His delegation supported the distinction between immunity ratione personae and ratione materiae and the priority given to identifying and codifying existing customary international law before undertaking its progressive development, a process that should focus on norms that were unambiguous or depended exclusively on international comity.
Although it had been a good idea to approach the topic by codifying existing customary rules and judicial principles, while at the same time developing new rules where necessary, the Commission should not rely too heavily on unpublished or internal memorandums of organs of international organizations as indication of established practices.
However, the point was also made that the Commission should encourage the Special Rapporteur to pursue the topic since its mandate was not restricted to codifying existing practice.
While the commentaries to a good number of the draft articles contain clear warnings regarding the scarcity of available practice (hence the use of such terms as "similarly", "analogy", "would seem"), it may be appropriate for the Commission to consider explaining, in its commentary, the extent to which it regards the draft articles as codifying existing law and, whenever this is the case, identify relevant instances of actual practice.
Thus, we share the view that the Commission should consider explaining in its commentaries the extent to which the draft articles may or may not be regarded as codifying existing law on the basis of actual practice.
In various decisions international criminal tribunals have attached importance to the adoption of the Rome Statute as indicative of the formation of new rules of customary law or as codifying existing rules.
On the other hand, the view was expressed that the Commission should not confine itself to codifying existing international norms, but must strive to contribute to the progressive development of international law, particularly on a matter as important as State responsibility.
A convention would have the advantage of stopping the proliferation of national laws on the topic, codifying existing practice of States in this area and promoting a uniform law on State immunity.
The Framework Convention elaborates limitations on States' freedom to transfer arms by codifying existing rules in international law, including human rights and humanitarian norms.
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Synonyms and analogies of "codifying existing" in English