UNGA81 Sixth Committee Debate on the Report of the International Law Commission (Cluster III)
Statement delivered by Ms. Kaisa Männik, Legal Adviser of the Permanent Mission of Estonia to the UN
New York, 4 November 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 non-legally binding international agreements.
Estonia welcomes that considerable progress has been made this year and considers that the work done so far provides a useful basis for further elaboration of the topic.
Estonia supports Draft Conclusion 2 in its current form. We welcome its clearer and more precise formulation compared to Draft Conclusion 4 of the 2025 report. In particular, we consider it important to preserve the ability of States and international organisations to determine their own rules and procedures for the drafting and adoption of non-legally binding international instruments. From our perspective, the procedures applicable to non-legally binding instruments are substantially different from those applicable to legally binding international agreements.
With reference to paragraph 9 of the commentary, we do not consider it necessary to extend Draft Conclusion 2. Should the Commission consider it necessary to address the interpretation and possible legal implications of the non-legally binding instruments, this could instead be a separate draft conclusion.
Regarding terminology, we take note of the Commission’s choice to retain the expression “non-legally binding international agreements”. While Estonia generally avoids using the term “agreement” for the instruments intended to be non-binding, for the purposes of the present draft conclusions, Estonia can accept the use of such term.
Continuing with terminology, we welcome the approach taken in the third report and reflected in the draft conclusions to use more neutral terminology such as “participants” rather than “parties”, and “adoption” or “enter into” rather than “conclusion”. In our view, this terminology is preferable in the context of non-legally binding instruments as it helps to avoid unnecessary parallels with the terminology of legally binding treaties.
Estonia welcomes the addition of paragraph 2 to Draft Conclusion 3, which expressly recognises that non-legally binding international agreements may be entered into by “organs of the government, territorial units and agencies or instrumentalities of the State which may enter into such agreements”. We would nevertheless welcome further clarification in the commentary regarding the agreements concluded between authorities at different levels in different States, for example, arrangements between a ministry of one State and a local or regional authority of another State. Estonia considers that such arrangements should be capable of falling within the scope of the draft conclusion where the relevant conditions are otherwise met.
Finally, with regard to Draft Conclusions 4 and 5, Estonia welcomes the emphasis placed on the intention of the participants in determining the non-legally binding nature of an instrument. This is also reflected in Estonia’s practice, where memorandums of understanding often expressly state that they do not create rights or obligations under international law. The title of the instrument may also be relevant, although it is not decisive.
Chair,
Now, let me turn to the topic of prevention and repression of piracy and armed robbery at sea. Estonia aligns itself with the statement made by the European Union, and adds the following comments in its national capacity.
To begin with, Estonia would like to emphasise that the United Nations Convention on the Law of the Sea remains the cornerstone of international maritime governance and rule of law at sea. Hence, also the norms concerning piracy and armed robbery at sea must remain grounded in the UNCLOS.
We appreciate that in his report, the Special Rapporteur has paid attention to evolving issues such as the use of maritime and aerial drones, the deployment of armed security personnel on board merchant vessels, the role of international naval forces and jurisdictional challenges, for example, pursuit into the territorial sea of third States and management of seized assets. The work on these topics should continue.
Estonia agrees with the Commission’s members who recalled that piracy and armed robbery at sea have created risks, most importantly to the security of crews and passengers, but also to global trade and local economic development in affected regions, and that Commission’s work must be aligned with the needs of States. Indeed, the draft articles have to be useful for and usable by States.
We welcome that the report takes account of regional instruments and initiatives, including those of the European Union. This should continue. We support the idea expressed in the Commission’s debate that in the future work, the Commission should put more emphasis on the aspects of international cooperation between States.
We appreciate the effort to address in Draft Article 5 the use of new technologies, such as autonomous and remotely operated vessels, to commit acts of piracy or armed robbery at sea. In the future, the Commission may wish to pay special attention to the widespread use of artificial intelligence. As with other issues in draft articles, any suggestions for norms and principles must remain grounded in existing international law; while not limiting the possibility of applying them to potential future technologies.
With regard to Draft Article 9, we see the need to exercise caution with regard to privately contracted armed security. While the practice of using such entities exists, it is not uniform enough to draw definitive conclusions on their mandates. We prefer to remain close to Article 107 of the UNCLOS that specifically mentions warships, military aircraft or other government-service vessels, rather than encouraging granting more powers to private persons, especially in the absence of clear rules for accountability and jurisdiction. In this context, we would like to recall the Montreux document on pertinent international legal obligations and good practices for States related to operations of private military and security companies, and invite the Commission to consider its relevance to the current topic.
Chair,
Turning to the topic due diligence in international law. Estonia aligns itself with the statement made by the European Union, and adds the following comments in its national capacity.
Estonia considers the topic to be of particular relevance to contemporary challenges, including those affecting the protection of human rights.
We support the Special Rapporteur’s proposal that the outcome of the Commission’s work should take the form of draft principles. Such approach provides an appropriate framework for clarifying the main principles governing the topic.
We welcome the Special Rapporteur’s broader overview of State practice and judicial decisions concerning due diligence, including in the cyber space. This is an area to which Estonia attaches particular importance – Estonia has consistently affirmed that international law applies in cyberspace.
We consider it valuable that the Special Rapporteur’s report includes the crime of genocide and international humanitarian law. In the current global context, where we continue to witness multiple armed conflicts, this aspect of the report is especially timely and helps to demonstrates the relevance of due diligence across different areas of international law.
Estonia can support keeping the main focus of the topic on the due diligence obligations of States. However, at this stage of the work, we favour a broader approach to explore options and remain open to considering the various contexts in which due diligence arises. For example, due diligence obligations are particularly relevant in the field of human rights, where conduct of private actors, including business enterprises, may have significant impacts on human rights. While such conduct is distinct from that of the State, it may still be relevant when assessing whether the State has taken appropriate regulatory, supervisory and remedial measures to comply with its own due diligence obligations.
Turning to the possible existence of a general obligation not to knowingly cause harm to the rights or interests of other States, Estonia considers that States may be subject to due diligence obligations where these arise from the applicable rules of international law. However, we are cautious about characterising this as a general and autonomous obligation applicable irrespective of the field concerned. The existence and scope of any due diligence obligation should be determined by the applicable primary rules. Also, due diligence obligations should not be understood as providing a basis for interference in matters falling within the domestic jurisdiction of another State.
Furthermore, considering treaty language, we caution against assuming that the use of terms such as “ensure”, “prevent”, “protect” or “take all necessary measures” automatically indicates a due diligence obligation. Such terms may simply define the substance of a state’s obligation under the treaty, without implying that the obligation is subject to a due diligence standard. We see limited value in treating specific terms as “trigger words”.
Chair,
Finally, coming to the topic compensation for the damage caused by internationally wrongful acts. Estonia aligns itself with the statement made by the European Union, and adds the following comments in its national capacity.
Estonia appreciates that the work has begun on the topic and waits with great interest the substantive reports on the topic. Compensation is a practical and timely matter which needs more attention and clarification. The Commission’s work should align with the Draft Articles on Responsibility of States for Internationally Wrongful Acts, while considering subsequent relevant state and court practice.
We welcome that in addition to inter-state claims, the Special Rapporteur wants to include the situations where compensation is owed to individuals or other entities. Furthermore, we support the proposal to cover compensation arising under both the responsibility of States and the responsibility of international organisations, while reparations awarded by international criminal courts or tribunals would not be covered.
Considering the final form of the Commission’s work, Estonia does not have a firm position at the phase. However, as the work builds up on the draft articles on state responsibility and intends to codify international law, the draft articles may be appropriate choice. At the same time, we caution that the future work should distinguish between codification and progressive development.
We welcome the Special Rapporteur’s proposal to prepare a questionnaire to collect information about examples and practices related to compensation. The questionnaire should be sent to both states and international organisations.
Thank you!
