76th UNGA
Sixth Committee Report of the International Law Commission Cluster II
Statement by Estonia
October 29, New York
Madam Chair,
Today I will address two topics: immunity of State officials from foreign criminal
jurisdiction and sea-level rise in relation to international law.
Madam Chair,
Estonia would like to make some comments on the immunity of State officials
from foreign criminal jurisdiction, the topic that was included in the
International Law Commission’s (ILC) programme of work already in 2007. We
would like to thank the Commission for their report and continuous attention to
this important but complex topic.
We would like to commend the Special Rapporteur Ms Concepción Escobar
Hernández, having assumed this role in 2012, for her dedicated work during all
these years and for the presentation of her high quality reports. The Special
Rapporteur has now completed her plan of work on the topic, including the
additional questions, which were analysed in the 8th report. We would also like
to thank Mr. Roman A. Kolodkin who was the first Special Rapporteur on this
topic.
The Commission, after considering the reports of the Drafting Committee, has
provisionally adopted draft articles 8ante to 12 accompanied with commentaries,
the progress of which we highly value. We would like to thank the Drafting
Committee and the Commission for the progress made.
The 8th report of the Special Rapporteur examined the relationship between the
immunity of State officials from foreign criminal jurisdiction and international
criminal tribunals; considered a mechanism for the settlement of disputes between
the Forum State and the State of the official and the issue of good practices. The
Special Rapporteur also submitted relevant draft articles 17 and 18, which have
been referred to the Drafting Committee by the Commission. We commend the
constructive approach of the Special Rapporteur for holding informal
consultations to assist the Drafting Committee.
We would like to echo the view expressed by a number of members of the
Commission that a dispute settlement clause would only be relevant if the draft
articles were intended to become a treaty. As draft article 17 is also linked to other
draft articles, in particular article 13 (consultation) and article 15 (exchange of
information), their interaction with draft article 17 could also be examined. In
addition, we have draft article 12 on notification and draft article 17 that makes a
reference to negotiations, and as a means of settlement of disputes, the options of
referral of a case to the International Court of Justice (ICJ) or to an arbitral body.
As concerns draft article 17, it is obvious that any dispute that arises between two
States in relation to the determination and application of immunity of a State
official from foreign criminal jurisdiction can be settled through traditional means
of dispute settlement, as pointed out by the Special Rapporteur. We would like to
recall that the aim of setting rules for settlement of disputes should be the
provision of a simple, speedy and effective model for dispute settlement; here a
comprehensive approach of different aspects of cooperation between States could
be taken in order not to overcomplicate the whole process.
We would like to support sticking to the traditional means of dispute settlement
and we do not see a need for the creation of a possible new separate body, the
possibility of which was also analysed in the report of the Special Rapporteur, as
this will add complexities to the already complex issue. As long as recognition of
the jurisdiction of the ICJ is not universal, we should rather concentrate on the
universal recognition of the ICJ’s jurisdiction rather than creating new permanent
bodies, the jurisdiction of which has to be universally accepted in order for it to
function properly. We agree with the Special Rapporteur that it is preferable to
wait until the text is finalized on first reading to take a decision on the matter.
Estonia is grateful to the Special Rapporteur and to the Commission that a
relationship between the topic of immunity of foreign officials and international
criminal tribunals has been examined. In this context, we would like to recall, in
particular, the role and mandate of the International Criminal Court (ICC) to
respond to atrocity crimes, fight impunity, and provide justice to victims. We
appreciate the provision of the text of the draft article 18 by the Special
Rapporteur, suggesting a prejudice clause, which we take note of with interest.
This provision deserves further attention, in particular, regarding whether to be
included in the draft articles as a separate draft article or its text or principles could
be merged with other draft articles, which was also pointed out by the members
of the Commission, suggesting its inclusion as article 1 paragraph 3. We agree
with the approach that this draft article is interrelated with other draft articles and
therefore merging it with previously provisionally adopted article 1 would also be
our preference. We appreciate flexibility of the Special Rapporteur to continue
discussion of the placement of the text of this draft article.
In the 8th report the Special Rapporteur did not consider it necessary to formulate
specific proposals regarding the issue of “recommended good practices” although
relevant analyses was provided in the report. We agree with this approach of the
Special Rapporteur and the Commission. Although good practices are of great
interest, currently it does not suffice to be included in the draft articles.
To conclude this part, we would like to reiterate some of the comments we have
made in previous years, which we find are still relevant, as we have not been alone
in raising the issue that the crime of aggression should be listed in draft article 7
paragraph 1 among the list of crimes in which immunity ratione materiae does
not apply.
Estonia once again expresses its appreciation for the work done by the Special
Rapporteur and the Commission on this topic.
Madam Chair,
Now turning to the topic of sea-level rise in relation to international law.
Estonia aligns itself with the statement made by the European Union.
Estonia very much welcomes the work done on the topic of sea-level rise in
relation to international law. We thank the Study Group for their work carried out
at eight meetings and for the first issues paper by Dr. Bogdan Aurescu and Dr.
Nilüfer Oral. We are thankful that the work of the Study Group helps to clarify
international law rules in this important field.
We are glad that the first issues paper is giving a very good overview of the
problems arising from possible legal effects or implications of sea-level rise and
a very clear summary at the end of every part of the paper. Estonia agrees with all
main conclusions of the paper. We also welcome the idea that the Study Group,
if needed, could consider inviting scientific and technical experts to future
meetings of the Study Group.
Estonia is of the opinion that the fundamental pillar of ocean governance is the
United Nations Convention on the Law of the Sea (UNCLOS), which establishes
the overarching legal framework within which all activities in oceans and seas
must be carried out. UNCLOS has to stay the framework also for this topic. In
this sense, we welcome the conclusion in the first issues paper that the aim of the
Study Group should be to find solutions to the challenges connected to sea level
rise in the UNCLOS. The need to preserve legal stability, security, certainty and
predictability in international relations has to be kept in mind. We are satisfied
that the Study Group has found possibilities to interpret the UNCLOS in the way
that it corresponds to the need for the stability in inter-state relations.
We support the idea to stop updating notifications, in accordance with the
UNCLOS, regarding the baselines and outer limits of maritime zones measured
from the baselines and, after the negative effects of sea-level rise occur, in order
to preserve the States’ entitlements.
We also note with interest that according to the issues paper the State practice
already generally supports the preservation of existing maritime delimitations.
Issues related to existing claims concerning the law of the sea delimiting future
maritime areas would still need further consideration by the Study Group.
Estonia finds it interesting to note that according to the first issues paper regional
or particular customary rules could have emerged in connection with the sea level
rise and we noted that in order to draw definite conclusion on this, more
submissions from States would be needed.
We also read with great interest the analyses of the Study Group on the principle
of the clausula rebus sic stantibus in connection with the sea level rise. We agree
that if this principle would apply in the case of sea level rise, it would bring the
States to the need to negotiate the maritime boundaries again, which again would
lead to changing rights and obligations in international relations and bring
instability into the relations. Hence, we agree with the conclusion that the
maritime delimitations must be stable and definitive to ensure a peaceful
relationship between the States concerned in the long term.
Estonia agrees with the pertinent questions of Study Group on the influence of sea
level rise on other international conventions and agreements, such as licenses for
other economic activities in the exclusive economic zone, such as offshore
windfarms or for fisheries access agreements in the exclusive economic zone.
Another important aspect is to use practice of different states and regions. In
connection with this topic, the Study Group was firstly presented on the African
States’ practice regarding maritime delimitation. Therefore, we adjoin with the
recommendation to extend the study of State practice and opinion juris to different
regions.
Madam Chair,
Coming to the end of our comments, we would like to note that the topic sea-level
rise identifies a number of issues of international law that need to be analysed. We
see that the outcome of the work by the Commission will be of great influence to
the international law, including law of the sea and keeping that in mind, we wish
the Commission and the Study Group all the success in their endeavours.
Thank you for your attention.
