Delivered by: Laura Coquard-Wallace, Director – International Law Department
Madam Chair,
The United Arab Emirates expresses its sincere thanks to the International Law Commission for its work during the 77th session.
The UAE believes that the Commission plays an integral role in the progressive development of international law and its codification pursuant to Article 13 of the Charter of the United Nations. When the Commission speaks on a topic, States, courts and scholars listen. That influence carries a responsibility. The Commission’s work should continue to rest on a careful reading of State practice and should distinguish clearly between what the law is, and what the Commission proposes it should become.
Madam Chair,
I turn first to the topic of the “Immunity of State officials from foreign criminal jurisdiction”. The UAE thanks the three Special Rapporteurs and all Commission members who have dedicated nearly two decades of work to this topic.
The UAE reiterates its comments previously provided, and, bearing in mind the Commission’s recommendation in paragraph 44 of its report, will underline its position on a few of the most consequential draft articles.
First, the UAE continues to have concerns regarding draft article 2. The UAE welcomes the clarification in the commentary that an act does not fall outside immunity ratione materiae simply because it is ultra vires. We regret, however, that overall the draft article and commentary still do not provide sufficient clarity and, in particular, do not expressly recognize that ultra vires acts should be understood in the same manner as in article 7 of the Articles on State Responsibility.
The UAE also reiterates its regret at the adoption of a formulation for draft article 3 that limits the scope of immunity ratione personae to the members of the troika. The comments of States and members of the Commission itself evidence disagreement with this overly restrictive approach. In the UAE’s view, it does not reflect customary law, under which personal immunity is not confined to the members of the troika. Nor does it reflect the ICJ’s jurisprudence in the Arrest Warrant case, reaffirmedin Certain Questions of Mutual Assistance in Criminal Matters, which refers to members of the troika illustratively, rather than exclusively, in setting out the scope of immunity ratione personae.
Given the significance of this draft article, the commentary plays an important role in framing the draft article and mitigating any risk of misunderstanding. The commentary to draft article 3 fails to acknowledge the departure from the ICJ’s statement of customary law. It simply asserts that the words “such as” in paragraph 51 of Arrest Warrant do not widen the circle of persons enjoying personal immunity “since the Court used the words in the context of a specific dispute”. This reading of the Court’s judgment is not convincing. A plain reading of paragraph 51 makes clear that the Court is setting out a general rule before applying it to the specific circumstances of the case before it.
Madam Chair,
The UAE further reiterates its strong reservations regarding draft article 6. The misgivings of numerous States and Commission members regarding draft article 6 are well known. The existence of exceptions to immunity ratione materiae is not supported by State practice sufficient to establish a rule of customary international law, and the views of States remain too divided for such exceptions to be proposed as progressive development.
In paragraph 7 of resolution 80/164 adopted in 2025, the General Assembly by consensus encouraged the Commission to indicate in its commentaries the extent to which draft provisions represent the codification or the progressive development of international law. The commentary to draft article 6 does not do so. The commentary also presents a one-sided catalogue of practice, drawn largely from the courts of a limited number of States. It omits both the positions expressed by many States in opposition and the practice that points the other way, including the absence of prosecutions. The UAE is concerned that draft article 6 and its commentary will be invoked before national courts as constituting evidence of the customary character of these proposed exceptions, which they are not.
Madam Chair,
Last year, the UAE underlined the need for the Commission to address the topic in a careful and deliberate way, especially in light of the sustained divergence of views among States and within the Commission. Regrettably, in seeking to bring its work on the topic to a close, the Commission has left unresolved questions and differences on key contested provisions. This is especially clear in the case of draft article 6, on which the Commission has opted for an exceptional vote, the second vote on this article. The absence of consensus within the Commission on the most consequential provision of the text should give us all pause.
In conclusion, the UAE can only express sincere regret that the current text does not reflect the consensus view of the Commission, and yet it is being recommended by the Commission as the basis of a convention. We do not believe that the elaboration of a convention on the basis of these draft articles is an appropriate outcome at this stage, and are not in a position to support the Commission’s recommendation.
The UAE would instead support a resolution by which the General Assembly takes note of the draft articles, invites Governments to submit further written comments on the text adopted on second reading, and defers any decision on the final form of the Commission’s work to a later session, in line with the staged approach the Assembly has taken on other topics.
Madam Chair,
Turning now to the topic of “General principles of law”, the UAE takes note of the twelve draft conclusions adopted by the Commission on second reading. We are grateful to the Commission and the Special Rapporteur for their hard work.
The UAE appreciates the Commission’s ongoing work on the sources of international law. In our view, when addressing sources, the Commission should avoid creating new law, anchor its conclusions in State practice and, above all, recognise the fundamental role that State consent plays in the creation of rules of international law. We welcome the progress that the present draft conclusions make in clarifying various aspects of general principles of law derived from national legal systems.
My delegation, however, remains unconvinced that a second category of general principles, namely those “formed within the international legal system”, finds sufficient support in State practice, jurisprudence, or doctrine. We wish to emphasize here that, as the Commission itself acknowledges, the existence of this second category is debated.
Based on the text of draft conclusions 3(b) and 7, and the commentaries thereto, we would expect the Commission to at least demonstrate that each of the examples cited in support of the second category meets the two criteria set out in that text: first, that the proposed principle exists autonomously as a general principle of the kind described by the Commission, beyond its recognition in treaty and custom; and second, that it was in fact formed within the international legal system, rather than being derived from national legal systems. A systematic assessment of this kind would, in our view, have provided a more reliable foundation for these draft conclusions.
Indeed, we do not find the two-step methodology used by the Commission to be an appropriate and sufficient approach. The first step is an inductive analysis that relies on “existing norms” of international law. The Commission finds these norms primarily in international treaties, soft law instruments, and State practice – all of which are also evidence used in the identification of customary rules. The second step is a deductive analysis that rests on certain principles being shown to be intrinsic to the international legal system, such that they reflect and regulate its basic features. As we have noted previously, this is not a specific enough criterion, and could be met by any number of customary rules.
Regrettably, and contrary to the understanding expressed in the report of the Drafting Committee in 2025, the Commission does not provide guidance on how this second category of general principles should be distinguished from customary international law. Nor does it address the risks noted both in the Commission and in this Committee regarding the second category of general principles operating as “custom lite”. The examples in the commentaries, some of which can be characterized as customary, further compound our concerns. References by courts or tribunals to certain norms generally as “principles” are used to reinforce the Commission’s analysis, even though the Commission acknowledges that the term “principle” is very often used in practice, and not always in the sense of Article 38, paragraph 1(c), of the ICJ Statute.
To illustrate, we will refer to some examples of second-category principles added to the commentaries on second reading. To be clear, we address these solely in the context of the Commission’s methodological approach to this topic, and without prejudice to my country’s position on the authority or substance of these principles.
- The Commission notes that courts have described as a “generally accepted principle” that national law cannot relieve a State of its obligations under international law. However, the Commission does not consider the possibility of this being a statement of customary law, as recognised by the ICJ in relation to Article 27 of the Vienna Convention on the Law of Treaties, rather than evidence of a second category of general principles.
- The Commission refers to a duty to cooperate as a second category principle, particularly in the area of environmental law, largely by referring to treaties reflecting such a duty. No reference is made to the ICJ’s July 2025 advisory opinion noting that this duty has a customary character, or the implications of this finding for the Commission’s characterisation. The only judicial decision cited in support is MOX Plant, where the tribunal explicitly referred to a duty of cooperation in relation to a treaty, namely Part XII of the UNCLOS, and “general international law”.
Recharacterizing existing norms as a specific type of general principle adds little to their authority or relevance. It does, however, compromise certainty in the international legal order by introducing a category of sources whose identification is based on loosely defined criteria but which are capable of generating primary rights and obligations.
Madam Chair,
Finally, without repeating our previous comments on draft conclusions 10 and 11, we note that these draft conclusions apply to general principles of law as a whole, without distinguishing between the two categories. Their logic may follow more naturally for principles derived from national legal systems, which have an origin independent of treaty and custom and could therefore fill gaps in, or exist alongside, those sources. It is less clear how these draft conclusions apply to the second category of general principles which, in many cases, seem to have been identified through their footprint in treaties and customary law. Such principles can hardly fill the gaps left by the rules from which they seem to have been derived, nor conflict with them. Until the existence and contours of the second category are settled, the conclusions on functions of general principles and on their relationship with other sources cannot be regarded as settled either.
In conclusion, the UAE is fully cognizant of the complexity of this topic and appreciates the Commission’s efforts. Given the continued divergence among States on critical parts of this project, my delegation considers that acknowledging the existence of such divergence is important as the Committee takes this work forward.
Madam Chair,
On “Sea-level rise in relation to international law”, we thank the Commission for its work on this topic, and welcome the adoption by the General Assembly of the UN Declaration on Sea-Level Rise. The UAE remains committed to working with partners to address the impacts of sea-level rise and support the communities most affected.
Finally, we take note of the Commission’s decision to include the topic “Identification and legal consequences of obligations erga omnes in international law” in its programme of work and congratulate Mr. Masahiko Asada on his appointment as Special Rapporteur. We look forward to engaging with the Commission on this topic in due course.
Thank you.