Statement by Ms. OHARA Hiromi, Advisor (Legal) to the Permanent Mission of Japan to the United Nations, at the meeting on the Report of the International Law Commission on the Work of Its 76th Session, Cluster II, Sixth Committee

Thank you, Mr. / Madam Chair,

Japan is pleased to comment on the substantive topics covered in Cluster II.

Turning first to the topic of “Immunity of State officials from foreign criminal jurisdiction,” Japan welcomes the advancement of the second reading of the draft articles. Achieving a common understanding regarding immunity in international law is extremely important. Japan recognizes the significance of this topic and pays close attention to the discussions of the Commission, while also contributing through the submission of comments and observations. Our appreciation goes to the members of the Commission, particularly the Special Rapporteur, Mr. Claudio Grossman, for his tireless contributions.

In the discussions of the Commission during its recent session, Japan would like to emphasize again the potential impact and implications of draft article 7, "Crimes under international law in respect of which immunity ratione materiae shall not apply," which underwent its second reading in this year’s session. It is one of the key articles of the entire draft. The discussions should consider all potential implications that this article may bring.

Japan underscores that immunity ratione personae and immunity ratione materiae are distinguished in the discussions within the Commission. Japan also notes that new relevant State practice and jurisprudence have emerged recently. It is important to analyze and explain such practice and jurisprudence to facilitate further in-depth discussion. We expect the Commission to redouble its efforts in analyzing relevant State practice.

Taking this opportunity, Japan expresses its commitment to further efforts to combat impunity for the most serious crimes of concern to the international community and to strengthen the rule of law. While recognizing the crucial role of the ICC in the fight against impunity, the Court’s recent jurisprudence on immunity ratione personae should be read together with relevant State practice within and outside the ICC.

In order to overcome differences of opinion and find an appropriate solution on the draft articles, including the Part four “Procedural provisions and safeguards”, it is important to fully understand the position of each State. Japan looks forward to further progress in the discussions on this matter.

Now, I would like to turn to the topic of "Subsidiary means for the determination of rules of international law." At this juncture, allow me to extend Japan’s sincere congratulations to the Special Rapporteur, Mr. Charles Chernor Jalloh, and to the members of the International Law Commission for the successful conclusion of discussions on the draft conclusions presented in the third report, despite the constraints posed by the limited time available during this session.

Japan attaches importance to the Commission’s work on this subject, and in this context, I would like to offer two observations.

First, with respect to the scope of subsidiary means, it is pertinent to recall that a number of States have expressed reservations regarding any broadening of the understanding of Article 38, paragraph 1(d), of the Statute of the International Court of Justice. This cautious approach was evident in the deliberations of last year’s Sixth Committee and has continued to inform discussions during the present session. While some members of the Commission recognized the non-exhaustive nature of Article 38 1(d) and underscored the value of reflecting contemporary practice in international law, others have rightly cautioned that an expansive interpretation may introduce ambiguity into the identification of applicable rules. Japan aligns itself with the view that prudence should guide consideration of expanding the scope of subsidiary means so as to maintain the clarity and predictability of the international legal system.

Second, particular attention should be given when considering the role of resolutions adopted by international organizations or at intergovernmental conferences as subsidiary means. Resolutions may serve multiple functions and are often the product of complex political negotiations among sovereign States. Therefore, their legal significance must be assessed in light of specific context and circumstances prevailing at the time of their adoption. It is essential to recognize that not all resolutions are of equal evidentiary value. Each should be examined individually to determine whether it embodies sufficient legal analysis to secure consideration as a subsidiary means for the determination of rules of international law.

These points merit careful reflection and thorough examination in the course of the Commission’s second reading. We reaffirm our support for the Commission’s essential work on this topic and express the hope that future discussions will continue to be guided by caution, analytical rigor, and a commitment to the sound development of international law.

Now, I would like to turn to the topic of “Non-legally binding international agreements.” Japan sincerely appreciates the tireless efforts of the members of the Commission, especially the Special Rapporteur Mr. Mathias Forteau, including composing this informative second report.

As Japan stated in this committee last year, we believe it is crucial to strike a prudent balance between pursuing greater legal certainty and avoiding undue constraints on the freedom of States to utilize non-binding documents. We appreciate that this second report is in line with this principle.

Japan, at the same time, takes note of the voices expressed by the members of the Commission concerning the lack of time for discussion on the second report. Further review, especially on each State practice, could deepen our understanding on this topic. As the Special Rapporteur precisely pointed out, cases, State practice, and domestic laws suggest various approaches in the distinction between international agreements and non-legally binding documents. It would be better to be more cautious to avoid focusing too much on mere intention. Japan, for instance, considers various elements other than each party’s intention such as the circumstances surrounding a document’s formulation and the terms used in the document. We, in principle, avoid using the term “agreement” for non-binding documents. Moreover, while the Special Rapporteur mentioned France’s practice that the documents made between each government ministry and its counterpart should be regarded as binding, in Japan, it is only the Ministry of Foreign Affairs which is legally authorized to draft, negotiate or conclude international agreements.

Exploring each State practice in detail will be a long journey, but we believe it is worth the cost. We look forward to the Commission furthering deepening its consideration of this topic while adhering to its cautious and non-prescriptive approach so each State can continue producing and interpreting non-binding documents in a flexible manner.

Finally, I would like to address the topic of “Prevention and repression of piracy and armed robbery at sea.” Japan highly appreciates the Commission’s dedicated work on this pressing issue. This issue is of critical importance not only for Japan as a maritime nation, but for the entire world, because the stability of sea lanes is a prerequisite for any maritime transportation and thus for the world economy.

We have been consistently promoting the international order based upon the rule of law including in the area of maritime security and safety in order to realize a Free and Open Indo-Pacific. The work of the Commission is significant in this regard. From this perspective, Japan has actively contributed to ensuring freedom of navigation and overflight and safe maritime transport through efforts to combat piracy and armed robbery against ships in Asia and Africa as well as close partnership and cooperation with other countries. For example, Japan has been dispatching Japan Self-Defense Forces surface vessels and maritime patrol aircraft in the Gulf of Aden and off the coast of Somalia to counter piracy.

Japan would like to express its support for the Commission's approach of maintaining the legal norms on piracy established in UNCLOS and continuing to work toward formulating the draft provisions that have been discussed thus far in their final form. In addition, while technological advances and real-world challenges may require the international community to update the concept of piracy and armed robbery at sea, the current provisions of UNCLOS should be the starting point to preserve legal stability.

On a final note, taking into account the Commission’s work, Japan hopes the international community will take more substantive measures against piracy and armed robbery at sea so as to enhance international cooperation toward the common end of prevention and repression of these acts, and that this will lead to the realization of the rule of law at sea.

I thank you, Mr. / Madam Chair.