CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE NONǧLEGALLY BINDING INTERNATIONAL AGREEMENTS AND OTHER TOPICS … As expected, the most extensive debate took place regarding draft Article 1, in particular its para. 3, relating to exclusion, from the scope of the draft articles, of the rights and obligations of states under international agreements on international criminal courts and tribunals. 7 The main difference between the provision adopted by the Committee and the first reading text is the inclusion of the phrase “or relating to the operation of ”, which was the result of a thorough and detailed discussion. On balance, the Committee did not support the proposal to include reference to “binding resolutions establishing international courts and tribunals”. A discussion took place as to whether to delete the phrase “as between the parties to those agreements” from the paragraph. Members generally agreed that the Commission should remain neutral in the ongoing discussion of the relationship between the International Criminal Court and nationals of States not parties to the Rome Statute of the ICC. It was recalled that, in its judgment in the Jordan Referral re Al-Bashir Appeal , 8 the Appeals Chamber of the ICC had based its decision on customary international law, which was outside the scope of paragraph 3. Draft Article 5[6] represents a merger of draft articles 5 and 6, as adopted at first reading, and concerns the scope of immunity ratione materiae . It comprises three paragraphs. 9 2.2 Sea-level rise in relation to international law Regarding this topic, the Study Group met in 2024 during the first part of the session. It had before it a new issues paper prepared by two co-chairs of the SG, Ms. Patrícia Galvão Teles and Mr. Juan José Ruda Santolaria. 10 It is an additional paper to the second issues paper (2022), which means that it develops some aspects of the statehood and protection of persons affected by sea-level rise. This paper must be read together with the valuable Memorandum by the Secretariat, which contains Elements in the previous work of the International Law Commission that could be particularly relevant to the topic. 11 The first part of the additional paper was based on the idea that there existed a strong presumption of the continuity of statehood of states whose land surface could be partially or fully submerged by the sea or become uninhabitable because of sea-level rise caused by climate change. During the ensuing discussion in the Study Group, support was expressed for the position taken in the additional paper that the Montevideo Convention criteria as such did not address the question of continuing statehood. It was suggested that a distinction could be drawn between the creation of a right and its continuation. Reference was made again to the Island of Palmas Award which stated that ‘[a] distinction must be made between 7 See UN doc. A/CN.4/L.1001 (2024), p. 1: ‘3. The present draft articles do not affect the rights and obligations of States under international agreements establishing or relating to the operation of international criminal courts and tribunals as between the parties to those agreements.’ 8 Jordan Referral re Al-Bashir Appeal , Judgment, Case No. ICC-02/05/-01/09 OA2, 6 May 2019. 9 UN doc. A/CN.4/L.1001 (2024), p. 2: ‘1. State officials enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction with respect to acts performed in an official capacity. 2. Immunity ratione materiae with respect to acts performed in an official capacity continues to subsist after the individuals concerned have ceased to be State officials. 3. Individuals who enjoyed immunity ratione personae in accordance with draft Article 4, whose period of office has come to an end, continue to enjoy immunity with respect to acts performed in an official capacity during such period of office.’ 10 See UN doc. A/CN.4/774 (2024) and Add.1. 11 See UN doc. A/CN.4/668 (2024).

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