Sixty-first General Assembly

Sixth Committee

18^th Meeting (AM)

ASSEMBLY’S LEGAL COMMITTEE IS TOLD ‘FRAGMENTATION’ OF INTERNATIONAL

LAW IS SUBJECT OF UNEASE; PRACTICAL GUIDELINES SOUGHT

 

Continuing Review of Law Commission Topics Turns Also to Effects

Of Armed Conflict on Treaties, Obligation to Extradite or Prosecute

The “fragmentation” of international law -– one of a number of subjects being addressed by the International Law Commission, and taken up today on the General Assembly’s Sixth Committee (Legal) -– was described as a development, where all sensed a certain uneasiness, but where the precise point of concern was hard to pin down.

The representative of Germany, making that point, was among a number of speakers who commended the work on the subject, by a study group of the Commission, which is assessing the significance of the problem of fragmentation, in order to suggest means to deal with it.

In introducing that chapter of the International Law Commission’s report on its 2006 activities, the Chairman of the Commission told the Committee:  “When this topic was put on the Commission’s agenda, at the turn of the new millennium, it was amidst concerns that unity of international law was under threat, that the ‘general’ was giving too much way to the ‘special’.  The results of the work of the study group give us hope and fortitude that this may not be, entirely, the case.  General international law remains the thread that holds relations among States together in the international legal system.”

Germany’s representative spoke of “gaps and overlaps in treaties”, attributing them to a purposeful reluctance on the part of diplomats to risk reopening texts that had been successfully concluded in the negotiations of another treaty.  He said States deliberately forwarded the issue of how to harmonize one treaty with another to the application phase.  It would be extremely helpful for negotiators of future treaties, if the Commission could deliver a practical product for use in ministries and at the United Nations, where States would not have to leave the problems of fragmentation to a solution at the level of implementation.

The Sixth Committee also took up two other topics from the Commission’s report -– the effects of armed conflicts on treaties, and the obligation to extradite or prosecute (a relatively recent addition to the Commission’s agenda).

The Commission Chairman said most of the debate on the subject “obligation to extradite or prosecute” had centred on delimiting the scope of the topic, focusing, for example, on eliminating safe havens for persons suspected of committing certain categories of crimes.  There were also suggestions to consider some of the practical difficulties in the process of extradition.

He told the Committee it had been decided that it was premature, at this stage, to send to a working group, draft articles on “effects of armed conflicts on treaties”, but instead to await a third report from the Special Rapporteur.

Also speaking, this morning, were representatives of Sweden (on behalf of the Nordic countries), Bulgaria, Austria, Japan, the Netherlands, China, Mexico, Iraq, Colombia, the Russian Federation, Portugal, Switzerland and Jordan.

The Committee will meet on Friday, 3 November, at 10 a.m. to continue its discussion of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to continue its discussion of the 2006 report of the International Law Commission.  The Chairman of the Commission was expected to introduce several more chapters from the report, dealing with effects of armed conflict on treaties, obligation to extradite or prosecute, and fragmentation of international law.

Concerning the topic Effects of armed conflicts on treaties, which the Commission included in its long-term programme of work in 2000, the Special Rapporteur on the subject noted that there was general support for the view that the topic was part of the law of treaties and not of that on the use of force.  It was also felt that the subject was closely related to other domains of international law, such as international humanitarian law, self-defence and State responsibility.  However, he added, given the existence of substantial differences of opinion on the subject, it would be premature to send the issue to a working group.  It would be better to prepare a third report on the topic.

As to the relatively new topic included in 2005 -- The obligation to extradite or prosecute (aut dedere aut judicare) -- the Commission considered the preliminary report of the Special Rapporteur, noting the most important points for further consideration.  The Commission requested information that Governments may wish to provide, on their contemporary legislation and practice, with regard to this topic.

On Fragmentation of international law:  difficulties arising from the diversification and expansion of international law, the Commission considered the report of its study group and took note of its 42 conclusions, which it commended to the attention of the General Assembly.  The analytical study summarized and analysed the phenomenon of fragmentation, taking account of studies prepared by various members of the group, as well as discussion within the group itself.  The Commission requested that the analytical study be made available on its website and be published in its yearbook.

Introduction of Report

GUILLAUME PAMBOU-TCHIVOUNDA ( Gabon), Chairman of the International Law Commission, introduced several more chapters of the report.

He told the Committee it had been decided that it was premature, at this stage, to send, to a working group, draft articles on the effects of armed conflicts on treaties, but instead to await a third report from the Special Rapporteur.

On the topic of the obligation to extradite or prosecute, he said most of the debate had centred on delimiting its scope, and focusing, for example, on eliminating safe havens for persons suspected of committing certain categories of crimes.  There were also suggestions for considering some of the practical difficulties in the process of extradition.

As to fragmentation of international law, he said the conclusions in the report were intended to be a concrete, “practice-oriented” set of brief statements that summarized the conclusions of the study group, as well as to be a practical guideline to help think about, and deal with, issues relating to fragmentation in legal practice.

“When this topic was put on the Commission’s agenda, at the turn of the new millennium”, he told the Committee, “it was amid concerns that unity of international law was under threat, that the ‘general’ was giving too much way to the ‘special’.  The results of the work of the study group give us hope and fortitude that this may not be entirely the case.  General international law remains the thread that holds relations among States together in the international legal system.”

MARIE JACOBSSON (Sweden), speaking for the five Nordic countries, said they had taken great interest in the topic of fragmentation of international law, since it was first raised as a possible item for the Commission, because of its importance.  The Commission had addressed how international lawyers might tackle the practical consequences of the widening scope and expansion of international law.  She said fragmentation of international law could be viewed as a sign of vitality and of its increasing relevance.  The study group on the topic reached 42 conclusions, which were adopted by the Commission.  The Nordic countries felt the group had provided a road map and a toolbox to assist practitioners and theoreticians, in analysing and solving problems arising from conflicting or parallel norms; the result was practical and far from being abstract.

While it was a correct choice to use the Vienna Convention on the Law of Treaties as its main tool, she continued, the Nordic countries did not necessarily agree with the conclusion that the ‘issue of institutional competencies is best dealt with by the institutions themselves’.  Given the fact that States created, used or even dissolved institutions, institutional competencies must be recognized for what they were:  the creation of States.  It was, therefore, not entirely satisfactory, that institutional matters were left to the institutions themselves; the issue of institutional competencies and their relation to, and place in, the substantive legal system, merited further examination.  Having said that, she added, the Nordic countries hoped that the Study Group’s 42 conclusions would find their way to the desks of legal advisers in foreign ministries.  They regretted that the material had not been printed in the same manner as other agenda items on the Commission’s agenda, and hoped the reports could find their way to a wider international community, through an interested publisher.

EMILINA POPOVA ( Bulgaria), addressing the effects of armed conflicts on treaties, said her country supported the general approach, proposed by the Special Rapporteur.  In her view, it had three elements:  the continuation of treaties during an armed conflict, unless there was a genuine need for termination or suspension; the topic formed part of the law of treaties; different effects are possible for different treaties.

As to scope, she said she believed the pattern in the Vienna Convention on the Law of Treaties, regarding bilateral and multilateral agreements, should be followed.  While it was reasonable, initially, to limit the draft articles to treaties between States, Bulgaria would welcome extending them to include agreements on the privileges and immunities of international organizations and their officials.  The articles should also apply to treaties that were provisionally applied.  She then offered similar detailed observations on articles 2 through 7.

GERHARD HAFNER ( Austria) said the draft articles on “effects of armed conflicts on treaties” should deal only with international armed conflicts.  One reason was the fact that present international humanitarian law was still based on a distinction between armed conflicts of an international character and those of a non-international character.  Similarly, he said, the question whether the topic should also cover “the war on terrorism” was not a matter to be dealt with in the present context.  However, his delegation supported the extension of the instrument to cover situations of occupation, as addressed by the Geneva Conventions of 1949 or the Hague Convention for the Protection of Cultural Property of 1954.

Likewise, Austria also supported the extension to treaties concluded by international organizations.  He said Austria favoured the retention of the term “ipso facto” instead of “necessarily”, as proposed by the Commission, in draft article 3 (“ipso facto termination or suspension of treaties”).  The former expression had a different legal implication than the latter, since it signified that the factual existence of a war did not have an automatic effect; the latter term left open, the possibility of a termination or suspension of a treaty.  There should be further clarifications of the full scope of the legal implications of the terms.

He said Austria welcomed the preliminary report of the Special Rapporteur on the topic of “obligation to extradite or prosecute” and looked forward to the Commission’s future work on it.  On “fragmentation of international law”, he said the results of the Commission’s work showed, convincingly, that its task was not limited to codification, but encompassed other work relating to the development and application of international law.  He hoped that the 42 conclusions would be taken note of by the General Assembly, and published in the Yearbook of the International Law Commission.

HIROSHI TAJIMA ( Japan), addressing effects of armed conflicts on treaties, said a distinction must be made between the effects on bilateral treaties and those on multilateral treaties.  It was also necessary to take into account, the difference between belligerent States and third States, in an armed conflict.  He questioned whether it was correct, under the United Nations Charter, to assume there was no difference in the legal effect concerning treaty relations, between an aggressor State and a self-defending State.  He agreed with most Commission members that consideration should be given to situations involving non-State actors, for instance, non-international armed conflict, terrorism and so forth.

He said Japan was particularly interested in the extent to which the obligation to extradite or prosecute had become customary law.  Ambiguity of its status, in that area, could cause problems in addressing the issue of impunity.  He then listed the treaties containing the obligation to extradite or prosecute, which Japan had concluded.  He said he was interested in learning of practices in other States.

The report of the study group on fragmentation of international law had considerable value in offering possible ways for States to treat the topic in the practice of international legal affairs.  He expressed the hope that the report would be widely referred to as a useful guideline in the legal practice of States.

JOHAN G.LAMMERS ( Netherlands) said the notion of “the obligation to extradite or prosecute” had, in recent years, been included in many treaties concerning international crimes.  It had granted, to State parties, not only the capacity, but also the obligation to exercise universal jurisdiction.  The Netherlands had adopted legislation, accepting universal jurisdiction and the consequences for abiding by the aut dedere aut judicare (either to extradite or prosecute) rule, as contained in a number of treaties.  With the implementation, in the Dutch legal order of the Rome Statute (which established the International Criminal Court) and the subsequent codification of the international crimes concerned, the Dutch Parliament had been prompted to give the Public Prosecutions Department the means to deal with complex criminal cases, the consequence of the “extradite-or-prosecute” treaty obligations.  He said that had led to the prosecution of a number of persons under universal jurisdiction.

On the fragmentation of international law, he said the Netherlands agreed with the Commission, that the framework provided by the Vienna Convention on the Law of Treaties, supplied the international community with an important instrument for the unification of international law.  As regards possible future work of the Commission, he said that it would perhaps be advisable for it to study and produce guidelines on the application of article 31 (30 c of the Vienna Convention, which required an interpreter of a treaty to take into account ‘any relevant rules of international law applicable in relations between the parties’).  The Netherlands also supported the Commission’s final recommendation (paragraph 42 of its report) that the principle of harmonization, as formulated by the Commission, played an important role in remedying fragmentation of international law.

On the effects of armed conflict on treaties, he said that it might be necessary to distinguish between bilateral treaties, or treaties with a limited number of parties, and multilateral treaties.  With regard to provisions in article 2 of the draft articles on the topic, he noted that, no definition of armed conflict existed at present.  Care should be taken in drafting a definition that might create concern in other fields of law, such as the law of armed conflict.  The International Committee of the Red Cross should be approached on the matter, to ensure that a future definition would not encroach upon the important work done in the field of international humanitarian law.  He said the Netherlands preferred that non-international conflicts should be included in the definition of armed conflict, since such conflicts could seriously affect a State’s ability to execute its treaty obligations.

He believed the issue was not a matter of interpretation of treaties, but of their execution.  The question was whether a State that might not rely on its internal law, as a justification for its failure, to perform a treaty, might indeed rely on an internal conflict to do so.

WANG CHEN (China) said some treaties entered into, by international organizations, could be related in some way to armed conflict, and such treaties should be studied in light of the question of the effects of armed conflicts on treaties.  Military action taken by a State against internal rebel groups, should not be included in the scope of application of the article, he said.  That did not mean that a State could disregard its international and treaty obligations.  However, a State was responsible for implementing international treaties, and internal conflicts had no direct bearing on the effectiveness of the treaty.

Continuing his review of the articles, he said the obligation to extradite was an important part of combating modern crimes and impunity.  The treatment of the topic should put more emphasis on the progressive development of relevant rules.  The pressing task of the study of the topic was to collect and analyse treaty provisions and State implementation practices, along with national legislative and judicial practice, so as to clarify whether the obligation to extradite or prosecute was a treaty obligation, or a general obligation under international customary law.  He said there should be a study on the relationship between the obligation to extradite or prosecute, and principles of international law, such as those of sovereignty, human rights protection and universal jurisdiction.  Finally, the applicable scope of crimes on the topic should include at least two categories, namely, international offences and transnational crimes.

ALEJANDRO ALDAY ( Mexico), addressing the obligation to extradite or prosecute, said the subject was fundamental to international criminal law –- to try criminals and eliminate impunity.  Work in this area would contribute to international efforts to combat terrorism and other serious crimes.  Mexico believed that current practice did not yet allow the international community to talk about the obligation to extradite or prosecute, as a universal principle or part of customary law.  While it was true that the obligation and the exercise of universal jurisdiction were closely linked, the two should not be confused or merged.

Universal jurisdiction, he said, was meant to judge those individuals who had committed some of the most serious crimes in international law.  It was based only on the nature of the crime and the impact on the international community, as a whole.  Its exercise would always be a right and an obligation.  By contrast, the principle of obligation to extradite or prosecute did not relate solely to those crimes under universal jurisdiction.  It was important to remember the obligation was based on an alternative, granted to a State.  For the principle to be effective, it would be necessary to improve the work of local courts and bolster the work of the International Criminal Court.

RIADH AL-ADHAMI (Iraq), speaking on the effects of armed conflicts on treaties, said he favoured the inclusion of treaties, concluded by international organizations, in the draft articles, as indicated by the Special Rapporteur.  He also favoured the study of questions relating to treaties that had not entered into force or been ratified by States.  His delegation, furthermore, supported the concept of “intention of parties” in case of an armed conflict, as explained in article 4 (susceptibility to termination or suspension of treaties in case of an armed conflict).  He said his country had problems with article 7, dealing with the operation of treaties, on the basis of necessary implication from their object and purpose.  He appreciated the fact that the Special Rapporteur would further review the draft article.

ALVARO SANDOVAL BERNAL ( Colombia), addressing the effects of armed conflicts on treaties, said it was essential that any consideration, evaluation or development of treaty law be guided by the principle that all members were compelled to fully carry out the commitments undertaken.  The observance of treaties and good faith in their execution, guaranteed international peace and security.  The Vienna Convention on the Law of Treaties must become the immediate legal reference for any work carried out, relating to treaty law; as a consequence, it was necessary to avoid any reinterpretation or development that could change the spirit or the content of its provisions.

The treaty termination and suspension regime, set out in the Convention, was sufficiently precise and rigorous, another reason to proceed with caution when addressing the effects that armed conflicts could have.  He said the work being carried out, in the Commission, must proceed mainly from the perspective of treaty law, and be based on the presumption that armed conflicts could not serve as a pretext not to fulfil them.  He then offered detailed comments on several of the draft articles.

GENNADY KUZMIN ( Russian Federation) said his delegation supported the idea of the provisions of article 28 (international responsibility in case of provision of competence to an international organization).  He said States could not avoid liabilities under the veil of international organizations.  On shared natural resources, he said the Russian Federation believed that there was no need to elaborate universal legal rules, with respect to oil and natural gas.  He also believed that the draft articles on universal acts of States was a useful document, which should be taken note of, by the General Assembly.

On the fragmentation of international law, he said the 42 conclusions of the study group were an important contribution to the doctrine of international law, which the General Assembly should bring to the attention of Member States.  On the issue of reservations to treaties, he said the Russian Federation favoured the use of the relevant provisions of the Vienna Convention on the Law of Treaties, in assigning the functions of the treaty depositaries in the draft articles on the subject.  He also said that treaty-monitoring bodies should be requested to express their conclusions.  With regard to the topic, effects of armed conflicts on treaties, he said there should be a provision in the draft articles to cover treaties involving international organizations.  Non-international conflicts should not be included in the Commission’s work on the topic, he added.

LUIS SERRADAS TAVARES ( Portugal), speaking on effects of armed conflicts on treaties, said his country agreed that, for the present purpose, the definition of ‘armed conflict’ should be built within the frame of the law of treaties.  Nevertheless, attention should be paid to the other approaches to the concept, going beyond the law of treaties.  There should be a broader and more comprehensive definition of the term.  He said Portugal also had great doubts about the inclusion of internal conflicts on the scope of application of the draft articles.  Circumstances affecting the application of a treaty following an armed conflict, would best be dealt with within the framework of the Vienna Conventions on the Law of Treaties.  His delegation also shared the opinion that an aggressor State could not be placed in the same position as the State exercising the right of self-defence.

On the question of the obligation to extradite or prosecute, he said his country was party to several international treaties –- at an international, regional and bilateral level -- which established that notion.  It was working closely with several States on the prevention of ‘safe havens’ for criminals.  It had also expressed reservations to some of those multilateral instruments.  He said the Portuguese Constitution did not permit extradition on political grounds.  It also limited the possibility of extradition of Portuguese citizens, except on the grounds of reciprocity, established by an international convention in terrorism cases.  When extradition was denied, there was an obligation to try the person in question on the facts that led to the request for extradition.  He said the topic was of great importance and efforts should be made for an agreed principle to be achieved.

On the fragmentation of international law, he said the 42 conclusions of the Study Group would be a most valuable tool for practitioners and academics, and he welcomed its widest possible dissemination.  He said he particularly approved conclusions 31 to 42, on the issues of hierarchy in international law and relations.

THOMAS FITSCHEN ( Germany) said “fragmentation” of the law was a development where all sensed a certain uneasiness, but where the precise point of concern was hard to pin down.  It was true that the relationship between two or more treaties, which covered related issues, was sometimes far from clear.  Gaps and overlap abounded, leading to a lack of clarity when it came to interpretation of treaties which covered similar areas, but were seemingly not related at all.  Speaking, as he said, somewhat in defence of the State, or its agents, he asserted that, in diplomatic negotiations on the drafting of a treaty, States often encountered a situation where everyone recognized that a certain question already been dealt with somewhere else also fell, partly or as a whole, under the purview of the treaty under negotiation.  It was precisely because they were only too well aware of the overlap, that things did not get regulated.  Negotiators knew, only too well, that starting negotiations on a certain point might lead to the reopening or unravelling of a text that already existed.  So they deliberately chose not to regulate what, in a perfect world, should indeed be regulated.  It was the negotiator’s paradox –- “non-regulation as a legal technique”.

States deliberately forwarded the issue of how to harmonize one treaty with another to the application phase, he continued.  The assumption should always be that States intended to conclude treaties, which could and should, be interpreted and implemented in an integrated manner.  A similar assumption was made at the national level.  He believed it would be extremely helpful for negotiators of future treaties, if they did not have to leave the problems of fragmentation to a solution at the level of implementation, but had some practical tools at hand, when addressing issues of conflict of international law.  He was not sure, though, how that could be translated into yet another practical product, delivered by the Commission, for use in ministries and at the United Nations.  He took note of the Commission’s suggestion of undertaking a project of adapting the “classical” tools of treaty interpretation and application to the realities of the multipolar world of the 21^st century.  He also suggested a new topic for the Commission to consider:  that of adapting international treaties to changing circumstances.

JÜRGLINDENMANN (Switzerland), addressing the topic of fragmentation in international law, praised the study group’s report on the subject for having presented the relationship between the norms of international law in such a systematic and structured way.  He recalled the initial reluctance that greeted the Commission’s undertaking of the study, and yet, the results confirmed that its approach had been a complete success.  He expressed regret that only 42 of the study group’s conclusions were included in the report, with the rest available only on the Internet.  The study was not of purely academic interest, but of use to practitioners as well.  He hoped there would be an opportunity to publish it in the future.

MAHMOUD HMOUD ( Jordan), speaking on the effects of armed conflicts on treaties, said the topic was part of the law of treaties and should be separated from the law on the use of force.  Derogation from treaty obligations should be dealt with independently from the issue of the lawfulness of the use of force; otherwise, it would lead to the creation of different sets of rules and legal consequences.  He said that to provide more rights to a party which used, or claimed to use, force lawfully, in relation to suspension or termination of treaty obligations, would encourage parties to armed conflicts to do so.  That contradicted the premise that war was incidental and an exception to the normal application of a treaty, with the least possible consequences to such application.

Turning to some provisions of the draft articles, he said the scope of the text should include treaties, to which international organizations were parties.  To exclude the effect of armed conflicts on rights and obligations of those organizations would limit the scope of the topic.  He favoured the exploration of other signs of the susceptibility of a treaty to termination or suspension, such as the nature of the obligation that was derogated from, and the extent and nature of the armed conflict in question.

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