78th Session of the United Nations General Assembly Sixth Committee
Report of the International Law Commission, Cluster III
Statement of the Republic of Estonia, delivered by Ms Kristel Kaeval, Legal Adviser
1 November 2023, New York
Mr Chair,
Thank you for giving me the floor to share our thoughts on Cluster III – subsidiary means for the determination of rules of international law. Estonia aligns itself with the statement made by the European Union.
Estonia welcomes the inclusion of the topic of subsidiary means for the determination of rules of international law to the work programme of the ILC. We congratulate the Special Rapporteur Mr Charles Chernor Jalloh for the progress made and the first report concluded, and we acknowledge the Secretariat for their work with the memorandum for identifying the elements that the Commission has previously worked on that could be relevant for this topic of subsidiary means.
Mr Chair,
Estonia welcomes the scope set by the Special Rapporteur for the topic of subsidiary means for determination of rules of international law. It is well framed in order to guide the future work and compliments the work by the ILC on the rest of the elements of Article 38 of the Statute of the ICJ. We consider the framework rather comprehensive and agree with the Special Rapporteur that although Article 38 of the Statute of the ICJ is well set in practice as a key provision on sources of international law, the work of the ILC on the topic of subsidiary means can serve as a helpful guidance.
As this is the first time the ILC is addressing this topic, we agree with the Special Rapporteur that presenting draft conclusions with supplementary commentaries is the appropriate way to present outcome of the work and such approach is consistent with the previous practice of the ILC. We support the notion that in order for the work to be as comprehensive as possible, it was important to include materials that cover a wide range of practice of States and regions, as well as legal systems.
Mr Chair,
Regarding draft conclusion 1, Estonia agrees with the descriptive nature given to the meaning of subsidiary mean. Placing subsidiary means next to the elements of Article 38 of the Statute of the ICJ, it is clear that they are auxiliary or supportive in nature. Therefore, it has been included correctly that they are not sources of law that the ICJ may apply simply by themselves per se but could be used and applied in order to determine whether or not rules of international law exist and what could be the content of such rule of international law. Such means can play a key role in order to identify the existence of a rule of international law as also presented in the report.
As to draft conclusion 2 (a), we agree with the approach by the Special Rapporteur that it was important to assess subsidiary means more widely as it is currently seen in Article 38, paragraph 1(d), which includes judicial decisions and teachings. We are very much looking forward to the commentaries to draft conclusion 4 in the future and especially the assessment of the role of judgements of national courts as subsidiary means to determine the existence of a rule of international law.
For the future work for draft conclusion 4, Estonia supports the position that there is a need for additional criteria based on which the subsidiary nature of a national court decision could be determined. Additionally, it would be interesting to follow the commentary to the position that simply these decisions of national courts, which apply international law, could qualify as a subsidiary mean. Estonia finds the comment by the Special Rapporteur interesting regarding instances where national court decisions can have a dual role as on the one hand, being an evidence of State practice and on the other, forming a subsidiary mean for the identification of the existence and content of a rule of international law.
Estonia supports draft conclusion 2 (c), which examined other possible means in addition to judicial decisions and teachings, specifically resolutions and decisions of international organizations. We agree that Article 38, paragraph 1(d) is considered non-exhaustive and can be further elaborated but we also understand that not simply any mean used can be considered as a subsidiary under the topic but should be assessed in accordance with draft conclusion 3.
In addition, the Special Rapporteur referenced that due considerations should be given to the weight and authority of a mean to be considered as a subsidiary mean under Article 38, paragraph 1(d). However, the weight and authority are dependent on – among other things – legal context, the way of drafting and expertise of those included in the drafting process. Estonia is very much looking forward to the further work on resolutions and decisions of international organizations, because we can see that emerging fields – for example cyberspace – are more often than not addressed in non-legally binding resolutions over the years.
Estonia would like to express its appreciation that the topic of diversity, including gender diversity, was raised and acknowledge the Special Rapporteur for offering support for ensuring representativeness in the work of the ILC.
Mr Chair,
To conclude, Estonia agrees with what was stated regarding the future programme of work and welcomes the proposal by the Special Rapporteur to address the origins, nature and function of subsidiary means and to focus on judicial decisions and their relationship to the sources of international law. We are also looking forward to the commentaries to the draft conclusions 4 and 5 – respectively, decision of courts and tribunals and teachings. Although the analysis of subsidiary means somewhat extends the Article 38, paragraph 1(d) in this current report and in its conclusions, Estonia believes that it can support the wider discussion considering contemporary developments in the field of international law.
Thank you for your attention.