Sixty-fourth General Assembly

Sixth Committee

23^rd Meeting (AM)

Legal Committee Is Told ‘Extradite or Prosecute’ Obligation

Is Key Issue in Campaign against Impunity for Crimes

 

Issue Is Among Final Topics as Law Commission Review Concludes

As the Sixth Committee (Legal) today concluded its current consideration of the report of the International Law Commission, the representative of Trinidad and Tobago called for a study of State practice to determine whether the obligation to extradite or prosecute was a requirement from which there was no derogation, which he said would be a step towards combating impunity for crimes.  (The obligation was a focus of today’s debate, as were the topics of the most-favoured-nation clause and treaties over time.)

He said the legal principle was a cardinal instrument in maintaining the rule of law at both the national and international levels.  His country’s adherence was grounded in bilateral agreements and multilateral treaties.  The Law Commission’s working group, however, should determine whether juridical rulings had allowed for customary rules to emerge over time.  A clear pattern of State behaviour could show that the standard for a peremptory norm had been met.

Turkey’s representative agreed, saying the obligation was an important element in efforts to end impunity and to deny safe havens for the perpetrators of heinous crimes.  Future reports should provide more information on the content of the obligation, and on the two elements of extradition and prosecution.

Israel’s representative, however, insisted that the legal source for the principle was solely derived from treaty-based obligations.  There was no basis for extending the obligation beyond treaties explicitly addressing it.  This should be clearly distinguished from principles such as universal jurisdiction.

In concluding remarks on that matter, its Special Rapporteur said he had noted the increased interest of delegates, and would convey to the working group the request that it expedite the process of clarifying the issues.

On the topic of the most-favoured-nation clause, the representative of the Russian Federation said the issue was particularly relevant to the current economic environment.  It was appropriate to follow the evolution of the clause from its origins in the 1978 code and to identify the most problematic areas.

On the issue of treaties over time, Portugal’s representative called for a study of the relationship between treaty and customary law, and of how the two interacted.  He said the scope should not be limited to an analysis of subsequent agreement and practice, but should be kept as broad as possible.  A “guide to practice” would be most appropriate as to form.

Poland’s representative said the issue was complex and fraught with difficult theoretical questions about treaty and customary law.  A practical approach would avoid an academic debate.  The core principle should be kept in mind while considering the aspect of subsequent agreement and practice.  The form of the resulting instrument should be a repertory of practice rather than a draft convention with a series of guidelines to follow.

At the conclusion of the Committee’s consideration of the report, the Chairman of the Law Commission said the interaction between the Committee and the Commission promoted “synergies” between the two on both procedural and substantive levels.  Some of the Special Rapporteurs who had addressed the Committee had done so using their own resources.  To maintain such beneficial interactions, financial assistance would be needed.

Also speaking on those and related issues today were the representatives of Malaysia, Australia, Singapore, Japan, Cuba, United States and Peru.

The Committee will meet again at 10:00 a.m. tomorrow, Wednesday, 4 November, when it expects to act on draft resolutions, and to hold an interchange with the President of the International Tribunal for the Law of the Sea.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on “obligation to extradite or prosecute”, “most-favoured-nations clause”, and “treaties over time”.  (For background on the Commission’s report, see Press Release GA/L/3374 of 26 October.)

Statements

SURAYA HARUN ( Malaysia) said that, over time, treaties designed to preserve agreement between parties in a legally binding form would have to contend with evolving circumstances and subsequent developments which may affect the existence, content or meaning of those treaties.  To ensure that treaties could fulfil their objectives and purpose, a flexible approach to treaty interpretation, which was rational in the form of subsequent agreement and subsequent practice of States, would need to be developed.  She said that while the relevant articles of the Vienna Convention codified the evolutionary interpretation methods, the jurisdiction of the International Court of Justice showed that those provisions had not been analysed with depth because of the difficulty in identifying subsequent agreement and practice.

While an evolutionary interpretation ensured that a treaty continued to be effective, she continued, she was concerned that it also might lead to a “reinterpretation” beyond the actual consent of the parties.  It was therefore imperative that the study group produce guidelines to steer international courts and tribunals on subsequent agreements and practices to international treaties.

She said that working methods of the study group should include views from Member States, and not just those of the members of the group.  She also observed that a caveat had been made where the practice of the main bodies of the United Nations could be excluded from the inquiry if there were concerns about possible limitations to the Organization’s system as a whole; the situation of other United Nations organs which did not raise similar concerns should be reviewed.  She said Malaysia wished to record its concern at possible confusion on how a caveat would be applied, since the main “bodies” of the Organization were often referred to as “organs”.

ANDREW EMMERSON (Australia) said he supported the updating of the 1978 draft articles on the most-favoured-nations clauses, and in particular the proposed approach which would capitalize on the work of Organisation for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD), particularly in relation to investment agreements.  With the new developments in international trade law, it was timely to update the draft articles, and he supported the study group’s roadmap.

On the subject of the obligation to extradite or prosecute, he said he welcomed the progress of the working group in developing a proposed framework of issues, specifically the inclusion of the interaction between the two options, with features and protections within the extradition framework.  These include grounds for refusal of extradition under national and international law.  He said the working group should also consider the obligation to prosecute and the relationship between that obligation and the functioning of independent national prosecutorial bodies.

PAVEL KORNATSKIY ( Russian Federation) said that in work on the obligation to extradite or prosecute the emphasis should be on international elements of the question rather than on those more related to national law.  For example, a consideration of alternative ways of regulating freedom was a matter of national law and not international.  The Law Commission should not involve itself in narrow questions that were intra-state in nature, and it should refrain from ranging into areas of international criminal justice.  It should, rather, examine such elements as the relationship between a given aspect of the obligation and principles related to criminal law, such as the bases for the principle of non-extradition.

On the most-favoured-nation clause, he said the issue was relevant to the current economic environment.  The work of following the evolution of the clause since the 1978 code and identifying the most problematic areas was appropriate.  The eight topics identified as central were indeed that.

Turning to the topic of treaties over time, he said it was well handled through the study group.  Consideration should be given to such aspects as the conclusion of treaties, their interpretation, their suspension and the obligations that remained after termination.  An excessive broadening of scope would be unproductive; the scope should be kept narrow and should focus on subsequent agreements and practice.  A guide to practice, with comments, would be most useful as to form.

MIGUEL DE SERPA SOARES ( Portugal) said the issue of the obligation to extradite or prosecute addressed the prevention of so-called “safe havens”.  The framework of the working group included questions on the source of the obligation, its elements, and its relationship to universal jurisdiction.  He said he was also pleased with the attention to procedural questions, such as the conditions for triggering and the implementing the obligation.

He said current work on the most-favoured-nation clause, based on the 1978 draft articles, needed to be built upon new practice trends and developments in the area of jurisprudence.  He observed that the clause could create a legal situation where an investor would pick and choose provisions from bilateral treaties to which its own State was not a party, thus benefiting from the best treatment by a State to a third country investor.

On the issue of treaties over time, he noted that treaties were not “mere words carved on hard and unalterable stone” but dynamic international law instruments that were interpreted in a specific legal and social context.  The Commission should study the relation between treaty and customary law, noting that customary law interacted directly with treaty law.  In terms of scope, he said he supported the position that it was not advisable at this point to limit the analysis on subsequent agreement and practice, but rather to keep the scope as broad as possible.  The Commission should not be tempted to develop international law going beyond the Vienna Convention.  He suggested that a “guide to practice” might be an appropriate outcome.

ÇAĞLA TANSU-SEÇKIN ( Turkey) said she was pleased with the interaction between the Committee and the Law Commission.  Given that the participation of Special Rapporteurs was still subject to financial constraints, they should clarify their positions on comments and proposals of Member States.

On the previous topic from the Law Commission report of shared natural resources, she said her country attached particular significance to the question of transboundary aquifers, since it had important transboundary groundwater resources.  The two-step approach in the draft articles was appropriate, given the range of views regarding the content and final form.  The 1997 convention on transboundary waters had received only 16 ratifications to date, in part because of lack of consensus on transboundary waters as a whole, particularly between upstream and downstream States; a cautious approach should be adopted as to the final form of the articles.  She said the issue of transboundary oil and gas should not be taken up by the Commission since it involved highly technical data and politically sensitive issues.

The topic of obligation to extradite or prosecute, she said, was important for efforts to end impunity and to deny safe havens for the perpetrators of heinous crimes.  Both these aspects were central, and the framework that had been developed would expedite the work.  Future reports should provide more information on the content of the obligation, and on the two elements of extradition and prosecution.  The relationship between the obligation and surrender should not be part of the study.  The material scope of the obligation should not be limited to crimes under the jurisdiction of existing international criminal tribunals; it should also cover crimes of international concern such as terrorism.

DAPHNE HONG ( Singapore), on the topic of obligation to extradite or prosecute, said it was important to take into account national legislation in the working methods, so that the final outcome of the working group was firmly based in State practice.  She called for a careful analysis and investigation of the category of treaties, their provisions, evolution, differences and similarities.  In this way, a final determination on the customary international law nature of the obligation, as well as the scope and content of such an obligation, could be accomplished.

Turning to the most-favoured-nation clause, she noted that as a small country dependent on international trade and commerce, Singapore had entered into many trade and investment agreements at the bilateral, regional and international levels, and that many of these agreements contained some provision on the clause.  In this regard, she welcomed the work of the study group, in particular on the issues of investment treaties, regional economic integration agreements and free trade agreements.

On the topic of treaties over time, she stressed that the rules of treaty interpretation in the Vienna Convention were “long-standing and well-established”, relating to the wide range of treaty relations affecting Governments and other international law entities.  To this end, she expressed concern at any outcome that “introduced uncertainty into this area”.

NOBUYUKI MURAI ( Japan) touched on most subjects from the Law Commission report.  Speaking of reservations to treaties and specifically on the formulation of interpretative declarations, he said that when Japan submitted an interpretative declaration, such a declaration was accompanied by a letter signed by the Permanent Representative of Japan addressed to the representative of the international organization, such as the Secretary-General of the United Nations.  Although this was not a requested procedure, he sought guidance from the Law Commission as to whether this practice on the formulation of interpretative declarations conformed to the relevant draft guideline.  On the relevant guideline on the issue of late objections, he observed that when Japan made objections to reservations of other countries, after the 12-month period ended, the late objections had sometimes been accepted and sometimes not; understanding that the guideline was to prevent objections from being submitted “endlessly”, he encouraged the Commission to note this circumstance.

On the expulsion of aliens, he said he supported the general obligation of a State, when carrying out such an expulsion, to respect all human rights rather than the “fundamental” human rights, since this would require a definition of those “fundamental” rights.  The Commission should focus first on what obligations under international law prohibited a State from expelling aliens; the Commission could then successfully initiate the discussion on whether or not it should address the scope and the content of human rights of a person being expelled, in the context of an expelling State as well as that of a receiving States.  Addressing the relevant articles on the death penalty, he said the Commission should keep in mind that the death penalty in the national criminal justice system of a State was a matter of that State’s policy.

Turning to the protection of persons in the event of disasters, he said that the Commission’s success was in the codification of customary international law and thereby influenced State and international legal practice and development.  Further codification and elaboration of existing rules and norms on disaster relief activities would facilitate international assistance in the event of disasters.

On the issue of shared natural resources, he said the development, exploitation and management of transboundary oil and gas presupposed the delimitation of boundaries and/or maritime boundaries between States.  It needed a case-by-case approach.  It was important to distinguish the physical or geological characteristics of oil and gas from the legal evaluation of those resources.

He said the questions and issues proposed by the working group on the obligation to extradite or prosecute were useful.  He was particularly interested in the definition of the obligation, and the question of whether or to what extent, the obligation had become customary international law.

He referred to the 1978 draft articles on the most-favoured-nation clause, noting that since then, especially in bilateral investment and trade agreement, such clauses played a different but ever-more important role.  He said a comprehensive study would be beneficial to treaty specialists and legal advisers of every State.

On the issue of treaties over time, the delegate said the so-called “former enemies clauses” was a question that needed to be addressed in the context of treaties over time, as well as the context of subsequent practice.  He encouraged the study group to go beyond a study on the topic and deliver useful and practical results for States.

ADY SCHONMANN ( Israel), from the International Law Commission report, said the responsibility of international organizations raised many unresolved questions.  The assumption should not be made that the articles on State responsibility were a proper template for the work on the object and limits of countermeasures, given the inherent differences between States and organizations.  Further, given the limited practice in the field and the controversy surrounding that aspect, the Commission should proceed with caution.

On reservations to treaties, she gave detailed commentary on individual draft guidelines and said the title, Guide to Practice, indicated a document that could serve as a useful and practical tool, but doubts were growing about the final product.  Given the length and complexity of the guidelines, it had been proposed to elaborate a separate document of principles.  However, the principles were already set out in the Vienna Convention.  Rather, a list should be compiled to indicate which parts of the guidelines were based on actual practice and how common was the practice.  The task of determining the permissibility of a reservation resided with States.

Turning to the topic of expulsion of aliens, she said it was complex and involved a delicate balance of States rights and the safeguarding of fundamental human rights.  Issues of immigration and national security were involved.  A number of articles featured elements constituting progressive development rather than codification and consolidation of law.  As such, they could give rise to difficulties in interpretation and application.  Work should proceed with caution and should depend, to the extent possible, on customary international law.

With regard to protection of persons in the event of disasters, she said she agreed that armed conflicts should be omitted from the scope.  The principle should be accepted that international assistance was a supplement to action of the affected State, which had primary responsibility to provide assistance to victims.  A provision on that matter should be included in the draft articles.

On the issue of shared natural resources she said the complex matter of transboundary oil and gas had been sufficiently dealt with bilaterally, and should not be taken up by the Law Commission.  With regard to the most-favoured-nation clause, she said three topics were of particular interest:  the catalogue of provisions, in particular on the matter of investments; the work of OECD; and the regional economic integration and free trade agreements.  She said it was regrettable that the topic of the immunity of State officials from foreign criminal prosecution had not been considered.

Finally, she observed that the legal source of the principle on the obligation to extradite or prosecute was solely derived from treaty-based obligations.  Existing State practice supported the view that there was not sufficient basis under current international customary law or State practice to extend the obligation beyond binding international treaties, explicitly containing such obligations.  The concept of universal jurisdiction should be clearly distinguished from the principle of the obligation to extradite or prosecute.  It was doubtful whether universal jurisdiction should be considered in the context of the obligation.

TAHIERES DIEGUEZ ( Cuba), speaking on the obligation to extradite or prosecute, said the sovereign rights of States must be noted in these situations, in accordance with their domestic legislation and on the principle of reciprocation.  In her country, the obligation was covered by its constitution, penal code criminal procedure law and the law against terrorist acts.  There were questions about the obligation which was not fully answered and needed detailed analysis in the context of treaties, international legal instruments and doctrine and case law.  The Law Commission and the Committee had a broad, variety of opinions on this issue, demonstrating the need for a more detailed investigation.

She asserted that the obligation was there to combat immunity, prevent a safe haven for those accused of crimes, and to ensure proper prosecution. It was based on international principles and in the case of serious crimes, such as crimes against humanity, among others, it was now customary.  She said her delegation was committed to participating in the goals of the Commission with the aim of achieving a fair codification that reflected the respect for sovereignty of the State and the self-determination of its peoples.

LAURA ROSS (United States) said she agreed with the Law Commission that only after a careful analysis of the scope and content of the obligation to extradite or prosecute, under existing treaties, could the issue be addressed as to what extent, if at all, it had a basis in customary international law.  In her country’s practice, there was not a sufficient basis in customary international law or State practice to formulate draft articles.  There needed to be, in her opinion, a comprehensive view of States’ practice that would enable consideration as to whether or not there was a basis for inferring a customary international legal norm to extradite or prosecute. 

If the obligation existed only under international treaties, she went on, draft articles would not be appropriate.  To that end, the working group’s efforts on the source and content of the obligation under existing international conventions were welcome.  If the Commission chose to continue in that direction, then sufficient time to receive and evaluate information provided by States should be ensured.

She said she supported the study group’s decision to not embark on the drafting of articles on the most-favoured-nation clause.  The provisions of most-favoured-nation clauses were a product of treaty formation and for that reason they differed considerably, depending on what other provisions were in the specific agreements; thus they were difficult to categorize or study.  The study group should take these attributes into account in its future work on the topic. 

Turning to the topic of treaties over time, she applauded the study group’s focus on subsequent agreement and practice at this time.  She also recommended that instead of just addressing the jurisprudence of the International Court of Justice and other international tribunals, the study group should investigate jurisprudence in national courts; she would be interested to learn more on how other States addressed the domestic legal questions raised in this regard.

GONZALO BONIFÁZ ( Peru) said linkages had been made between the principles of the obligation to extradite or prosecute, and those of universal jurisdiction.  They were, however, complementary and should not be confused.  The primary difference was based on the source of the responsibilities assumed and whether they were optional or obligatory.  Clarifications were obviously desirable, which was why the principle of universal jurisdiction had been placed on the Legal Committee’s agenda as a separate item.  In essence, universal jurisdiction was an international norm while the obligation was assumed as a treaty obligation.  Two different categories of crimes were involved but there were exceptions and overlaps.

On the exercise of universal jurisdiction or the responsibility to extradite or prosecute, he said the sources of the crimes should be considered to determine which legal principle applied.  The working group must be careful to avoid prejudice in continuing its work, and it should leave up to the custodial State to decide the priority of exercising either the process of extradition or prosecution.  Provision should also be made for the fact that the choice was not an absolute prerogative, as in situations where considerations of the death penalty were involved.  The Commission should continue looking into other aspects of the obligation, including such elements as sentencing, due process and the right of victims to participate in their own legal proceedings.

REMIGIUSZ HENCZEL ( Poland) said that the general framework of the working group on the obligation to extradite or prosecute did not take a position on whether treaties constituted the exclusive source of the obligation or if the obligation also existed under customary law.  The general framework consisted of seven questions or issues, addressing elements such as the legal bases for the obligation, the conditions for the “triggering” of the obligation and the implementation of the obligation, to name a few.  He suggested that in order to have a more detailed analysis to limit such an investigation to three crucial questions that covered the content of the obligation, the scope of such an obligation and the legal basis of the obligation in question.

He said the study group on the most-favoured-nation clause should broaden its scope to include, among other factors, an emphasis on the failure to garner widespread support for the 1978 draft articles, as well as the problem of disincentives of most-favoured-nations agreements between developed and developing countries.

On the issue of treaties over time, he stated that caution was essential in dealing with what he called a topic “complex and fraught with difficult theoretical questions”, in particular regarding the relationships between treaty and customary law.  To avoid an academic debate, he urged that the matter be considered on a practical level.  He said he did not think that a draft convention was necessary but would welcome the production of a repertory of practice, and a series of guidelines for States, international organizations and courts, which should follow the sequencing of the Vienna Convention.  He observed the strength of the Vienna Convention was due to its flexibility; in establishing guidelines, that characteristic needed to be incorporated and preserved, and the overregulation of the law of treaties regime needed to be avoided.

EDEN CHARLES ( Trinidad and Tobago) said the obligation to extradite or prosecute was a cardinal principle as far as his country was concerned, in maintaining the rule of law at both the national and international levels.  His country’s adherence to the obligation was grounded in bilateral agreements and multilateral treaties.

In its continuing work on the matter, the Law Commission’s working group should conduct a careful examination of State practice to determine whether customary rules had emerged over time based on juridical rulings.  If there was a clear pattern of State behaviour on the issue, the Commission could consider whether the qualification of peremptory norm had been met.  Since there was no derogation from a peremptory norm, the study could eventually assist in the combating of impunity for offender.

The next report, he said, should provide a clearer understanding of the relationship between the obligation and other issues, such as universal jurisdiction.

Remarks of Special Rapporteur

ZDZISŁAW GALICKI (Poland), the Special Rapporteur on the obligation to extradite or prosecute, said establishing a working group had helped rebuild momentum on this topic.  It was clear that the assistance of other working groups, such as on sharing natural resources, among others, had been beneficial to the work of the Commission, and that he could say with satisfaction that the discussions in the working group and the ensuing results were really positive.  He especially thanked Alain Pellet on his opinions and concerns as chair of the working group.

He said he agreed with the suggestions of the working group which were supported by the Committee, that there was a need to speed up the work and concentrate on the main issues which were contained in the proposals of the working group.  He noted the first three issues -- the legal basis to the obligation, the material scope of the obligation and the content of the obligation.  In fully addressing those main ideas, he said, future work would be much easier and be based on a strong foundation. 

He observed that more and more States had expressed their open interest on this subject and, with thanks to the frank and constructive suggestions that would be taken into account, he suggested that in the next year the group should continue its work on the basis of its report. 

Concluding Remarks of Law Commission Chairman

ERNEST PETRIČ ( Slovenia), Chairman of the International Law Commission, thanked the Committee and the delegates who took the floor to speak on the various chapters being addressed this past week.  He said the Commission valued the information it received from States and that such comments and feedback were a central feature of the Commission’s efforts in the codification and progressive development of international law.  The Committee would take into account comments made in the Committee’s deliberations.

He said he also looked forward to receiving written comments from Governments on the topics, “effects of armed conflict on treaties” and “responsibility of international organizations” now completed on first reading.

He said his colleagues and himself benefited greatly from the interactive dialogue between the Committee and the Commission, as well as the various informal contacts and exchanges.  Such contact promoted the “synergies between the two bodies” on both procedural issues and substantive topics.  As for the Special Rapporteurs, he pointed out that some had travelled to New York using their own resources; if such beneficial interactions were to be ensured in future work, then financial assistance would be needed.  He thanked the delegations for their acknowledgement of the Commission’s financial constraints and the burden it placed on its Special Rapporteurs.  He hoped the dialogue begun on this crucial issue would be continued in the relevant forums of the General Assembly.

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