Sixty-second General Assembly

Sixth Committee

26^th Meeting (AM)

LEGAL COMMITTEE HEARS FINAL COMMENTS ON EXTRADITION OR PROSECUTION,

SHARED NATURAL RESOURCES, RESERVATIONS TO TREATIES

 

Ends Debate on Law Commission Report, Always Highlight of Annual Session

The representative of the Republic of Korea called on the International Law Commission to pay special attention to the source of the “obligation to extradite or prosecute”, as the Sixth Committee (Legal) this morning concluded its debate on the Commission’s report on the work of its fifty-ninth session (Geneva, 7 May-5 June and 9 July-10 August 2007), considered the highlight of the Committee’s work during regular sessions of the General Assembly.

Continuing on that topic, one of three taken up today, the representative said that for crimes of the most serious breach of international law, such as genocide, the obligation could belong to the realm of international customary law.  Crimes of international terrorism could be added in the near future.  And, while the obligation to extradite or prosecute were closely interrelated in some cases, the two should be dealt with separately since they were from different areas of international law.

[Customary, international law has been described as “rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way”.  Many Governments accept in principle the existence of customary international law, although there are differing opinions as to the rules it embraces.]

On another of the topics discussed today, Poland’s representative noted the argument that had been made on the subject of transboundary natural resources, that groundwater was a “life supporting” resource while oil and gas were merely “energy resources”.  He said the simplification did not take into account the importance of energy resources in improving human life conditions.  The Commission should work on the oil and gas issue based on articles adopted on aquifers in 2006, even until comments from States were received in 2008.  The mutual impact of legal regulations outweighed the difference between the two forms of resources.  Any duplication should be seen as strengthening the position and importance of the regulations, rather than a negative element.

Finally, the representative of Slovakia told the Committee the outcome of the Law Commission’s work on the subject of “reservations to treaties” was one of its most important results, and that the topic had become an important part of international treaty law.  As the draft guidelines affirmed, he said, any State or international organization had the right to formulate an objection to a reservation for any reason, and limiting the freedom to do so would make the objection ineffective.  His country had objected to two reservations recently, both vague ones that failed to clearly specify the reserving State’s commitment to its obligations under the treaty.  One of them was related to a “sharia” reservation.

During the examination of the Commission’s report, which began on 29 October with the introduction of the report by the Commission’s current Chairman, Ian Brownlie, the Committee examined five topics:  reservations to treaties; effects of armed conflicts on treaties; shared natural resources; expulsion of aliens; responsibility of international organizations; and the obligation to extradite or prosecute.

The Commission will mark its sixtieth session next year with a half-day commemorative meeting with legal advisers.  It encouraged United Nations Member States to convene national or regional meetings dedicated to the Commission’s work.  At its fifty-ninth session this year, the Commission decided to include two new topics in its current programme -– “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction”.  It established a working group on the subject of “most-favoured nation clause” to examine the possibility of that being considered as a topic.

The International Law Commission was established by the General Assembly at its second session in 1947 with the objective of promoting the progressive development of international law and its codification (resolution 174 (II).  Its 34 members, elected by the General Assembly for five-year terms, serve in their individual capacity.  They reflect broad expertise and practical experience in the field of international law, including international dispute settlement procedures.

The Sixth Committee will meet next at a time and date to be announced in the Journal.

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.  (For background on the Commission’s report, see Press Release GA/L/3329 of 29 October.)

Statements

YOU KI-JUN (Republic of Korea) said the guidelines on “reservations to treaties” adopted by the International Law Commission so far tended to be highly technical, with most being of primary interest to treaty lawyers in foreign ministries.  His delegation fully supported the consensus in the Commission for not changing the relevant provisions of the 1969, 1978 and 1986 Vienna Conventions.  Three proposed provisions in the guidelines, including one which offered a new definition of object and purpose, went to the heart of some very controversial issues about the extent to which ratifying States might exempt themselves by reservation from treaty provisions.

On “shared natural resources”, he observed that although no decision had been taken on the final form of the draft articles on transboundary aquifers, the draft text resembled substantive provisions of a framework convention.  He noted that the text contained a set of obligations, including procedures for data exchange, monitoring, resource management and technical cooperation.  His delegation viewed some of those obligations as going beyond the current obligation of States, which meant that the draft articles fell short of a declaration of customary law or resembled progressive development of that law.  There were other important issues that would have to be resolved in the second reading of the articles.

On the question of “the obligation to extradite or prosecute”, he said that his delegation felt that for crimes that constituted the most serious breaches of international law, namely genocide, crimes against humanity and war crimes, that obligation needed special attention concerning its source.  He said his delegation saw the special treatment of those crimes as evidence supporting the notion that the obligation to extradite or prosecute that unique category of serious crimes would belong to the realm of customary international law.  He asked the Commission to study that point.  He also said that crimes of international terrorism could be added to those crimes in the foreseeable future.  Concerning the problem of the relationship between the obligation to extradite or prosecute and the concept of universal jurisdiction, he said his delegation believed that although those two issues were closely interrelated in some cases, the two sides of that relationship should be dealt with separately, since they were from different areas of international law.

He said the Republic of Korea was a State party to 24 multilateral treaties containing obligations, including the 1997 International Convention for the Suppression of Terrorist Bombings, the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the 1999 International Convention for the Suppression of the Financing of Terrorism.  It had also concluded 21 bilateral treaties on extradition that provided for the obligation to extradite or prosecute.  There was no explicit provision containing the obligation to extradite or prosecute in the domestic law of the Republic of Korea, but that obligation in extradition treaties to which the country was a party had the force of domestic law.

MILAN KOLLÁR ( Slovakia) said the outcome of the Law Commission’s work on the subject of reservations to treaties was one of its most important results.  It had become an important part of international treaty law.  As stated in the draft guidelines, any State or international organization had the right to formulate an objection to a reservation for any reason.  Limiting the freedom to make an objection solely in the case of reservations that were incompatible with the object and purpose of the treaty would make the objective ineffective, and would reduce its scope of possibilities.

Further, he said, the author of the objection had a right to oppose the entry into force of the treaty between itself and the reserving State.  The intention should be expressed clearly, and the reason for the objection should also be made clear.  The permissible length of time for formulating the objection was an important matter.  A distinction should be made with regard to the 12-month rule specified in the 1986 Vienna Convention -- whether the time began at the date of notification of the reservation or the date of expressing intent to be bound by the treaty on the one hand, or whether it began on the date on which the reservation was communicated to the depositary.  The widespread recent practice of pre-emptive objections or declarations of intent to object before reservations were formulated fulfilled the function of giving notice, but it had legal effect only when the reservation was entered.  Late objections outside the 12-month limit were invalid.

He noted that the relevant Vienna convention did not define the “object and purpose” of a treaty, and the clarification in a cluster of guidelines on that matter was useful in filling that gap.  The commentary on a second cluster of guidelines, with examples of types of reservations that could be interpreted as incompatible with the object and purpose of a treaty, made the matter much more comprehensible.

He said his country had objected to two reservations recently, both vague reservations that failed to clearly specify the reserving State’s commitment to its obligations under the treaty, one of them relating to a “sharia” reservation.  Finally, the detailed commentary on the different sorts of reservations was also helpful in delineating between reservations to provisions that reflected customary norm, related to internal law or were based in general human rights treaties.

REMIGIUSZ HENCZEL ( Poland) said the guidelines on reservations to treaties related to an important and highly practical subject in international relations.  Their usefulness would depend on the Commission’s ability to limit the number and complexity of the guidelines elaborated.  The concept and wording must be based as closely as possible on the terminology in the relevant Vienna treaty convention.

Continuing, he said the report on shared natural resources came at a difficult time, between the 2006 adoption of the draft articles and the 2008 deadline for receiving comments and observations of States.  The decision to continue work on the general topic of shared natural resources without waiting for reaction to the work on transboundary aquifers was right.  However, it would be difficult in the future to avoid and ignore a mutual impact of legal regulations concerning groundwater on the one hand and oil and gas on the other.  One major difference was that groundwater was to be protected against pollution, while oil and natural gas could be dangerous sources of pollution.  The argument that groundwater was a “life supporting” resource, while oil and gas were merely “energy resources”, was a simplification that did not take into account the important energy resources for improving the life conditions of people.

He said he felt the Commission should continue its work on the gas and oil aspect based on the aquifer articles.  Necessary duplications of rules should be seen not as negatives to be avoided, but as elements strengthening the position and importance of the regulations.  The decision on form should be made on the basis of hearing the opinions and comments of States, particularly through the questionnaire being prepared.

Turning to the “controversial” question of the source of the obligation to extradite or prosecute, he said the possibility of recognizing customary rules as a basis for the obligation should not be rejected outright.  The matter should be deeply and carefully analyzed, including from the angle of the various aspects of State practice.  While last year there had been a tendency to separate the principles of universal jurisdiction and aut dedere aut judicare, this year there was a more flexible approach of not rejecting in advance the possibility of links between the two.  The work on the draft articles should continue in even more detail based on State response to the requests for information in the Commission’s report.

* *** *

For information media • not an official record