Sixty-eighth General Assembly

Sixth Committee

17^th Meeting (AM)

Marked Progress, New Undertakings Exemplify International Law Commission Session,

As Sixth Committee Begins Review of Annual Report

 

Building upon its work over the past year, the International Law Commission had made marked progress through launching many new undertakings, the Sixth Committee (Legal) heard today, as it began its review of the Commission’s annual report.

During introductory remarks, Bernd H. Niehaus, Chairman of the International Law Commission, said the Commission had provisionally adopted draft conclusions on the “subsequent agreements and subsequent practice in relation to the interpretation of treaties”.  As well, the Commission had, for the first time, provisionally adopted draft articles on “immunity of State officials from foreign criminal jurisdiction”.

New topics had been added to its current programme of work as well, he stated, namely the “protection of the environment in relation to armed conflicts” and “protection of the atmosphere”.  The topic, “crimes against humanity” had been included in its long-term programme of work.

Stressing the importance of input from States, he urged delegations to provide information on State practice when addressing the issue of immunity of State officials from foreign criminal jurisdiction.  Of particular significance were judicial decisions that clarified the meaning of the phrases “official acts” and “acts performed in an official capacity”.

Several delegations called for enhanced cooperation between the Commission and the Sixth Committee, with Cuba’s representative, speaking for the Community of Latin American and Caribbean States (CELAC), noting that the Commission and the Committee shared the same mandate.  Both contributed to international law codification and progressive development, and both required evidence of States’ practice in international law.  To facilitate greater interaction between the two bodies, she once again called for the Commission to hold a session in New York at least once every five years, thus increasing the possibility for all States to participate in its work.

Similarly, Japan’s representative said restructuring how topics were selected would be a good way to enhance cooperation between the Commission and the Committee.  Selection of new topics for inclusion in the programme of work was heavily dependent on Commission members’ interests, as they were the ones who made such proposals.  The Commission should gather Member States’ ideas on which topics should be included. 

As the Committee began deliberations on “immunity of State officials from foreign criminal jurisdiction”, delegations expressed differing views on the scope of immunity ratione personae.  Pointing out that the Commission had decided to confine the application of immunity ratione personae only to the troika; Singapore’s representative said her delegation had previously suggested the Commission consider the extension of immunity ratione personae to high ranking officials beyond the troika.  It must be recognized that foreign policy at present was often conducted by high ranking officials other than Ministers for Foreign Affairs. 

Switzerland’s delegate said the word “representatives” would have to be re-examined in order to identify the correct terms used and the circle of persons to whom immunity applied.  He also noted that persons attached to international organizations were essentially staff.  It was feasible to include delegations to bodies forming part of international organizations.  However, it could not be unequivocally assumed that persons who were attached to permanent missions to international organizations were included.

The representative of France said there were questions on the proposed restrictive identification of officials, other than the “troika”, who might benefit from the immunity ratione personae.  The fact that certain high-ranking officials might benefit from the rule on immunity ratione materiae did not exhaust the subject.  Any extension should benefit only a small circle of high-ranking officials.

Also speaking today were representatives of Norway (also for the Nordic countries), United States, Austria, Portugal, Mexico and Spain.

The Committee will meet again at 10 a.m. Tuesday, 29 October, to continue its deliberations on the International Law Commission report.

Background

The Sixth Committee (Legal) met today to commence its consideration of the Report of the International Law Commission on the work of its sixty-fifth session (document A/68/10).  That consideration would take place in three “clusters”.  For the first cluster of issues to be debated, the Committee had before it Chapters I-III, IV, V and XII of that text.

For its second cluster, the Committee would consider Chapter IV of the Report of the International Law Commission on the work of its sixty-third session (document A/66/10 and A/66/10/Add.1), on which it had previously decided to deliberate during the sixty-eighth session of the General Assembly.

The third cluster for consideration is contained in the report of the sixty-fifth session in Chapters VI, VII, VIII, IX, X & XI.

Introductory Remarks

PALITHA T.B. KOHONA (Sri Lanka), Chair of the Sixth Committee, noted that the Committee would be focusing on two reports, including the report on the International Law Commission’s sixty-fifth session and chapter IV of the Commission’s report at its sixty-third session concerning “reservations to treaties”, which had been deferred to the current session.  He also drew attention to the interactive dialogue on the matter that would take place in the latter half of the afternoon of Wednesday, 30 October.

Introduction to Reports

BERND H. NIEHAUS, Chair, International Law Commission, addressing the introductory chapters and the first cluster of issues on “other decisions and conclusions of the Commission”, said that the Commission had taken steps towards building upon last year’s work.  It had commenced substantive considerations of “subsequent agreements and subsequent practice in relation to the interpretation of treaties” and had proceeded to adopt provisional draft conclusions on that matter, as well as, for the first time, provisional draft articles on the topic of “immunity of State officials from foreign criminal jurisdiction”.

As well, he said, the Commission continued to make marked progress on the “protection of persons in the event of disasters” and had held a useful debate on the “formation of evidence of customary international law”, now entitled “customary international law”, as well as on the topic of “provisional application of treaties”.  Through its working group, the Commission had also considered the issues related to the “obligation to extradite or prosecute (aut dedere aut judicare)” and, in the framework of its study group, had continued work on the topic of the “most favoured nation clause”.  New topics were to be included in its current programme of work, namely “protection of the environment in relation to armed conflicts” and “protection of the atmosphere”.  The identification of new topics remained an on-going exercise for the working group on the long term programme of work.  To that end, at its current session, the topic of “crimes against humanity” had been included.

He said that the Commission was continuing traditional exchanges with the International Court of Justice, cooperation with the Asian-African Legal Consultative Organization and the European Committee on Legal Cooperation, among others.  In the last forty-nine sessions, the Commission’s work had proceeded alongside the International Law Seminar, which depended on voluntary contributions from States.  Next year, to commemorate the Seminar’s fiftieth anniversary, the Commission, in cooperation with the United Nations Legal Liaison Office in Geneva, would organize an appropriate event.  He stressed that the work of the Codification Division, which served as the Commission’ Secretariat, constituted part and parcel of the Commission’s working methods, and its involvement in research projects on issues in the programme of work of the Commission remained invaluable. 

On “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the Commission had discussed the Special Rapporteur’s first report in its plenary and had referred four draft conclusions proposed therein to the drafting committee.  After the reformulation by the drafting committee of the four draft conclusions into five draft conclusions, the Commission provisionally adopted them.  It was anticipated that the Special Rapporteur would present a second report at the Commission’s sixty-sixth session.

On “immunity of State officials from foreign criminal jurisdiction”, he said the Commission had provisionally adopted three of the six draft articles considered that dealt with the scope of the present draft articles, use of terms and persons enjoying immunity ratione personae and the scope of immunity ratione personae.  Consideration of the topic next year would focus on aspects concerning immunity ratione materiae.  In that regard, he asked that information be provided on the practice of State institutions, particularly judicial decisions, which elucidated the meaning of the phrases “official acts” and “acts performed in an official capacity” in the context of the immunity of State officials from foreign criminal jurisdiction. 

Statements

TANIERIS DIEGUEZ LAO (Cuba), speaking for the Community of Latin American and Caribbean States (CELAC), said the Commission, through its contributions to the codification and progressive development of international law, shared the same mandate as the Sixth Committee.  The Commission’s work required doctrinal, jurisprudential and evidence of States’ practice in international law and States’ contributions were essential in the matter.  She highlighted the need for all Member States to continue to provide strong support to the Commission’s work.

She reiterated CELAC’s call to hold a session in New York at least once every five years to facilitate greater interaction between the Commission and the Sixth Committee.  Such interaction between the Commission and Sixth Committee delegates would increase the possibility for all States to participate.  She invited delegations to consider the proposal in principle and in practical terms.

She also invited States to make additional contributions to the trust fund for the Commission’s International Law Seminar.  It was regrettable that budgetary constraints prevented all special rapporteurs, whose topics were to be discussed, from being present at the Sixth Committee’s thematic debates.  The Commission’s productivity must be matched by adequate funding so that documents of relevance to the progressive development of international law received the necessary publicity.  It was unacceptable that the periodic publications of the Codification Division of the Office of Legal Affairs were in a perilous situation due to finances.

ROLF EINAR FIFE (Norway), on the “immunity of State officials from foreign criminal jurisdiction”, said that the systematic distinctions drawn between criminal and civil jurisdiction, between immunities ratione personae and ratione materiae and between different circumstances that gave rise to them, had enhanced understanding of immunity but also highlighted the close interrelation between those issues and perspectives.  “[N]o State officials should be shielded by rules of immunity” for the most serious crimes of concern to the international community “by turning them into rules of impunity”, he said.  Crimes such as genocide, crimes against humanity and serious war crimes should not be included in any definition of acts constituting immunity.

He commended the Commission’s decision to add “crimes against humanity” to its long-term work programme, noting that there already was a rock-solid basis in international customary law for individual responsibility for such crimes in the General Assembly’s affirmation of the Nürnberg principles.  The 1998 Rome Statute had further established comprehensive and universally recognized definition of such crimes, but did not address the duties of States with relation to their prevention.  Nor did they provide a framework for inter-State cooperation.  Those distinct, yet inter-connected obligations were crucial to the international effort to combat crimes against humanity.

In considering that topic, he continued, article 7 of the Rome Statute must be retained as the material basis for any further work by the Commission.  Further, such work must include a legal analysis of the obligation to extradite or prosecute and clear principles on the latter should be identified.  He also encouraged the Commission to articulate the relevant responsibilities pertaining to prevention of crimes against humanity.  Finally, he underlined that no obligations could be construed so as to limit either already existing similar obligations vis à vis other crimes, or already existing legal obligations in the field.

Ms. MCLEOD (United States), in regards to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said the term, “presumed intent” in the relevant draft conclusion was discerned by applying the approach set out in articles 31 and 32, not through an independent inquiry into intent and certainly not into presumed intent.  On “immunity of State officials from foreign criminal jurisdiction”, one of the topic’s challenges as it related to immunity ratione personae had to do with the small number of criminal cases brought against foreign officials, and particularly against Heads of State, Heads of Government and Foreign Ministers.  Rules that governed immunity in civil cases differed from those in criminal cases.  The commentary should clarify that the draft articles had no bearing on any immunity that might exist with respect to civil jurisdiction. 

She expressed disappointment that “protection of the atmosphere” had been moved onto the Commission’s active agenda.  Various long-standing instruments already provided sufficient general guidance to States in their development, refinement, and implementation of treaty regimes.  However, the addition of the topic “crimes against humanity” to the long-term work programme was welcomed.  Because crimes against humanity had been perpetrated in various places around the world, careful consideration and discussion of draft articles for a convention on the prevention and punishment of crimes against humanity could also be valuable.  That topic’s importance was matched by the difficulty of some of the legal issues that it implicated and would be thoroughly discussed and considered in light of States’ views as that process moved forward, she concluded.

DARIO SILBERSCHMIDT ( Switzerland) said, in regards to the “immunity of State officials from foreign criminal jurisdiction”, that the phrase “representatives” would have to be re-examined in order to identify the correct terms used and the circle of persons to whom immunity applied.  Further, the list contained did not include permanent missions to international organizations.  Persons attached to international organizations were essentially staff or were persons who had been seconded to those organizations by their respective bodies.  It was feasible to then include delegations to bodies forming part of international organizations.  Yet, it was generally agreed that one could not unequivocally assume that persons who were attached to permanent missions to international organizations were included.  The relevant draft article also limited itself to not prejudicing the special rules deriving from international law.

Regarding the relevant draft articles on immunity ratione personae, he said a balance was needed between fighting impunity and maintaining harmonious relations between countries.  It was difficult to determine who would benefit from immunity ratione personae, other than Heads of States, Heads of Government and Ministers for Foreign Affairs.  It was important, especially in determining the personal and material scope of immunity ratione materiae, to adopt an approach which was less static and tied to a single function, but instead linked to the objectives of the international contacts.  The exceptions to immunity ratione personae for the categories mentioned above had not been examined.  The principle was based on the special position in the State of the persons carrying out the functions.  It was important to not make immunity meaningless by introducing exceptions which could not be justified, considering the balance between fighting impunity and maintaining harmonious relations between countries as well as equality among States.

GREGOR SCHUSTERSCHITZ ( Austria) said that the high quality of the Commission’s report could be further enhanced by better reflecting States’ views. The Commission’s discussion on “subsequent agreements and subsequent practice in relation to the interpretation of treaties” was helpful in clarifying aspects of article 31 of the Vienna Convention of the Law of Treaties.  It was necessary to avoid conflicting interpretations that could endanger the stability of treaty relations.  However, draft conclusion 4 required some clarifications, among them, making clear that the “agreement” which might constitute a “subsequent agreement” need not necessarily be a treaty, and that informal or non-binding agreements might also amount to “subsequent agreements”, as could interpretative declarations by treaty bodies.

Turning to the “immunity of State officials from foreign criminal jurisdiction” he said that the expression “criminal jurisdiction” needed further clarification with regard to draft article 1, particularly as to whether preliminary investigatory steps to ascertain the facts of a case were precluded by immunity, which, he said should not be the case.  The extent to which so-called “hybrid courts” fell under the draft articles should also be clarified, among other things.  On draft article 3, he expressed support for the limitation of immunity ratione personae to the three categories of persons referred to 

Further, on draft article 4, he said that immunity should only apply during the term of office.  In closing, he welcomed the inclusion of “crimes against humanity” in the long-term working plan of the Commission.

RENA LEE ( Singapore) noted that the Commission had provided that the relevant draft articles were without prejudice to any immunity which could be derived from special rules of immunity, such as diplomatic immunity.  Therefore, it would be helpful for the Commission to clarify whether the automatic exclusion kicked in only in circumstances when an official would enjoy immunity under the special rules.  For instance, if under the Vienna Convention on Diplomatic Relations a diplomatic agent could not enjoy immunity in a given situation, would he or she be entitled to apply the present draft articles to claim immunity? 

Pointing out that the Commission had decided to confine the application of immunity ratione personae only to the troika, she said her delegation had previously suggested that the Commission consider the extension of immunity ratione personae to high ranking officials beyond the troika, in recognition of today’s reality that foreign policy was often conducted by high ranking officials other than Ministers for Foreign Affairs.  On the new topics in the Commission’s programme of work, she agreed that its work on the “protection of the atmosphere” should proceed in such a manner as not to impede relevant political negotiations which were ongoing elsewhere, particularly given that the intended outcome of the Commission’s work on that topic would be draft guidelines.

TOMOYUKI HANAMI ( Japan) said that the selection of topics was one of the most crucial factors related to the empowerment of the Commission.  Currently, topics were included in its internal process - from the working group on the long-term Programme of Work to the planning group which was responsible for making recommendations to the Commission for possible inclusion of the proposed topics. The selection of new topics to be included in the programme of work was heavily dependent on Commission members’ interests, as they were the ones who made such proposals.  The Commission should then consider a possibility of gathering the ideas and opinions of Member States to determine which topics should be included in the programme of work.  That would enable the Commission to better understand the expectations of the international community.  Enhancement of the cooperation between the Commission and the Committee remained important and in that context, changing the way in which topics were selected would be a good place to start.

Noting the importance of the inclusion of the “protection of the atmosphere” in the Commission’s programme of work and the appointment of the Special Rapporteur, he said work on the topic required the coordinated action by the international community.  He hoped that the topic would be deliberated in the Commission in a constructive way in full respect of existing efforts on environmental issues.

RITA FADEN ( Portugal), praising the Commission for continuing to identify new topics for its programme of work, suggested it include the “relation of codification with progressive development of international law”.  The content and relationship of jus cogens with other international law norms and principles could also be clarified by the Commission.  Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said that the draft conclusions and commentaries presented a balanced guide to treaty interpretation.  However, in regards to draft conclusion 5, in addition to judicial or quasi-judicial organs, subsequent practice could also be found in the practice of international organizations, which were themselves party to treaties.  That aspect could be further developed in the commentaries to draft conclusion 5.

She said that the approach to “immunity of State officials from foreign criminal jurisdiction” must be clear, restrictive and value-laden.  Serving the interests of international society required a balance between State sovereignty, the rights of individuals and the need to avoid impunity.  State officials should not enjoy immunity ratione personae for certain non-official acts and acts amounting to the most serious crimes of international concern.  Laying out her reasoning in detail, she said she could not agree with the relevant draft article where it stated immunities were absolute, encompassing official and private acts.  Concurring with the Commission that Heads of State, Heads of Government and Ministers for Foreign Affairs were recognized as State officials solely by virtue of their office, she agreed with the temporal scope as proposed, but suggested including the dimensions of the scope in a draft article or having a draft article per dimension.

EDWIGE BELLIARD ( France) said, in regards to the “immunity of State officials from foreign criminal jurisdiction”, that there were questions on the proposed restrictive identification of officials other than the “troika” who might benefit from the immunity ratione personae.  A close link existed between the fact that the troika enjoyed immunity ratione personae and the fact that, by virtue of their functions, they were fully authorized to represent their State and not required to produce full powers, as the Vienna Convention on the Law of Treaties had indicated.  Yet, that should not serve as a pretext for sidestepping a more detailed examination of the other criteria envisaged by the International Court of Justice.  The fact that “certain high-ranking officials” may benefit from the rule on immunity ratione materiae or special arrangements, such as those for special missions when they were on an official visit to a third State, did not exhaust the subject.  In all events any extension of immunity ratione personae should benefit only a small circle of high-ranking officials.

Regarding the provisional application of treaties, she said that such work should primarily examine the legal effects of provisional application, given the extent to which it remained unclear.  The question of the legal consequences stemming from a State’s failure to comply with the provisions of a treaty, to which it had agreed to provisionally comply, deserved additional consideration. Concerning the provisional establishment of bodies created by a treaty, France believed the subject could be usefully extended to include provisional accession. That work would depend on the material provided by the States outlining their practices.

MAX ALBERTO DEINER SALA (Mexico), associating himself with CELAC, and addressing the “subsequent agreement and practice in relation to the interpretation of treaties”, said that while the relevant paragraphs of draft conclusion 1 could be considered a repetition of the Vienna Convention, inclusion of it in the draft provided a clear framework for agreement on subsequent practice.  On draft conclusion 2, he agreed that the concept in the relevant articles were authentic means of interpretation, but not binding.  Making them binding would jeopardize the general rule of interpretation.  On conclusion 3, determined presumed intention of parties should be established by applying the rule in article 31 first and only resort to article 32 later, if necessary.  On conclusion 4, referring to the use of the term “understanding” in English, he suggested using the term “entendimiento” in Spanish in that context. On Chapter V of the report dealing with “immunity of State officials from foreign criminal jurisdiction”, he welcomed the Commission’s adoption in first reading of a first set of draft articles, reflecting their hard work and research on that important topic.

JOSÉ MARTÍN Y PÉREZ DE NANCLARES ( Spain) commended the inclusion of crimes against humanity in the long-term programme, which, unlike war crimes or genocide, had no international treaties obligating States to prevent and punish such acts or to cooperate towards that end.  Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that the draft conclusions should be more precise.  Among specific comments made, he noted that draft conclusion 1 recognized that articles 31 and 32 of the Vienna Convention on the Law of Treaties reflected customary law.  However, he wondered whether the omission of article 33 suggested that it did not.  Providing examples of specific interpretations and classifying them in the commentaries could offer a global, if not exhaustive, vision of such interpretations.  With regard to draft conclusion 4, he said that studying the reciprocal conduct of States that had agreed on interpretation of a treaty could be worthwhile.

Turning to the “immunity of State officials on foreign criminal jurisdiction”, he noted the difficulty of finding the delicate balance between protecting State sovereignty and punishing international crimes.  Clarification was needed as to whether genocide, crimes against humanity and war crimes were also covered by immunity.  Commenting on specific articles, he said, among other things, that the term “official” in draft article 1 was not appropriate in Spanish and that there was a need for the further study of practice.  Regarding draft articles 3 and 4, it was appropriate to include the “troika” for immunity ratione personae.

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