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7 views5 pages

27mtg Ireland 2

Uploaded by

Hussen Hassen
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Sixth Committee

United Nations General Assembly 77th Session

Statement of Ireland on Agenda item 77:


Report of the International Law Commission on the work of its
seventy-third session

Cluster II – Chapters of the ILC report: VI (Immunity of State officials


from foreign criminal jurisdiction) and IX (Sea-level rise in relation
to international law)

Delivered by Declan Smyth, Acting Legal Adviser

New York, 28 October 2022


Mr / Madam Chairperson,
I would like to begin by taking this opportunity to express Ireland’s continuing
appreciation for the work of the International Law Commission and its
contribution to the codification and progressive development of international
law. Ireland attaches great importance to this work and takes seriously its
responsibility to contribute to it by providing comments, observations and
details of state practice and opinion juris, as requested by the Commission.

Before commenting on the topics under consideration within this cluster, we


would like to briefly address the Commission’s programme of work. In particular
we would like to suggest – as others have in the past - that the incoming
Commission seriously consider reducing the number of topics on its programme
of work. In our view, this would afford states the opportunity to consider more
thoroughly the remaining topics and to provide more extensive views and
examples of practice, to the ultimate benefit of the Commission itself.

Mr / Madam Chairperson,

Let me address the first of the topics under consideration within today’s cluster,
Immunity of State officials from foreign criminal jurisdiction.

Ireland expresses its appreciation to the Special Rapporteur, Concepción


Escobar Hernández, for her work on this topic, including her detailed
engagement with the Drafting Committee in 2022, which we understand greatly
assisted the Drafting Committee in progressing its work.

My remarks will first address some of the draft articles and commentaries
adopted by the Commission this year and will then turn to the future work on
this topic, noting the request for states to submit comments and observations
by 1 December 2023. Ireland will provide more detailed comments on the full
set of draft articles and commentaries in its written submissions next year, but
we offer the following brief comments now.

Firstly, as a strong supporter of accountability Ireland agrees with the inclusion


of a ‘without prejudice’ provision in the draft articles in order to address their
relationship with the rules governing international criminal courts and tribunals.
We therefore welcomes the intention to include such a provision at draft Article
1(3) (formerly Article 18), and we support its proposed positioning within the
draft articles. However, we have reservations about its current wording and
agree with the concerns expressed in the Drafting Committee - referenced in
the Commentary - that the current formulation appears to be too restrictive.

While noting that this wording is based on the UN Convention on Jurisdictional


Immunities of States and Their Property, in our view the proposed text does not
correspond with recent practice concerning the creation of international
criminal courts and tribunals and therefore requires further consideration in
order to achieve the intended goal. Specifically, we believe that the current
wording would omit those international criminal courts and tribunals which are
not established by international agreement, such as tribunals established by the
UN Security Council. In our view, the provision should not be limited to criminal
courts and tribunals established by international agreement.

Turning now briefly to draft Article 7, we note the apparent continuing


divergence of views within the Commission on this provision, notwithstanding
the absence of a vote this year. Ireland will provide detailed observation on
Article 7 in our written submissions next year. However, at this stage we wish
to record our welcome for the additional safeguards regarding draft Article 7
introduced now by draft Article 14(3).

Noting also the possibility that the implementation of the draft Articles in any
given case could give rise to disagreements or misunderstandings between
states, Ireland supports the inclusion of draft Article 17 as a useful mechanism
whose purpose is to prevent conflict between the forum state and the state of
the relevant official, and to protect stability in international relations.

Mr / Madam Chairperson,

Ireland notes that the inclusion of draft Article 18 is related to the final form of
the draft articles and the recommendation to be addressed by the Commission
to the General Assembly in due course. Ireland will comment on both of these
issues in its written comments. At this stage, however, we remain of the view
that should that final form be an international agreement, a dispute settlement
provision would form an important part of safeguards aimed at protecting the
stability of international relations and avoiding political and abusive
prosecutions.

Finally, while noting that the Commission has not yet recommended a proposed
outcome for this topic, Ireland welcomes the opportunity for States to comment
on the full set of draft articles as a whole. This will allow consideration of the
complete set of draft articles – including the interplay between different articles
– and to provide comments and observations to the Commission for
consideration.

Mr / Madam Chairperson,

I would like now to address the other topic for consideration today, Chapter IX
of the Commission’s Report, on Sea-level Rise in relation to International Law,
and the work of the Study Group in its first two issues papers.

Sea-level rise is a pressing, even existential issue. Its impact will be


disproportionately felt by people in low-lying areas and in developing countries,
particularly small island developing states.
As an island state itself, Ireland is very aware of the urgency of the issue. The
legal aspects of the impact of sea-level rise are also crucial in our view. The ILC’s
work is already helping to identify gaps in the legal framework as we respond to
the challenges posed by this issue. The UN Convention on the Law of the Sea
will clearly be a key consideration in any response.
Mr / Madam Chairperson,
We wish to thank Ms. Galvão Teles and Mr. Ruda Santolaria for the second issues
paper on the topic, which deals with the legal issues of statehood and protection
of persons.
We note the many complex and novel legal issues raised in the paper and in the
Report of the discussion of it by the Commission.
There are few, if any, legal precedents for the situation that now confronts us.
It is undoubtedly for this reason that the Commission has now asked states not
just for information on their practice with regard to certain matters, but also for
their appraisals of, for instance, the nature of the territory of a State and of the
requirements for both the configuration of a State as a subject of international
law and for the continuance of its existence in the context of the phenomenon
of sea-level rise.
We note also the suggestion that, in the absence of specific legal rules
addressing some of the issues with which we will be confronted by sea-level rise,
an examination of potentially relevant general principles of law may be
necessary. Ireland intends to consider all of these matters with a view to
submitting its views – as well as any relevant state practice – to the Commission
before the end of June next year, as requested.
As the Study Group returns its focus in 2023 to the Law of the Sea aspects of the
topic, I wish to mention here that, further to the earlier request made by the
Commission, Ireland has submitted detailed information on updating both
baselines from which the breadth of maritime zones is measured and national
laws regarding baselines, as well as other related national practice.
Ireland recently carried out a full resurvey of the points from which our system
of straight baselines and our bay closing lines are drawn, and subsequently
amended the national laws prescribing these straight baselines and bay closing
lines. We wish to note, however, that to date our practice in this area has not
been formulated expressly in contemplation of sea-level rise.
Mr /Madam Chairperson,
We look forward to reviewing the outcome of this next phase of the work of the
Study Group next year. The issues raised are complex, difficult and urgent.

I thank you for your kind attention.

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