberations on this topic in their programme of work.  The work undertaken since 2007 by the International Law Association on sea‑level rise has progressed from an examination of normal baselines with reference to low‑lying, small island developing States to a much broader review.  This new approach encompasses the possible complete inundation of State territory or loss of parts of a State’s territory or maritime zones due to sea‑level rise, and the impactions for Statehood, nationality and human rights.  She noted the various cases including the Bay of Bengal and the Nicaragua/Honduras case, adding that the former “tells us that maritime delimitation is not dependent on what may likely occur in the future” and the latter which “reminds us that we cannot live in the past”.

Studies have also indicated that reports of battering waves coupled with rising sea levels have caused significant beach erosion along Jamaica’s coastline within the last five years, she continued.  A new Building Act came into force in January 2019 and is the mechanism through which new building standards will be imposed.  Additionally, development orders under the Town and Country Planning Act, will make provision for flooding, sea‑level rise and setbacks from waterways and water bodies.  While the costs of dealing with brackish water and the loss of productive agricultural land to saline soils poses significant sustainable development challenges for Jamaica, there need not be implications for its maritime boundaries if the necessary remedial measures are taken at the appropriate time.  She expressed serious concern for the rising sea levels, reiterating that an estimated 90 per cent of gross domestic product (GDP) is produced within Jamaica’s coastal zone.

MICHAEL IMRAN KANU (Sierra Leone), on “Crimes against humanity”, said that the international legal framework addressing the core crimes condemned by international law is anchored by several fundamental treaties, including the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.  However, global accountability efforts could be significantly strengthened by a multilateral treaty on crimes against humanity, which would fill a major gap in the current substantive law of international crimes.  The draft articles proposed by the Commission reflect an appropriate mix of codification and progressive development of international criminal law.  However, his delegation would have appreciated the inclusion of two additional modes of liability that are presently missing from the draft articles, he said, pointing out that the “incitement” to commit crimes against humanity and “conspiracy” to commit crimes against humanity are both important.

Turning to “Peremptory norms of general international law (jus cogens)”, he welcomed draft conclusion 3 which identifies the characteristics of jus cogens as reflecting and protecting the fundamental values of the international community.  Thus, it affirms that they are “hierarchically superior” and “universally applicable”.  He also took note of draft conclusion 23 which seeks to resolve the sensitive debate on whether to have a non‑exhaustive list of peremptory norms balanced against the methodological challenges inherent in developing such a list.  Applauding the Special Rapporteur’s effort to find a middle ground, he underscored the importance of the last example which reaffirms the jus cogens nature of the right to self‑determination.

On “Other decisions”, he welcomed the inclusion of “Sea‑level rise in relation to international law” into the current programme of work.  He also added his support for the inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” and “Prevention and repression of piracy and armed robbery at sea” in the Commission’s long‑term programme of work.

Mr. DIAKITE (Senegal), aligning himself with the African Group, said the work of the Commission should not be based on a single doctrine or legal culture or language.  Diversity of opinions and legal systems and sources must be considered a strength, he said.

Commending the adoption of the draft articles on “Crimes against humanity”, he added his support for the elaboration of a convention on their basis.  However, the deletion of the definition of “gender” in the final version remains one of the main obstacles in the elaboration of this instrument.  Further, the fight against impunity called not only for a credible international legal framework but also for the bolstering of national capacities to investigate and prosecute.  Therefore, he said he supported the Mutual Legal Assistance initiative and emphasized the need for coordinated approaches.

Mr. CHRYSOSTOMOU (Cyprus), commenting on “Crimes against humanity”, noted that there is no general multilateral convention establishing a framework for the prevention and punishment of crimes against humanity.  “This represents a lacuna,” he said.  Further, the Rome Statute primarily regulates the relations between States and the International Criminal Court.  Therefore, there is merit in establishing a convention on “Crimes against humanity” based on the draft articles.  Encouraging a clearer distinction between the Mutual Legal Assistance initiative and the draft articles, he called on the Commission to address any remaining inconsistencies with the Rome Statute.

Turning to “Peremptory norms of general international law (jus cogens)”, he welcomed draft conclusions 10 to 13 which seek to consolidate and affirm the legal effects and consequences of conflict of treaties with such norms.  These draft conclusions are wholly consistent with the Vienna Convention on the Law of Treaties, he said, also noting that no proposed draft conclusion has been put forward with respect to “regional” jus cogens.  Such a notion cannot be reconciled with the universality of jus cogens and should therefore be avoided as it may create confusion, he said.

ABBASS BAGHERPOUR (Iran), commenting on “Crimes against humanity”, said that the obligation of States to prevent these crimes, as currently drafted, is too broad and leaves little freedom for national systems in terms of administrative and procedural matters.  Referencing article 4 and its provision that States are obligated to cooperate, as appropriate, with “other organizations”, he said that it is inappropriate to impose such an obligation on States.  Critiquing these and other provisions of the draft articles, he said that the articles still need work to allow the relevant authorities of Member States to make an informed decision, bearing in mind that existing international instruments, mechanisms, principles and bilateral judicial‑assistance agreements provide a sufficient legal basis for the prevention and punishment of crimes against humanity.

Turning to “Peremptory norms of general international law (jus cogens)”, he said he agreed with the Commission’s decision to exclude norms of a purely bilateral or regional character from the topic’s scope.  Regarding draft conclusion 16, he noted that the non‑derogability of jus cogens rules applies equally to resolutions, decisions and other acts of United Nations bodies — particularly the Security Council.  Council resolutions that are contrary to the general principles of international law and to the provisions of the Charter of the United Nations do not create any obligation for States.  It is necessary to provide a clear reference to Council resolutions in the draft conclusions to indicate the sensitivity of the matter and the importance of resolving this conflict.  In addition, the development of a list of jus cogens norms needs further consideration; such a list may substantially change the process‑oriented nature of this topic and lead to a misinterpretation that the Commission is the main body to recognize and identify these norms.

Regarding “Other decisions,” he said it is essential for the Commission to account for States’ needs and priorities when selecting topics for inclusion in its programme of work.  Further, topics should be selected that enjoy sufficient State practice.  On “Prevention and repression of piracy and armed robbery at sea”, he called for the project to avoid any contradiction with existing, applicable treaties including the Law of the Sea Convention.  The exclusive responsibility to combat or pursue pirates lies with States by means of public vessels; the involvement of private companies in this process lacks legal basis under international law.  On “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, he noted that this topic mixes two different sets of international law, each with their own characteristics and requirements.  In addition, this topic does not enjoy sufficient State practice; it could be considered as the progressive development of international law.

MUHAMMAD TAUFAN (Indonesia), on “Crimes against humanity”, stressed the importance of the provisions contained in the draft articles, particularly articles 6 and 7 on criminalization under national law and the establishment of national jurisdiction, respectively.  Equally crucial were articles 13 and 14, which make up essential elements on the prevention and punishment of crimes against humanity, namely extraditions and mutual legal assistance.  In this regard, he recalled, in his country’s national statement on universal jurisdiction two weeks ago, the prominence of cooperation among States to close the legal gap to end impunity, protect the rights of victims and uphold justice.  Such cooperation should be translated into an agreement, particularly on extradition and mutual legal assistance.

Turning to “Peremptory norms of general international law (jus cogens)”, he commended the draft conclusions adopted by the Commission at the first reading.  The definition of jus cogens, specified in the draft conclusion, is in line with the definition provided in article 53 of the Vienna Convention on Treaties.  However, with respect to other elements specified in the draft, especially conclusion 4 on criteria for the identification of a peremptory norm and conclusion 6 on acceptance and recognitions, he said that his country is keen to develop its view.  Even with the deliberation of jus cogens in the Indonesian legal system for many years, Indonesia is ready to study further the draft conclusions.

Turning to “Other decisions”, he noted that the guide for “Provisional application of treaties” could become a useful tool to address special circumstances between States as long as there is an agreement on the provisional application.  Additional consideration concerning the guide on the provisional application would be required, he said.

LUIS XAVIER OÑA GARCÉS (Ecuador), on “Peremptory norms of general international law (jus cogens)”, he said he supported the inclusion of the three sources of international law:  custom, treaties and general principles of international law.  The draft conclusions presented by the Commission clarify how these norms have been identified.  These norms reflect the fundamental values of the international community.  Therefore, they are universally applicable, he said.

Turning to “Crimes against humanity”, he said that the draft articles are a good basis for the elaboration of a convention on that topic by the General Assembly or a conference of plenipotentiaries.  Emphasizing the work of the Commission in including a definition of crimes against humanity, he said that the articles also set out extradition procedures.

He also thanked the Commission for its work on other topics such as “Protection of the environment in relation to armed conflicts” and “General principles of law”, noting that it is crucial to analyse these principles.  Expressing satisfaction with the decision to include “Sea-level rise in relation to international law” in the programme of work, he noted that the study group would begin its work in the next session.

XOLISA MFUNDISO MABHONGO (South Africa), addressing “Crimes against humanity”, said his country places great emphasis on inter‑State cooperation and domestic laws in preventing the most serious crimes.  While international courts serve an important role in this regard, it is essential that States remain the first line of defence in investigating and prosecuting perpetrators of international crimes.  Although he would like to see inclusion of war crimes and genocide within the parameters of the draft articles, he noted that a multilateral convention focused on mutual legal assistance and extradition for all serious international crimes is under way.  Nevertheless, it is necessary to ensure that such an initiative and the draft articles remain complementary to each other.

Turning to “Peremptory norms of general international law (jus cogens)”, he offered detailed comments on the draft texts, including on draft conclusion 16, where the Commission decided to address Security Council resolutions only in the commentary.  He said that the text of the conclusions should specifically state that Council resolutions are also subject to peremptory norms.  Addressing draft conclusion 21, he recommended that the commentary makes clear on second reading that the notifying party can adopt measures it has proposed if there is no offer to submit the matter for adjudication by the Court.  Alternatively, the text might be redrafted to provide the possibility for any State to offer to submit the matter for adjudication and provide the negative inferences for any group of States that refuses.

He went on to highlight the “middle road” taken by the Commission on the illustrative list, noting his agreement to this approach.  The list referred to norms already identified by the Commission having reached peremptory status without elaborating a new list from scratch.  In an ideal world, the Commission could have elaborated a new list, he remarked.  However, quoting an unidentified member of the Commission, he said:  “Such an exercise would take at least fifty years.”  Given the importance of the topic, he did not support this course of action, he said.

MARIA ANGELA PONCE (Philippines), commenting on “Crimes against humanity”, said that while she understood the enthusiasm of some States and the Commission to immediately start negotiating a convention based on the Commission’s draft articles, further consideration by States on these articles and commentaries is still needed at this stage.

Turning to “Peremptory norms of general international law (jus cogens)”, she said paragraph 2 of conclusion 7 appears inconsistent with the definition under conclusion 2, taken from article 53 of the Vienna Convention.  The use of “a very large majority of States” as the benchmark shifts the emphasis to a numerical standard and does not reflect the idea that the acceptance and recognition must be across regions, legal systems and cultures, she added.

On “Other decisions”, she said she did not view the “Provisional Application of Treaties” draft model clauses as promoting or encouraging resort to provisional application.  Rather they are a tool to assist States, should they decide, and if conditions permit them, to resort to provisional application of treaty.  Her delegation will submit further comments on this in advance of the start of the second reading of the draft guide at the Commission’s seventy‑second session.

On the Commission’s long‑term programme of work, she said she supported the topic “Prevention and repression of piracy and armed robbery at sea” with the consideration that the direction taken must be in line with the 1982 United Nations Convention on the Law of the Sea and should consider regional arrangements and practices.  She also noted her support for the inclusion of the topic “Sea‑level rise in relation to international law” and the establishment of an open‑ended study group on this.

ZACHARIE SERGE RAOUL NYANID (Cameroon), aligning himself with the African Group, called for synergy between the Commission and the Sixth Committee to refine State dialogue, as States are the authors and recipients of international law.  He also called on the Commission to submit its report on time so that delegations can make the best use of it and expressed the hope that multilingualism will “enter the DNA” of the Commission so members of the global community can address issues in their own working language.

Turning to “Crimes against humanity”, he called for certain concepts in the draft articles to be clarified, made more precise and better drafted to avoid the establishment of permanent infractions that can be cited at the discretion of views and interests.  Work remains to be done to reach a definition for these crimes and to make the articles’ scope more precise.  He called for States to reach consensus in this area, as a controversy currently swirls around the concept of international law that leads States to denounce “shadow areas” in this subject or selectively use it to justify interference into other States’ affairs.

On “Peremptory norms of general international law (jus cogens)”, he questioned the presence of certain norms on the non‑exhaustive list included in the draft conclusions.  The focus should instead be placed on opinio juris, which is the best way to determine States’ will to raise certain norms to peremptory status.  These norms are not supported by all States, presenting again the game of inter‑State legal relations; States decide how to qualify peremptory norms and are both the authors and subjects thereof.  He suggested remaining close to the functional duality of the Westphalian structure of international law — law by States, for States.  In addition, the jurisprudence of the International Court of Justice says much about the delicate nature of these norms, as the Court never mentions “jus cogens”, but instead uses the term “erga omnis” to refer to these norms without mentioning them explicitly.  He said he supported conclusion 7, however, relating to a large majority of States identifying peremptory norms.

Regarding “Other decisions”, he said he appreciated the Commission’s inclusion of “Prevention and repression of piracy and armed robbery at sea” in its long‑term programme of work.  This subject is long‑established in international treaties and State practice.  Referencing the Security Council’s adoption of resolutions based on Chapter VII of the Charter to combat piracy along the Somali coast and the Gulf of Guinea, he called on the Commission to consider the evolution of law and practice in this area and to maintain existing international legal rules.  However, he questioned the inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” as a new subject, given the many similar areas that already exist.  Further, the issue of what qualifies as such violations could make already‑difficult debates on this topic more so.  The focus should be on implementing existing guidelines rather than elaborating new rules, he added.

Mr. DUARTE (Paraguay), welcoming the draft articles on “Crimes against humanity”, said that of all the crimes for which international courts and tribunals have jurisdiction, genocide and war crimes have been subject to treaties of universal character.  Therefore, the international community must make progress towards a legally binding convention on crimes against humanity.  Genocide, torture and forced disappearance are not subject to the statute of limitations in his country’s constitution.

Turning to “Other decisions”, he highlighted the International Law Seminar, adding that the Seminar is crucial to promoting and strengthening the role of international law in the legal systems of the world.

SANDRA RODRÍGUEZ (Peru) voiced support for the recommendation to elaborate a convention on the basis of the draft articles on “Crimes against humanity”.  The preamble of the draft sets out that such crimes are a threat to peace and security and explicitly states that preventing such crimes is a peremptory norm of international law.  These crimes should be treated gravely, she stressed, calling on the international community to put an end to impunity.  Also taking a positive view of the definition of such crimes, she added that, if the draft articles are to be used as the basis for a future convention, the definition of forced disappearance in article 2 is too restrictive.

Turning to “Peremptory norms of general international law (jus cogens),” she highlighted draft conclusion 3 on the nature of peremptory norms.  Agreeing that such norms reflect the fundamental values of the international community, she noted that they are hierarchically superior and universally applicable.  Further, it is correct to have ruled out the idea of a regional jus cogens, she said.

Turning to “Other decisions”, she expressed support for the second reading of the guide for “Provisional application of treaties” and for the inclusion of “Sea-level rise in relation to international law” in the programme of work, a crucial topic for small island developing States.

FREDRIK HANSEN, observer for the Holy See, said, in regard to “Crimes against humanity”, that he supported work aimed at the elaboration of a convention based on the draft articles.  Commending article 5 and the principle of non‑refoulement, he called for refugees and migrants fleeing persecution to be welcomed, protected, helped and integrated.  However, the future convention should focus on codifying existing customary law and promoting international cooperation.  Adding to or modifying the already‑agreed definition of these crimes before State practice and opinio juris have fully developed would not be conducive to broad consensus.  In this context, he expressed regret at the Commission’s decision to not include the Rome Statute’s definition of “gender” in the draft articles.  As work towards an instrument continues, he urged that the convention give all people an opportunity to seek justice and have their voices heard on an international level.  In addition, it should provide for the need to assist States with fragile or weak judicial and security systems, particularly with protecting racial, ethnic or religious minorities living therein.

JOSE LUIS ARAGON CARDIEL, of the Permanent Court of Arbitration, commenting on “General principles of law”, noted that the Permanent Court has applied the principles in a wide range of contexts.  The Court would be happy to review its practice on this topic and on specific issues proposed for their study by the Special Rapporteur — the origins, identification and functions of general principles of law.  Several tribunals in Permanent Court‑administered proceedings have applied general principles of international law in circumstances where treaties or customary international law did not provide a rule of decision.  He commented on several related cases, including the boundary arbitration between Croatia and Slovenia.  In this proceeding, the Court noted that, in the parties’ agreement, the land boundary was not disputed in segments where each States’ cadastral limits under municipal law were aligned.  Thus, it determined that the aligned limits constituted the boundary.

JÖRG POLAKIEWICZ, the Council of Europe, in regards to “Crimes against humanity”, said he supported the Commission’s recommendation to elaborate a convention on the basis of its draft articles.  He highlighted the jurisprudence of the European Court of Human Rights relating to the obligation of prevention detailed in article 4.  That Court had extensive case law on non‑refoulement reflected in the Commission’s report in relation to article 5.  He further commended articles 6 and 7, which ensure that crimes against humanity also constitute offenses under national law for jurisdictional purposes.  The Council has long‑standing practice and experience in addressing the rights of victims, witnesses and other affected persons.  It has created a legal corpus that places such individuals at the heart of the justice system.  He further detailed the Council’s practice and experience in the field of international cooperation in criminal matters, particularly with mutual legal assistance and extradition.  The Council’s experience can be useful in the future development of a universal convention on preventing and punishing crimes against humanity, he said.

SEAN MURPHY, Special Rapporteur on the topic “Crimes against humanity”, said that the draft articles were strengthened tremendously by comments received from Governments.  The Commission tried to address as many State concerns as it could.  While he understood, based on the debate on Cluster I, that some States still have reservations with respect to some provisions contained in the draft articles, he expressed the hope that Governments will be able to address these issues when considering whether and how to move forward with the negotiation of a convention on the basis of the draft texts.

Statements on Cluster II

SATYENDRA PRASAD (Fiji), speaking for the Pacific Small Island Developing States and addressing “Sea‑level rise in relation to international law”, said low‑lying small island States and atolls in the Pacific are currently most vulnerable to sea‑level rise.  They are also experiencing limited access to fresh water and limited food supplies due to saltwater inundation and coastal erosion.  The phenomenon is affecting livelihoods, infrastructure and economies and will continue to bring destruction, displacement and instability into the future.  He commended the Commission for including sea‑level rise in its active programme of work, along with an open‑ended study group on the matter.  The inclusion allows Member States to voice priorities and concerns as well as pose serious legal questions about related issues, including the regulation of maritime entitlements, delimitation of maritime zones and the rights of coastal States.  The Pacific Island Forum recently engaged in a collective effort, including developing international law, to ensure that once a Forum member’s maritime zones are delineated in accordance to the Law of the Sea Convention, those zones cannot be challenged or reduced as a result of sea‑level rise and climate change.

SAMUELU LALONIU (Tuvalu), speaking for the Pacific Island Forum, recalled that last year his region had called for the Commission to examine the international law implications of sea‑level rise as a matter of extreme urgency.  Expressing deep gratitude to the members of the Commission for “listening to our call” and according priority to the topic, he said the Pacific is already facing the adverse impacts of climate change.  These include rising sea levels upon deteriorating marine and coastal environments, more destructive storm surges and natural disasters which threaten livelihoods, health, culture, well‑being and infrastructure.

International law should not further disadvantage those affected by the impacts of climate change, he stressed.  The response of international law to sea‑level rise must take into account the interests of those who are particularly affected, including small island developing States with the least responsibility for its causes.  The Forum leaders met in Tuvalu earlier this year and committed to a collective effort, including to develop international law, with the aim of ensuring that once a Forum member’s maritime zones are delineated in accordance with the Convention on the Law of the Sea, then those zones could not be challenged or reduced as a result of sea‑level rise and climate change.  He called on the international community to ensure the sustainable development of his people, communities and culture in the face of sea‑level rise and climate change.

HELGE SELAND (Norway), also speaking for Denmark, Finland, Iceland and Sweden, said the draft principles on “Protection of the environment in relation to armed conflicts” pose many timely questions, including the designation of significant environmental and cultural areas as protected zones and the protection of the environment of indigenous peoples.  Applauding the broad approach that the Commission is taking to the topic, he said he agreed that the draft principles apply in both international and non‑international armed conflicts.  The draft principles are a major step forward in the protection of the environment in armed conflicts and complement the work of various international organizations including United Nations Environment Programme (UNEP) and the International Red Cross and Red Crescent in that area.

Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said it was particularly important that the draft articles are harmonized with the Rome Statute.  Regarding draft article 7, including its handling of the link between procedural aspects and the exceptions to immunity in respect of serious crimes under international law, he said he supported the proposed procedural safeguards; they will ensure that all relevant aspects of cases involving claims of immunity are taken into consideration.  The draft articles should provide certainty to both the forum State and the State of the official.  In addition, the texts will help to reduce considerations and potential abuse of process for political purposes.  Underscoring the broad variations existing in national legal systems, he said the draft articles are practicable under different circumstances.

On “Sea‑level rise in relation to international law”, he said the factual consequences of sea‑level rise prompt questions relevant to international law.  The changing coastline affects the location of many maritime limits, national boundaries may be affected and vulnerable States risk losing land territory that is the basis of their existence.  Furthermore, many people may be forced to leave their homes and find assistance abroad.  Expressing support for the approach over the next two years to focus on three subtopics on the issue, he said the Nordic countries will provide relevant examples of practice and other information concerning sea‑level rise in relation to international law.  The Convention on the Law of the Sea provides the international framework for all activities at sea, he observed, reporting that it is a core priority for his group to safeguard and strengthen the Convention system.

JIA GUIDE (China), on the topic, “Protection of the environment in relation to armed conflicts”, said that there is a clear distinction between international and non‑international armed conflicts in terms of their nature, armed actors and extent of harm.  The rules of international humanitarian law applicable in those two settings constitute two distinctive systems.  The Commission should consider such differences and analyse respective State practice in those two scenarios.

With respect to “Immunity of State officials from foreign criminal jurisdiction”, he said the Commission should pay full attention to the comments and suggestions regarding the strengthening of procedural guarantees.  Those include:  full respect by the forum State for the primacy of the jurisdiction of the State of the official; the establishment of a stringent threshold for the initiation of criminal proceedings against foreign State officials; full communication between the forum State and the State of the official; and the assurance that the latter is fully informed of the case.

Turning to “Sea‑level rise in relation to international law”, he called on the Commission to recognize the complexity of the topic.  The root cause of sea‑level rise is climate change.  China stands ready to work with other countries to promote the comprehensive and effective implementation of the Paris Agreement on Climate Change.

On the “Succession of States in respect of State responsibility”, he advised the Commission to consider whether it is necessary to work on this topic or whether to aim for alternative forms of outcome, such as draft guidelines or an analytical report.

On “General principles of law”, he said the identification of general principles of law should meet clearly defined, strict and objective criteria and that the criteria for the identification of general principles of law should be as strict as those for the identification of customary international law.

HELMUT TICHY (Austria), addressing “Protection of the environment in relation to armed conflicts”, offered comments on several items, including draft principles 10 on “corporate due diligence” and 11 on “corporate liability”.  The wording raises the question as to whether the draft principles cover also private military and security companies.  Although these principles do not impose strict obligations on States, it should be clear that they also apply to private military and security companies.  Also focusing on draft principles 13, 14 and 15, he said the relationship between the law of armed conflict and environmental law is not sufficiently clear.  The draft principles could be merged and shortened to add clarity and put more emphasis on the objective of protecting the environment.

Turning to “Immunity of State officials from foreign criminal jurisdiction”, he addressed draft article 8, pointing out that issues of immunity must be examined as soon as possible, not only in the context of judicial proceedings but in that of administrative acts and proceedings of the forum State, prior to an indictment.  Regarding draft article 11, he said it is useful to provide for the possibility that the forum State may request the State of an official enjoying immunity ratione materiae to waive immunity if the official allegedly has committed a grave crime other than one listed in draft article 7.  He also noted the Commission’s reference to the crucial link between procedural aspects of the topic and exceptions to immunity in respect of crimes under international law set out in draft article 7.  One way to solve this issue could be to submit any dispute relating to the application and interpretation of these exceptions to a review by the International Court of Justice, which would undoubtedly strengthen the judicial control of the invocation of such exceptions and prevent possible abuses.

With respect to “Sea‑level rise in relation to international law”, he noted that the consequences of this phenomenon are felt worldwide, affecting also landlocked countries.  Adding that recent reports of the Intergovernmental Panel on Climate Change are alarming, he said it is timely that the International Law Commission addresses legal challenges resulting from sea‑level rise.

For information media. Not an official record.