Sixty-third General Assembly

Sixth Committee

24^th Meeting (AM)

LEGAL COMMITTEE, REVIEWING ‘EXTRADITE OR PROSECUTE’ OBLIGATIONS,

IS TOLD PROCEDURES ARE BASED ON SPECIFIC TREATY PROVISIONS

 

Israel Speaks of Long-standing Bilateral Counter-Terrorism

Agreements, Distinctly Different from Contemplated Universal Jurisdiction

The obligation of States to extradite or prosecute certain individuals was not based in customary international law, but was founded in specific international treaties containing such obligations, the Sixth Committee (Legal) was told today, as it moved towards the conclusion of its review of the report of the International Law Commission, with a focus on immunity of State officials against foreign criminal jurisdiction, the protection of people in disaster, and the obligation to extradite or prosecute.

Making that point, the representative of Israel said that, for instance, extraditing and prosecuting terrorists was predominantly based on provisions contained in bilateral treaties, some of which had entered into force 30 or 40 years ago.  She said universal jurisdiction was clearly distinct from such obligations.

Iran’s representative told the Committee the obligation to extradite or prosecute was a sovereign right that was a treaty obligation.  There was no direct relationship between universal jurisdiction and the obligation to extradite or prosecute.

In that connection, Cuba’s delegate said States must be able to determine the relevance of an extradition, and make the decision whether to prosecute.  The obligation was aimed at fighting impunity, and was based mainly on treaties in relation to certain serious crimes, including genocide, war crimes, crimes against humanity, torture, corruption and terrorism.

The representative of New Zealand noted, however, that the question of whether the obligation existed under customary international law went unanswered.  The Special Rapporteur should continue to review State practice and legal opinion to reach a conclusion.

The topic required close cooperation between the Law Commission and Governments, said Poland’s representative, especially towards transmitting appropriate information related to State legislation and practice.  Although States had already disclosed a growing interest in enshrining the obligation in internal legislation, it was uncertain whether the legislative efforts would develop into international customary rule.

The Commission could also study obligations of States to criminalize and prosecute certain crimes under the International Criminal Court, as a mechanism for background research, said Australia’s representative.  However, the so-called “triple alternative” (the option to surrender a fugitive to an international criminal court or tribunal) should be considered separately from the obligation to extradite or prosecute.

Also speaking today were the representatives of Greece, Czech Republic, Switzerland, Italy, Canada, Argentina, Qatar, Jamaica, France (for the European Union and associated States) and Romania.

The Chairman of the International Law Commission addressed the Committee as the consideration of the Commission’s report moved to a close.

The Committee will meet again at 10 a.m. tomorrow, Wednesday, 5 November, when it is expected to conclude its consideration of items in the report of the International Law Commission.

Background

The Sixth Committee (Legal) met today to continue and possibly conclude its consideration of the report of the International Law Commission, with a focus on the protection of persons in disasters; the immunity of State officials; and the obligation to extradite or prosecute.  (For background information on the report, see Press Release GA/L/3351 of 27 October.)

Statements

PHANI DASCALOPOULOU LIVADA ( Greece) spoke of the chapter in the Law Commission’s report on the question of reservations to treaties.  She said the issue of interpretative declarations deserved thorough consideration, since such declarations were widely used in international practice, particularly in the context of treaties which prohibited reservations.  It would, therefore, be useful for the proposed guidelines on the matter to address the question of the legal status of these declarations.  Those were unilateral interpretations that should be viewed within the context of the general rules governing the interpretation of treaties; however, they could not be treated as reservations.  Whereas, in most cases, silence in respect to a reservation would lead to its acceptance, the same could not be said with respect to interpretative declarations.

In that regard, she called for deleting the second part of proposed guideline 2.9.9, which addressed whether silence could ever be taken to constitute acquiescence.  She said the Law Commission should further examine State practice on the matter, particularly whether acceptance could be deduced by other means other than from expressed approval.  Concurring with guideline 2.9.2, she said such opposition to an interpretative declaration should not be confused with an objection to a reservation, since the latter aimed at rendering the whole treaty inapplicable between the two parties.  An authentic interpretation by a treaty-monitoring body or judicial instance would be useful in determining if those conditional interpretative declarations were merely expressing their author’s understanding of the treaty, or had a modifying effect, in which case declarations should be considered to be reservations.  Finally, there was no need, as in guideline 2.9.3, to suggest the “reclassification” of an interpretative declaration; if the declaration had modifying or excluding effects, States could consider it a reservation “in disguise”.

On the matter of the expulsion of aliens, she said prohibiting the expulsion of nationals was well enshrined in international law and State practice.  Any exceptions to this principle, including to the expulsion of those with dual or multiple citizenships, were to be “carefully drafted and narrowly construed”.  In this respect, the notion of dominant or effective nationality did not seem to play a role.  The topic under examinations was the expulsion of aliens, not the legal regime of nationality.  Thus, it was not advisable to elaborate draft articles, guidelines or comments concerning nationality, unless it was absolutely necessary for resolving specific questions relating to expulsion.

In that regard, she said, she supported the Special Rapporteur’s decision to refrain from entering into a study on the conditions for acquisition of nationality.  As for “denationalization”, a number of internal legislations provided for loss or deprivation of citizenship, which should be accompanied with appropriate restrictions or guarantees, such as conformity with national legislation, respect for the principle of non-discrimination, and the avoidance of statelessness, and should be resorted to only in a non-arbitrary and non-abusive fashion.

Turning to the protection of persons in the event of disasters, she said the category should comprise not only natural, but also man-made disasters.  The main beneficiaries of ratione personae were natural persons, based on rights enshrined in human rights conventions and the rules of international humanitarian law.  However, the occurrence of a disaster should not constitute a ground, pursuant to the 1951 Convention on the Status of Refugees, for providing refugee status.  State practice related to the provision of humanitarian assistance, immunities, tax exemptions, customs clearances, road transport and air law should be further reviewed.

PAVEL STURMA ( Czech Republic) said the Law Commission should examine the question of the extent to which officials were accorded immunity under customary international law, when they took part in special missions and other official visits abroad.  The category of “universal immunity”, as applied to the so-called “basic threesome” of top State officials, the Head of State, Head of Government and the Foreign Minister, was clearly defined in international law.  However, it was unclear and questionable whether the immunity applied to other high-ranking State officials.  The Commission should examine the question of whether other officials could be included in that immunity and, if so, which officials.  Recommendations on the matter should be supported with clear evidence of the relevant general State practice, and of the conviction that the practice was obligatory according to international law.

He said the Commission should also consider the scope of exception to the rule of immunity in cases where the official had committed crimes under international law.  The connection between the exception and the peremptory norms of general international law prohibiting such crimes should be examined.  To get as clear a picture as possible, he added, a distinction should be drawn between officials who enjoyed immunity while in their posts and those who continued to enjoy it after leaving their posts.  The relationship should also be examined between a potential exception to immunity under customary international law, in cases of crimes under international law, and a potential exception to immunity implicitly contained in international treaties punishing other violations of peremptory norms, in particular the crime of torture.

Finally, he said the immunities of all State officials should be included in the scope of the topic, including such officials as secret service personnel who violated the law in the territory of another State while acting in an official capacity.  Towards that end, the terms “State official” should be defined.  The question of families should be part of the debate on the matter, but the question concerning immunity with relation to “recognition” of a State should not become part of the discussion.  That consideration would be necessarily too narrow, so the question should be taken up separately.

TOM KENNEDY ( New Zealand) said the work on protection of persons in the event of disasters should focus on natural disasters, and on the goal of laying down a clear framework of legal rules in the form of guidelines or mechanisms which would facilitate practical international cooperation in disaster response.  Trying to cover all phases of a disaster, including mitigation and prevention, could be overly ambitious.  It may be useful to take a step-by-step approach to elaborating the topic.

On the issue of immunity from foreign criminal jurisdiction, he said articulation of the rationale for the immunity of State officials from such jurisdiction was an important first step in analysing many elements of the topic.  The fundamental principles related to sovereign equality should be considered.  At the same time, consideration should be given to other principles and values, such as individual accountability, and the international community’s commitment to ending impunity for serious international crimes.

He said consideration of developing criteria should be approached with caution, since the work had the potential to go far beyond an exercise in codification.  For example, the development of criteria to apply to ministerial level officials with a component of international representation in their duties, or to officials travelling with Heads of State, could substantially increase the scope of personal immunity.  The Special Rapporteur should also examine the scope with special attention to the central question of whether State officials enjoyed immunity in cases of crimes under international law.

On the obligation to extradite or prosecute, he said the fundamental question to be determined was whether the obligation existed under customary international law.  The Special Rapporteur should continue to review State practice and legal opinion to reach a conclusion on the matter.  Once that question was determined, the Special Rapporteur and the working group should develop a detailed understanding of the scope.  For instance, guidance would be welcome on when the obligation would have been exhausted.

EMMANUEL BICHET ( Switzerland), also speaking on the topic of the immunity of State officials from foreign criminal jurisdiction, said the Law Commission’s work on the matter would have a real impact at the legal and practical levels.   At the international level, there were two conflicting trends that presented challenges:  the universal jurisdiction of criminal immunity, and the creation of international criminal tribunals.  Globalization had driven an intensification of contact with representatives from abroad, not exclusively confined to Heads of State, Heads of Government or ministries of foreign affairs.

He said immunities existed to allow State officials to perform their functions without hindrance, and not for their personal benefit.  In that regard, the application of ratione personae could not be extended beyond the highest officials; in contrast, all those who did not perform the function of national representation should not benefit from absolute criminal immunity.  Immunity should also protect a person from any criminal act against him.  However, the range of persons covered by immunity could be overly broad, from a Head of State to an employee at a State tourism office.  Therefore, a clear delineation of categories of covered groups would be helpful.  He suggested six groups with different levels of immunity:  Heads of State, Governments and foreign affairs ministries; high-ranking State officials, which should enjoy immunity under ratione materiae; diplomatic and consular representatives; officials of international organizations whose immunities could be set forth in headquarters agreements; armed forces personnel who were basically governed through status-of-forces agreements; and all other officials, who should not enjoy criminal immunity, unless designated by an international agreement between the sending and receiving State.

He said private individuals and non-governmental organizations had taken advantage of foreign dignitaries in their countries to file criminal suits against them.  Thus, codification of international law to govern the immunity of State officials would be necessary and was important for foreign policy.  Clear, applicable rules would help to depoliticize the situation.  Draft articles could be prepared first, with machinery added at a later time for opting in or out of agreement, so that States could select which officials should enjoy immunity.

REBEKAH HAMED ( Australia) commended the Commission for its work on the protection of persons in the event of disasters, and also on the immunity of State officials from foreign criminal jurisdiction, on which, she said, customary international law would be especially important.  In that regard, she added, examining relevant judicial decisions of national tribunals was important.  An appropriate balance between immunity and the need to avoid impunity should be encouraged.  That would require careful assessment of sovereignty, non-intervention, and the effective conduct of foreign relations, on the one hand, and, on the other, the need to avoid impunity for perpetrators of criminal behaviour.  In that connection, she said she endorsed the comments of the International Court of Justice in the Arrest Warrant Case.  It was also important for the Law Commission to examine the immunity from foreign criminal jurisdiction of different categories of State officials, and the extent of that immunity.

On the issue of the obligation to extradite or prosecute, she said she supported the Commission’s suggestion that future work on the topic should address substantive issues, such as the scope of the principle and when obligations arose.  In particular, considering how those obligations might interact with other, important features of the extradition framework should be encouraged.  It might also be beneficial to examine potential limitations on the ability of countries to assume broad obligations to extradite or prosecute, which were in place in many national legal systems.  With respect to the “triple alternative” of surrendering a fugitive to an international criminal court or tribunal, she said such mechanisms were distinct from the Commission’s inquiry on the obligation to extradite or prosecute.  However, those mechanisms might provide useful background and context to the Commission’s study of the topic at hand, noting that the International Criminal Court operated under a specific treaty-based framework in which State parties had the primary obligation to criminalize and prosecute certain crimes, and State parties had obligations to assist the Court in the exercise of its complementary jurisdiction.

GIUSEPPE NESI ( Italy), on the topic of protecting people in the event of disasters, said it would be impractical to distinguish between natural disasters and other disasters, which, in any event, would often raise similar problems.  Thus, study on the topic should be wide enough to encompass all disasters which raised the need for international relief efforts.  Governmental international organizations should take a lead role in coordinating, together with competent State authorities.  The aim should be to design a mechanism that alleviated political difficulties and allowed relief to reach persons in need as effectively and quickly as possible.

Turning to the immunity of State officials from foreign criminal jurisdiction, he said consideration of the issues of persons covered by immunity and possible exceptions should be postponed.  Functional immunity for an official was not necessarily conditional on the existence of State immunity from civil jurisdiction.  When the conduct of a State official had to be attributed to the State because it was taken by the official when exercising his or her functions, the official was covered by functional immunity, even if the State might not be immune from civil jurisdiction.

Addressing the obligation of States to extradite or prosecute, he called on the Law Commission to move forward with a definition of the scope of its study on this.  Since many treaties concerning international crimes contained clauses providing for “aut dedere aut iudicare”, it would be reasonable for the Commission first to make a survey of the treaty clauses of those States, and then identify the crimes to which they were intended to apply.  Those clauses raised problems with regard to the conditions triggering the obligation to prosecute for the custodial State.  Thus, a survey regarding the question of judicial assistance applied by those treaty provisions might be useful towards drafting guidelines on the matter.  The Commission could consider, at a later stage, whether an obligation to extradite or prosecute existed under general international law.

DAVID FUNDORA (Cuba), speaking on the Law Commission’s report as a whole, said the draft articles on transboundary aquifers were of particular importance in light of the danger to humankind posed by the lack of groundwater resources that could not be replaced.  The work must take into account the need for respect for the sovereignty of States and for cooperation based on the related principles.  On reservations to treaties, he said, the starting point was the Vienna Convention on the Law of Treaties.  The guidelines on reservations, which would provide guidance to both States and international organizations, must not modify the Vienna Convention regime.

On the responsibility of international organizations, he said the complex issue required deep analysis and specificity with regard to meaning and scope.  While in principle international organizations were obligated to make reparations for internationally wrongful acts, member States of such organizations did not assume an additional obligation.  Both were obligated to make reparations.  Further, international organizations should be under an obligation, like States, to cooperate in ending a serious violation.

With regard to the expulsion of aliens, he said the principle of non-expulsion of nationals did not apply to persons with dual or multiple nationalities unless the expulsion led to statelessness.  The term “effective nationality” was controversial and was often defined by varied practices.  All in all, the legal issues posed by the question of expulsion were complex.  The need for draft articles on the matter was not convincing.

Turning to the obligation to extradite or prosecute, he said the sovereign rights of States must be respected in letting them determine the relevance of an extradition and, in case that extradition was not possible, letting them determine whether to prosecute.  The obligation was aimed at fighting impunity and was based mainly on treaties in relation to certain serious crimes that had acquired a character that can be considered customary, including genocide, war crimes, crimes against humanity along with torture, corruption and terrorism, including State terrorism.

Finally, on the protection of persons in the event of disaster, he said the relation between protection and the principles related to sovereignty should be carefully studied.  The affected State should preserve its sovereign rights in deciding on actions to be carried out.  Attention should also be focused on the controversial concept at the heart of the debate, the newly emerging “duty to protect”.

HOSSEIN PANAHI-AZAR (Iran), also speaking on the report as a whole, said the responsibility of international organizations and the issue of countermeasures called for further study and precise consideration, given that it was still in its preliminary phase.  Due to limited practice and uncertain legal regime, it was imperative to exercise extreme caution in going forward.  A word-for-word reproduction of the draft articles on responsibility of States would not work.

With regard to the expulsion of aliens, he said it should be based on legitimate grounds as defined by internal law; collective expulsions should be avoided.  The notion of dominant or effective nationality had no role to play in the context of the expulsion of persons having dual or multiple nationalities, who should not be regarded as aliens.  The prohibition on expulsion of nationalities extended fully to persons with dual or multiple nationalities.  The need for articles or even their practical usefulness was questionable.

On the protection of persons in the event of disasters, he said the Commission had been asked to consolidate, in a single unified body, the scattered norms and standards relevant to the question.  That body of law known as the “international law of interventions during disasters” put the obligation on disaster-affected States to coordinate and implement humanitarian assistance to their people.  The “right to assistance” was an exception to the principle of a State’s exclusive territorial jurisdiction and should be exercised in all cases subject to the State’s consent.

He said the obligation not to refuse an offer of assistance made in good faith needed to be defined, so as to identify the rights and obligations of actors in an emergency, since any rule to the effect that a State must accept assistance against its wishes contradicted the principles of State sovereignty.  All disaster-relief operations must be carried out with respect for the basic humanitarian rights principles.  The 2007 Red Cross/Red Crescent Guidelines should be further examined in light of recent experience.

Speaking of the principle of immunity, he said it was critical to the stability of inter-State relations.  However, the obligation of States to respect contractual obligations should not lead to derogations from obligations emanating from customary international law.  Assertions by national courts of the principle of universal jurisdiction could lead to misunderstandings and the escalation of tensions; they could give rise to the perception of abuse and misuse on political or other grounds.  All State officials should be covered by the topic under discussion and the status of former State officials should be examined.  On the obligation to extradite or prosecute, he said the matter was a sovereign right that was a treaty obligation.  There was no direct relationship between universal jurisdiction and the obligation to extradite or prosecute.

ANDRZJEI MAKAREWICZ (Poland), stressing the importance of the Commission’s work on the protection of persons in the event of disasters, noted that, during the first of half of this year, 230,000 people had been killed in natural disasters; the same number as had died in the Indian Ocean tsunamis of 2004 and 2005.  Overall, 130 million people had been affected by those disasters.  The Commission, therefore, had an opportunity to contribute to “the creation of sustainable foundations of a new world order” through its work on the topic.  Particular aspects of those concepts and principles had been formulated in the Millennium Declaration and the 2005 World Summit Outcome Document, with a focus on underlining the primary role of the affected State, and the subsidiary role of other actors as part of an “overarching umbrella of international cooperation and solidarity”.

He said several matters -- including human security, the responsibility to protect and solidarity -- needed to be further examined.   For instance, the concept of the “responsibility to protect”, which was limited to protection from genocide, war crimes, ethnic cleansing and crimes against humanity, could be extended to include situations involving disaster.  International solidarity could not be conceived as charity, but as an understanding between equal partners who possessed common but differentiated responsibility.  In that regard, it was necessary to take a holistic and rights-based approach to the topic, but that approach should not encompass armed conflict.  Taking a decision on the final form for action, as a convention or as non-binding guidelines, was premature; draft articles should be presented for consideration.

On the immunity of State officials from foreign criminal jurisdiction, he said the Commission should not consider the question of immunity before an international criminal tribunal.  It had been shown that the jurisdictions of States and international tribunals were, to a great extent, connected and appeared alternatively.  Possible exceptions to the immunity of State officials also deserved further consideration.

As for State obligations to extradite and prosecute, he said that topic required close cooperation between the Law Commission and Governments, especially in the area of transmitting appropriate information related to State legislation and practice.  Information from States had already disclosed a growing interest in enshrining those obligations in internal legislation.  However, he was uncertain if those legislative efforts would stimulate the establishment of an appropriate international customary rule.

ERICK KENDRICK ( Canada) said his country had responded to the Secretary-General’s request for information on contemporary State practice regarding the obligation to extradite or prosecute.  Canada would continue to support principles and initiatives against impunity, particularly for the most serious of criminal actions, and had been a staunch supporter of the International Criminal Court and other international criminal tribunals.

Cautioning against the adoption of an overly broad conception of the obligation to extradite or prosecute, he said the obligation did not, and should not, apply to the vast majority of crimes, and the scope of the obligation should be defined by treaty.   Canada supported the inclusion of such provisions in multilateral treaties in order to deny safe haven to terrorists and other criminals.   Canada was party to 28 multilateral treaties and bound by 51 bilateral extradition treaties that contained an obligation to extradite or prosecute.

MARTIN GARCIA MORITAN ( Argentina) said work on the protection of persons in disasters presented a great opportunity to clarify core legal principles and concepts involved.  Addressing the concept of “protection” would allow for a determination of the rights and obligations of actions in a disaster situation, including victims, relief providers, international organizations and the international community as a whole.  The right balance must be struck between the rights of persons and those of affected States, particularly with regard to sovereignty-related principles.  Turning to the concept of “disaster”, he said that addressing it would allow for a consideration of whether the definition should include only natural disasters irrespective of their cause, or other situations where human activity excluded the qualification of a situation as “natural”, as in the case of oil spills and nuclear accidents.  In an amorphous area of law, the text now being formulated could serve as a basic reference framework for other specific agreements.

On the subject of immunity of State officials, he said the term “State official” should be defined.  It should cover not only the “triad” of high ranking officials with a representation capacity, but also the rest of State officials, who in a globalized world represented their State in specialized areas of international relations.  Moreover, the relevant immunity derived from customary law and, in some instances, a norm of international law for such immunity could not be said to exist.  The Special Rapporteur should determine the content of existing customary law norms.

On the obligation to extradite or prosecute, he said that the drawing up of articles was premature until more States had provided information on practice and legislation.  While an increasing number of treaties contained the obligation, the number of treaties and their level of ratification could not be considered as the only proof of uniform and general practice of States, leading to a customary norm.  National practice and law must be examined.  States should submit information.  While the principle of universal jurisdiction should not be the centre of focus, it could not be excluded from consideration due to its reciprocal relationship with the obligation.

ADY SCHONMANN (Israel), on the immunity of State officials from foreign criminal jurisdiction, said the fundamental legal and policy rationale on the topic existed in the principles of the sovereign equality of States and non-interference in internal affairs, as well as in the need to ensure the stability of international relations.  She said she supported the proposal of the Special Rapporteur to include all State officials in the scope of his study on the matter.  With respect to immunity ratione personae, and in light of the Arrest Warrant Case, it was clear that Heads of State, Heads of Government and ministers of foreign affairs enjoyed this kind of immunity today.  However, it was uncertain as to whether senior officials should also enjoy personal immunity.  The Law Commission should seek to identify criteria for those officials entitled to personal immunity.  Although the matter covered the “entire spectrum of procedural proceedings and actions”, including executive and judicial jurisdiction, the scope should not encompass the jurisdiction of international criminal tribunals and the issue of immunity from civil jurisdiction.  It would also be useful to consider if simultaneous or multiple proceedings on the same issue should be heard and what types of legal measures should be considered to avoid abuse and protect State officials from abusive legal procedures.

Turning to the obligation to extradite or prosecute, she said existing State practice supported the view that there was not a sufficient basis under current international customary law or State practice to extend such obligations beyond binding international treaties, which explicitly contained such obligations.  Despite widespread support for the principle of universality, the obligation to extradite or prosecute under counter-terrorism treaties, for instance, was predominantly based on bilateral treaties, some of which had entered into force 30 or 40 years ago.  The concept of universal jurisdiction should, therefore, be clearly distinguished from obligation to extradite or prosecute.

On the responsibility of international organizations, she said that, taking into account the differences between States and international organizations, she was not convinced that the Commission’s articles on countermeasures established a proper template for the topic.  The Commission should proceed with caution in this regard.  For instance, it would be useful to consider whether countermeasures might threaten to hamper the functioning of an international organization.

She said the term “territory”, as proposed in the draft articles on the question of expulsion of aliens, might be overreaching and imprecise.  It might not be necessary to include a separate definition of “conduct”.  While supportive of the general rule that a State may not expel its nationals, she said she was, not convinced of the need for a “sweeping” rule prohibiting a State from depriving one of its nationals of his or her nationality.  There might be exceptional instances where a State might find this necessary in a non-arbitrary manner.  Determining conditions for the loss of nationality and non-admission should, therefore, be dealt with under national jurisdiction.  Issues regulated by the law of armed conflict, the status of refugees and related issues such as non-refoulement and the movement of populations should be excluded from the topic.  In conclusion, she welcomed the new theme of the protection of persons in the event of disasters.

ALI AL-BAKER (Qatar) welcomed the Law Commission’s adoption of the preamble and 19 draft articles on the law of transboundary aquifers, noting that water resources were part of the natural resources of States and, therefore, came under each State’s exclusive competence.  Thus, the Commission should adopt guiding principles on the matter, with a view to the later adoption of a convention based on State practice.  Next, he said he also welcomed the Commission’s adoption of the 18 draft articles on the effects of armed conflicts of treaties which was largely covered under the Vienna Convention on the Law of Treaties of 1969.

On the topic of reservations to treaties, he said the adoption of 23 guidelines on the formulation and withdrawal, and the acceptance of objections, would help States adapt to international practice in this area.  He noted that the Vienna Convention on the Law of Treaties contained a number of gaps in this regard.  He said he believed silence could, at times, be interpreted as an expression of consent -- in particular, silence with regard to an interpretative declaration could signify consent to that declaration.

On the issue of the expulsion of aliens, he said the Commission should adopt a set of draft articles, which had appeared in the fourth chapter of its report.   However, nationality should be governed by the internal legislation of States.

MICHELLE WALKER ( Jamaica) said the issue of exceptions to personal immunities under general international law called for careful consideration.  The highest national officials should not have impunity for the worst crimes, but the complete removal of immunity could give rise to difficulties and could affect friendly relations between States.  Foreign courts assuming universal jurisdiction could put leaders from weaker countries on trial, while the reverse would not be true.  Lack of equity and double standards would result.  Because of that potential for abuse, personal immunity should not be removed from Heads of State and Government and from foreign ministers.  Rather, they should be subject to trial by international criminal tribunals, or their own domestic courts.

On the obligation to extradite or prosecute, she said the extensive network of international and regional agreements constituted the legal basis for the obligation.  In draft article 3, the interpretation that a treaty was the direct source of the duty to extradite, without the need for additional legislation, was of concern.  The practice in her country was that legislation was required to implement all extradition agreements.  The Commission should re-examine the current interpretation, particularly as it concerned dualist countries.

BENJAMIN CABOUAT (France), speaking for the European Union, said disasters were factual situations in which the normal functioning of human societies was hampered and which suggested that the rules and principles of international law should be relaxed or changed.  Reasoning based exclusively on the “exceptional nature of the disaster” should not prevent taking into consideration the existing normative framework in international law, so as to come to the assistance of natural disaster victims.  The topic could undergo a draft codification that was reasonably balanced between identifying the principles of customary law and determining the consequences of the concrete mechanisms that provided for the protection of persons in the event of disasters.

He said the topic should be dealt with without limiting its scope beforehand.  The expression “protection” should encompass a wide array of activities, whether it be actual “relief” or, more broadly, “assistance”.  He had some doubts about including disaster prevention in the topic, as that could encroach upon areas that were already heavily bilaterally or multilaterally regulated, such as the environment or industry.  As for the term “disaster, he said he agreed that initial efforts should focus on natural disasters; the term “disaster”, however, should be defined for the purposes of the final draft in a way that would cover a greater variety of disasters and avoid needless controversy about the distinction between “natural” and “man-made” disasters.

Addressing the term “persons”, he said the Special Rapporteur’s suggestion of a “rights-based approach” for persons was interesting, it being understood that that would not exclude international law from humanitarian assistance and States from their rights and obligations.  The Commission should try to identify and specify the principles of customary law regarding offers of relief or assistance from relevant States and international organizations, and the conditions under which an affected State could accept such conditions, as well as the general conditions under which relief or assistance should be provided.

ALINA NICULESCU ( Romania), taking up the protection of persons in the event of disasters, said further elaboration of the topic should tackle the meaning of a rights-based approach, giving balanced consideration to human rights and community interests.  Work in that regard should focus on natural disasters and the mechanisms to coordinate assistance among relief providers.  While the decision on the form of proposed rules could be discussed later, it was of great importance at this stage to have consultations and contacts within the United Nations, the International Federation of Red Cross and Red Crescent Societies, and relevant non-governmental organizations.  State practice on the topic also had to be examined.

On other matters, she said she concurred with the preliminary conclusions of the Special Rapporteur on the immunity of State officials from foreign criminal jurisdiction and welcomed the third report of the Special Rapporteur on the obligation to extradite or prosecute.  There were outstanding facts that encouraged the continuation of work in that area, such as the increasing number of treaties containing that obligation.  That growing inclusion highlighted the possibility that State practice could lead to the formulation of an appropriate customary norm that may be codified in the future.  Elaboration on the linkage between universal jurisdiction and the obligation to extradite or prosecute, as well as on the issue of the “triple alternative”, should be further addressed.

Closing Comments of Chairman of International Law Commission

EDMUNDO VARGAS CORRENO, Chairman of the International Law Commission, in comments as the annual consideration of the Commission’s report in the Sixth Committee was drawing to a close, noted that his term would end before the Committee met again at the next session of the General Assembly.  Reaffirming the importance of the collaboration and cooperation between the Committee and the Commission, he stressed the importance of building on that connection to strengthen ties with other legislative bodies, and also with States, to fulfil the Commission’s unique work in the progressive development of international law and in legal codification.

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