UNGA81 Sixth Committee Debate on the Report of the International Law Commission (Cluster II)
Statement delivered by Ms. Kristi Land, Director-General of the Legal Department of the Ministry of Foreign Affairs of Estonia
New York, 30 October 2026
Chair,
Estonia would like to express its continuing appreciation for the work of the International Law Commission and wishes to thank all the members of the Commission for their contribution.
Chair,
Today, I start with addressing the topic of subsidiary means for the determination of rules of international law. Estonia aligns itself with the statement made by the European Union, and adds the following comments in its national capacity.
We commend the Commission’s aim to contribute to the greater clarity on the use of subsidiary means and their relationship with the sources of international law. We appreciate the methodological approach taken by the Commission, and the emphasis put on the consistency with the letter and spirit of the Statute of the International Court of Justice, with appropriate adjustments. Considering the form of the outcome of the work, we believe that draft conclusions are an appropriate choice and they can be of great practical help.
Regarding the nature and function of subsidiary means, we were glad to note that the expressis verbis negative statement that subsidiary means are not in itself a source of international law has been retained in the draft conclusions. It is important to keep in mind that although they may be of great help for various kinds of practitioners, they have only an assistive role in determining the existence or content of a rule of international law. Draft Conclusion 3, paragraph 1 makes it clear that one must first turn to an actual source of international law and in case of need for further support for the existence of a rule or clarification on the content of a rule, one may turn to the subsidiary means.
We appreciate the clarification in Draft Conclusion 3, paragraph 2 that the materials that may be used as subsidiary means, may also be used in other functions for determining a rule of international law, namely to identify state practice or opinio iuris to determine the existence of customary international law, etc.
We value the in-depth consideration given to the issue of the weight of subsidiary means and its assessment. We consider the additional criteria set out in Draft Conclusions 4, 7, 9, 11 and 13 helpful in determining the appropriate weight to be attributed to the specific materials in a given context. The new structure of the draft conclusions provides a clearer focus on how to assess the weight of each category of subsidiary means and is thus more practical.
Estonia finds it useful, particularly with regard to legal certainty, that the Commission has expressly stated under Draft Conclusion 6 that the decisions of international courts and tribunals do not constitute legally binding precedents under international law. Estonia believes that legal certainty and predictability are fundamental to the rule of law, and for these grounds, the previous decisions of international courts and tribunals are often followed. However, as a matter of law and as also stated in Article 59 of the Statute of the International Court of Justice, such decisions are binding on the parties of the case.
Chair,
Now, let me turn to the topic of settlement of disputes to which international organizations are parties. Estonia aligns itself with the statement made by the European Union, and adds the following comments in its national capacity.
We value the Commission’s work to provide practical guidance on the settlement of disputes involving international organizations, while taking account of the diversity of the organizations concerned and the disputes to which they may be parties.
We welcome the clarification in the commentary to Draft Guideline 1 that the guidelines focus primarily on the availability and adequacy of the means of dispute settlement and are not intended to elaborate detailed sets of procedural rules.
Considering the substance of the work, we would like to offer observations on two issues that would benefit from further clarification.
First, we appreciate the distinction drawn between disputes between international organizations as well as disputes between international organizations and States under Part Two, and disputes involving international organizations and private parties under Part Three. This structure allows the draft guidelines to address the particular considerations relevant to each category, including the right of private parties to access to justice.
At the same time, a particular dispute may involve an international organization, a State and a private party. This possibility was noted during the Working Group’s discussions in 2025. While we understand that such disputes remain within the scope of the draft guidelines, the relationship between Parts Two and Three in these circumstances could be explained more clearly, particularly where different rules on immunity may prevent the related claims from being heard in the same forum. An alternative mechanism available for the claims against the organization may not have jurisdiction over the claims against the State, potentially complicating effective access to justice.
Therefore, we would welcome further guidance concerning Draft Guidelines 3 and 7 on how the two Parts apply where the categories of parties covered in both Parts are involved in the same dispute. Such clarification would help ensure that the structure of the draft guidelines accommodates these situations and that the procedural safeguards applicable to private parties remain clear.
Second, we welcome the Commission’s efforts to address both the immunity of international organizations and the right of private parties to access to justice. Both are important – immunity safeguards the independent and effective functioning of international organizations, while access to justice ensures that private parties have a meaningful opportunity to protect their rights.
Nevertheless, we see a need for greater consistency between the relevant commentaries. Paragraph 4 of the commentary to Draft Guideline 10 suggests that respecting immunity is legitimate and proportionate only where reasonable alternative means of dispute settlement are available. By contrast, paragraph 11 of the commentary to draft guideline 11 acknowledges differing views on whether the absence of such alternatives entails the loss of immunity.
We would welcome a more coherent approach in the commentaries. The availability of reasonable alternative means is an important consideration in assessing access to justice. However, their absence does not automatically mean that recognising immunity violates the right of access to a court. This was also stated by the European Court of Human Rights in Stichting Mothers of Srebrenica and Others v. the Netherlands and United Nations. Therefore, Estonia calls for caution regarding any approach under which the absence of reasonable alternative means of dispute settlement could entail the limitation or loss of the immunity of international organization.
Hence, the commentaries should distinguish more clearly between the obligation of an organization to provide appropriate means of dispute settlement and the consequences that a failure to fulfil that obligation may have for immunity. This clarification should preserve the importance of the effective access to justice while avoiding the suggestion that inadequate alternative remedies automatically result in the loss of immunity.
Thank you!
