Sixty-sixth General Assembly

Sixth Committee

28^th Meeting (AM)

Immunity of State Officials Remains at Issue as Legal Committee

 

Ends Review of International Law Commission Report

 

Some Delegates Say Principle Has Led to `Politicization’; Most Stress

Need to Achieve Balance, to Avoid Granting of Immunity for High Crimes

As the Sixth Committee (Legal) today concluded its debate on the report of the International Law Commission, delegates commended the Commission for its productive session, and offered closing remarks and concerns for the future work of the Commission and work of the Committee, which, it was said, could successfully transform outstanding topics into productive “legal tools” for the international community.

The “immunity of State officials from foreign criminal jurisdiction” was a well-established norm of international law, said the representative of Algeria.  However, he urged the Law Commission to address the “politicization” embedded in challenges to that immunity.  When courts of third-party States initiated prosecution of State officials, the rules of a fair trial and due process were negatively impacted.  He also urged that “terrorism” be added to the list of crimes from which the “obligation to extradite or prosecute” might be engaged.

Australia’s delegate noted that the approach of States to the immunity of their officials differed markedly, including the categories of officials entitled to immunity, and the scope of, and exceptions to, immunity.  The Commission should seek a balance between the need to protect immunity while preventing impunity for the most serious crimes.  Welcoming the work produced on “most-favoured-nation clause”, she supported the Study Group’s conclusion that the source of any right to most-favoured-nation treatment lay in the basic treaty, as opposed to a third-party treaty.

The representative of Japan acknowledged the wide range of international regimes the Commission had studied in its work on “treaties over time”, and he supported its continued “in-depth analysis”.  On the “most-favoured-nation clause”, he emphasized that because it had a close relationship with important fields of the world economy, the Commission could make a great contribution to that area of international law.

Applauding the 60 years of the Commission’s contribution to international law, the delegate of Ireland supported the rotation of Commission membership that would ensure a diversity of legal regimes and States, an important issue to a small State such as hers.  She also urged that the Commission’s annual sessions be scheduled earlier in the year so that States could receive its report in enough time to prepare for the Committee’s debate.  However, she also acknowledged that the Sixth Committee could improve its interaction and cooperation with the Commission, in particular with targeted and specific questions to the Commission on the Committee’s agenda items.

As Chair of the Working Group on “measures to eliminate international terrorism”, the representative of Sri Lanka gave an overview of outstanding issues including the status of the draft comprehensive convention and the question of convening a high-level conference under the auspices of the United Nations.  He said delegations had reiterated the importance of an early conclusion of the draft comprehensive convention, and that the “necessary political will” could resolve outstanding issues.  However, while some delegates found the 2007 proposal constituted a carefully balanced compromised text, others reiterated their preference for the 2002 proposal made by the Organization of the Islamic Conference (now the Organization of Islamic Cooperation).  Nonetheless, willingness was expressed by some to continue to consider the 2007 proposal.

He said proposals for convening a high-level conference were based on the need for a plan of action that effectively addressed all aspects of terrorism, and contributed to discussion on the definitions of terrorism.  Some delegations reiterated that the conference should be considered on its own merits and not be linked to the conclusion of the draft comprehensive convention; others, while supporting the possible convening of a conference, stressed that such a conference should be considered only after the conclusion of the draft comprehensive convention.

The Special Rapporteur on the “obligation to extradite and prosecute” said feedback from the Committee would stimulate him or his successor for seeking solutions on that topic.  He also reminded the Committee that he had previously suggested that the “obligation” be considered in conjunction with the principle of universal jurisdiction.  While that suggestion had not been supported at that time, he was pleased to see it being currently considered.  He urged States to pay attention to the questions posed by the Commission in its report, since State responses were crucial to the future work of the Commission.

Also speaking today were the representatives of Malaysia, United Kingdom, Canada, Israel, Republic of Korea, Singapore, Kenya, Netherlands and Romania.

The Committee is scheduled to meet again on Friday, 11 November.  However, it was stated that, because of the amount of work outstanding, an additional meeting may be held on Wednesday, 9 November, which would be announced in the Journal.

Background

The Sixth Committee (Legal) met today to conclude its annual consideration of the report of the International Law Commission, with the third group of topics in the report — “immunity of State officials from foreign criminal jurisdiction”, “obligation to extradite or prosecute”, “treaties over time”, and “most favoured-nation clause”.  (For background on the report and themes, see Press Release 3420 of 24 October.)

Action would also be taken by the Committee on the draft resolutions on criminal accountability of United Nations officials and experts on mission (draft resolution A/C.6/66/L.16), and on the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (draft resolution A/C.6/66/L.17). (For background on the reports and themes, see Press Release 3427 of 2 November.)

The Committee would also consider action on a new draft resolution on nationality of natural persons in relation to the succession of States (draft resolution A/C.6/66/L.18), which would, among others, have the General Assembly once again encourage States to consider, at regional or subregional levels, the elaboration of legal instruments regulating questions of nationality of natural persons in relation to the succession of States, in order to prevent the occurrence of statelessness as a result of such successions.

Statements

LUCY MAXWELL ( Australia) noted that the approach of States to the immunity of their officials differed markedly.  Those differences involved the categories of officials entitled to immunity, and the scope of and exceptions to immunity.  When identifying what it considered to be existing rules of international law in that area, the Commission should balance several areas:  the need to protect immunity while preventing impunity for the most serious crimes, the link between State responsibility and immunity, and the express or implicit waiver of immunity.

On the “obligation to extradite or prosecute”, she said that, in respect of a growing number of crimes, the obligation was found in more and more multilateral treaties.  It was important that the relationship between that obligation and related areas of international criminal law, including universal jurisdiction, be established.  As it was unlikely that there was any such obligation under customary international law, the Law Commission’s efforts towards arriving at a more general application of the obligation should be based upon existing treaties.

Focusing on “treaties over time”, she said the Commission should consider procedural requirements for, and the legal significance of, “interpretative resolutions” made by the governing bodies of treaties.  A range of views on such procedural issues had recently been expressed by parties to the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and also to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter and its 1996 Protocol.

Regarding the “most-favoured-nation clause”, she said she welcomed the continued work of the Study Group, particularly its proposed examination of the application of the clause in areas outside of trade and investment law.  Such an analysis should be premised upon recognition that application of the clause would differ in light of the different objectives it might be employed to achieve.  She spoke supportively of the Study Group’s conclusion that the source of any right to most-favoured-nation treatment lay in the basic treaty, as opposed to a third-party treaty.  In that regard, any presumption as to the inherent scope and application of the principle must not displace the intention of the treaty parties.

SARAH KHALILAH ABDUL RAHMAN (Malaysia), on the “immunity of state officials from foreign criminal jurisdiction”, said the Law Commission should determine the existing basis for such immunity, specifically the scope of, and approach to, its application, before embarking upon progressive development of the law.  Specifically, the Commission should both clarify the premise for its application and draw a distinction between ordinary crimes and grave international crimes, where special considerations, such as the need to prevent impunity, applied.

Turning to the “obligation to extradite or prosecute”, she said that given the complexity of the topic and its interrelatedness to issues of “universal jurisdiction”, it would be appropriate for the Commission to consider whether to address both topics together or separately.  The Commission must ascertain the status of relevant existing law before embarking on the progressive development thereof.  A distinction between the applicability of the “obligation” to “core crimes” versus “ordinary crimes” should also be made.  In Malaysia, that obligation was based on domestic law and bilateral and multilateral treaties to which the country was party.  The obligation, she said, was premised on State cooperation to prevent and suppress crimes.  The role of international courts and tribunals in relation to requests to honour that obligation should be considered.

On “treaties over time”, she emphasized that while evolving interpretations ensured the continued effectiveness of treaties, they might also lead to reinterpretation beyond the actual consent of the parties.  It was important in any legal system to determine how subsequent acts, events and developments affected the obligations of a State party to a treaty.  It was, therefore, imperative that the Study Group produce illustrative guidelines which would guide international courts and tribunals as to the relevance of subsequent agreement and practice to international treaties.

Concerning the “most-favoured-nation clause”, she said the study on the usage and implications of the clause should be undertaken with the objective of elaborating non-legally binding guidelines for States.  Further examination of decisions of investment tribunals and individual arbitrators, as well as relevant papers on the topic and the application of the clause in other areas of international law, would be illuminating.  The ongoing study, she stressed, did not limit the inherent right of States to determine when it would be appropriate to interpret and apply the clause.  While the Vienna Convention remained the authoritative guide for treaty interpretation, the Commission’s work on the clause might accord certainty and stability to the field of investment law.

SHEHZAD CHARANIA ( United Kingdom) said that ratione personae (personal immunity) for State officials should be absolute as long as they held the office to which the immunity was attached, even if the crimes in question were serious crimes of international concern.  The International Court of Justice recognized that such a list of State officials was not exclusive, and in his country such immunities were extended to visiting ministers where international travel was intrinsic to their functions.  With regard to ratione materiae (functional immunity), his delegation noted the possible limitations as discussed in the Special Rapporteur’s reports and within the Commission that focused on the relationship of that immunity with the development of universal jurisdiction for certain serious international crimes.  In that respect, such immunity was subject to waiver by the State whose official was accused, and that waiver could be made by way of treaty.  Referring to the Pinochet Judgement, he pointed out that several judges had based their finding that immunity ratione materiae did not extend to the crime of torture because the State of that former official (Chile) had been party to the Torture Convention at the time of the crimes.

On the topic of “obligation to extradite or prosecute”, while acknowledging the fourth report of the Special Rapporteur, he observed that little substantial progress had been made.  The United Kingdom’s position remained the same — that such an obligation arose from a result of a treaty obligation.  In his view, he did not believe at that stage the obligation could be regarded as a rule or principle of customary international law.  Further, the terms of international agreements needed to govern both the crimes from which the obligation would engage, and the question of whether the custodial State had discretion to extradite or prosecute.

Finally, on the “most-favoured-nation clause”, he said his delegation agreed with the Study Group’s intention to produce a draft report providing the general background, analysing and contextualizing the case law, drawing attention to issues and trends, and making recommendations, including model clauses.  Further, he agreed with the general understanding that the source of the right to the clause was the basic treaty and not the third-party treaty.  His delegation remained cautious about any attempt to draw universally applicable principles, and he urged that the Study Group’s continued focus be on issues raised by the use of such clauses within the specific field in which they were employed.

NUALA NÍ MHUIRCHEARTAIGH ( Ireland) said she applauded the 60 years of the Commission’s contribution to international law.  In support of the Commission, a periodic review of its working methods, composition, topics and output was necessary, to ensure that the Commission remained as productive and as effective as it was.  She supported the rotation of membership of the Commission to allow for the best possible “mix” of academics, diplomats and practitioners; this mix should also reflect the “main forms of civilization and the principal legal systems”, including representation of small States, such as hers.

She said that the structure of the Commission’s sessions should also be reconsidered, from the perspective of efficiency and financial concerns.  She favoured the continuation of “split” sessions, but only under the condition that time be efficiently utilized.

On the scheduling of the Commission’s annual sessions, she noted that because the Commission met in late summer, its report was not available to States with enough time to prepare before the annual debate in the Sixth Committee.  The annual sessions should occur earlier in the year to avoid that.

Turning to the Commission’s output, she said the traditional practice of producing draft articles and conventions had evolved into the production of a variety of materials, including guidelines, and where discussions were engaged as to what appropriate form the material should be embodied.  She acknowledged that the Sixth Committee could improve its contribution to better interaction and cooperation with the Commission, in particular with the possibility of targeted and specific questions to the Commission on issues on the Committee’s agenda.  With the agreement of the Sixth Committee, such an approach could be utilized on topics such as universal jurisdiction.

She said she supported the proposals that “formation and evidence of customary international law” and “provisional application of treaties” should be included in the programme of work as new topics.  She hoped that the Commission would also give priority to the existing topics of “immunity of State officials from foreign criminal jurisdiction” and the “obligation to extradite or prosecute”.

KEITH MORRIL ( Canada), with regard to “immunity of State officials from foreign criminal jurisdiction”, said a balance needed to be struck between the protection of the principle of State immunity and the prevention of impunity.  He noted a trend in international law away from the traditional principles of absolute immunity, and more towards a restrictive theory of State immunity.  The issue of exceptions to State immunity, in particular for grave international crimes, warranted further in-depth study by the Commission.

On the topic of “most-favoured-nation clause”, he said he welcomed the production by the Study Group of something that would be of practical utility to those dealing with the clause in the investment field, as well as policymakers.  He also heralded the Study Group’s approach to avoid fragmentation in the law, and to provide guidance to understanding why tribunals were taking different approaches to the interpretation of the provisions of the clause.

ADY SCHONMANN ( Israel), speaking on “immunity of State officials from foreign criminal jurisdiction”, said the Law Commission should focus on the current state of customary international law.  Personal immunity, she said, was an absolute immunity which extended not only to Heads of State and Government and foreign affairs ministers but also to other State officials.  Because the titles and functions of officials differed by country, the Commission should identify general criteria that might help national authorities in determining which officials were entitled to immunity.

The imposition of restrictive measures on foreign State officials who enjoyed immunity contradicted the purpose of according immunities, she said.  The question of immunity must be expeditiously considered and decided early during the pre-trial phase when a State was deciding whether to take criminal action.  When the question of immunity arose, the State holding the trial should immediately notify the State to which the official belonged.

On the “obligation to extradite or prosecute”, she said the legal source of the principle must be derived solely from treaty-based obligations.  It was exceedingly ambitious at that stage to suggest that a customary rule was being promoted by States’ treaty ratifications including the obligation.  Although she supported the “fight against impunity” for serious international crimes, she sought further clarification about the scope of the duty to cooperate in that cause.  Commenting further on the relevant draft articles being elaborated by the Commission, she questioned the usefulness of just referring Member States to the provisions of conventions.

JAE-SEOP KIM ( Republic of Korea) noted that less progress had been made than expected on the topic of “immunity of State officials from foreign criminal jurisdiction”.  He hoped the Commission would “bear fruitful results” by adopting concrete draft articles next year.  The focus should be on codification of State practice, in order to keep pace with present international law.  The issue should comply with the existing legal context (lex lata), including the scope of diplomatic immunity, the Rome Statute of the International Criminal Court and the existing ruling of the International Court of Justice.

Turning to the topic “obligation to extradite or prosecute”, he said too much time had been spent on research, and he urged the Commission to speed up its work.  He reiterated his delegation’s position that that obligation came from treaty-based obligations.  He expressed concern that draft article 4 might confuse Member States on whether the obligation was also based on international custom.  In conclusion, he said that the obligation might arise from serious violations of international humanitarian law such as genocide, crimes against humanity and war crimes.  The Law Commission should examine whether States had respected the obligation to extradite or prosecute in the case of those crimes.

DAVINIA AZIZ ( Singapore), speaking of the “immunity of State officials from foreign criminal jurisdiction”, said the Law Commission should proceed in a manner that “best systematized rules of international law” related to the topic.  That would inevitably involve considering the topic from the perspectives of current law and future law.  It was plausible, in her view, that some high officials beyond Heads of State and Government and ministers of foreign affairs could enjoy personal immunity.  Such a position simply reflected the reality of foreign policy today, involving high officials other than foreign affairs ministers.  Expanding immunity to other high officials, however, must be contingent on specific functions entrusted to those high officials.

She said she disagreed with the part of the Special Rapporteur’s report which stated that there were no exceptions to functional immunity.  International law certainly provided for exceptions, she said.  A pragmatic way to arrive at those exceptions might be to ask:  who was entitled to decide whether functional immunity existed in respect of a specific crime; what should the legal basis for such a decision be; and what evidential threshold was required before a decision maker could make a conclusive legal finding?

On the “obligation to extradite or prosecute”, she said prohibition of specific conduct under customary international law did not automatically produce a customary law obligation on the part of States to extradite or to prosecute.  To draw out the customary nature of that obligation, the Commission might first consider the topic “formation and evidence of customary international law”.

She spoke of the work of the Study Groups on “treaties over time” and the “most-favoured-nation clause”, saying that much of the material before the Commission on the two topics originated from international trade and investment law.  She welcomed efforts to “mainstream” international economic law into the Commission’s work.  In that regard, the query of the most-favoured-nation Study Group about the use of such clauses in fields other than trade and investment law was important.

MASAHIRO MIKAMI ( Japan) said that on the topic of “immunity of State officials from foreign criminal jurisdiction”, it was difficult to distinguish between setting out the existing rules of international law and embarking on the progressive development thereof.  While the International Court of Justice had upheld the absolute immunity of a minister of foreign affairs while that official was in office, it did not recognize an exception with regard to crimes against humanity nor did it clarify whether that minister would enjoy immunity after resignation from office.  The Court, additionally, did not distinguish between functional and personal immunity.

The Law Commission should fill those gaps left by the Court, through the scrutiny of subsequent jurisprudence and practice at the international and national levels.  The Commission’s work should focus on the immunity of Heads of State and Government, foreign affairs ministers, other “highest-ranking officials” and cabinet members.  As for crimes that should be excluded from immunity, the Commission should consider only genocide, crimes against humanity and war crimes.

On the topic of “the obligation to extradite or prosecute”, he said the obligation to extradite a suspect to another State was different from the obligation to surrender a suspect to an international criminal proceeding; the latter remained a treaty-based obligation.

Noting that the Law Commission had examined a wide range of international regimes with regard to “treaties over time”, he said it should continue with its “in-depth analysis”.  On the “most-favoured-nation clause”, he emphasized that it had a close relationship with important fields of the world economy, and the Commission could make a great contribution to that topic.

FARID DAHMANE ( Algeria) said that the “immunity of State officials from foreign criminal jurisdiction” was an important topic, since it was related to other topics such as the “obligation to extradite or prosecute”, and the scope of “universal jurisdiction”.  He noted debate and decisions of the African Union towards ending the “politicization and abuse” of universal jurisdiction by some courts of third States against official representatives of African countries.  He fully shared the view that such immunity was a well-established norm of international law, and also that if exceptions were made, then “you had to prove your case”.

He said the Law Commission should isolate the question of the politicization in the selective use of such prosecutions, as well as their negative effects on the stability of relationships between States.  He said politicization of both the domestic legal order and the international legal order negatively impacted the rules of a fair trial and due process.

The problems were of a technical and legal nature when a third State court proceeded in prosecution; the negative impact from a long period of investigation would be “enormous”, and “worse if allegations were not confirmed” and the official in question was proven innocent.  The Commission should look further into that issue of the prosecution of a State official in the court of another State.

He said consideration of the topic of “obligation to extradite or prosecute” was important towards the maintaining of international relations between States in the fight against impunity.  Yet, the Commission had not been able to establish the existence of a general obligation to extradite or prosecute under customary international law in some of the most serious crimes, to which he said he would add terrorism.  Turning to the “most-favoured-nation clause”, he said the topic needed some time because of different practices, court decisions and the settlement of disputes.  Future consideration of the new topic “fair and equitable treatment standards in international investment law” should not overlap with that subject.

On “treaties over time”, he said that the specific relevant articles of the Vienna Convention on the Law of Treaties was the basic reference of preparing treaties and should be considered in the application and establishment of treaties.  As for new topics to be taken up by the Law Commission, the “protection of the atmosphere” and the “protection of the environment in relation to armed conflicts” should be given consideration.

DANIEL WAMBURA ( Kenya) said the topic of “immunity of State officials from foreign criminal jurisdiction” raised legal, political and administrative intricacies.  A balance needed to be found between the need to maintain international relations through long-established principles of sovereign equality and territorial integrity, while embracing the “evolving nature” and progressive development of international law in the fight against impunity.  He said he concurred with the Commission’s report that caution was needed in the efforts to achieve such a balance.  As stated by the Special Rapporteur, the immunity of State officials should remain the norm and any exceptions should be provided for in international instruments and proven when the need arose.  That would, in his view, guard against politically-motivated prosecutions, trials in absentia and evidentiary problems due to a lack of cooperation of that particular State.

In regard to extending the entitlement to ministers of external trade and of defence, among others, he said that his delegation was open to debate, in particular to establishing criteria for high-level officials and maintaining a distinction between such officials and the troika (Heads of State or Government and foreign ministers).  Such a waiver should always be “express”; constructing an implied waiver of immunity had the potential of undermining international relations.

That situation, he said, should be distinguished from when a State was a party to an international treaty that provided for such a waiver in respect to certain crimes recognized by that treaty.  In that respect, he said, it might be important that the Law Commission consider further the legal implication of article 98 of the Rome Statute, in relation to bilateral agreements on foreign criminal jurisdiction on State officials.

CETA NOLAND ( Netherlands) said countries, including hers, were increasingly confronted with national cases dealing with the immunity of State officials in relation to international crimes.  The Netherlands had, therefore, asked the Independent Advisory Committee on Issues of Public International Law for a report on the dilemma between recognizing the immunity of State officials and impunity for international crimes.  The Netherlands, she said, concurred with the report’s finding that the topic was “greatly in flux”.

The Law Commission should, therefore, embark on an exercise of progressive development.  She was of the opinion that personal immunity be limited to Heads of State and Government and ministers of foreign affairs.  However, the aforementioned Advisory Committee had concluded that full immunity could also be extended to members of special or official missions during their stay in a territory.  On that finding, she said she was interested in the exploration of other State practice.  Official immunity, on the other hand, was absolute, with the exception of international crimes referred to by the Rome Statute.

She said the topic of the “obligation to extradite or prosecute” was of great importance in the fight against impunity for international crimes.  She added that she was sceptical about the current draft articles and their reiteration of the obligation under customary international law.  That obligation, she continued, was already carried out under treaty law and international law, and in view of the Commission’s lack of progress on the topic, she urged that the subject matter be considered as a matter of priority.

Concerning “treaties over time”, she said that there were rarely if ever existing disputes which did not at least to some extent touch upon that topic.  While the Commission had identified different approaches to treaty interpretation, its request for information from Governments with respect to instances of subsequent practice and agreements had yielded little success.

She said that the general point of departure on the “most-favoured-nation clause” was the Vienna Convention on the Law of Treaties.  Further work was needed on the relationship between that clause and fair and equitable treatment in international investment law.  As for the new topics added to the Commission’s long-term programme of work, she favoured the choice to work on the rules of customary law and the “fair and equitable treatment standard” in international investment law.  The two environmental topics and the “protection of the environment in relation to armed conflicts” might not be appropriate at this time.

ANCA CRISTINA MEZDREA ( Romania) said there must be a balance between the role impunity had in ensuring stability in international relations, and the need to avoid impunity for grave crimes under international law.  Her delegation considered that there were exceptions to the impunity rule, for which there was a basis in State practice.  Such practice still needed to develop, but it was increasingly clear that the general direction in which jurisdiction was heading was towards “no impunity for grave crimes under international law”.

She said her delegation looked forward to hearing the conclusions of the International Law Commission on the subject of impunity of State officials, particularly in respect of grave crimes under international law.

On the “obligation to extradite or prosecute”, she said she was aware of the complexity of the topic and its close links with related subjects.  It may be appropriate to expand the topic to reflect those relationships.

Turning to “treaties over time”, she welcomed the preliminary conclusions of the Study Group.  She thought it may be interesting to include the Court of Justice of the European Union among the examples chosen to illustrate the approaches to interpretation.

ZDISLAW GALICKI, Special Rapporteur on the topic of “obligation to extradite or prosecute” said the Committee’s “feedback” would stimulate him or his successor for seeking solutions in that area.  It was a difficult and complex issue that required an in-depth investigation of international norms, as well as national regulations which were changing significantly.  The significance of the Working Group in 2009 and 2010 seemed to confirm that opinion.  He recalled that in the past, there was some thought within the Commission of terminating that Working Group.  However, the Sixth Committee had said differently, stating that the work should continue without a break; he agreed with that position.

He reminded the Committee that he had previously suggested that that topic be considered with the principle of “universal jurisdiction”.  The suggestion had not been supported by the Commission or the Committee but now, with universal jurisdiction on the agenda of other bodies, he thought that joint analysis should be considered, and the question was whether it should be considered separately or together.

In an earlier report, he noted he had concentrated on two principal sources of the “obligation” - that of existing treaties and that of international customary law.  The obligation from existing treaties had been discussed in other reports, while the question of international treaties was a different situation when addressing international customary law as a source.  That report was devoted to the various problems in that regard.  Further, he had raised those problems before and there was a variety of opinions from the Commission, from the Committee and from Governments.  There had been numerous attempts to identify crimes for the application of obligation.  A special section in his last report gave numerous examples of those crimes; however, such a list seemed to be open to further consideration.

In conclusion, he said that towards the purpose of improving the work, the Commission had provided a list of questions to States and Governments, notably whether there was legislation for certain crimes where the obligation had been implemented and if a court had relied on customary law.  On behalf of himself or his successor, he urged attention to those questions since responses from States and Governments were most important for future work on that topic.

Remarks on Measures against International Terrorism

ROHAN PERERA ( Sri Lanka), Chairman of the Working Group on measures to eliminate international terrorism, spoke of outstanding issues relating to the draft comprehensive convention and the question of convening a high-level conference under the auspices of the United Nations.  He said delegations had reiterated the importance of an early conclusion of the draft convention, and stressed that the “necessary political will” could resolve outstanding issues.  Several delegations had indicated that they were ready to proceed on the basis of the 2007 proposal, which had not been rejected by anyone, and which had gained increasing support over the years. 

Delegations still uneasy at that proposal were asked to provide more “concrete feedback”.  Although there was emphasis that work on the draft convention should be guided on the principle of consensus, consensus should not be an end in itself.  The 2007 proposal, “while not perfect”, constituted a carefully balanced compromise text that effectively sought to address the various concerns raised while leaving room for “constructive ambiguity”.

He said some delegations had reiterated their preference for the 2002 proposal, made by the Organization of the Islamic Conference (now the Organization of Islamic Cooperation).  Those delegations also expressed willingness to continue to consider the 2007 proposal.  However, they stressed it was essential to address pending substantive issues, which in their view, were not fully dealt with in the later proposal.

Also emphasized had been the need for a clear legal definition of terrorism that distinguished terrorism from the legitimate struggle of peoples fighting against colonial domination and alien occupation, and against racist regimes in exercise of their right to self-determination, as enshrined in the Charter of the United Nations.  Some delegations also stated that the draft convention should also cover acts by individuals who controlled armed groups, whether during armed conflict or in peacetime, when those acts were not covered by international humanitarian law.

In considering future work of the Working Group and in light of the current impasse, he said delegations had stated that it might be time to reconsider the working methods and the overall negotiation processes.  It was suggested that topic be taken up on a biennial basis, alternating with the biennial review of the United Nations Counter-Terrorism Strategy.  It was also suggested that possible meetings outside the framework of the Working Group or the Ad Hoc Committee might allow for a more constructive dialogue.

With regard to convening a high-level conference, he said the origins of, and reasons for, that proposal were based on the need for a plan of action that would effectively address all aspects of terrorism in a joint and coordinated manner, and would contribute to the discussions on the definitions of terrorism.  Some delegations reiterated that the conference should be considered on its own merits and not be linked to the conclusion of the draft comprehensive convention.  Others, while supporting the convening of the conference, questioned its timing and utility in helping to resolve the outstanding issues of the draft convention.  They had stressed that such a conference should be discussed only after the conclusion of the draft comprehensive convention.

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