Sixty-second General Assembly

Sixth Committee

25^th Meeting (AM)

LEGAL COMMITTEE HEARS CALL FOR LAW COMMISSION STUDY ON REASONS

WHY COUNTRIES REFUSE EXTRADITION REQUESTS

 

Obligation to Act, or Prosecute, Said to Be Powerful Tool

Against Impunity; Some Suggest Third Way, as Debate Also Continues on Other Issues

Thailand’s representative called on the International Law Commission to conduct a study of the grounds on which States refused extradition as part of its work on the “obligation of States to extradite or prosecute”, one of the themes debated today, as the Sixth Committee (Legal) continued its consideration of the Commission’s report.  Two other topics from the report – “shared natural resources” and “reservations to treaties” – were also under review.

The delegates of Thailand added that the obligation to extradite or prosecute was a powerful tool for fighting impunity, but the articles to be set out should not undermine the sovereign rights of States to follow their own criminal justice systems.  The scope of application of the obligation should consider the jurisdictional basis for the second part, “to prosecute”.  Universal jurisdiction was an important element of the obligation to extradite or prosecute, since States could not prosecute criminals if they had no jurisdiction over them. 

New Zealand’s representative, on the other hand, while calling for a thorough analysis of international law and national laws on the obligation to determine the scope of the obligation and to guide the Commission’s work, said the principle of universal jurisdiction should be addressed only to the extent necessary, possibly only in the commentaries.  And the so-called “triple alternative”, that of surrendering the accused to an international tribunal, should not be pursued since it was governed by a distinct set of treaty obligations and arrangements.

On the theme of reservations to treaties, Greece’s representative said the freedom to formulate a reservation did not mean States were free to make reservations that were incompatible with the object and purpose of the treaty.  Recent State practice, however, was to sever such a reservation but not break the continuity of treaty relations with the reserving State.  That opened a “reservation dialogue” aimed at convincing the State to modify or withdraw its impermissible reservation or to withdraw from the treaty.

The delegate of Australia said the Law Commission’s work would throw light on questions concerning the timing, content and effect of objections to reservations.  The rationale for permitting reservations in some categories but not others was still unclear.

Also speaking this morning were the representatives of Sri Lanka, Belgium, Algeria, Indonesia, Iran and Venezuela.

The Committee will meet again at 10:00 a.m. tomorrow, Tuesday, 6 October, when debate is expected to resume on 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 a focus on the final chapters of the report covering reservations to treaties, shared natural resources and the obligation to extradite or prosecute.  A number of draft resolutions were also expected to be introduced.  (For background on the Commission, see Press Release GA/L/3329 of 29 October.)

Also before the Committee today was a letter from the President of the General Assembly to the Chairman of the Sixth Committee (Legal) (document A/C.6/62/1/Add.1) stating that two new items had been allocated to the Committee concerning the granting of observer status in the work of the General Assembly to two organizations.

A draft resolution on the Conference on Interaction and Confidence-Building Measures in Asia (document A/C.6/62/L.8) was accompanied by a letter (document A/62/232) from the representative of Kazakhstan stating that the initiative for the convocation of the Conference was announced by his country in 1992.  The purpose was to create a structure for dialogue on security problems in Asia.  The process operated at three levels -- military-political measurement of security, economic cooperation and interaction in the humanitarian and human rights fields.  The first Summit was held in 2002 and a set of confidence-building measures was adopted at a meeting of Foreign Affairs Ministers in 2004.  The statute of the Conference Secretariat was signed at a second Summit in 2006.

The eighteen States members of the Conference are Afghanistan, Azerbaijan, China, Mongolia, Egypt, India, Iran, Israel, Kazakhstan, Kyrgyzstan, Pakistan, Palestine, Republic of Korea, Russian Federation, Tajikistan, Thailand, Turkey and Uzbekistan.  The observers States are Indonesia, Japan, Malaysia, Ukraine, United States and Viet Nam.  Observer organizations are the United Nations, the Organization for Security and Cooperation in Europe and the League of Arab States.

Also before the Committee was a resolution on the Cooperation Council for the Arab States of the Gulf (document A/C.6/62/L.7).  A letter (document A/62/233) by the representative of Saudi Arabia says that the intergovernmental organization was founded by his country and the United Arab Emirates, Bahrain, Oman, Qatar and Kuwait.  The organization’s purpose is to maintain peace and international security.  Over the past two decades, in cooperation with other international organizations and parties, it had been active in settling regional disputes and observer status would enable it to better stimulate constructive dialogue among nations and civilizations and to promote human rights and fundamental freedoms.

Statements on Law Commission Report

A.L. ABDUL AZEEZ ( Sri Lanka) said his delegation agreed that the question of the source of the obligation to extradite or prosecute was central to the topic, and should be the object of vigorous analysis by the Commission.  While recognizing that the obligation to extradite or prosecute was generally treaty-based, it believed it also had customary status, at least with respect to specific categories of serious crimes under international law.  As regards the relationship between the extradition or prosecution obligation and the concept of universal jurisdiction, his delegation agreed that the Commission’s work on the topic should remain primarily focused on the obligation to extradite or prosecute.

However, he said, it might be necessary to determine the relationship of the extradite-or-prosecute objective with the universal jurisdiction concept.  On the issue of scope of the obligation, he said he agreed that the Commission should carefully consider the interrelated nature of the two elements of the obligation.  He said Sri Lankan courts were vested with jurisdiction over crimes occurring in third States that did not involve one of Sri Lankan nationals, where the offender was present on its territory, and a decision was taken not to extradite the offender.

STEVEN PETTIGROVE ( Australia) said international law was a dynamic discipline that must adapt to meet new circumstances and challenges.  While the International Law Commission had an important role to play in that process, his country believed that the Commission should cautiously approach any examination of areas of international law that were essentially bilateral in nature.

Turning to the topic of shared natural resources, he said the Commission’s proposed consideration of shared oil and gas was essentially a bilateral issue, and therefore one to be resolved by negotiations between the particular States involved.  He questioned whether that topic was appropriate for the Commission’s consideration.  If the Commission proceeded, it should not consider any matters related to offshore boundary delimitation.  The question of whether such resources were physically shared was a question of delimitation of territory or maritime jurisdictions, which were generally matters for the States concerned.

Australia recognized the particular challenges in distilling generally accepted principles in the obligation to extradite or prosecute, and agreed with the Commission’s identification of the main issues that must be resolved to permit the conclusion of work on that topic, he said.  Specifically, his country agreed that any examination of the issue must pay due regard to current practices by States.  Australia therefore intended to respond to the Commission’s request for information.  He also agreed that as the source of any obligation to extradite or prosecute, treaties held primary importance.  Any exploration of the possible customary status of the rule was likely to be limited to specific categories of crimes.  Australia also agreed that universal jurisdiction should not be the focus of the Commission’s work in that area.

Turning to the topic of reservations to treaties, he said the Commission’s work would throw some light on real questions concerning the timing, content and effect of objections to reservations.  It was important, for example, that the guidelines concerning joint formulation and pre-emptive objections be clear in their effect.  Yet, the precise meaning and application of some guidelines was not clear, particularly the Draft Guideline 26.15 concerning late objections.  Australia also welcomed the adoption of commentary on the draft guidelines dealing with incompatibility of reservations with the objects and purposes of a treaty, customary international law, jus cogens and non-derogable rights.  The rationale for permitting reservations in some of these categories but not others, however, was still slightly unclear.

SCOTT SHEERAN ( New Zealand) said he agreed with the decision to complete the second reading of the draft articles on transboundary aquifers independently of work on oil and natural gas, adding that the work on aquifers would guide the work on the other.  He said the final form of the draft articles should be in the form of recommendatory principles rather than a convention.  A convention on the topic would run the risk of not receiving enough support for it to be brought into force.  On the other hand, a set of principles would represent an authoritative statement of international standards and best practice that should be followed and given practical effect in appropriate detail at the bilateral and regional levels.  They would be a framework against which bilateral and multilateral negotiations would be conducted and disputes settled.

He said a thorough analysis of international law and national laws on the obligation to extradite or prosecute was essential for understanding the scope of the obligation and guiding the Commission’s work.  The principle of universal jurisdiction should be addressed only to the extent necessary, possibly only in the commentaries.  Also, the so-called “triple alternative” – surrender to an international tribunal should not be pursued since such an action was different from extradition, and was governed by a distinct set of treaty obligations and arrangements.  The possible customary status of the obligation to extradite should be treated with caution, pending thorough review of State practice and legal opinion.

WILLIAM ROELANTS DE STAPPERS ( Belgium) said that his delegation would submit in due course written comments on the questions relating to the topic “obligation to extradite or prosecute”.  On the subject, “reservations to treaties”, he reiterated his delegation’s previous view, expressed in 2004 and 2005, that States making an invalid reservation remained bound by the treaty, and might not invoke the benefit of the reservation.  He also said that the question of reservations was adequately regulated by the two Vienna Conventions of 1969 and 1986, and consequently there was no need to have a different regime for specific types of treaties such as human rights treaties.

FARID DAHMANE ( Algeria) said his delegation believed internal conflicts should not be included in the study of the topic, “effects of armed conflicts on treaties”.  It would be difficult to determine the scope and intensity of an internal conflict.  However, he said, the question of foreign occupation should be covered.  On the subject of expulsion of aliens, he said his delegation underlined the importance of the topic.  It noted the situation of foreigners present in a State about to carry out an expulsion.

On the subject, “obligation to extradite or prosecute”, he said his delegation reaffirmed its position on the topic.  Fulfilling the obligation would imply that the offender should be present on the territory.  It would be difficult for a State to make a determination on whether to extradite or prosecute if the person were not present physically.  He said his delegation was opposed to the “triple alternative” – which was the surrender of an alleged offender to a competent international criminal tribunal.  It understood the concerns of some delegations to limit the obligation to two alternative elements – giving equal footing to extradition or prosecution.  The Commission should help ease those concerns in a further study of the subject.

MARIA TELALIAN ( Greece), speaking on reservations to treaties, said the freedom to formulate a reservation did not mean that States were free to make reservations that were incompatible with the object and purpose of the treaty.  However, if a State made a reservation that was incompatible with the object and purpose of the treaty, the reservation should be considered null and void and thus would not be subject to the system of acceptances provided for in the Vienna Convention on the Law of Treaties.  Also, the absence of an objection to an incompatible reservation within the time limit allowed should not be viewed as an acceptance of such a reservation.  The notion of “presumption of acceptance” applied only to reservations that had passed the compatibility requirement.

She added that recent State practice was to sever a reservation that was incompatible with the object and purpose of the treaty without breaking up the continuity of treaty relations with the reserving State.  The purpose would be to open a “reservation dialogue” with the reserving State, with the aim of convincing it to modify or withdraw its impermissible reservation or withdraw from the treaty.  That would help treaty-monitoring bodies to determine the compatibility of the reservation with the object and purpose of the treaty.

She said she agreed with the view that States had the “option” rather than “freedom” to formulate an objection to a reservation.  Draft guideline 2.6.5 on who was entitled to formulate an objection was too broad in scope; pre-emptive objections should be considered declarations of principle or interpretative declarations, rather than objections within the meaning of the Vienna Convention.  Further, human rights treaties should not be treated any differently from other treaties, regardless of their special character and their non-reciprocal nature.

ADAM MULAWARMAN TUGIO (Indonesia) speaking on shared natural resources, said his delegation concurred with the Commission’s decision to conduct separate and independent studies of groundwater resources and oil and gas.  He said that some of the draft articles on transboundary groundwater would need to be revisited to fill existing gaps in the 1997 Convention on Watercourses.  The draft articles did not address the situation of an aquifer or aquifer system that crossed international boundaries, but had no hydraulic relationship with any surface water resources.  The same situation applied to the solitary transboundary aquifer or aquifer system with the additional component of a hydraulic relationship to a river or lake located entirely within a single State.  There was need for a clarification of the element of contribution to the formation and recharge of the aquifer or aquifer system.

He said the obligation to extradite or prosecute should not be construed in preferential terms.  State practice showed that extradition was a treaty-based obligation for providing judicial cooperation.  The obligation to extradite or prosecute had also been provided by multilateral treaties; more than 20 international crimes were subjected to that legal regime.  The implementation of the principle rested with the discretion or good judgement of a concerned State.  There was need for caution in the approach to the study of the topic which should not be mixed with universal jurisdiction.

ESMAIL BAGHAEI HAMANEH ( Iran) speaking on reservations to treaties, said it was imperative that the Commission proceed with its work on the topic without altering the flexible regime established in the 1969 and 1986 Vienna Conventions. He reiterated his country’s position that an objection to a reservation should be formulated in conformity with the principles of international law, including the principle of sovereignty of States.  Only States or international organizations that were parties to a treaty were entitled to object to a reservation.  Non-parties to a treaty would be able to oppose a reservation if and when they expressed their consent to be bound by it, he said.  He agreed to a 12-month time limit recommended in the draft articles for formulating an objection to a reservation.

On the issue of shared natural resources, he highlighted the principle that States had permanent sovereignty over their natural resources, as also enshrined in General Assembly resolution 1803 (XVII).  He said a principle or legal regime developed to govern the exploitation and management of a specific natural resource, such as the transboundary groundwater aquifers, could not be applied to other types of shared natural resources.

He also spoke about the obligation to extradite or prosecute, noting that the principle now constituted an important part of international criminal law machinery to put an end to impunity, and to fight serious crimes such transnational organized crime, drug trafficking, corruption and terrorist crimes.

On the responsibility of international organizations, he said his delegation believed that financial scarcity could not be invoked to absolve an organization of its responsibility under international law.  Cases in which an international organization authorized its member States to take a certain measure should be differentiated from those in which the organization requested them to do so.  By authorizing a member State to take an action, the organization conferred a right upon it to get engaged in a situation, for example, to enforce a decision of that organization.  He said that in such cases, the member State had the right, not the obligation, to take action.  The authorized State was exercising its right and, consequently, its conduct should be considered as of its own rather than that of the organization.

PHUCHPHOP MONGKOLNAVIN ( Thailand) said the draft articles on transboundary aquifers should point out the characteristic differences between surface water and groundwater with respect to flow, storage characteristics and water quality.  Furthermore, the aquifer characteristics determining groundwater quantity and flow should be given due consideration in the articles dealing with fair and equitable distribution since that was a factor.  Terms such as “appropriate”, “impact” and “significant harm” should be defined.  A clause should be incorporated to stipulate the minimum data required to ensure equitable and reasonable utilization and a list of available practice and standards should be provided in relation to aquifer State responsibilities.

He said careful attention must be given to recharge and discharge zones and the requirement of prevention, reduction and control of pollution, since those were key to maintaining acceptable quality.  A clause should be added to the relevant articles stating that aquifer States would formulate the objectives of monitoring among themselves.  Finally, the study of transboundary oil and gas should be separate from that on aquifers.

On the issue of the obligation to extradite or prosecute, he said the powerful tool for fighting impunity should be implemented in a way that did not undermine the sovereign rights of States to follow their own criminal justice systems.  The scope of application of the future articles was well set out, but much more needed to be done on the very difficult topic, including consideration of the ratione materiae and ratione personae principles and the jurisdictional basis for the second part of the obligation, namely that to prosecute. 

In his country, he added, the Extradition Act allowed the Government discretion in surrendering accused or convicted persons to foreign Governments, provided the crimes under Thai law were punishable with imprisonment for no less than one year.  Reciprocity was not a requirement.  Thailand, therefore, had the discretion to extradite a fugitive when States were faced with legal obstacles in granting reciprocity, as for example in cases of offences carrying the death penalty.

Concluding, he said universal jurisdiction was an important element of the obligation to extradite or prosecute; otherwise, States would have no choice but to extradite the alleged offender since States could not prosecute criminals if they had no jurisdiction over them.  The Law Commission should undertake a study of the grounds for refusals to extradite, which triggered the second prong of the obligation, that to prosecute.

AURA M. RODRIGUEZ DE ORTIZ (Venezuela) said her delegation attached great importance to the topic of shared natural resources, and concurred with the suggestion of the special rapporteur on the subject that the Commission should proceed with its second reading of the draft articles on transboundary aquifers in 2008.  Her delegation also agreed that the Commission’s study on oil and gas should be done separately and independently.

CAGLA TANSU SECKIN ( Turkey) said the final form of the transboundary aquifers should be a non-binding set of guidelines.  The work on oil and gas should be treated separately.  The subject of the obligation to extradite or prosecute was important for the combating of impunity and ending safe haven.  The current title should be retained and the obligation referred to as “judicare” should be defined precisely.  The “triple alternative” seemed doubtful in light of the limited number of crimes covered in the jurisdiction of international criminal tribunals.  A systematic review of treaties, national legislation and judicial decisions should be conducted.   

Introduction of Drafts

The representative of Kazakhstan introduced the draft on observer status for the Conference on Interaction and Confidence-Building Measures in Asia (document A/C.6/62/L.8).

The delegate of Saudi Arabia introduced the resolution on the Cooperation Council for the Arab States of the Gulf (document A/C.6/62/L.7).

* *** *

For information media • not an official record