Reed Rubinstein
Legal Adviser
United States Department of State
New York, New York

AS DELIVERED

Thank you.

It is my honor to represent the United States and deliver our remarks on Agenda Item 80. Our thanks to the ILC’s Chairman, Mr. Martins Paparinskis, for his dedication and service.

As a threshold matter, the United States considers states both the authors and the subjects of international law. Therefore, states’ customs and practice should be paramount.

I will touch on three general areas in my remarks today: the final report on sea-level rise, the “general principles of law” topic, and other decisions and conclusions of the Commission.

Sea-level rise

First, the United States agrees that any solution relating to sea-level rise must be consistent with customary state practice and treaty law of the sea. We appreciate the efforts of the ILC and study group to identify an approach grounded in the text of the Convention on the law of the sea. The United States will work with other countries toward the goal of lawfully establishing and maintaining baselines and maritime zone limits and will not challenge such baselines and maritime zone limits that are not subsequently updated despite sea-level rise. We urge other countries to do the same.

With respect to statehood, we believe it would have been better to allow States to develop the law on this issue rather than try to pursue policy preferences with conclusory legal findings.

[General Principles of Law]

Turning now to the second topic, general principles of law, the United States takes note of the Drafting Committee’s provisional adoption of draft conclusions 1 through 12 on second reading.

The United States generally supported the Commission’s efforts on this topic, one that

the Special Rapporteur noted merits comprehensive and careful treatment. Nonetheless, we would like to reiterate a few of our outstanding concerns.

First, we support those members of the Commission who feel that the “final outcome should reflect State consent as a cornerstone of international law and be firmly anchored in State practice.” State consent to the formation and recognition of “general principles” must be on par with the consent required with respect to treaties and customary international law.

With respect to specific conclusions, the United States had suggested deleting paragraph (b) in draft conclusion 3 on the second category of general principles for two reasons. First, because there is insufficient State practice to support this supposed second category. Second, because we agree with the concerns raised by former members of the Commission that this category risks undermining customary international law and becoming a source of ‘custom lite’ for so-called ‘principles’ that do not meet the rigorous standards to establish them as rules of customary international law. If the Commission nonetheless retains this second category, it is critical that the Commission make clear that it is a proposal for progressive development of the law and clarify the methodology for its identification. We will address this in more detail with respect to draft conclusion 7.

On draft conclusion 6, we remain concerned with the assertion that a general principle may be deemed transposed to the international legal system if it is “compatible” with it. We continue to share the views of ILC members that this test appears to lack a clear requirement that such compatibility is recognized by States. The United States proposed alternative wording to draft conclusion 6 to make this clear but urges the Commission to – at the very least — consider addressing this issue in the commentaries.

Moving on to draft conclusion 7, concerning identification of general principles of law formed within the international legal system. Beyond our concern about the lack of sufficient evidence for this second category of general principles of law, we remain concerned about the methodology for ascertaining it. The present test requires a showing that a general principle is “intrinsic” to the international legal system, with intrinsic defined in the commentary to mean that a principle is “specific to the international legal system and reflects and regulates its basic features.” As noted in our written comments, this test is too vague, and the examples given of general principles in this category arguably find their genesis in domestic law, or even in treaties or customary rules. We note these views found resonance with members of the Commission as well.

While the United States suggested deleting draft conclusion 7, we note the decision of the Drafting Committee to retain it. We urge the Commission to at least address the broadly expressed concerns in the commentaries, including by narrowing the list of examples to exclude those that may be derived from other sources of law, and including more objective elements defining a clearer and more circumscribed methodology for identifying general principles of law in this second category. Any methodology developed must be sufficiently clear and rigorous to ascertain State consent to any resulting general principle.

We note the decision of the Drafting Committee not to include a more developed methodology for the identification of these principles in the draft conclusion itself, but to elaborate on the methodology in the commentaries. We were disappointed that the Commission

was unable to debate those commentaries this year so that States could reflect on them in conjunction with the draft conclusions. It is important that States have a meaningful opportunity to do so before the draft conclusions are finalized.

Finally on draft conclusion 7, we applaud the decision of the Drafting Committee to delete paragraph (2) – a without prejudice clause envisioning the possible existence of other general principles of law formed within the international legal system. At the same time, we gather this issue is to be addressed in the commentaries and caution the Commission not to leave the door open to an even more novel and less substantiated source of law, also supposedly binding on States.

With respect to draft conclusion 10, on the functions of general principles of law, the United States respectfully disagrees with the reordering of paragraphs 1 and 2 by the Drafting Committee and echoes the concerns expressed by Commission members who noted that this places less importance on one of the main functions of general principles – that of their gap-filling role – by moving it to the second paragraph. We are concerned that this change of emphasis exacerbates the challenges arising from the lack of clear differentiation in the Draft Conclusions between general principles of law and rules of customary international law. Conversely, we remain unconvinced that new paragraph 1 sufficiently addresses the functions of general principles of law. For example, we are not certain that general principles of law function to contribute to the international legal system, or at any rate any more than other sources of international law. We will be interested to see how the revised commentary addresses the concerns expressed by States and members of the Commission.

Turning now to draft conclusion 11, paragraph 2, we note the debate among members as to whether and how a general principle of law can exist in parallel with a rule of customary international law and whether, once a general principle of law became a customary norm, it continues as a separate source of law. This relates to the concern the United States expressed in its comments that there should be an obvious logical presumption against a conflict with a treaty or customary international law. While we appreciate the recommendations to address these conceptual difficulties further in the commentaries, they must be squarely addressed in the draft conclusions.

Finally on this topic, we refer to the debate among members on whether to include the concept of persistent objector in the draft conclusions, as suggested by the United States. We note that some members of the Commission acknowledged that it was hard to understand how – if a State could object to the formation of a customary rule – a State could not also object to a general principle of law with the same content. The United States repeats its suggestion that this concept must apply to the identification of general principles of law and urges the Commission to reconsider this proposal or address the potential application of the persistent objector rule in the commentaries.

[Other decisions and conclusions of the Commission]

I turn now to the third and final topic, other decisions and conclusions of the Commission. Here, I’d like to touch on two issues – working methods of the Commission and topics on the current and long-term program of work.

First, the United States repeats its call to the Commission to clearly identify in its work products when it is codifying international law and when it is making proposals for the progressive development of the law. We continue to see this as a critical task especially given the lack of consensus among States and members on significant issues within the current topics. We have been disappointed that the Commission has declined to address States’ legitimate concerns and achieve greater consensus on these issues. This is a point that will be further emphasized by the United States in cluster 2 on the topic of immunity of State officials from foreign criminal jurisdiction. Given the propensity of national and international courts and tribunals, as well as scholars and others, to cite even draft products of the ILC or reports by Special Rapporteurs as authoritative, we believe the Commission must do better to protect its legacy through rigor and transparency when it is proposing progressive developments in the law.

Second, on the current and long-term program of work, I’d like to congratulate Martins Paparinskis and Penelope Ridings on their appointments, respectively, as Special Rapporteurs for the topics “compensation for the damage caused by internationally wrongful acts” and “due diligence in international law.” The United States is very interested in the compensation topic. And, although “due diligence” is the standard of conduct applicable to certain primary obligations under international law, the United States does not believe there is sufficient support for a claim that there is a general obligation of “due diligence” under customary international law that applies to a State’s conduct outside of those specific primary obligations. Other States have expressed similar views.

Finally, regarding the new topic on non-intervention, we strongly believe that it would be best to allow States, rather than the Commission, to continue to develop and clarify their views and practice.

Thank you.

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