CYIL vol. 13 (2022)

PAVEL ŠTURMA CYIL 13 ȍ2022Ȏ as to whether a second category of general principles of law exists. Some members remained skeptical about its existence as an autonomous source of international law. 78 Conclusion 5 deal with determination of the existence of a principle common to various legal systems of the world. To determine the existence of such a principle, a comparative analysis of national legal systems is required (para. 1). Paragraph 2 provides that the comparative analysis must be “widespread and representative, including the different regions of the world”. Paragraph 3 explains that the analysis includes an assessment of national laws, decisions of national courts, and other relevant materials. 79 Conclusion 7 addresses the identification of general principles of law formed within the international legal system. Paragraph 1 provides that, to determine the existence and content of those principles, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system. Moreover, the second paragraph indicates that the draft conclusion is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system. 80 Unfortunately, even the commentary to this draft conclusion did not bring much clarity to the second and third category of general principles. However, it says that this draft conclusion “was adopted by the Commission despite differing views among its members, in the interest of obtaining further comments by States on the matter before the completion of the first reading”. 81 2.6 Sea-level rise in relation to international law In 2022, the Commission reconstituted the Study Group on this topic, chaired by its two Co-chairs, namely Ms. Patricia Galvão Teles and Mr. Juan José Ruda Santolaria. The Study Group had before it the second issue paper prepared by the two Co-chairs. 82 The issue paper and the debate on it related “Reflections on statehood” (Part Two) and “Protection of persons affected by sea-level rise” (Parts Three and Four). Regarding the issue of statehood, the presentation of the paper and the subsequent debate revealed some interesting but partly controversial questions. The criteria of statehood in the Convention on the Rights and Duties of States (Montevideo, 1933), the principle of self determination of the populations of affected States, or the principle that “the land dominates the sea” have been recognized as the starting point. However, a more controversial issue is the presumption of continuity of statehood in cases where the territory of island States is completely covered by the sea or becomes uninhabitable. 83 During the debate on the protection of persons, it was noted that there was no legal framework for a distinct legal status of persons affected by sea-level rise. Regarding the question of the applicability of existing legal frameworks, some members noted that international refugee law, climate change law, and international humanitarian law were not equipped to deal with protection of persons affected by sea-level rise. 84

78 Report of the International Law Commission, 2022, ibid., pp. 315–317. 79 Ibid., p. 317. 80 Ibid., p. 320. 81 Ibid., p. 321. 82 UN doc. A/CN.4/752. 83 Report of the International Law Commission, 2022, ibid., pp. 331–332. 84 Ibid., pp. 334–335.

384