Delegates Begin Consideration of Special Charter Committee Report
As the Sixth Committee (Legal) concluded its debate on the third cluster of topics from the International Law Commission’s report today — thus completing its consideration of the report as a whole — delegates pointed out the Commission’s work on succession of States in respect of State responsibility hinges on considerations of continued legal personality for which uniform State practice does not exist. (For background, see Press Release GA/L/3649.)
Slovenia’s representative, noting that her country is itself a successor State, agreed with the assertion that the Commission’s draft articles on this topic are of a subsidiary nature to agreements between the States concerned. The “clean-slate” rule, however, is not supported by diverse and context-specific State practice and represents a rare exception used almost solely for the succession of States that regained independence in the process of decolonization.
The representative of Viet Nam, concurring with the draft articles’ subsidiarity to agreements between States, stressed that the succession of States in respect of State responsibility should be carried out on the basis of committed negotiations, in a free-will manner and in an appropriate time frame. The principle of “non-succession” remains predominantly applicable, she added.
Brazil’s delegate, however, said that the Commission has contributed to the codification and progressive development of several aspects of State succession, pointing out that the body’s efforts led to the adoption of several international conventions. Responsibility should not disappear in all cases where the legal personality of a State ceases to exist, she emphasized, but added that automatic succession should not be a general rule as it does not reflect broad State practice.
The representative of Sri Lanka pointed out that the Commission’s previous work concluded that international liability for internationally wrongful acts is exclusive to the State that committed such an act. Therefore, succeeding to this responsibility would require the new State to continue the same legal personality as that of the responsible predecessor State. The Commission’s task, then, is to devise a formula that answers “the million-dollar question” of whether legal personality continues in such a case, he said.
Delegates also considered the topic of “General principles of law” from the Commission’s report, as many speakers noted the importance of updating the terminology contained in article 38 of the Statute of the International Court of Justice that currently refers to “the general principles of law recognized by civilized nations”.
The representative of the Federated States of Micronesia, welcoming use of the term “community of nations”, pointed out that “nations” is expansive enough to include indigenous nations that might not necessarily be called “States” by the international community. In her country, customary rules and principles emanating from indigenous nations can be deemed general principles of law, including the careful stewardship of the environment, respect for cultural practices and constant attention to the needs of future generations.
Peru’s delegate, however, agreed with other speakers that the central element for identifying general principles of law is States’ recognition of such principles. She said, therefore, that the expression “recognized by States or recognized by State practice” would be the most appropriate. She also suggested that the Commission address the relationship between general principles of law and jus cogens norms.
Niger’s representative, adding his support for abandoning use of the term “civilized nations” in favour of “community of nations” or “community of States”, said that the Commission should explore the relationship between general principles of law and other sources of international law. Such principles that derive from national legal systems — as well as those deriving from international or even regional legal systems — could serve as a basis for identifying these principles.
Mahmoud Daifallah Hmoud (Jordan), Chair of the International Law Commission at its seventy-second session, in his closing remarks, said that the active participation of delegations on all the issues present in the report was very encouraging for the Commission. However, he noted that “there needs to be a greater transparency in the interactions between States and the Commission” as, when States do not make comments, they stand outside the process of the development of international law.
Following the conclusion of its debate on the International Law Commission report’s third cluster of topics, the Sixth Committee commenced its consideration of the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (document A/76/33). The Committee also took up the report of the Secretary-General, “Implementation of the provisions of the Charter of the United Nations related to assistance to third States affected by the application of sanctions” (document A/76/186).
Introducing the report on the Special Committee on the Charter, Edgar Daniel Leal Matta (Guatemala), Chair of that Committee, provided an overview of the topics therein, including the maintenance of international peace and security and the Repertory of Practice of United Nations Organs and the Repertoire of the Practice of the Security Council.
Huw Llewellyn, Director of the Codification Division of the United Nations Office of Legal Affairs, detailed progress made in the research and drafting of Supplements 10-12 to the Repertory and welcomed the assistance extended by the University of Ottawa and Korea University to this end. He urged delegations to contribute to the Repertory’s trust fund and to raise interest among academic institutions in their countries or regions for participating in work on the Repertory.
Iran’s representative, speaking for the Non-Aligned Movement, expressed concern over the Security Council’s imposition of sanctions, which should be considered a last resort only imposed when a threat to international peace and security or an act of aggression exists. While the Special Charter Committee can contribute to the examination of legal matters, the imposition of laws and other forms of coercive economic measures against developing countries violate the Charter of the United Nations and undermine international law.
The representative of Venezuela, speaking for the Group of Friends in Defense of the Charter of the United Nations, also voiced concern over the growing resort to unilateralism, along with attempts to ignore or substitute the purposes and principles contained in the Charter with a new set of so-called “rules” that were never inclusively, transparently discussed. Underlining the active, constructive role of the Special Charter Committee in enhancing the Organization’s ability to achieve its purpose, he appealed to States to demonstrate political will for effectively carrying out the Special Committee’s mandate.
Speaking today on the International Law Commission’s report third cluster of topics from were representatives of Germany, Japan, Czech Republic, India, Estonia, Romania, Ireland, United Kingdom, Malaysia, Thailand, Slovakia, Republic of Korea, Netherlands, Poland, Jordan, Latvia, Russian Federation, Cameroon, Cuba, Spain, Italy, Algeria, Iran, Philippines and Turkey, along with the Permanent Observer for the Holy See and the Special Rapporteur for “General principles of law”.
Speaking on the report of the Special Committee on the Charter of the United Nations were representatives of Georgia (also speaking for Ukraine and the Republic of Moldova), Iran (in its national capacity), Cuba and Philippines, along with a representative of the European Union in its capacity as observer.
The representative of the Russian Federation spoke in exercise of the right of reply.
The Sixth Committee will next meet at 10 a.m. on Thursday, 4 November, to continue its debate on the report of the Special Committee of the Charter of the United Nations and on the Strengthening of the Role of the Organization.
International Law Commission Report – Cluster 3
PETER MOHAN MAITHRI PIERIS (Sri Lanka), on “Succession of States in respect of State responsibility”, recalled that the Vienna Convention on Succession of States in Respect of Treaties was adopted partly in response to the profound transformation brought about by the decolonization process. That treaty has proven to be controversial because it distinguishes between “newly independent States”, a euphemism for former colonies, and “cases of separation of parts of a State”, a euphemism for all other new States. The International Law Commission’s first articles on the responsibility of States on internationally wrongful acts concluded that international liability is exclusive to the State that committed the internationally wrongful act. Thus, the succession to this responsibility would require the new State to continue the same legal personality of the predecessor State responsible for such act. “The million-dollar question for the Commission then is to devise a formula that offers an answer to the question of whether the successor State enjoys the same legal personality as that of the internationally liable predecessor State that no longer exists or, on the contrary, whether this personality has thereby extinguished,” he said.
Turning to “General Principles of Law”, he noted agreement within the Commission on a number of points. Agreement existed on the use of article 38, paragraph 1(c), of the International Court of Justice as a starting point and on the group of international principles of law derived from national systems. Still, the Commission’s debates were akin to “walking a minefield”. The argument was so intense that some members expressed the need to explain the difference between principles, general international law and general principles of law, as in article 38(1)(c). The Rapporteur hastened to observe that the starting point of the work of the Commission was article 38(1)(c), in light of State practice, jurisprudence and relevant teachings. This, he said, “limited the work of the Commission to general principles of law, a source of international law as contemplated in article 38(1)(c)”. With that in mind, he wished the Commission success in its attempt to codify the principles of international law in a form that would be “easily digestible” to the peoples of the world.
AMELIE JASMIN KLUSSMANN (Germany), on “Succession of States in respect of State responsibility”, said that substantive progress on this topic was made despite the difficulties posed by the COVID‑19 pandemic. She also noted that she looks forward to the announced fifth report of the Special Rapporteur.
Turning to “General Principles of Law”, she welcomed the extensive analysis presented in the second report. However, she agreed with the Commission that a cautious approach is advisable when discussing issues related to such fundamental elements of the international legal system as the rules on the sources of international law. She also added that she generally welcomes the provisional adoption of draft conclusions 1, 2, and 4 with commentaries and generally agrees with the proposed methodology for the identification of general principles of law derived from national legal systems, as laid out in part II of the second report. The comparative legal analysis, underlying the “recognition” element in the determination of general principles of law derived from national legal systems, must cover different legal families but must also provide for geographical representativeness and diversity. This aspect is of critical importance for the legality and legitimacy of any findings on general principles of law. The formulation suggesting that the analysis must be “sufficiently wide and representative” captures this requirement well.
KAWASE TARO (Japan), speaking on “General principles of law”, welcomed progress made on that topic and expressed hope that the International Law Commission would continue its thorough deliberations on questions involved. The discussion on identification of general principles derived from national legal systems and those formed within the international one is critical. However, the difference between principles formed within the international legal system and customary law should be clarified. Draft conclusions sent to the Drafting Committee should be thoroughly examined and further explanations provided in the draft conclusion and commentary. Moreover, the Commission should elaborate on the definitions of terms used in a draft conclusion, including a definition of “general principles of law”.
MAREK ZUKAL (Czech Republic), on “Succession of States in respect of State responsibility”, voiced support for the second sentence in draft article 7; it ascertains secondary obligations of the successor States in certain circumstances. However, he said he doubted whether such rule could rely on the concept of the “acknowledgement” and “adoption” of a predecessor’s conduct by the successor State, borrowed from the articles on Responsibility of States for Internationally Wrongful Acts. Citing the Commission’s 2001 commentary to article 14 from the Responsibility of States, he noted that the issue at stake is not the continuing character of the wrongful act, but rather lasting consequences of the predecessor’s wrongful act and the ability of the successor State to contribute to the elimination of these consequences. Turning to draft article 8, he observed that it restates provisions of paragraphs 2 and 3 of article 10 from the Responsibility of States. The Commission may consider including reverse scenarios for both articles 7 and 8.
Regarding “General principles of law”, he reiterated his delegation’s stance that general principles of law are those originating in and derived from the national legal systems rather than from within the international legal system. Thus, recognition of the latter category could be problematic. The principles formed within the international legal system apply only to relations between States or other subjects of international law, he said, stressing that this makes them distinct from, and independent of, the “general principles of law” within the meaning of article 38 of the Statute of the International Court of Justice. A further study and analysis should clarify the position of general principles of law among other sources of international law, namely their relationship to treaties and international custom.
PETRA LANGERHOLC (Slovenia), on the “Succession of States in respect of State responsibility”, noted that her country is itself a successor State. While agreeing that the draft articles are of a subsidiary nature to the agreements entered into between the States concerned, she also said that the diverse and context-specific State practice does not point in the direction of a “clean slate” rule, as mentioned by some members of the Commission. “This rule represents an extremely rare exception in the field of State succession, which in practice has been used almost solely for the succession of the so-called ‘newly independent States’ that (re)gained their independence in the process of decolonization,” she said. Adding that it has been used for odious debts, she said the rule represents such a strong deviation from State practice that it should not be used as one of the options with regard to that topic.
Turning to the topic of “General principles of law”, she noted that imprecise terms such as principles of international law, general international law, general principles of international law, fundamental principles of international law, among others, are used interchangeably. She expressed hope that the Commission will contribute to further clarification and the proper use of terminology. While Slovenia allows for the possibility of general principles, formed within the international legal system, any general principles of law identified as such should not lose the most basic characteristic; they should enable the law to function as a law, even on an international level. This supports a cautious approach in identifying such principles and their sources, she said.
MERJE MÄGI (Estonia), regarding “Succession of States in respect of State responsibility”, added her support for the way the Special Rapporteur has approached the topics. As mentioned in his report, paragraph 31,it is important that, even if the full reparation remains the general rule of customary law, the States concerned may arrive at an agreement that provides less than full reparation. A State has the right to decide whether to waive its claims of reparation or present them for a certain amount at a certain point in time. However, the waiver of the claim does not mean that the internationally wrongful act has not taken place, she stressed, highlighting that the injured State has the right to decide when and how to present the claim.
Concerning “General principles of law”, she said she supported properly weighing the use of opinions of States on general principles of law expressed in the course of litigation. With respect to the identification of general principles of law formed within the international legal system, she said that deeper analysis would be needed to distinguish between the rules of conventional or customary law, or jus cogens norms, and the general principles of law, including their parallel existence. She called for further clarification of the terms “principle” and “rule”, both separately and in relation to each other. In terms of terminology, clarification in the usage of terms such as “general international law”, “general principles of international law” and “fundamental principles of international law” would also be welcome, she said. The introduction of a section in the draft conclusions for definition of terms used therein shall probably be addressed in future reports, she said.
ALIS LUNGU (Romania), speaking on “Succession of States in respect of State responsibility”, said the topic remains highly controversial and very much open to study as there is very little State practice relevant to it. Noting the Special Rapporteur’s view that the topic represents a continuation of the work on State succession, she said she did not see the normative character of the proposed draft articles. Further, she also noted she is unconvinced of the need to regulate in that specific field. Noting the non-existence of automatic succession to State responsibility as a rule, she encouraged the Special Rapporteur to revise the text in order to ensure that a consistent approach in relation to that aspect is maintained in the draft articles, as well as in the commentaries.
In regard to “General principles of law”, she said she did not encourage the inclusion of a study in relation to potential general principles of law formed within an international legal system as they pertain to conventional or customary international law. Moreover, she stressed it is important not to conflate and confuse identification of general principles of law with identification of customary international law. Otherwise, she concurs with the Special Rapporteur and the Commission concerning the method of identifying the general principles of law derived from national legal systems (the two-step approach), as well as to the general reference to “community of nations” to replace the reference to “civilized nations” in article 38, paragraph 1(c), of the Statute of the International Court of Justice.
QUYEN THI HONG NGUYEN (Viet Nam), addressing “Succession of States in respect of State responsibility”, noted that the principle of “non-succession” remains the predominantly applicable principle, with certain exceptions in particular circumstances, including when the successor State agrees to share the responsibility incurred by the predecessor State. Therefore, the draft articles should remain of subsidiary nature, and priority should be given to the agreements between the States concerned, she added, stressing that the succession of States in respect of State responsibility should be carried out on the basis of committed negotiations, in a free-will manner and in an appropriate time frame. She also acknowledged the five new draft articles presented in the fourth report of the Special Rapporteur, particularly the inclusion of the forms of reparations, namely, compensation and satisfaction, besides restitution.
On “General principles of law”, she stressed the importance of identifying and analysing general principles of law. Regarding draft conclusion 6, she emphasized that the general principles of law found in domestic legal systems must be compatible with the fundamental principles of international law as enshrined in the Charter of the United Nations. On draft conclusion 7, she contended that the fact that a principle is identified by being widely recognized in treaties and other international instruments does not automatically render the principle binding upon States that have not consented to be bound by the relevant conventional rules. She proposed that the Special Rapporteur further study the terminology “universally recognized principles of law”.
SIOBHÅN MILEY (Ireland), on “General principles of law”, said she agreed with the Special Rapporteur’s approach that the criteria for identifying general principles must be sufficiently strict so as to prevent them from being used as a shortcut to identifying norms of international law. Yet, at the same time, they must be flexible enough that identification does not become an impossible task. The outcome of that work should be a set of draft conclusions supported by commentaries. Welcoming the Commission’s intention to develop, in the draft conclusions, the specific criteria for determining whether a general principle of law exists at a given time, she proposed that draft conclusion 2 could be clarified by adding these words: “For a general principle of law to exist as a source of international law, it must be recognized by the community of nations.” Regarding draft conclusion 4, she noted the Commission may have to return to the issue of “identification of general principles derived from national legal systems”, when it has concluded its deliberations on general principles formed within the international legal system. She also said it will be necessary to consider draft conclusion 3, insofar as it relates to general principles formed within the international legal system, together with draft conclusions 6 and 7. Further examination of this issue would be helpful, she noted, adding that the provision of examples of practice and case law is particularly valuable.
Mr. HOWE (United Kingdom) welcomed the work done on the subject of “State succession in relation to State responsibility”. He went on to say that State practice does not support the principle of automatic succession or a clean slate. He hoped that priority would be given to agreements between the States concerned. He proposed “model clauses” as a format for this work of the International Law Commission.
With regard to the topic of “General principles of law”, he welcomed the cautious approach adopted by the Special Rapporteur on this third source of law, as identified by article 38 of the Statute of the International Court of Justice. He also welcomed the clear and precise comments that reflect the consensus among States, in particular on recognition as an essential condition for the existence of a general principle of law. Furthermore, he called attention to the divergences surrounding principles formed within the international legal system, spotlighting the difficulty of distinguishing them from customary law. He also cautioned against insufficiently restrictive identification criteria that could lead to too easy an invocation of such principles.
JANE J. CHIGIYAL (Federated States of Micronesia), on “General principles of law”, welcomed the term “community of nations” instead of “civilized nations”; the term “nations” is expansive enough to include indigenous nations that might not necessarily be called “States” by the international community. She underlined that, in the Federated States of Micronesia, customary rules and practices emanating from indigenous nations can be deemed to be general principles of law, including the careful and precautionary stewardship of natural resources and environments, respect for cultural practices, equitable management of community interests and constant attention to the needs of future generations. She encouraged the Commission to consider these customary rules and practices as foundations for important general principles of law in the international legal system. Commending the work done in identifying potential general principles of law formed within the international legal system, she warned against sweeping conclusions, given the murky nature of this second category of general principles. In addition, the Commission should reconsider the principle of land dominating the sea, referring to the Declaration on Preserving Maritime Zones in the face of Climate Change-related Sea-level rise, adopted by the Pacific Islands Forum.
HANIZAH BINTI MOHD IZZUDDIN (Malaysia), on “Succession of States in respect of State responsibility”, welcomed the first conclusion regarding the priority of agreements between the States concerned, whereby the draft articles are subsidiary in nature to the said agreements. Stressing that the Commission’s work on this topic should be consistent with the articles on “Responsibility of States for internationally wrongful acts”, she observed that the Special Rapporteur has said that there is a difference between “transfer of responsibility” of States and “transfer of rights and obligations arising from responsibility” of States. However, there is no further clarification or explanation given on that difference, she noted, calling for further clarification in order to avoid any ambiguities and confusions.
Turning to “General Principles of Law”, she stressed that the inclusion of this topic in the Commission’s long-term programme of work will carry substantive effect and voiced the hope that the conclusions would be useful guides to assist States, international organizations, courts and tribunals and others called upon to deal with general principles of law as a source of international law. Draft conclusion 2 is generally consistent with the United Nations Charter as well as various international treaties, which provide the basic foundation of the principle of sovereign equality of States. However, she expressed reservations on paragraph 5 of the commentary relating to the role of international organizations in the formation of general principles of law. International organizations do not, in any way, have the same standing, structural character, obligations and responsibilities as sovereign States, she stressed.
THARARUT HANLUMYUANG (Thailand), speaking on “General principles of law”, emphasizing the need to establish the criteria for identifying such principles. However, the criteria for determining the existence of general principles of law should not be too broad. They should be explicitly differentiated from existing rules of customary international law to avoid general principles of law becoming a shortcut for establishing customary norms in areas where general practice has not yet developed, he stressed. Regarding draft conclusion 5, he noted that, while it may not be necessary to examine all legal systems, families and regions, the inclusiveness of each legal system, family and region, as well as its unique characteristics, should be carefully considered and assessed in order to determine the essential content of general principles of law derived from national legal systems.
MATÚŠ KOŠUTH (Slovakia), speaking on “Succession of States in respect of State responsibility”, reiterated that the work of the Commission shall maintain consistency with the Vienna Conventions of 1978 and 1983, as well as the draft articles on nationality of natural persons in relation to the succession of States of 1999. He welcomed the Commission’s efforts to uphold the conformity of draft articles 7 and 8 with the articles on responsibility of States for internationally wrongful acts while expressing concerns about their added value. He also underscored that the language of paragraphs 2 and 3 of draft article 9 should be streamlined to strengthen the position of the injured State.
On “General principles of law”, he commended the Commission for its decision to exclude a reference to formal sources of international law as part of the commentaries to draft conclusion 1. General principles of law are not formed by a normative legal process resulting in a creation of a legal norm, but rather by a theoretical generalization of domestic legal norms. The categorization of general principles of law as a material source of international law should be further explored. Regarding draft conclusion 2, he added his agreement with the Commission that the term “civilized nations” is anachronistic, preferring the term “community of nations” or “community of States” instead. Further, he said he did not consider the transposition of general principles of law to the international legal system as the necessary requirement of their existence; draft conclusion 6, paragraph (a), was redundant. He stressed that general principles of law cannot be formed within the international legal system, as implied in draft conclusion 7, which is outside of the scope of the topic.
DOH KWANGHEON (Republic of Korea), focusing on “Succession of States in respect of State responsibility”, said he was thankful that the Commission drafted draft article 7 in a way that reflected the principles already stipulated in articles 11 and 14(2) of the draft articles on the “Responsibility of States for internationally wrongful acts”. He also noted that draft articles 16, 17 and 18 are drafted in a way that does not deviate from customary international law as codified in the aforementioned “Responsibility of States”. In addition, he expressed doubts as to whether such draft articles, specific to individual forms of reparation, are necessary for discussion on this topic.
Turning to the topic of “General Principles of Law”, he added his support to the Commission’s efforts to replace the expression “civilized nations”, as stipulated in article 38, paragraph 1(c), of the Statute of the International Court of Justice with “community of nations”, as contained in the International Covenant on Civil and Political Rights. He also noted the Commission’s decision to use the term “various legal systems of the world” instead of “the principal legal systems of the world” in draft conclusion 4. The latter reflects the variety and diversity of national legal systems of the world, highlighting that principles must be derived from the world generally.
LISELOT FRANCESCA EGMOND (Netherlands), on “Succession of States in respect of State responsibility”, recalled that her country’s position was incorrectly reflected in the Special Rapporteur’s fourth report in 2020. She said she was not convinced the final outcome should take the form of draft articles with commentaries, principles or guidelines. Rather, it should be in the form of a study, a report or an analysis of the relevant topics, alongside a list of issues to be considered, in case of State succession, in the form of a checklist or building blocks for succession agreements. She also expressed concern with the frequent restatements of the law on State responsibility, urging the Commission and the Special Rapporteur to refrain from this exercise. Instead, relevant State practice should be collected. Regarding the general rule of non-succession and that of “automatic” succession, the point of departure should be the principle that no legal vacuum in terms of State responsibility should emerge. Moreover, she expressed concern with the Special Rapporteur’s treatment of reparation in case of State succession and its different forms, urging him to refrain from defining, and redefining, the forms of reparation and to align his work with the work of the Commission on the general law on State responsibility.
Commenting on “General principles of law”, she welcomed the two categories of general principles of law proposed by the Special Rapporteur, namely general principles of law derived from national legal systems and general principles of law formed within the international legal system. She noted that she looked forward to the next report by the Special Rapporteur on the relation between general principles of law and other sources of international law. In addition, she said that the general principles of law should be used as a reference framework for the identification or deduction of applicable rules of general international law, which may be used to settle disputes by judges in international courts and tribunals. In this regard, she cited an example from the Arctic Sunrise Arbitration between the Netherlands and the Russian Federation in 2015, by which the arbitral tribunal held that the right to protest at sea, which derives from human rights standards such as the freedom of expression and the freedom of assembly, is an internationally lawful use of the sea, related to the freedom of navigation.
MATEUSZ SAKOWICZ (Poland), regarding “Succession of States in respect of State responsibility”, said he supported general observations made by the Special Rapporteur. Those included the subsidiary nature of draft articles, priority of agreements between concerned States and importance of preserving consistency with the Commission’s previous work, particularly its articles on responsibility of States for internationally wrongful acts. However, adding that the draft articles do not seem to be the most appropriate outcome for this topic, he said that following the model applied by the Commission in its work on “Provisional application of treaties” ‑ preparing a draft conclusion with an annex containing some model clauses ‑ would be more beneficial and practical.
Turning to “General principles of law”, he said draft conclusion 5 fails to explain the correlation between the terms “principal legal systems of the world” and “legal families”. Use of the latter term should be reconsidered. Moreover, the purpose of paragraph 2 of the conclusion is imprecise, he said, pointing to the difficulty in ascertaining the relationship between abstract evaluation of “legal families” and “national legislation” mentioned in paragraph 3, when primary importance should be ascribed to the latter. Regarding draft conclusion 6, it should be noted that the issue of transposition of principles to the international legal system is not mentioned expressly in article 38, paragraph (c), of the Statute of the International Court of Justice. Therefore, more consideration should be given to whether it can be treated as a requirement for recognition of general principles of law, he said.
ALAA NAYEF ZAID AL-EDWAN (Jordan), speaking on “Protection of the atmosphere”, underlined that the draft guidelines will fill a necessary gap in the international legal framework and establish a collective obligation on States. He noted his regret that the precautionary principle was not directly dealt with, but he also noted that this principle is implicitly reflected in draft guidelines 3, 4, 5 and 6.
Turning to the “Provisional application of treaties”, he said the Guide and its commentaries provide a useful tool for States, international organizations, and practitioners to understand its scope and harmonize the relevant practice to the furthest extent possible.
On “Immunity of State officials from foreign criminal jurisdiction”, he expressed his support to the introduction of the “no-prejudice clause” and to the limitation of immunity under draft article 7. “The right of the State of the official to functional immunity in such situations should not prevail over the right of the forum State in exercising jurisdiction,” he said. He also welcomed the introduction of the general procedural provisions to safeguard against political prosecutions against foreign officials. In addition, he said that the proposal for a dispute settlement mechanism in draft article 17 goes in the right direction.
Regarding “Sea-level rise in relation to international law”, he reiterated the importance of maintaining the integrity of the 1982 United Nations Convention on the Law of the Sea and the application of the Vienna Convention on the Law of Treaties in good faith.
He then touched on “General principles of law”, expressing his support to the first category of general principles of law whose scope remains to be settled by the Commission. The Commission should have an in-depth analysis of the requirement of recognition of general principles of law derived from the national legal systems and the meaning of transposition to the international legal system.
ANDREJS [PILDEGOVIčS] (Latvia), addressing the topic “Succession of States in respect of State responsibility”, called on the Commission to preserve consistency with its previous work, in particular with its articles on responsibility of States for internationally wrongful acts. The Commission’s outputs of the topic should be as methodologically and terminologically consistent as possible, he emphasized.
Turning to the topic “General principles of law”, he fully endorsed the Commission’s decision in draft commentary 3 to draft conclusion 2 to depart from the anachronistic term “civilized nations”, found in article 38, paragraph 1(c), of the Statute of the International Court of Justice, in favour of “the community of nations”. He viewed favourably the way in which draft conclusion 4 and commentaries thereto formulate and explain the process of identification of general principles of law derived from national legal systems. He also stressed the importance of multilingualism in the work of the Commission on the topic, including in the work of its Draft Committee.
EVGENY A. SKACHKOV (Russian Federation), speaking on “General principles of law”, urged the Commission to consider the lack of uniform terminology on this subject. Pointing to more than 10 variations of wording using the term “principle”, he emphasized that this is not a technical issue; rather, it is fundamentally important to determining the scope of the Commission’s work. He also noted that the Commission is currently studying ways to identify general principles of law as an independent source of law. Russian doctrine, however, takes a different approach by presupposing that such principles gain State recognition through treaty or customary law. Therefore, he questioned whether the Commission’s efforts on this point reflect the current international situation or represent a theoretical construction. Recalling that the drafters of article 38 of the Statute of the International Court of Justice sought to avoid situations of non liquet by conferring a subsidiary role upon general principles of law, he said that such subsidiarity is even clearer now in light of further development in the field of international law.
Turning to “Succession of States in respect of State responsibility”, he expressed doubt over addressing this topic in the form of draft articles. State practice in this area is scant and varied, and despite this topic being under consideration since 2017, debate is still under way on the propriety of a general rule regarding succession. He concurred with the Special Rapporteur that neither the “clean slate” principle nor that of automatic responsibility are acceptable as general rules and, rather, that treaties between States play a leading role in this area. This suggests that a set of draft articles is not the best option for tackling this subject; the Commission should concentrate on considering situations in which State responsibility is affected by succession. Noting the unlikelihood of the draft articles being concluded within the next few years, he said the Commission should also focus on overall principles relating to succession, such as those of fairness and justice.
ZACHARIE SERGE RAOUL NYANID (Cameroon), on “Succession of States in respect of State responsibility”, said he agreed with the Special Rapporteur on the subsidiary nature of the draft articles and that priority should be granted to agreements concluded between the relevant States. The Commission should consider including examples of succession agreements concluded between States in the commentary, he said, also proposing the drafting of a number of model clauses that would serve as a negotiation basis for succession agreements. On the “clean slate” rule and that of automatic succession, he endorsed the Special Rapporteur’s view that the practice of States is heterogenous and dependent on the context. Therefore, it is not possible to allow for the extension or the primacy of those rules. International law has not clearly outlined rules guiding the automatic transmission to the successor State of all the rights and duties deriving from the previous legal order. Stressing the importance of taking into consideration diverse State sources of State practice, he also highlighted the need to maintain coherence with previous work of the Commission.
Turning to “General principles of law”, he observed that the general principles of law are one of three sources of international law, with article 38(1)(c) of the International Court of Justice ranking them as the third formal source of law. Perhaps the drafters of this statute wanted to enable the Court to rule even if there is a lacuna in the two traditional sources of international law, he said, calling for great caution and rigorous and exhaustive analysis. The criteria for such general principles must be sufficiently strict and flexible. There are two key questions at stake: where the judge draws these principles from and how they can they be adapted to the particularities of international law. Further, it is inappropriate to establish a hierarchy between legal systems; customary and age-old laws flourish in Africa, allowing conflicts to be resolved where rules and procedures from modern law stumble. Highlighting draft conclusion 5, he wondered about the criteria which enable the principal legal systems of the world to be determined. He also voiced disagreement with the terminology of “community of nations” to replace “civilized nations” and suggested instead using the term “all States”. The word “nation” has strong sociological and spiritual connotations, he said, whereas the legal connotation of “State” encompasses the most complex situations.
ARIANNA CARRAL CASTELO (CUBA), speaking on “General principles of law”, said that the subject is of great importance for the continuity of the progressive codification of international law. The general principles of law must be basic norms or rules that can be applicable to international legal relations. They should reflect those principles set forth in Article 2 of the United Nations Charter. Further, general principles of law must be recognizable in the internal legal systems of Member States, either in their respective States, in their respective internal legal systems or in their international relations. The general principles of law must also be sufficiently general to become a source of international law. They must arise from the very nature of international law, through a process of logical introduction, without being required, as in custom, to demonstrate the existence of a precedent of international law. Any exercise of a future conceptualization of general principles must refrain from reinterpreting the United Nations Charter, she stressed.
MANUEL BAENA PEDROSA (Spain), speaking on “General principles of law”, said that their function is to fill gaps in the legal system through the application of a procedure that the Commission is currently examining. On terminology, he shares the concern of the Special Rapporteur and the Commission with regard to the expression “civilized nations”, which is anachronistic and not compatible with the principle of sovereign equality. With regard to draft conclusion 4, the two-stage system for establishing the existence of a general principle of law is appropriate, since the establishment of a system capable of identifying general principles is of the utmost importance and the expression “legal systems of the world” is sufficiently concrete in this respect.
Addressing the topic “Succession of States in relation to State responsibility”, he said that more than 10 draft articles on topics of considerable interest are still pending before the Drafting Committee. In addressing them, especially with regard to the legal consequences of wrongful acts and reparation, he drew attention to the need for consistency with the Draft Articles on Responsibility of States for internationally wrongful acts.
ENRICO MILANO (Italy), addressed the topic of “Succession of States in respect of State Responsibility”, noting that because of the paucity and sparsity of State practice in the subject matter, the topic may not be ready yet for codification of existing customary international law. Nonetheless, the work that has been done so far could easily constitute the basis for guidelines on the topic. He went on to underline that distinction between what constitutes existing general international law and the provisions which seek to progressively develop international law should be clearly signalled.
Regarding “General principles of law”, he said it is essential for the future development of the topic to identify the features of general principles of international law, with due regard to the distinguishing factors from customary international law, and from the rules that regulate the latter’s formation. As for the expression “civilized nations” contained in article 38 of the Statute of the International Court of Justice, he said it is anachronistic and should be avoided. Rather, referring to general principles of law, the expression “community of nations”, included in article 15 of the International Covenant on Civil and Political Rights, should be used.
MOHAMED FAIZ BOUCHEDOUB (Algeria), speaking on “General principles of law”, concurred with the Special Rapporteur that the starting point for the Commission’s work on this topic should be article 38 of the Statute of the International Court of Justice, which should be analysed in line with State practice and jurisprudence. Such principles play a complementary, subsidiary role. The Commission should continue its efforts to comparatively consider national legal systems in search of common denominators among them. He also added his agreement — proceeding from the principle of sovereign equality — that the term “civilized nations” in article 38 is anachronistic, suggesting that another term be used such as “international community” or “States”. The Commission should make further effort to correct terminologies to conceptually differentiate principles as a source of law and principles as a subsidiary category of treaty and customary law, he added.
Regarding “Succession of States in respect of State responsibility”, he said he supported — in principle — draft article 6, which says that responsibility is not transferred to a successor State if the predecessor State continues to exist. He pointed out, however, that the Commission’s work on this topic might not be acceptable to certain States, as many countries have not ratified the Vienna Convention on Succession of States in respect of State Property, Archives and Debts. Further, a lack of State practice in this area will complicate the Commission’s work, as experience shows that States prefer to solve issues of succession through negotiation. Suggesting, therefore, that the Commission’s work on this topic might be unnecessary, he called on the body to review the form of its output and limit the same to brief conclusions.
MOUSSA PARAISO SOULEYMANE (Niger), on “Succession of States in respect of State responsibility”, took note of the proposed five new draft articles and called for clear definition of certain terms such as “composite effect”. Welcoming the Special Rapporteur’s commentaries on draft article 16 on restitution and draft article 17 on compensation, he asked the Commission to verify and refer to practices of other regional courts, such as the African Court of Human Rights. Turning to draft article 19 on assurances and guarantees of non-repetition, he highlighted the first paragraph concerning the obligation of a State to offer appropriate assurances and guarantees of non-repetition and paragraph 2 on exceptional situations. Stressing their subsidiary nature, as indicated in the report, he said they should continue to be further studied and applied in the context of bilateral and or multilateral agreements between States.
Addressing “General principles of law”, he took note of draft conclusions 4 to 9, stressing the importance of all sources of international law, including general principles of law. Work on this issue should address the legal nature of the general principles of law as a source of international law, their scope and their relationship with other sources of international law. General principles deriving from national legal systems, as well as those from international and even regional legal systems, could serve as a basis for the identification of these principles, he said. Calling on the Commission to eliminate the disagreement regarding the recognition of a principle by the major legal families or the recognition of a principle by national jurisdictions within these families, he also voiced support for abandoning the use of the term “civilized nations”, in favor of “community of nations” or “community of States”.
NASER ASIABI POURIMANI (Iran), in regard to “General principles of law”, said that the element of “legal systems” is crucial to provide the contribution of all legal systems in a balanced manner. In that regard, he said he cannot concur with the Special Rapporteur’s reasoning in paragraph 110 of his report, regarding the irrelevance of opinio juris in the emergence of a general principle of law, that might reduce the universality of the general principles of law. Referring to the Statute of the International Court of Justice and the concept of “general principles formed within the international law”, he noted he was not convinced that such principles or rules serve as a category of general principles of law, as embodied in article 38 (l)(c). Regarding draft conclusions 8 and 9, he said he agreed with the importance of the decisions of the courts and tribunals and teachings of the most highly qualified publicists as subsidiary means for the determination of rules of international law. Noting that means of such nature reflect the general practice and opinio juris of States, he said he hoped that the result of the study does not lead to producing a specific list containing the general principles of law, since the purpose of the topic is not to increase the quantity of the rules and the principles of international law.
AZELA GUERRERO ARUMPAC-MARTE (Philippines), on “General principles of law”, she said her country’s Supreme Court has clarified that the term “generally accepted principles of international law” includes “general principles of law”, as it is understood in article 38(1)(c) of the Statute of the International Court of Justice. Referring to Philippine jurisprudence, she said that general principles of law were developed using international courts of concepts from municipal laws, to fill in gaps and/or address weak points using legal reasoning and analogies drawn from said municipal laws. If there is doubt, one must look at State practice to determine whether municipal law provides a just and acceptable solution. Further, the Commission should first determine if there exists sufficient State practice to consider as general principles of law “those formed within the international legal system”, as provided for in draft conclusion 3(b). She expressed support for the Special Rapporteur’s intention to address the functions of general principles of law and their relationship with other sources of international law, as well as the Special Rapporteur’s proposal that the Commission provide at the end of its work a broadly representative bibliography of the main studies relating to the general principles of law.
MAITÊ DE SOUZA SCHMITZ (Brazil) said of “Succession of States in respect of State responsibility” that the Commission has contributed to the codification and progressive development of several aspects of State succession. Its efforts have led to the adoption of the Vienna Convention of Succession of States in respect of Treaties, the Vienna Convention of Succession of States in respect of State Property, Archives and Debts, and the draft articles on Nationality of Natural Persons in relation to the Succession of States. By studying the interaction between this area of law and State responsibility, the Commission may fill a gap in international law. The topic is essential to ensure the effectiveness of international law, she said, noting that responsibility should not disappear in every single case where the legal personality of a State ceases to exist. At the same time, automatic succession should not be a general rule, as it does not reflect broad State practice. Applying the general rules of State responsibility in situations of succession of States should depend on a case-by-case analysis.
Turning to “General principles of law”, she said that for a general principle of law to exist, it must be recognized by the international community, and particularly by States. To that end, she concurred with the notion contained in draft conclusion 2, adding that she was also pleased to see that the Special Rapporteur avoided the use of the outdated expression “civilized nations” and instead used the formulation “community of nations”. While this terminology is reflected in other instruments, such as the International Covenant on Civil and Political Rights, he encouraged the use of more precise terminology, to reflect the primary role of States in the formation of international law.
MINE OZGUL BILMAN (Turkey), addressing “Succession of States in respect of State responsibility”, said that, on draft article 7 bis, the difference between composite acts and continuous violations is not clear enough. The report aims to maintain consistency. Yet, those articles might still be considered as open to discussion, regarding whether and to what extent they reflect customary international law. The Commissions should discuss article 7 bis in more detail in its future work. Regarding paragraph 2 of draft article 16, she said she supported the view that the successor State does not have an obligation to make restitution in lieu of the predecessor State. Turning to the continuity theory, she spotlighted paragraph 142 of the Special Rapporteur’s second report which contains the phrase “Turkey (the continuing State of the Ottoman Empire)” while referring to the Lighthouse Arbitration case. There is also a reference to the same case in the present Commission report. Her delegation had conveyed its views on this issue. Turkey was not a party to that case, she pointed out, adding that she considers that the continuity theory is still controversial and there are various views in doctrine. In light of that, she said she would appreciate if the Special Rapporteur would bear those comments in mind for future work.
Speaking on “General principles of law”, she said she agreed with the Special Rapporteur’s general approach that the criteria for identifying those principles must be sufficiently strict to prevent them from being used as a shortcut to identify norms of international law and, at the same time, sufficiently flexible so that identification would not amount to an impossible task. She added her support for abandoning the term “civilized nations”, contained in article 38, paragraph 1(c) of the Statute of the International Court of Justice. Regarding draft conclusion 4, she welcomed the decision of the Commission to use the phrase “various legal systems” instead of “principal legal systems”.
ALESSANDRA FALCONI (Peru), addressing “Succession of States in respect of State responsibility”, noted the subsidiary nature of the draft articles. The role of the concepts of equity, equitable sharing and distribution of rights and obligations, as well as the need to combine codification with the progressive development of international law, are of particular importance in this topic, she said.
Regarding “General principles of law”, she said that a future report should address the relationship between general principles of law with other sources of international law. Therein, the relationship between general principles of law and jus cogens norms must also be addressed. Pointing out that the term “civilized nations” should no longer be used, she also said she rejected the use of the term “community of nations”. Further, the expression “recognized by States or recognized by State practice” would be the most appropriate. She said she agreed that the central element for identifying the general principles of law is the recognition of these principles by States.
She went on to stress the importance of cooperation and dialogue between the International Law Commission and the Sixth Committee, calling for an increase in informal dialogues, including not only the States represented in the Sixth Committee, but also between the Chairman of the International Law Commission and the Chairman of the Sixth Committee.
GABRIELE CACCIA, Permanent Observer for the Holy See, on “Succession of States in respect of State responsibility”, noted that caution is well-advised on the topic. The continued relevance of rules on State succession and apportionment of responsibility between the successor State and predecessor State concerning different forms of reparation (restitution, compensation and satisfaction), as well as the obligation of cessation, assurances and guarantees of non-repetition, highlight the importance of further discussions on the subject in the Commission and Committee. Gathering information concerning existing State practices should be pursued, he added, as well as more specific efforts to clarify cessation obligations of intentionally wrongful acts, as well as assurances and guarantee of non-repetition of such acts in the future.
Addressing “General principles of law”, he emphasized the importance of early identification of key parameters. Such recognition is the essential condition for the existence of such principles, establishing derivation of such principles from national legal systems and the two-step approach of existence and transposition. These basic tenets provide solid guidance, ensuring the Commission’s work focuses on clarifying methodology, by which the existence of general principles of law and their content may be determined at a specific point in time. The Sixth Committee and the International Law Commission should not contribute to growing confusion between the legal and legally binding nature of international instruments governed by the Vienna Convention on the Law of Treaties, and non-binding and non-legal nature of proposals, opinions, reports or private documents advanced by conference secretariats, expert bodies, commissions or other auxiliary entities.
MAHMOUD DAIFALLAH HMOUD (Jordan), Chair of the International Law Commission at its seventy-second session, said the active participation of delegations on all the issues in the report is very encouraging for the Commission. Noting that there were around 70 speakers, he stressed that it is essential to allow all States, especially States with limited capacity in their relevant ministries or limited access, to access the various products of the Commission. “There needs to be a greater transparency in the interactions between States and the Commission,” he said, noting that while the report is exhaustive, it cannot cover every single aspect. When States do not make any comments, they stand outside the process of the development of international law, he cautioned.
On working methods, he added that while the challenges of the COVID-19 pandemic are evident, the Commission has demonstrated effectiveness in responding to and overcoming that challenge. “We were able to accomplish much during the most recent period,” he said, adding that with the assistance of the Secretariat, the Commission was able to harness technology for hybrid and remote meetings. However, physical presence and in-person meetings are essential, he stressed, adding, “We cannot simply do all of our work over zoom.”
He went on to say that over the past 20 years, there was not a single product that the Commission recommended for consideration that was not considered by the Sixth Committee, except for one, that being the 2004 Convention on the immunity of States and State property with respect to foreign jurisdictions. “This is a worrying matter,” he said adding that the Commission spent years on preparatory work on this topic. This matter must be addressed with the necessary seriousness here in New York, he said, adding that it would be unacceptable to leave those works without a response from the Committee.
Turning to the proposed establishment of a trust fund, he said that due to the suspension of contributions for the Special Rapporteurs, there are gaps in some geographical areas. Not all Special Rapporteurs have access to the financial resources that enable them to focus on this work, he said, adding that it is very important to establish this fund.
MARCELO VÁZQUEZ-BERMÚDEZ, Special Rapporteur for “General principles of law”, thanked all the delegations, adding that he has noted all their opinions and contributions.
Special Committee on the Charter of the United Nations
EDGAR DANIEL LEAL MATTA (Guatemala), Chair of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, introduced the report of its 2021 session (document (A/76/33). The Special Committee met in New York from 16 to 24 February 2021, he said, providing an overview of the five chapters of the Report, the first of which is entirely procedural. Chapter II relates to the maintenance of international peace and security, he said, noting that section A covers the work of the Special Committee on the question of the introduction and implementation of sanctions imposed by the United Nations.
He noted that the last section of chapter III, section C, summarizes the discussion on the commemoration of the fortieth anniversary of the Manila Declaration on the Peaceful Settlement of International Disputes. Chapter IV summarizes the Special Committee’s discussion on the Repertory of Practice of United Nations Organs and the Repertoire of the Practice of the Security Council, while chapter V concerns the remaining items on the agenda of the Special Committee, including a summary of the discussion on the working methods of the Special Committee.
HUW LLEWELLYN, Director of the Codification Division of the United Nations Office of Legal Affairs, detailed the progress made in the research and drafting of Supplements 10, 11 and 12 to the Repertory of Practice of United Nations Organs and welcomed assistance extended by the University of Ottawa and Korea University to this end. In addition, the Department for General Assembly and Conference Management published two volumes from Supplements 7 and 8 in electronic format during the period under review.
He urged delegations to contribute to the Trust Fund for the Repertory, which had an available balance of $95,101.36 as of 30 September. This amount includes generous contributions made by Qatar and the Philippines since July 2020. Calling on delegations to raise interest among academic institutions in their countries or regions for participating in the preparation of studies for the Repertory, he underlined that geographical diversity is important in this context.
ZAHRA ERSHADI (Iran), speaking for the Non-Aligned Movement, said the Security Council’s imposed sanctions are of great concern to the Movement’s member countries. Sanctions should be considered as a last resort. Targeted sanctions may be imposed only when a threat to international peace and security or an act of aggression exists, in accordance with the Charter of the United States. She reiterated the Movement’s concerns regarding the Council’s continuing encroachment on the functions and powers of the General Assembly and the Economic and Social Council by addressing issues which fall within the competence of the latter organs. The Organization’s reform should be carried out according to the Charter’s principles and procedures.
She stressed that the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization can contribute to the examination of legal matters. However, she noted deep concern regarding the imposition of laws and other forms of coercive economic measures against developing countries, including unilateral sanctions, which violate the Charter and undermine international law and the World Trade Organization rules. She called on countries that have imposed unilateral sanctions to put an end to such sanctions immediately. Regarding the agenda items related to the maintenance of peace and security and peaceful settlement of disputes, she commented on some Member States’ reluctance to engage in meaningful discussion. She reiterated the need for genuine political will to advance the long-standing issues included in the agenda of the Special Committee. She also invited Member States to fully use the Special Committee’s capacity by bringing new and practical proposals to its attention.
DANIELA GAUCI, representative of the European Union, in its capacity as observer, said the bloc implements United Nations sanctions in a full and timely manner. Moreover, Security Council resolutions, as well as designation decisions of the sanctions committees, are swiftly incorporated into European Union law. She welcomed the opportunity to discuss, in the 2022 session of the Special Committee, the subtopic “Exchange of information on State practices regarding the use of judicial settlement”, related to the “Peaceful settlement of disputes”, as well as the progress made towards the elimination of the backlog in preparing the Repertory of Practice and the Repertoire of Practice.
She encouraged the Special Committee to reflect on its agenda and working methods, noting that a number of featured proposals on its agenda for years, if not decades, are without concrete progress. That defies the very aim of the Special Committee and calls for a rationalization of agenda items to allow fruitful discussions on those topics where progress can be achieved. Stressing that resources must be allocated where they are most needed to avoid duplications and inertia, she said the Special Committee must assess the agenda items in terms of their relevance and likelihood of achieving consensus. “We need to instil new life in the work of the Committee, to make it more operational and results-driven,” she said.
SAMUEL MONCADA (Venezuela), speaking for the Group of Friends in Defence of the Charter of the United Nations, stressed that the Charter is the code of conduct that has ruled international relations between States for the past 76 years, on the basis of timeless principles. Apart from being the foundation for modern-day international law, these principles remain as relevant today as back in 1945. Emphasizing that ensuring compliance with and strict adherence to the Charter is fundamental for ensuring the realization of the three pillars of the Organization, he also voiced serious concern at the current and growing threats against the Charter, including the growing resort to unilateralism; attacks against multilateralism; claiming of non-existent exceptionalisms; attempts to ignore and even substitute the purposes and principles contained in the Charter with a new set of so-called “rules” that have never been discussed in an inclusive or transparent manner; and selective approaches or accommodative interpretations of the provisions of the Charter.
Underlining the active and constructive role of the Special Committee in enhancing the ability of the United Nations to achieve its purposes, he also noted his concern over the unwillingness of certain Member States to engage in a meaningful debate for considering the proposals that for a long time have been before the Special Committee. He appealed to those States to demonstrate political will for effectively carrying out the mandate of the Special Committee in relation to the commemoration of the fortieth anniversary of the Manila Declaration.
SANDRO INASHVILI (Georgia), also speaking for Ukraine and the Republic of Moldova, called on the Russian Federation to respect its obligations in Crimea. He also asked the international community to redouble its efforts to ensure that the Russian Federation stops all human rights violations in Crimea. Calling for opposition to any unilateral attempts to undermine the rule of law, he added that Ukraine was committed to the peaceful settlement of law and the resolution of disputes. The Republic of Moldova has consistently used the Charter to oppose the occupation of its soil, he continued, listing multiple resolutions of the General Assembly devoted to the withdrawal of foreign military forces and foreign armaments from the Republic of Moldova.
He went on to say that Georgia has always respected the peaceful settlement of disputes, which is why it opposes the occupation of the Abkhazia region. His country pursues all policies of conflict resolution, to help the communities divided by the occupation. At the same time, Georgia is resorting to judicial means, such as the European Court of Human Rights, which recently recognized the mass violations committed against the Georgian population and Georgian military personnel, as well as the deprivation of the right to return, he said.
MOHAMMAD GHORBANPOUR NAJAFABADI (Iran), associating himself with the Non-Aligned Movement, said prohibition of the threat or use of force, as enshrined in Article 2(4) of the Charter, has been an essential achievement of the United Nations, which constitutes a fundamental principle of international law. While self-defence is the inherent right of States, as enshrined in Article 51, the misinterpretation of this Article in recent years is concerning. He reiterated support for the joint proposal of the Russian Federation and Belarus to seek the advisory opinion of the International Court of Justice on the legal consequences of the Council’s use of force without authorization, except in the exercise of the right to self-defence. Regarding Council sanctions, there should be pre-established standards or criteria when determining and imposing sanctions. These criteria should include, inter alia, considerations related to the equal sovereignty of Member States, as well as the basic human rights of the concerned nations. He also said that it was high time the Special Committee consider Iran’s proposal “Obligations of Member States in relation to unilateral coercive measures: guidelines on ways and means to prevent, remove, minimize and redress the adverse impacts of unilateral coercive measures,” contained in Annex II of document A/75/33.
Ms. CARRAL CASTELO (Cuba), associating herself with the Non-Aligned Movement, added that the Special Charter Committee’s important mandate is even more crucial in the current circumstance in which some countries are promoting political agendas and interfering in the internal affairs of developing countries. As part of its interventionist policies, the United States openly contravenes the Charter by imposing an economic and commercial blockade against the people of her country, who are exercising their right to self-determination in choosing the economic system that suits them. Stressing that the guiding role of the General Assembly must be strengthened since it is the most representative body of the Organization, she added that the Special Charter Committee is the appropriate space for recommendations for reforming the Charter. Those who oppose its work allege that it does not achieve results, ignoring the fact that it is they themselves who refuse to discuss the matters on its agenda, she said, calling on delegations to support her country’s proposal.
Ms. ARUMPAC-MARTE (Philippines) noted that one of the Special Charter Committee’s most important achievements is the Manila Declaration on the Peaceful Settlement of International Disputes, also known as the Manila Declaration, adopted on 15 November 1982. Acknowledging that the Report captures the discussion on and support for the Philippine proposal for the commemoration of the fortieth anniversary of the Declaration, she further noted that her country is pleased that the Report represents some views from the delegations regarding the use of arbitration in the peaceful settlement of disputes. Reiterating that sanctions should be imposed only as a measure of last resort, when there exists a threat to international peace and security, a breach of the peace or an act of aggression, and always in accordance with the Charter, she also expressed support for the proposals by Cuba, Ghana and Mexico on strengthening the role of the United Nations.
Right of Reply
The representative of the Russian Federation, speaking in exercise of the right of reply, said that the statement made by the delegate of Georgia has nothing to do with the subject that was being discussed today. More so, false accusations were made. This shows a lack of respect for the International Law Commission, he said.
