Sixty-second General Assembly

Sixth Committee

23^rd & 24^th Meetings (AM & PM)

President of World Court, in address to assembly’s legal committee,

notes ‘inequality’ in compensation of judges; attention needed

Debate Continues on Law Commission Report; On Issue of Shared Resources,

Delegates Differ on Whether Text on Aquifers Should Also Cover Oil and Gas

In her annual address to the Sixth Committee (Legal) as debate continued today on the report of the International Law Commission, Judge Rosalyn Higgins, the President of the International Court of Justice, said the rule of law was on the agenda throughout the United Nations, but there was a rule of law needing the Committee’s attention with regard to the Court.

Referring to a resolution adopted earlier this year by the General Assembly concerning compensation of judges, she said the Court could not have judges on the same bench receiving different salaries even though they sat in equality as specified by Statute.  The Court should not stand alone as the only judicial body among senior international courts not to have assistance in marshalling, collating and checking evidence, such as the 4,000 pages of annexes to be presented in the hearings on the Malaysia/Singapore case opening next week.  Judicial determination of facts was an ever more important task for the Court, and yet not every judge on the court had a clerk.

She said nearly every case coming to the Court these days involved a determination of facts and law.  Particularly in cases of title to territory, the Court made “heavy” findings of facts that were critical for the legal issues in dispute.  By contrast to procedures of international tribunals, the Court determined the applicability of international law to States, and in territorial dispute cases the colonial past needed to be thoroughly considered.  Historical facts were presented as part of the pleadings of the team.  Technical considerations were contained in annexes.

A number of delegations referred to the Court’s rulings as debate on the Law Commission’s report continued with a focus on the second cluster of issues:  reservations to treaties; shared natural resources; and the obligation to extradite or prosecute.

The discussion of shared natural resources brought up the issue of whether and how the Commission should study the issue of oil and gas in light of its earlier work on trans-boundary shared aquifers.  The representative of the Czech Republic said the draft article on the law of transboundary aquifers could be completed regardless of results on legal questions related to oil and natural gas which would take a long time to assess.

The delegate of the Philippines said the range of environmental harm occasioned by the trans-boundary situation should be more extensively considered, taking account of the relation between States in the context of the atmosphere, pollution or migratory fish stocks.

Romania’s representative said the aquifer and oil questions should be considered separately.  The best solution might be to respond on the basis of the diversity of situations covered by the questions, with the need for a juridical regime to cover all those cases.  On the responsibility to extradite or prosecute, he said the subject should be studied further with a focus on principle which imposed on States the responsibility to take action in the case of criminal conduct.

Also speaking today were the representatives of Malaysia, Canada, El Salvador, Hungary, Belarus, France, Chile, Nigeria, Mexico, Democratic Republic of the Congo, Greece, Netherlands, Slovenia, United Kingdom, Cuba, Russian Federation, Japan, Syria, Sierra Leone, Portugal, Israel and Brazil.

The Committee will meet again at 10:00 a.m. on Monday, 5 November, when it will continue considering the Law Commission’s report.

Background

The Sixth Committee (Legal) met this morning to continue its debate on the report of the International Law Commission on the work of its fifty-ninth session, with focus on the final chapters covering reservations to treaties, shared natural resources, and the obligation to extradite or prosecute.  (For background, see press release GA/L/3329 of 29 October).

Statements

UMAR SAIFUDDIN JAAFAR ( Malaysia), speaking on “reservations to treaties”, said his country had made several reservations to human rights treaties perceived by some State parties as incompatible with their object and purpose.  His country looked forward to the conclusion of the work of the special rapporteur on the impact of invalid reservations and objections, and acceptances to the reservation, before a conclusion could be reached on the provisions relating to validity of reservations and interpretative declarations.  He noted that the special rapporteur would cover the effect of objection and acceptance to reservations in his subsequent work.  He acknowledged that the adoption of the draft guidelines would assist in the practice of States and international organizations in respect of reservations to treaties.

On “shared natural resources”, he said that any linkage between the work on groundwaters and the work on oil and gas would result in undue delay to the completion of the work on groundwaters; principles or guidelines drafted for one natural resource might not be appropriate for others.  On the final form of the draft articles, he said the question should be approached with caution, and deferred until after their second reading.  He noted that the present draft articles did not include provisions for dispute settlement, final clauses and any article that might prejudice the issue of final form.  He also addressed the topic of “States obligations to extradite or prosecute,” noting that his country had extradition treaties with Thailand, Indonesia, Hong Kong Special Administrative Region, United States and Australia.

ELIZABETH WILLIAMS ( Canada), speaking on “reservations to treaties”, agreed with the Commission’s fundamental decision not to call into question the work of the Vienna Conventions on the Law of Treaties.  She welcomed the Commission’s efforts to develop guidelines, for the assistance of States and international organizations, which did not create a separate regime for reservations to treaties of particular subject matters, such as human rights.   Canada saw much value in the retention of the unity of the rules of the Vienna conventions.  There was also a role for contracting States and international organizations to respond to the perceived invalidity of a reservation lodged by another State or international organization by means of objections. 

She said Canada shared an international land boundary only with the United States, hence the issue of groundwater pollution was an exclusively bilateral one.  In terms of a jurisdiction and regulation of groundwater, she said the relationship between the two countries was governed by the International Boundary Waters Treaty of 1909, and specifically by the Great Lakes Water Quality Agreement of 1978, amended in 1987.  The 1909 treaty was implemented in Canada by domestic legislation known as the International Boundary Waters Treaty Act.  She said that very recently, on 13 December 2005, the Great Lakes States of the U.S.A. and the Canadian Provinces concluded an agreement on diversions out of the Great Lakes Basin which also included consideration of groundwater use and quality.

She said Canada would be prepared to support consideration of the draft articles as a set of model principles, and re-encouraged the Commission to develop an information base on the issues, problems and modes of approach to enhancing protection and sustainable use of groundwaters.  She said Canada hosted a meeting on “Aquifers in the Americas” that took place in Montreal last September.

She said that the obligation to extradite or prosecute, did not apply to all crimes and cautioned against the adoption of an overly broad concept of the obligation.  She said that in Canada, the obligation to do so applied to crimes of universal jurisdiction.

MIRIAM DEFENSOR-SANTIAGO ( Philippines) said that in keeping with the character of a reservation as a unilateral statement made by a State or organization, there could be no such thing as a reservation in a bilateral treaty, since both parties would have to agree to a reservation and the substance of the reservation would simply become part of the treaty.  A unilateral statement or declaration by one party could come under the concept of an interpretative declaration.  This could be either for the genuine purpose of expressing a favoured interpretation of certain provisions, or to disguise a reservation where it was not allowed, but it was unrealistic to expect that such a declaration would escape the common consent of both parties.

However, she continued, the fundamental assumptions of the 1969 and 1986 Vienna Conventions were that reservations applied to both bilateral and multilateral treaties, and the Commission had limited itself to the view that reservations to bilateral treaties posed no problem because the issue amounted to a new proposal for reopening negotiations between the two States and the result would either be success or failure to make a treaty.  That did not seem an adequate justification for including reservations to bilateral treaties in the guidelines and a more clear-cut explanation should be provided.

Further, she said, the guidelines crossed the line separating the status of a treaty rule and that of the customary norm; that introduced confusion as to the source of obligation between the reserving State and other States parties, since the force contractually binding them was treaty, not custom.  With regard to reservations and jus cogens norms, there was no way that States were allowed to find refuge under a reservation as an incident in treaty-making.  Since jus cogens norm formation involved formation of the norm as customary, or general, internal law -- and also acceptance by the international community -- there should be a clarification as to what the legal status of the guidelines was intended to be.  While they were designed to have no binding force, some disciplinary effect could be obtained if they were embodied in the recommendation of the General Assembly.

On the topic of shared natural resources, she said the impact of the resources should be the Commission’s focus in the progressive development and codification of law in the area.  In particular, the duty not to cause significant environmental harm was the main burden of transboundary State relations and the fundamental principle of law on environmental protection would apply to shared natural resources.  Other problem areas could also be covered by other instruments such as the Law of the Sea Convention.  Therefore, it was difficult to conceptualize a distinctively separate legal regime for the item.  The range of environmental harm occasioned by the transboundary situation could be more extensively considered, as in the relation between States in the context of the atmosphere, pollution or migratory fish stocks.

ANA ELIZABETH VILLALTA VIZCARRA ( El Salvador) said the subject of reservations to treaties was of great interest to her country, since it defined international relations between States.  A reservation should be accepted in its entirety and objections should not be made because that would negate the reservation.  The reservation could later be withdrawn.

She said the obligation to extradite or prosecute was an essential legal mechanism to combat impunity.  Her country was a party to many instruments intended to deny safe haven to wrongdoers.  The country’s constitution had been amended to allow for the extradition of nationals if a treaty had been signed with the country involved, and if the treaty contained that stipulation, which was always reciprocal.  Political grounds should not be invoked for reneging on the obligation.

She said a clear distinction should be made between international jurisdiction and the obligation to extradite or prosecute, the latter to be invoked once jurisdiction had been established.  The determination to invoke either the obligation to extradite or to prosecute was a court prerogative.

ISTVAN HORVATH ( Hungary) said completion of work on “reservations to treaties” and its acceptance would provide States with a useful tool for ascertaining their international rights and obligations and their fulfilment.  Rigorous application of the guidelines would also discourage States from formulating invalid reservations, he said, adding that it would be especially significant for treaties on the protection of human rights, including the protection of rights of women and children.

His delegation suggested the development of separate instruments on groundwater resources and on oil and gas.  On the future form of dealing with groundwater, he said “a framework convention” would provide more added value than a “model” one.  A framework convention could set out the basic principles, and ways and means of cooperation, and also serve as legal framework for countries.

LIUDMILA KAMIANKOVA ( Belarus) said that the object of a treaty and its special status should be noted in “reservations to treaties”.  Reservations to instruments with provisions for victims of armed conflicts should not be permitted.  The consent of the author State of a reservation could not be applicable.  She also stated that it would be advisable to exclude reservations to human rights treaties and those on humanitarian law.  Reservations to bilateral treaties should not be permissible.  She stressed the importance of a distinction being drawn between reservations and interpretative declarations.  She supported a clear definition of a written form of reservation.  Overall, she said, her delegation supported provisions in the draft guidelines on dispute settlement.

MILAN DUFEK (Czech Republic) said, on the subject of reservations to treaties, that he supported the draft guideline inviting States and organizations to indicate why they were making an objection to a reservation another entity had formulated.  Based on discussion in the Law Commission, it would seem appropriate to request explanations for withdrawing objections and for formulating reservations.  The conclusions of the Special Rapporteur concerning formulation of late objections were also welcome as significant elements of the “reservations dialogue”, as well as a source of information for international courts, monitoring bodies and other entities considering the question of the validity of a reservation.  The text, however, should be modified to be more specific with regard to late objections and to clear up contradictions about legal effects. 

Continuing, he said further details should be provided on the suggestion to consider late objections as governed by the regime for interpretative declarations, and on the possibility that the draft guidelines on pre-emptive objections could give rise to confusion as between political or interpretative declarations and those which were intended to produce specific legal effects.  Could pre-emptive objections reflect in all cases the concrete contents of potential or future reservations to which they could be applied?

On the question of shared natural resources, he said the draft article on the law of transboundary aquifers could be completed regardless of results achieved in discussions on legal questions related to oil and natural gas as the latter subject was very broad and would take a long time to assess.  Specifically, article 7 on “good faith” raised fears that States, in good faith, would take measures that had not been negotiated with the other party and which would have adverse effects on that other party.  With regard to Article 14 on “assessment” of the negative impact of a planned action related to a transboundary aquifer system, it should be noted that all parties must be involved in the assessment; it must not be left to a single party. 

He said the final form of the article on the law of transboundary aquifers should be in the form of a framework convention.  The entry into force of such a convention would take a longer time, but the binding convention would be more appropriate for the development of international law in the area.

EDWIGE BELLIARD ( France) said some of the guidelines were highly technical and had raised difficulties concerning the procedure for formulating and withdrawing reservations and objections.  The drafting committee would no doubt make the changes that had been reflected in the discussions.

For example, she continued, pre-emptive objections might not be genuine objections at all but, rather, declarations.  Late objections had no legal validity and that fact should be made clear in the guidelines.  Tacit acceptance should not be overly refined.  However, the effective legal reality of a tacit acceptance 12 months after notification of a reservation, by virtue of silence in response to the notification, was of concern.

Furthermore, she said, the concept of invalidity needed to be clarified.  The subject of the consequences deriving from non-valid reservations was one of the thorniest issues in relation to the formulation of reservations and objections.  The vocabulary itself was unsatisfactory since terms such as “invalid” gave no indication of State positions.  A delicate situation was one in which the objection to the reservation was based on the fact that the reservation was incompatible with the object and purpose of a treaty, the so-called “supermaximum objection”, which was contrary to the spirit of consensus prevailing in all treaty law.  The practice in her own country, she said, was that once France had objected to a reservation, France and the reserving State talked about the reservation.  The approach was not entirely satisfactory, but France respected the prevailing legal order that allowed for reservations which, even when not valid, could not simply be wiped out as if it had never been entered.

CLAUDIO TRONCOSO REPETTO ( Chile) said his delegation considered the obligation to extradite or prosecute an important issue.  The principle embodying that obligation was found in bilateral or multilateral treaties.  His delegation also thought the Commission should study the question carefully, and analyze the exception to the obligation to extradite.  He said States had to exercise jurisdiction over international crimes by applying national laws in cases where the obligation to extradite was not carried out.  It was important that the Commission considered the relation between the granting of asylum and the situation of refugees.

Comments by Commission Chairman

ALEXEI TULBURE ( Moldova), Chairman of the Sixth Committee (Legal), said the debate throughout the week on the Law Commission’s report had been rich and focused, particularly in the interactive segments and in the presence of the Special Rapporteurs and Commission Members.  Then he gave the floor to the Law Commission Chairman for delivery of a farewell message since he would not be with the Committee next week. 

IAN BROWNLIE, Chairman of the International Law Commission, thanked delegations for their address of items listed in Chapter 3 of the report concerning specific issues on which comments would be of particular interest to the Commission.  He said the written comments by States were of utmost importance to the Commission’s work.  He would not address the comments of delegations here in the Committee, but would take all observations back to the Commission, which was a collegial body.  The content of their deliberations would be made available to the Committee.  In conclusion, the Commission appreciated its relationship with the Committee and the helpful exchange this year would, hopefully, continue next year at the commemorative meeting in Geneva.

The Chairman of the Sixth Committee, Mr. Tulbure, welcomed the President of the International Court of Justice, asserting that the important role played by the Court as the principal judicial organ of the United Nations over the years in adjudicating disputes among States, and the value of its work, were worthy of recognition.  The Court’s efforts in cooperating with other international courts were admirable.  Those forms of cooperation among international courts and international legislative bodies were an effective means of addressing any problems which might arise in the context of so-called fragmentation of international law, either because of multiplicity of courts and tribunals or legislative institutions.

He said the annual visit of the President of the Court to the Sixth Committee was now part of a long-established tradition that the Committee valued highly.  It was a visit that the Committee appreciated and always looked forward to, adding that Committee members were keen observers of the Court’s activities.

Address by President of International Court of Justice

JUDGE ROSALYN HIGGINS, President of the International Court of Justice, explaining issues related to evidence, said the Court was more often faced with the need to determine facts and law.  That was true in virtually every case concerning title to territory.  She said that with increasing frequency the Court needed to make very heavy findings of fact, those being critical for the legal issues in dispute.  By contrast to the procedures of international tribunals, the International Court of Justice determined international law as it applied to States.  She said that in territorial dispute cases, an understanding of the colonial past was invariably necessary.  She said the Statute and Rules of the Court distinguished between “experts” and “witnesses”.  The task of presenting historical facts was usually done as part of the pleadings of the team, and not done as “expert testimony.  There was, therefore, no cross examination.

On major technical questions, she said there would often be detailed expert reports annexed to the pleadings for the Court’s scrutiny.  Expert evidence seemed now largely to be assimilated within the submission of a legal team, but very occasionally, witness evidence, namely personal testimony as to facts, was still called, she said.  The Court’s Statute contained several provisions concerning witnesses.  She said that only ten cases at the Court had involved the live testimony of witnesses or experts, and there had been a gap of 14 years between the last case in which witnesses were called and the case last year of Bosnia and Herzegovina versus Serbia and Montenegro.

Judge Higgins said the Court had always observed that a party alleging a fact bore the burden to prove it.  Sometimes each party would bear that burden, albeit in relation to different claims made.  Sometimes, by contrast to its general reluctance to specify a standard of proof, the Court had, over a series of cases, established what types of evidence it had or had not found weighty.

She said that recent cases before the court, such as Congo versus Uganda and Bosnia versus Serbia had been fact-heavy.  The Malaysia/Singapore case, in which hearings would open next week, involved around 4,000 pages of annexes.  She said that judicial determination of relevant facts would be an ever more important task for the Court.  That task explained the continuing need for each judge of the Court to have a law clerk.  She said the International Court of Justice remained alone among senior international courts in not having such assistance in the marshalling and collating and checking of evidence.

She said the Court could not have judges on the same bench receiving different salaries even though they sat in equality as specified by its Statute.  The Court should not stand alone as the only judicial body bearing the negative impact of General Assembly resolution 61/262.  “Throughout the UN, rule of law issues are on the agenda”, she said, and added:  “There is a real rule of law issue right here, and we will appreciate your following matters.  What the Court seeks now is to find a solution to these problems”.  She said the Court had some concrete proposals in a document which would be annexed to the Secretary-General’s forthcoming report on “Conditions of Service and Compensation for Officials other than Secretariat Officials”.

[By Resolution A/61/262 in May this year the General Assembly decided that effective 1 January 2007, the annual net base salary of the members of the International Court of Justice, and the judges and ad litem judges of the International Tribunal for the Former Yugoslav and the International Criminal Tribunal for Rwanda, would be at 133,500 United States dollars, with a corresponding post adjustment per index point equal to one per cent of the net base salary, to which would be applied the post adjustment multiplier for the Netherlands or for the United Republic of Tanzania, as appropriate.]

Responding to questions, Judge Higgins told the representative of the Democratic Republic of the Congo that the Court had not been able to pronounce judgement in a case brought by the Democratic Republic of the Congo against Rwanda because it had no competence.  The two parties had not been able to offer their consent.  In a follow-up question, she said that she was not in a position to explain from the legal point of view how that position was arrived at.

Asked by the representative of the Ukraine about possible conflict in cases involving issues related to the seas, she said the overlap of jurisdiction in such cases was a reality for historical reasons.  The international courts and tribunals had to avoid divergent views in their judgements.  She mentioned the International Tribunal for the Law of the Sea.

Statements

When the Committee met again this afternoon, FELIX ANIOKOYE ( Nigeria) said the notion of “reservations to treaties” had two implications:  an outright reservation to an entire treaty and a reservation to an article of a treaty.  For an outright reservation, Nigeria believed that a State should be bound only to the extent of its acceptance of treaty obligations and no more.  Owing to the contractual nature of treaties, he said, States should not be bound to treaties to which they had made reservations.

On the issue of the expulsion of aliens, he said a distinction should be made between aliens living peacefully in a host State and those involved in activities hostile to it.  He agreed with the Law Commission on the need for a study of the general rules on those and other issues, followed by a consideration of the rules applicable to specific categories of aliens, especially in view of the non-existence of a comprehensive regime for the expulsion of aliens under existing international humanitarian law instruments.  On the topic of the obligation to extradite or prosecute, he said it was pertinent that any position taken by the Commission was based on a thorough analysis of treaties, national legislation and judicial decisions; Member States must provide the relevant information for use in the Commission’s further deliberations.

Nigeria believed that the subject of responsibility of international organizations for wrongful acts reflected principles applicable to breaches of international obligations by States.  It was important to note that there was little practice relating to the international responsibility of international organizations, and that draft articles represented a significant step to also hold States accountable as subjects of international law.  He said some of the articles needed further study.

Turning to the topic of shared resources, he said his delegation found many draft articles satisfactory, but had a few concerns.  For instance, when article 7 mentioned imposing an obligation on aquifer States not to cause “significant harm” to other aquifers, there was no clear definition of that term.  A definition was needed; apart from concerns about the scope of the harm, the effect of the article was to impose a liability that may be detrimental.

JOÉL HERNANDÉZ ( Mexico) raised the question of whether the obligation to extradite or prosecute was, in actuality, a principle or an obligation.  He said it was a principle of international law that contained the obligation inherent in it.  The International Court of Justice had established the definition of law as containing the principles behind the legality.  A principle of international criminal law implied an obligation, and the obligation to extradite or prosecute was a customary law whose scope of application was defined by international law.  The rigidity in implementing the principle depended on the customary norm, as for example, the inhibition against genocide was a norm of jus cogens.  He said a State made the decision to either extradite or prosecute once jurisdiction was determined and subject to the detaining State having the means to extradite.  Also, the detaining State had an obligation to extradite before exercising its own judicial norms.  The study of priorities of jurisdictions must continue.

On shared natural resources, he said there was a similarity between water and oil in that they were both liquid resources; however, there was a basic difference between fuel resources and water resources.  Water was essential and moving as opposed to fuel liquids which tended to be static.  Water was also intimately involved in issues of the environment.  A clear distinction must be made between the two and they must be studied separately, in part because fuel liquids were bound to be exploited at the transboundary areas.  All decisions on trans-boundary natural resources must be made on the basis of equitable principles and the equity cited by the International Court of Justice could be reached through bilateral arrangements.

Moving on to reservations on treaties, he said there was a parallel in the promulgation of reservations and objections.  Pre-emptive objections should be allowed for those who were not yet party to the treaty in question, as in the case of a treaty that was signed but not yet ratified by a party who still had the right to make a reservation or objection.  The right to make objections was limited by a link between that right and the right to protect the integrity of the treaty.  The guideline on the late objections that were formulated beyond the 12 month deadline set down in the Geneva Conventions was a flexible part of the law and such objections should be considered interpretative declarations.

COSMIN DINESCU ( Romania) said a distinction should be drawn between valid and invalid reservations.  The invalid one should be considered in one of two ways -- either that the will of the reserving State was impaired and it could not be bound to that part of a treaty, or that the invalid reservation nullified the treaty in the so-called supermaximum effect.  The formulation of the objection would ensure that the treaty was at least intact and in effect.  Special attention should be given to treaties that had few States parties, and a study of State practice should be conducted.

On the topic of shared natural resources, he said the aquifer and the oil questions should be considered separately.  The best solution might be to respond on the basis of the diversity of situations covered by the questions with the need for a juridical regime to cover all of them.  Turning to the responsibility to extradite or prosecute, he said the source of the obligation was a treaty, not international customary law, even if the crime was covered by customary law as in the case of genocide.  The subject should be studied further with a focus on the main point that the principle to be imposed on States was the responsibility to take action in the case of criminal conduct.  The question of handing over persons to international criminal courts should be addressed, in light of the fact that the articles were intended to encourage States to assume their responsibilities in relation to international crime.

MUKONGO NGAY ( Democratic Republic of the Congo) said his delegation supported the draft guidelines on a provision concerning the ability of international organizations to provide reservation to treaties.  On the topic “shared natural resources”, he welcomed the broad consensus achieved on the Commission’s work; a final instrument could contribute to international peace and security through facilitating negotiations among States which shared the same aquifers.  He believed the Commission should give priority to its work on groundwater resources.

He said his delegation attached importance to the draft articles on transboundary aquifers because of the added value of its provisions on cooperation among States which would benefit all countries.  As to the future form of the articles, he said the Commission should wait for responses from Governments.

On the subject of “obligation to extradite or prosecute”, his delegation believed that its general principles were important.  Universal competency in the law of extradition should be at the centre of the elaboration of the instrument.

PHANI DASCALOPOULOU-LIVADA ( Greece) said uncertainty about whether aut dedere aut judicare constituted customary international law should not hamper the Commission’s efforts in laying down whatever rules may be found in existing law and practice, in order to formulate an inventory of the relevant rules in whatever future form they may take.  The relationship between the aut dedere aut judicare obligation with universal jurisdiction was neither substantial nor crucial, although there may be similarity of purpose between the two since they both apparently sought not to let crimes go unpunished.  But the similarities ended there.  The only link between the obligation and universal jurisdiction was that which would require that the aut dedere aut judicare obligation applied to a specific league of crimes, such as those that concerned humanity as a whole like genocide, war crimes and crimes against humanity.  Those were obviously the types of crimes that had prompted the creation of the International Criminal Court and for which, presumably, universal jurisdiction should apply.

However, he went on, universal jurisdiction was far from being accepted, at least in its pure form, in cases other than piracy and situations of subsidiary universal jurisdiction, based on certain international treaties.  It would be wise at this stage, and pending the outcome of the process which might lead to the acceptance of universal jurisdiction for certain crimes, to delineate the contours of the obligation aut dedere aut judicare in as clear and unambiguous way as possible.  The basic premise for that context would be to identify the crimes for which the maxim would be applicable and to identify certain other conditions it would be subject to.  Such conditions might be different in the case of extradition from those for domestic prosecution.  Another possibility, worth exploring, was the requested State, instead of either prosecuting or extraditing, to surrender the person in question to the International Criminal Court.

BRECHJE SCHWACHÖFER ( Netherlands), on shared natural resources, said the international regulation of such resources was highly significant.  On the need to create an international legal framework to address a potential water crisis, she said several such frameworks existed, including the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses.

Fresh water, she agreed, was a vital resource for which there was no alternative, but that did not necessarily mean a separate approach was needed for oil and gas.  She said it remained to be seen how the draft articles on the law of transboundary aquifers could be reconciled with the 1997 Convention.  While pollution affecting oil and natural gas stored in reservoir rock appeared minimal, and oil exploitation risked causing significant environmental harm, she agreed that different rules for aquifers, oil and gas were warranted but did necessarily require different legal framework.  Special rules for aquifers could be included in a common framework for shared natural resources.  The Netherlands would distribute its observations on the draft articles for the law on transboundary aquifers.

SIMONA DRENIK ( Slovenia) said the topics currently on the Law Commission’s agenda were still highly relevant; the codification and progressive development of international law were crucial for imposing the rule of law in more and more diverse international relations.

On the topic aut dedere aut judicare, she said her country welcomed the presentation of a draft article regarding the scope of application of future draft articles on the obligation to extradite or prosecute.  Slovenia had already submitted its written report to the Commission.  In her country, the obligation to extradite was based on a Constitutional provision which allowed the extradition of its citizens under the condition that the obligation to extradite arose from a multilateral or bilateral international treaty.

In her Government’s view, she continued, extradition could take place without a treaty if both States agreed.  The Commission should identify criteria to determine the categories of crimes in relation to which States were ipso jure bound by the obligation to extradite.  At the same time, States should pay due respect to the human rights standards in the countries to which they extradited, in particular, article 14 of the International Covenant on Civil and Political Rights.  The respect for human rights standards should be further elaborated and should be referred to when discussing the scope of the principle aut dedere aut judicare.

On the issue of extradition and surrendering to international courts or tribunals, she said the two were closely linked.  Slovenia had amended its provision on extradition to allow for the surrender of its citizens to international organizations on the basis of the treaty obligation.  Despite the transfer of part of its sovereign rights to an international organization in such a circumstance, the amendment was made to avoid impunity and to assure effective prosecution and a fair trial.

CHESTER BROWN ( United Kingdom) speaking on reservations to treaties, said her delegation had previously expressed its doubts about some of the draft guidelines.  It did not agree that human rights treaties should be treated differently than other international agreements.  On the questions set by the Commission on problems posed by the invalidity of reservations, the United Kingdom would provide full answers in due course.

On the topic of shared natural resources, he said his delegation was not convinced there was a “pressing need” for the Commission to elaborate a set of draft articles or guidelines on shared oil and gas resources. Turning to the issue of the obligations to extradite or prosecute, the United Kingdom had, last year, urged the Commission to treat the principle of universal criminal jurisdiction with caution. It should remain flexible at this early state of its consideration of this topic.

ARTEAGA RODRIGUEZ ( Cuba) said that her delegation considered the use of the expression “equitable and reasonable use” in the draft principles on transboundary aquifers as inappropriate, considering the fact that the term “sustainable” had been increasingly used in environmental law and enshrined in the 1992 Rio Convention on Biological Diversity.  An expression like “equitable and sustainable use” would be more in tune with the environmental law currently in force.  She said the phrase “to avoid harm” should replace “to prevent harm” in the provision of the draft article regarding steps that States could take to prevent significant harm to other aquifer States or systems.  She said she supported the recommendation of the special rapporteur that the Commission undertake a second reading of the draft articles independently before taking up the question of oil and gas.

On the question of “obligation to extradite or prosecute” she said impunity must be avoided for a person allegedly responsible for international crimes, for which a State should give priority to its obligation to extradite or prosecute.  She noted the right of a State to determine the appropriateness of an extradition, and when that was not possible, to prosecute for any criminal act.  It would be premature to determine the final form of the draft and more study was required.

On “reservation to treaties”, she said the Guide to Practice was an important complement to the Vienna Conventions, touching on interpretative declarations, reservations and the differences between a reservation and a declaration.  She said a declaration that was incompatible with the object and purpose of a treaty must be considered null and void.  She alerted the Commission about the distinction made of reservations to human rights treaties, as that could produce different criteria of compliance for reservations to different kinds of treaties.

SOFIA SARENKOVA ( Russian Federation) said the draft guidelines on reservations to treaties were worth supporting, but the wording of some was not consistent with the reservations and objections regime provided for in the Vienna Conventions and the Law of Treaties.  She cited the guidelines on freedom to oppose the entry into force of a treaty vis-à-vis the author of the reservation, and also tacit acceptance and the time period for formulating an objection.  She said the article on the entitlement to formulate an objection brought up questions related to the distinction between genuine objections and political declarations.  She said the Law Commission should pay attention to the question of how States and international organizations behaved in cases where a reservation acquired a meaning substantially different from that when it was first formulated as, for example, a result of an opinion rendered by the International Court of Justice.

On the issue of shared natural resources, she said she supported the Commission’s recommendation to complete the second reading of the articles on transboundary aquifers, independently of any future work on oil and gas.  Despite similarities between non-recharging aquifers and hydrocarbons, there were significant differences, she said, and the work on oil and gas required a separate and specific approach.  That did not preclude parallel work on both.  As for the final form of the text on aquifers, it should become a legally binding framework document.

On the obligation to extradite or prosecute, she said the question of finding out whether there was a norm of customary international law that bound States either to extradite or prosecute an alleged criminal in relation to certain categories of crime should be approached with caution.  In the first place extradition and prosecution were, in principle, the sovereign rights of States.  It was also important because it concerned the principle of aut dedere aut judicare.  If a State was not bound by a treaty, it could hand over a person to another State not because of an obligation to do so but simply on the basis of reciprocity.  She said many questions were left unsettled for the Commission to look into, such as the timeline for the State’s obligation to extradite or prosecute.  The “triple alternative” should not be included in the scope of the guidelines.  Future draft articles should cover not only the contents and the dynamics of the “extradite or prosecute” obligation, but also the other aspects of the topic such as possible exceptions and limitations of the obligation.

TOSHIKATSU AOYAMA ( Japan), speaking on reservations to treaties, said that his country had, in the past, raised objections to reservations without opposing the entry into force of the treaty.  Japan had never raised an objection with immediate effect as described in the Commission’s report.  His country had concerns that such objections could result in the abusive use of the right to make objections to reservations.  In addition, he was sceptical whether the objection with supermaximum effect was reconcilable with the principle of consent.  There should be limitations on what each State was able to do under the system of objections, he added.

On the topic of shared resources, he fully agreed that oil and natural gas should be treated separately from groundwater.  Addressing the obligation to extradite or prosecute, he said his country had concluded several multilateral treaties that included such an obligation, and had made no reservations to those treaties.  To implement the obligation, the Penal Code and other related laws and regulations would be duly applied in Japan’s judicial system.  His delegation would like to study the practices in other States.

MAZEN ADI ( Syria), speaking on “shared natural resources”, supported the proposal for the Commission to give priority to its study on aquifers as opposed to oil and gas.  His delegation was preparing a paper for the Commission’s study.  It supported a second reading of the draft articles, and proposed that the title of the instrument should be changed to “Law on shared international aquifers”.  He noted that there was no legal instrument on aquifers relating to defence and security.  His delegation proposed that there be provisions on information exchange to differentiate data on national security and defence from that related to aquifers.

He also suggested that the Commission should look at the question of industrial secrets and intellectual property when specifying data available.  There was need for criteria on information exchange about aquifers, to ensure that States whose industries might pollute aquifers did not conceal information.  His delegation thanked the United Nations Educational, Scientific and Cultural Organization (UNESCO) for assisting the Commission in formulating the draft articles, as well as organizing seminars on “shared natural resources”.

ALLIEU KANU (Sierra Leone), associating himself with the statement made by Benin on behalf of the Africa Group, said that the right to expel aliens was a fundamental aspect of State sovereignty, but any country exercising that right must act in good faith and in compliance with international obligations, as his did.  Sierra Leone had a refugee policy in line with the relevant Geneva Conventions as well.  In a related issue, he did not agree that the concepts of “nationality” and “ressortissant” were synonymous.

Addressing the effects of armed conflicts on treaties, he welcomed the focus by the working group on treaties between States only, maintaining that it was unprofitable to expand it to either organizations or to conflicts of a non-international character.  He expressed some concerns at the notion that all or part of a treaty would continue to be in force during armed conflict and stated that issue required further clarification.

Turning to the responsibility of international organizations, he broadly agreed with the general principles set out in the draft articles of the report but had concerns about their heavy reliance on notions of the responsibilities of States, which had more power to meet international obligations.  On the issue of obligation to extradite or prosecute, he said that it was worth studying existing legislation at all levels on that topic rather than drawing up new articles for a convention for offences not yet covered by international agreements.  He welcomed further clarification on the relationship between the principle “aut dedere aut judicare” and that of Universal Jurisdiction.

Welcoming the decision of the Commission to include in its programme of work “the protection of persons in cases of disasters and the favoured-nation clause,” he reiterated his proposal for the Commission to also include, in its programme of work, the legal consequences arising out of the involvement of private armies, private security forces and multilateral corporations in internal conflicts.  Those topics were particularly pertinent to cases of genocide and relevant to Sierra Leone’s experience.

LUIS SERRADAS TAVARES ( Portugal), first addressed the question of reservation to treaties and said the title of the draft guideline on “freedom to make objections”, should be changed to “right to formulate objections”.  He said he had doubts about conferring the capacity to formulate objections on States and international organizations that were “entitled” to become a party to the treaty but were not yet party.  He added that he did not understand the need for guidelines prohibiting the widening of the scope of an objection to a reservation. 

On the subject of shared natural resources, he called for cautious approach.  Mindful of the economic and political implications, the Commission should proceed with a second reading of the law of transboundary aquifers independently of issues concerning oil and gas.  The final form of the draft articles on the law of transboundary aquifers should be an international framework convention.

Turning to the topic of aut dedere aut judicare, he said Portugal was open to the idea of an international obligation to extradite or prosecute in cases of serious crime, but doubted whether there was a general rule on the matter.  The Commission must first provide facts and arguments before any conclusion could be drawn on this hypothetical obligation.  Portugal also had reservations concerning the Commission’s hypotheses on the “triple alternative” in that it did not believe that the surrender of an alleged offender to an international criminal tribunal could be considered an option in carrying out the obligation to extradite or prosecute.  The surrender of someone to an international criminal tribunal was not seen to be on the same level as “extraditing” and “prosecuting” someone.

ADY SCHONMANN ( Israel) said the scope and essence of the principle “to extradite or prosecute” and, in particular, the interplay between that concept and universal jurisdiction remained uncharted territory.  Israel supported the view that the custodial State had the discretion to decide which part of the obligation it would execute, provided it acted in good faith.  On the so-called “triple alternative” relating to the jurisdiction of international criminal tribunals, she welcomed the recommendation to refrain from further focusing on that aspect, and to concentrate on the vital role of national law-enforcement mechanisms instead.

On the topic of shared natural resources, she said that, because of the increasing concerns of many countries about the environmental effects of misusing aquifer systems, Israel commended the Commission for, among other things, drafting articles that obliged States to protect and preserve aquifers and their respective ecosystems.  She suggested that the Commission consider adopting stronger language than was currently proposed in draft article 10 (1) that would better serve the protection of aquifers.  Israel also welcomed the emphasis given in draft articles to the sovereignty over transboundary aquifers, but did not support the making of exceptions to accepted customary international law on that issue; there was no “one-size-fits-all” solution to sharing transboundary aquifers.

MARIA LUIZA RIBEIRA VIOTTI ( Brazil) said that Brazil considered the draft articles in the use and conservation of transboundary aquifers were a good conceptual basis for building a set of principles to guide States.  After examining them, Brazil intended to present written comments.  The Special Rapporteur’s loose formulations determining the scope of the draft articles might have the effect of imposing unnecessary limitations on the permitted activities in the area of the aquifer.  If activities which could have an adverse effect on aquifers could not be identified, she said, the outright elimination of subparagraph (b) in article 1 should be considered.

She said water resources belonged to the States where they were located, and there should be direct reference to that in the draft articles.  The subject was very sensitive, and the full range of implications that might derive from the set of articles was not yet clear.   Brazil, through the process, should lead to a non-binding declaration by the General Assembly, and reaffirmed the primary role of regional agreements as the most suitable tool for the legal regulation of transboundary aquifers.

Brazil agreed with the Special Rapporteur that the Commission should deal with the law of transboundary aquifers independently of any future on oil and gas.  Although there were some similarities between the resources, a crucial difference lay in that there was no substitute for water, which was a vital resource for human life and well-being, whereas there were already alternatives available to oil and gas as sources of energy.

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For information media • not an official record