Mr. Chair,
The United Arab Emirates thanks the International Law Commission for its dedicated work during the 76th session, despite time constraints resulting from the reduction of the session. We regard the Commission’s contributions as indispensable to the fulfilment of the General Assembly’s mandate to encourage the progressive development and codification of international law.
The importance and relevance of the Commission today is a reflection of how the Commission has traditionally approached its work. A strong methodological foundation is crucial to the Commission’s continued success. This can only be achieved through analyses that comprehensively and accurately survey State practice, respect the critical distinction between codification and progressive development, and give due regard to States’ views. This is the basis for the authoritative position that the Commission has developed over decades, an authority that must not be taken lightly or for granted.
With these preliminary remarks, I will now address the specific topics within Cluster I.
Turning first to “General principles of law”, we would like to thank the Special Rapporteur, Mr Marcelo Vázquez-Bermúdez, and the Commission for their work over the last several years. Questions relating to sources are at the heart of international law, and the UAE appreciates the Commission’s ongoing efforts in this area.
We recall the objective of this project as described by the Special Rapporteur in 2017: namely, to provide “authoritative clarification” on the nature, scope, functions, and identification of general principles of law, as set out in Article 38, paragraph 1(c), of the ICJ Statute. We find that authoritative clarification on a matter as fundamental as sources cannot be offered through the creation of new law or its progressive development. Rather, it should be focused on describing the current state of international law, firmly anchored in the practices and views of States.
We believe that much work is required for the draft conclusions on general principles to meet their stated objective, and have three main observations.
First, the inclusion of a category of general principles “formed in the international legal system”, as suggested in draft conclusions 3(b) and 7, raises significant questions. We are concerned that these conclusions lack support in State practice, jurisprudence, and doctrine, and share the similar views that have been expressed within both the Commission and the Sixth Committee. The examples identified by the Special Rapporteur in support of these draft conclusions raise further questions:
- Some of the purported general principles appear to reflect customary law, treaties, or both. For instance, the requirement of consent to jurisdiction is inherent in the notion of sovereign equality, which in turn is embodied in both treaties and customary rules. Consent to jurisdiction is also recognised in the statutes of international courts and tribunals. It is critical for this project to examine whether these norms existed as general principles independently from a treaty or custom. Regrettably, we find that no such assessment has been undertaken yet.
- In other cases, insufficient support is provided to show that a principle was, in fact, “formed” within the international legal system. For example, the principle of competence-competence is found in most, if not all, national legal systems.
Relatedly, we note that the examples identified by the Special Rapporteur rely on the characterisation of a norm or rule by an international court or tribunal as a “principle”. However, this itself raises difficulties as rarely, if ever, do these decisions specify whether the term “principle” is recalling Article 38(1)(c) of the ICJ Statute or is being used in a more general sense.
Accordingly, we urge the Commission to consider the implications of this second category of general principles for certainty and stability in the international legal order. We echo the viable alternatives proposed in the Sixth Committee, such as the use of a “without prejudice” clause for any future recognition of principles formed within the international legal system as a formal source of rights and obligations. We further request the Commission to reflect the current division among States’ opinions and doctrinal views more comprehensively in its commentary.
Second, and without prejudice to our general position, we also have concerns about the test proposed in draft conclusion 7 for identifying the second category of general principles. We believe that the difficulty faced by the Commission in providing more precise criteria is a symptom of the larger problem with positing a second category of general principles.
As a preliminary matter, we note that State consent is fundamental to the creation of rights and obligations under international law. This requirement applies to both treaties and customary international law, and must equally apply to any general principle that constitutes a source of international law. Consequently, we invite the Commission to devote greater attention to what the requirement of “recognition” means in the context of the second category of general principles.
Coming to the test specified in draft conclusion 7, we find the term “intrinsic” to be extremely ambiguous. The commentary offers a single line by way of clarification, namely that “intrinsic” denotes a principle “specific” to the international legal system that reflects and regulates its basic features. However, the debate in the Commission over whether the cited examples meet these criteria underlines the inadequacy of that clarification. Additionally, we find that not all examples cited in the commentary are “specific” to the international legal system. At least some of them simply reflect the application of a principle accepted within national legal systems on the international plane.
More importantly, the test in draft conclusion 7 demonstrates the difficulty of distinguishing the second category of general principles from customary international law. Any number of customary rules could be considered “specific to the international legal system” and as reflecting its “basic features”. However, customary rules rest on two clear constituent elements, as noted by the Commission in its 2018 draft conclusions. On the other hand, the methodology suggested by the Commission for the identification of the second category of general principles poses the risk of bypassing the requirements of custom to create obligations where none exist. This is especially concerning when read together with draft conclusion 10, which states that general principles can be the source of primary rights and obligations.
This brings us to our third point, pertaining to the functions of general principles and their relationship with other sources of international law. Notwithstanding whether there is a formal hierarchy between sources, we share the view that general principles are supplementary in nature and perform a gap-filling role, as also acknowledged by the Special Rapporteur in his second report. The ICJ has very rarely referred to general principles of law within the meaning of Article 38(1)(c) of the Statute, and in any case, primarily in the context of procedural rules. Draft conclusions 10 and 11, and their commentaries, should be considered against this context.
- With respect to paragraph 2(b) of draft conclusion 10, we invite the Commission to elaborate on which general principles, if any, can be considered sources of primary rights and obligations.
- For paragraph 3 of draft conclusion 11, we invite the Commission to examine whether a conflict between a general principle and a treaty or a custom is indeed possible, especially for the proposed second category of general principles.
Finally, we welcome the Commission’s efforts to clarify the concept of general principles of law derived from national legal systems. We understand this category to refer to principles common to various legal systems around the world, which must be ascribed equal weight. We hope the Commission’s final outcome will address outstanding questions relating to the recognition, identification, and transposition of these principles.
Mr. Chair,
With respect to “Sea-level rise in relation to international law”, we congratulate the Study Group on the completion of its work and the adoption of the Final Report by the Commission. The report will contribute to further dialogue, including at the high-level plenary meeting of the General Assembly to be held at its eighty-first session.
Climate change-related sea-level rise poses an acute threat to lives, cultures, ecosystems, and economies. Its existential implications, especially for small-island developing States, deserve the urgent attention of the international community. We stand in full solidarity with those affected, and reaffirm our commitment to inclusive, effective, and responsive action.
As a country with a long coastline, the UAE is not immune to the effects of sea-level rise. Around 85% of our population and over 90% of our infrastructure are concentrated in low-lying coastal areas. In our view, any viable response to the effects of sea-level rise must be rooted in collective action that takes account of the different capacities and circumstances of countries.
Legally, sea-level rise raises several novel questions that have little or no guiding precedent. We take note of the mapping provided in the Final Report of legal frameworks and State practice that may be relevant on these issues. We appreciate the Study Group’s efforts to propose practicable and forward-looking solutions without ascribing them prescriptive value. We find this to be a more suitable approach than reinventing well-settled legal norms. We also welcome the consideration of this topic through a Study Group, which we believe can be considered in relation to the Commission’s future work in the realm of progressive development.
Finally, we note with interest the inclusion of two new topics in the programme of work, namely “compensation for the damage caused by internationally wrongful acts” and “due diligence in international law”. We look forward to engaging with the Commission on these topics.
Thank you.