Sixty-first General Assembly

Sixth Committee

19^th Meeting (AM)

INTERNATIONAL LAW COMMISSION CALLED ON TO CONSIDER LEGAL CONSEQUENCES

OF PRIVATE ARMIES, SECURITY AGENCIES BEING USED IN INTERNAL CONFLICTS

Experiences of Sierra Leone, Liberia, Democratic Republic of Congo Are Cited

As Sixth Committee Ends 10-Day Review of Commission Report on 2006 Activities

A call for the International Law Commission to consider the legal consequences of the use of private armies, as well as the involvement of multilateral corporations and security agencies, in internal conflicts was made this morning as the Sixth (Legal) Committee concluded its 10-day debate on the work of the Commission at its fifty-eighth session this year.

The inclusion of these new topics on the Commission’s agenda was proposed by the representative of Sierra Leone, who said the recent experience of countries like his own, Liberia, and the Democratic Republic of the Congo warranted their consideration.

The debate, considered the high point of the Sixth Committee’s work of the current General Assembly session, covered nine major topics, and others the International Law Commission decided to put on its long-term programme of work.  (The Commission’s 2006 session was held in two parts in Geneva:  from 1 May to 9 June, and from 3 July to 11 August.)

The final “cluster” of topics considered by the Sixth Committee today were:  “effects of armed conflicts on treaties”; the relatively new topic of “the obligation to extradite or prosecute”; and “fragmentation of international law.

On the fragmentation of international law, South Africa’s representative referred to the proliferation of adjudicatory bodies, sometimes with overlapping jurisdictions.  He said the phenomenon of specialized fields of international law could have both positive, and negative, effects.  International environmental law illustrated some of the positive effects.

The representative of Thailand said the International Law Commission should consider applying universal jurisdiction as a legal basis for States to fulfil the obligation whether to extradite, or prosecute, international criminals.  The concept could be applied to crimes recognized under international customary law, as well as offences related to aircraft, narcotic drugs and terrorism.

On the issue of the effects of armed conflicts on treaties, the representative of the United States said her Government was encouraged by the great strides the Commission had made in addressing the complexities related to the topic.  In general, the United States felt it was important to strive for an approach that preserved reasonable continuity of treaty obligations during armed conflict, taking into account particular military necessities.

Chile’s speaker said that in the draft articles on effects of armed conflicts on treaties there should be an explicit reference to human rights treaties and the conventions that formed part of international humanitarian law, since those treaties had acquired so much importance in contemporary international law that strengthening them was fundamental.

Statements were also made by the representatives of New Zealand, Australia, Indonesia, Poland, India, Iran, Italy, Algeria, United Kingdom, Malaysia, Argentina, and Romania.

In his closing remarks, the Chairman of the International Law Commission, Guillaume Pambou-Tchivounda said the Commission would always rely on the guidance given by the Sixth Committee.  The views expressed by delegates, either verbally or in writing, were extremely valuable.  He appreciated the frank and open discussions that had taken place, particularly those in the more informal settings and with the legal advisors.

The International Law Commission was established, and its Statute (which was drafted by a subcommittee of the then Sixth Committee) approved, by General Assembly resolution 174 (II) of 21 November 1947.  In accordance with the relevant provisions of the Statute (articles 3-10), the first elections to the International Law Commission took place on 3 November 1948, and the Commission opened the first of its annual sessions on 12 April 1949.

The International Law Commission promotes the progressive development of international law and its codification.  The Commission has worked extensively in the field of international criminal law, beginning with the formulation of the Nuremberg principles and the consideration of the question of international criminal jurisdiction at its first session in 1949.  It culminated in the Commission completing the draft Statute for the International Criminal Court at its forty-sixth session in 1994, and the draft Code of Crimes against the Peace and Security of Mankind at its forty-eighth session in 1996.  Some topics considered by the Commission are chosen by it; others are referred to it by the General Assembly.

The Sixth Committee will meet again at 10 a.m. on Monday, 6 November 2006, to consider two new items on its agenda:  “The rule of law at the national and international levels” and “Comprehensive review of the whole question of peacekeeping operations in all their aspects”, which will focus on a proposed convention on the criminal accountability of United Nations officials and experts on mission.

Background

The Sixth Committee (Legal) met this morning to conclude its debate on the report of the International Law Commission on the work of its 2006 (fifty-eighth) session, with particular focus on two topics:  effects of armed conflicts on treaties; the obligation to extradite or prosecute, and fragmentation of international law.  The Committee began consideration of the Commission’s report on 23 October.

The Commission’s session was held in two parts, in Geneva, from 1 May to 9 June, and from 3 July to 11 August 2006. (For background on the Commission’s report, see Press Release GA/L/3302 of 23 October 2006).

Statements

DIRE TLADI ( South Africa) said the topic of “fragmentation of international law” in the Commission’s report reflected the undeniable truth that fragmentation was a real and practical problem, and not just of academic interest.  The report correctly noted that a main reason for the fragmentation was the mushrooming of so-called “self-contained” regimes of international law.  The phenomenon of specialized fields of international law could have both positive and negative effects.  International environmental law illustrated some of the positive effects, he said, citing how the precautionary principle was now generally recognized as a principle of international law, as well as its contribution of the concept of sustainable development.

Referring to the proliferation of adjudicatory bodies, sometimes with overlapping jurisdictions, he said that the institutional aspects of fragmentation should be kept on the radar.  After citing examples of rulings from the World Trade Organization regime, he said that in the study of the specialized fields of international law, and their impact on the integrity of international law, that organization must be given special attention.

On the issue of the effects of armed conflicts on treaties; he said South Africa was encouraged by the decision to include internal armed conflicts in the definition, given that such conflicts were more common in the contemporary world, and were also capable of having the same effects as conflicts of an international nature.

EDMUNDO VARGAS CARRENO ( Chile), speaking on the question of ‘diplomatic protection’, said he shared the Commission’s decision of not demanding that the action of diplomatic protection be initiated as a requisite of the person benefiting from it.  He said that requisite, as demonstrated by international practice, presented more problems than advantages.  On the topic of ‘reservations to treaties’, he said he agreed with the Commission’s recommendation for a meeting to be held at its next session with United Nations human rights experts to debate issues relating to reservations to human rights treaties.  He believed those treaties were of a special nature, and in many respects, different from other treaties.  He said it would be useful to obtain financing to facilitate participation in the meeting of experts from regional bodies on human rights protections.

He said he had doubts about the list of cases cited in connection with the topic of effect of armed conflicts on treaties.  He said the list could be replaced by an annex that gathered the practices of States and jurisprudence on the matter.  There should be an explicit reference to human rights treaties and the conventions that formed part of international humanitarian law, as stipulated in the relevant provision of the 1969 Vienna Convention on the Law of Treaties.  Those treaties had acquired so much importance in contemporary international law, that strengthening them was fundamental.

He also touched upon the topic, obligation to extradite or prosecute, pointing out that the purpose of the norm was to avoid impunity for those responsible for committing serious crimes at the international level, bestowing the jurisdiction to prosecute or extradite on the State where the supposed offender was found.

MATTANEE KAEWPANYA (Thailand), speaking on the topic of ‘obligation to extradite or prosecute’, said many States had yet to prosecute offenders, while failing to extradite them, because they did not have jurisdiction over the offences committed by those offenders.  The Commission should consider applying universal jurisdiction as a legal basis for that obligation, thereby allowing those States to seize the matter.  The Commission should also analyze the situations, and determine the reasons why a requested State could not extradite an offender, and whether, for instance, the offender was its national, or the offence carried a death penalty.

Another question that should be examined, she said, was to which categories of crimes the concept of ‘obligation to extradite or prosecute’ could be applied.  Thailand, she added, believed the concept could be applied to crimes recognized under international customary law, as well as offences related to aircraft, narcotic drugs and terrorism.

JENNIFER MCIVER (New Zealand), first addressing the topic of ‘reservations to treaties’, said she welcomed a meeting with United Nations experts in the field of human rights; engagement with those who were dealing with reservations in the various United Nations human rights treaty monitoring bodies would be very productive.  Turning to ‘unilateral acts of States’, she said a key conclusion to draw from the set of guiding principles was that the binding legal effects, which unilateral acts might produce, were not limited only to unilateral acts in the strict sense.  Turning to the obligation to extradite or prosecute, she said the starting point for an inquiry into the topic must be a thorough analysis of the international treaty obligations and national laws bearing upon the obligation.  At this early stage, the final form of the work should be kept open.  The Commission’s work on fragmentation of international law contributed to a wider understanding of the underlying linkages and overall coherence of the international legal system.  The analytical studies and conclusions were an impressive achievement and an excellent example of collaboration within the Commission, given the wide range of experts involved.

MIA GOLDSMITH (Australia), first addressing ‘unilateral acts of States’, said Australia looked forward to a period of reflection on the guiding principles after the General Assembly session.  She endorsed the Commission’s view that the legal effects of declarations must take into account their content, factual circumstances and reactions.  It was also important to examine the intention of the person making the declaration.  Declarations were binding only if made by an authority vested with the power to do so.

Turning to the topic of reservations to treaties, she said the Commission’s work should ultimately prove to be of great benefit to States and international organizations.  Australia did not consider it appropriate for treaty-monitoring bodies to have a role in assessing the validity of reservations.  It was not their role to assess the basis upon which States became parties to the relevant treaty.  Furthermore, she added, giving them such a role could exacerbate the problem of conflicting conclusions being reached by bodies asserting competence to assess the validity of reservations.  Similarly, requiring the depositary to arrive at its own legal view on the nature of a reservation, and to advise States parties to that view, went beyond the role of the depositary set out in the Vienna Convention.

JOHNY SINAGA (Indonesia), first addressing the obligation to extradite or prosecute, referred to the principle which had mainly been incorporated into human rights treaty, saying that, in general, it related to the category of crimes within universal jurisdiction.  In recent times, the principle had been adopted in conventions to combat terrorism and other transnational crimes.  The most crucial problem was determining whether the obligation should be limited to treaties which were binding to the States concerned, or extended to appropriate customary norms or general principles of law.

On the effects of armed conflict on treaties, he said Indonesia was not convinced by the arguments to broaden the scope of the issue to include internal conflicts.  As to responsibility of international organizations, he believed the draft articles should, to the best extent possible, make use of the proposed regulation for ‘State responsibility for wrongful acts’.

On the topic of ‘shared natural resources’, he agreed with the approach of the Commission to concentrate at this stage on the issues of non-renewable water in confined groundwater.  Once that work was done, he said, the International Law Commission could take up drafting principles for oil and natural gas.   Indonesia fully supported the article on State sovereignty over the portion of a transboundary aquifer, or aquifer system, located within its territory.

Turning to the subject of diplomatic protection, he said Indonesia was pleased at the balanced approach in the draft articles concerning the rights of States.  The exercise of diplomatic protection must not encroach on the territorial jurisdiction of the State where an injury occurred, and measures should not be excessive.  In the context of article 15, he said there was a possibility for companies to go “forum shopping” and States needed more time to study the article.

As to the subject of ‘international liability for transboundary harm’, he said he agreed with the approach of imposing the primary obligation for compensation on the operator; it was particularly relevant that the draft emphasized the important role of bilateral and regional arrangements for dealing with hazardous activities in their regions.  Concerning future work of the Commission, Indonesia encouraged the study of extra-territorial jurisdiction.

ANDRZEJ MAKAREWICZ ( Poland), speaking on the effects of armed conflicts on treaties, said the Commission should not, in its further work on the topic, overlook the question of which legal regime governed treaty issues during armed conflict.  He said that among the distinct situations and issues that they created were:  the determination of the consequences of termination of treaties; regulation of the consequences of suspension of treaties, and rules that would govern new treaties being concluded between the belligerent parties.  The Vienna Convention on the Law of Treaties should apply in treaty issues arising in such situations, he said, and suggested this provision:  “The outbreak of an armed conflict does not affect the operation of the rules established by the Vienna Convention on the Law of Treaties, which continue to govern treaty matters between the belligerent parties and between the belligerent party and a third State, unless such a continuous operation would be incompatible with the present articles”.

He said it was equally important that the Commission ascertain the effect the outbreak of armed conflicts had on particular provisions of treaties.  It was often the particular obligations under a treaty that were affected, he added, and not the treaty as a whole.  Consequently, he said, attention should be centred on the character of particular treaty obligations.

On the topic of obligation to extradite or prosecute, his delegation thought the road map proposed by the Special Rapporteur for his future work on the subject was realistic and acceptable.  Poland agreed with the Commission’s suggestion that the Special Rapporteur undertake a systematic study of State practice, focusing on contemporary practice, including national jurisprudence.

IQBAL AHMED SARADGI (India), first addressing the effects of armed conflicts on treaties, said that while the topic was generally part of the law of treaties, and not on the use of force, it was also closely related to other domains of international law.  The scope of the topic should be limited to treaties between States and not include those concluded by international organizations.

He said the definition of “armed conflict” should be considered independently of its effects on treaties.  The scope should also not deal with internal conflicts.  Referring to article 7, he said India did not favour a listing of treaties that continued in operation during an armed conflict, since that raised the presumption that treaties not covered would automatically lapse.  He cited for the Committee treaties, to which India was party, that contained the obligation to extradite or prosecute, and the circumstances under which extradition could take place.

Turning to the fragmentation of international law, he commended the Commission’s study group for its report.  He said the Commission recognized that while fragmentation of international law did create the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices, it also had a positive effect, as it accounted for the development and expansion of international law and was a sign of its vitality.

HOSSEIN PANAHIAZAR ( Iran) said he agreed that the topic of the effects of armed conflicts on treaties was not part of law relating to the use of force; rather, it was in the realm of several domains of international law, including the law of treaties, international humanitarian law, State responsibility and self-defence.  While the issue of military occupation and its effects on treaties should be addressed in the drafting, he said, it was not something to be covered in the definition of “armed conflict”.

Referring to article 4, he said Iran supported the inclusion of “intention of the State parties”.  However, the article did not make any distinction between the State resorting to unlawful use of force and the State exercising self-defence; such a distinction should be taken into account throughout the draft articles.  He firmly believed that the basic principles of integrity and continuity of international treaties should also be taken into account in dealing with the topic.  He, therefore, believed that article 6 should be retained -- either saved intact, or incorporated into -- article 4.

VALERIO ASTRALDI ( Italy), on the issue of the obligation to extradite or prosecute, said the Commission appeared to still be confronted with the difficult task of defining the scope of the topic.  Several of the points that had been raised, while related to the question of whether there was an obligation to extradite or prosecute, were not limited to that context, and probably deserved specific analysis as a distinct topic.  He referred to the universality of criminal jurisdiction and the definition of international crimes, and said the Commission could contribute usefully by undertaking a comprehensive survey of the practice relating to treaties containing the obligation.

He congratulated the Commission for having come up with an impressive set of conclusions on the substantive aspects of fragmentation of international law.  The conclusions, he added, were designed to give “the state of the art” on various topics of considerable theoretical difficulty.

EL-HADJ LAMINE ( Algeria) commended the Commission’s central role in the codification and progressive development of international law or diplomatic protection, and the significant progress of its efforts symbolized by the adoption of several draft articles.  He said the draft articles confirmed that the exercise of diplomatic protection by a State was a right, and not an obligation.  However, he said, the provision (article 19) which recommended that States exercise that right, should be understood in the light of article 2, so as not to leave the door open to possible abuses.  He said he shared the belief of some delegations that the draft articles, in their present form, were not yet ripe for adoption as a convention.

He said the proposal to have the General Assembly adopt the draft principles on responsibility of international organizations was positive; it would clear the path for adequate compensation to a victim of transboundary harm, thus reducing its negative effects.  It would also encourage greater cooperation among States on that subject.  Nevertheless, he said, Algeria would have preferred draft articles, rather than draft principles, on the topic.

On the effects of armed conflicts on treaties, he believed that internal conflict did not directly affect relations between State parties, but they could trigger consequences that could indirectly affect the implementation of a treaty.  Such obstacles, he said, could well be analyzed within the framework of the 1969 Vienna Convention on Law of Treaties.

ELIZABETH WILCOX ( United States) said her Government was encouraged by the great strides the Commission had made in addressing the complexities related to the topic of effects of armed conflicts on treaties.  In general, the United States felt it was important to strive for an approach that preserved reasonable continuity of treaty obligations during armed conflict, taking into account particular military necessities.  There was a need to avoid rigid rules based on categorization of treaties, or based on an alleged “intent” of the parties.  It might be productive if the Commission could enumerate factors that might lead to the conclusion that a treaty, or some of its provisions, should continue (or be suspended or terminated) in the event of an armed conflict.

As to the obligation to extradite or prosecute, she said the Commission should initially focus on the obligation under existing treaties; she endorsed the suggestion that the Commission begin with a study of State practice, to ascertain whether there was a basis for any obligation to extradite or prosecute under customary international law.

Turning to the fragmentation of international law, she said the United States appreciated the discussion of many of the challenging issues on the topic in the Commission’s analytical study, and she believed the academic work would certainly stimulate much discussion in the field.  However, she expressed uneasiness with the limited ability of Governments to provide comments as the topic moved to conclusion.  She welcomed the decision to conclude work on the topic rather than to attempt to develop a more proscriptive set of principles or to make any statement representative of customary international law.

CHANAKA WICKREMASINGHE (United Kingdom), addressing the topic of the effects of armed conflicts on treaties, said treaties involving international organizations were perhaps best not included in the study, given their vast variety and functions.  While acknowledging that internal armed conflicts could have a significant impact upon a State’s treaty relation, he said the preliminary view of his delegation was that those conflicts should be excluded from the scope of the study.  He agreed with the decision not to abandon the concept of intention in article 4, and also welcomed the decision to revisit article 7 to take into account the concerns of States.

Turning to the obligation to extradite or prosecute, he said his country would provide information on its national practice at a later date.  While he agreed that universal criminal jurisdiction might be of some relevance to the present study, he urged the law commission not to be diverted by a comprehensive study of that issue.  Nor should the topic include a review of the relevant provisions of extradition law or deportation; it should be limited to a discussion and elaboration of secondary rules.  He agreed that the study should not consider the transfer of individuals to international criminal courts, since such surrender was already governed by a distinct set of treaty arrangements and legal rules; the status of the obligation was a matter of treaty law only, and not a rule of customary international law.  One area of study which would be of potential value to States, he added, was the formulation of principles of priority, or hierarchy, among the different sources of obligation for States, as well as the varying, and sometimes competing, bases of criminal jurisdiction.

On the subject of fragmentation of international law, he said the Commission’s decision to publish the related study on its website would ensure that the outstanding academic work was available to a wide audience, thus facilitating debate on the topic.  The United Kingdom did not view the conclusions stated as being representative of customary international law, or necessarily a desirable direction for progressive development, and it was concerned that work on the topic was conducted in a manner that was rather different from that traditionally adopted by the Commission.  He said he hoped that in future projects, Governments would be able to contribute to the work of the Commission in the normal manner, as it professed.

MOHD RADZI HARUN ( Malaysia), addressing the effects of armed conflicts on treaties, said the scope of the articles should be limited to State-to-State treaties.  Clarification was needed on whether States would have the option of opting out of the proposed regime, or parts of it, by specific exclusion clauses.  He said Malaysia found the current definition of “treaty” acceptable.

On the definition of “armed conflict”, he agreed that the Commission should not embark on a comprehensive definition; it should reformulate the definition by simply stating that the articles applied to armed conflicts, whether or not a declaration of war existed.  That would provide the necessary flexibility to accommodate evolving types of armed conflict, and should include internal armed conflicts and military occupation.  He offered detailed observations on several other articles.

On the obligation to extradite or prosecute, he said it needed to be clarified whether the obligation was purely treaty-based, or whether it was a general obligation of customary international law.  Although Malaysia supported the proposal for a detailed analysis of the link between the obligation and the principle of universal jurisdiction, he stressed that they were conceptually distinct principles and the Commission should focus on the obligation to extradite or prosecute.  He said his country would provide information on its extradition legislation and contemporary practices.

DIEGO MALPEDE ( Argentina), speaking on fragmentation of international law, said the study had accomplished the mandate of the Commission with the studies that took place.  They constituted practical guidelines that would aid States in their deliberations over the topic of fragmentation in juridical practice.  One of the most useful aspects of the study was the collection of the experience of courts with conflicting rules, and the helpful suggestions for jurisprudential approaches to deal with those conflicts.  Argentina agreed that an analysis of the question of fragmentation should be approached by reference to the Vienna Convention on the Law of Treaties.

He highlighted the treatment of the topic of hierarchal relations between norms of international law regarding Article 103 of the United Nations Charter and other international law norms, citing, in particular, the relationship between those norms and decisions of the main bodies of the United Nations, such as the Security Council.

ALINA SPINARU (Romania), speaking on the topic of shared natural resources, said its draft article 4 conformed to the new concept of protection of the environment, partly for the safety and benefit of present and future generations.  She said she looked forward to how the Commission would address the topic in future, particularly with respect to the kind of link it would find between aquifers and other natural resources, such as raw materials, gas and oil.  She said the future form of the draft articles should be a convention.

On the subject of the responsibility of international organizations, she said membership of an organization could not constitute the only reason for holding a State responsible for an internationally wrongful act by that international organization; the State should play an active role in the commission of that wrongful act for it to be held responsible.

On reservations to treaties, she said she supported the adherence to the body of legal norms on human rights issues, but there should not be an attempt to construct a hierarchy of international legal norms depending on their subject matter.  Treaty-monitoring bodies should be entrusted with the task of ruling upon the status and the consequences of a particular reservation.

On the effects of armed conflicts on treaties, she said a definition of “treaty” should reflect the current present reality, in which not only States could conclude treaties, but also international organizations.  As to the obligation to extradite or prosecute, Romania believed the discussion should not include the “third” alternative of transferring offenders to the jurisdiction of an international tribunal.  Regarding fragmentation of international law, she found the outcome of the study group to be an extremely fascinating and thought-provoking instrument, in being able to explain the phenomenon of the current legal environment.

ALLIEU IBRAHIM KANU ( Sierra Leone) said he supported the approach of the Commission on rules governing the circumstance in which diplomatic protection might be exercised, and the conditions that must be met before it was exercised.  His delegation agreed with the draft articles, except for the question of affording protection to the crew of ships carrying flags of convenience, and where there was no genuine link between the ship and its flag.  His delegation did not feel it was time for a convention on the topic to be elaborated on the basis of the draft.

He said he approved of the continued approach of the Commission in crafting draft articles on State responsibility of international organizations, but wished to observe that the nature and character of international organizations made them different and distinct, vis-à-vis State responsibility.  The Commission should look at the responsibility of States for the acts of international organizations of which they were members, and which appeared to have been addressed in article 29.  It should also consider situations where States were deemed not to be responsible for the wrongful acts of the organizations.

He said his delegation welcomed the conclusions reached by the Commission on the topic of fragmentation of international law; it clearly demonstrated the importance of the Commission in the codification and progressive development of international law.  It should not, however, shy away from the fact that fragmentation had both negative and positive effects in the application of international law.  Some conflicts, even though national in character, would have elements of international involvement; excluding such conflicts in the consideration of the topic would have negative effects on the Commission’s future work on the subject.

On the topic of the obligation to extradite or prosecute, he said he supported the Commission’s approach in distinguishing between the principle of universal jurisdiction and the related principle, aut deder aut judicare.  The Commission should stimulate inspired thought and action towards providing a guide to States that were confronted with a decision to either extradite or prosecute.

He finally proposed some new topics for consideration by the International Law Commission:  legal consequences arising from the use of private armies in internal conflicts; legal consequences arising from the involvement of multilateral corporations in internal conflicts, and legal consequences arising from the involvement of security agencies in internal conflicts.  He said recent experiences of countries like Sierra Leone, Liberia and the Democratic Republic of the Congo warranted consideration of those topics.

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