As International Law Commission Begins Second Cluster Debate, Sixth Committee Deliberates Parameters for New Topic, ‘Protection of Atmosphere’
Commencing deliberations in the Sixth Committee (Legal) on the ‘second cluster’ of topics of the annual report, the Chair of the International Law Commission introduced the four topics, highlighting the conclusion of consideration of the “obligation to extradite or prosecute” (aut dedere aut judicare), and the start of its work on “protection of the atmosphere”.
Kirill Gevorgian, noting the finalization of the Commission’s report on “the obligation to extradite or prosecute”, said the topic has been placed within the broader framework of efforts to respect the rule of law, and to combat impunity. The report also contained a set of considerations regarding the implementation of the obligation.
During the day-long debate, he also enumerated five draft conclusions from another ‘second cluster’ topic, “subsequent agreements and subsequent practice in relation to the interpretation of treaties”. As well, he said that the final topic in the cluster, “immunity of State officials from foreign criminal jurisdiction”, was proceeding at an “encouraging pace” since the Commission’s provisional adoption of draft articles on the matter last year.
The Commission had also discussed the methodological approach to the new topic, “protection of the atmosphere”, he said. The Special Rapporteur on the matter sought to focus on the atmosphere as a single composite unit, rather than taking into account State practice and practical realities. The project was being undertaken in a manner that would not interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution.
Delegations expressed mixed reactions to the inclusion of “protection of the atmosphere”, with the Federal States of Micronesia’s representative concurring with the Special Rapporteur that the protection of the atmosphere was a “common concern of mankind”. The sovereign airspace above a State was legally distinct from the atmosphere, which was a unitary whole, spanning the entire globe, and the responsibility of all humankind.
Austria’s representative, on the other hand, said States would be reluctant to accept an all-encompassing regime for atmospheric protection, while the delegate from the Russian Federation expressed doubt as to whether work should proceed on the topic, as a number of issues were already the subject of international instruments that had found a balance only with great difficulty. That balance should not be disturbed.
Draft resolutions were also brought before the Committee, with the representative of Ghana introducing a draft resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. Austria’s representative introduced two draft texts on the United Nations Commission on International Trade Law (UNCITRAL).
Also speaking today were ministers, senior officials and representatives of Algeria, Indonesia, Greece, Iran, New Zealand, Spain, Republic of Korea, Malaysia, Cuba, India, Belarus, Denmark (also speaking for the Nordic countries), France, Romania and Italy. A representative of the International Federation of Red Cross and Red Crescent also participated.
The Committee would next meet at 10 a.m. on Friday, 31 October, to continue consideration of the second cluster from the Commission’s report, and to hear from the President of the International Court of Justice.
Background
The Sixth Committee (Legal) would continue its deliberations today on the Report of the International Law Commission. For background, see Press Release GA/L/3487.
It was also set to consider three draft resolutions, one on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/69/L.7), and two on the United Nations Commission on International Trade Law (UNCITRAL) (documents A/C.6/69/L.5 and A/C.6/69/L.6).
Statements
MOHAMED SALAH EDDINE BELAID (Algeria), raising a concern regarding the wording of draft article 22 on “expulsion of aliens”, pointed out that it was an uncontested principle of international law, supported by international standards and practice, that a State was not required to receive expelled aliens in its territory, unless proven that they held the nationality of that State. Further, the last part of paragraph 2, which read, “… that alien may be expelled to any State where he or she has a right of entry or stay or, where applicable, to the State from where he or she has entered the expelling State”, had been intensely debated in the Commission. That concept had never been generally accepted, or the subject of a clear and overwhelming consensus. It had no legal basis under international customary law or international law. Thus, the wording and content of that paragraph did not constitute a general agreement or commonly accepted practice, and did not reflect the state of international law.
FERRY ADAMHAR, Director General, Ministry of Foreign Affairs, Indonesia, on “expulsion of aliens”, said he agreed with the observations of several States that draft articles 6, 23 and 24 had expanded the scope of non-refoulement provisions, which would, to a certain extent, unduly limit State sovereignty. He encouraged the Committee to continue to review draft articles representing progressive development that may be subject to State objection, as such criticism would be beneficial. It was essential that the Commission make the best effort to accommodate States’ suggestions.
Regarding the “protection of persons in the event of disasters”, he noted that Indonesia had continued to strengthen its national capacity to manage and mitigate disaster, and enhance cooperation with other countries. However, when protecting persons in the event of a disaster, the consent of the affected State was required. On draft article 13 regarding the duty to seek assistance during a disaster, he reiterated his strong reservation to the text. The Commission should make amendments to ensure that when a disaster exceeded a State’s national response strategy, the State seeking external assistance would not be met with that obligation, but rather a commendation non obligat (non-binding recommendation). He supported the inclusion of draft article 18 on the obligation to protect disaster relief personnel, their equipment and their goods.
MARIA TELALIAN (Greece) said that the topic of “expulsion of aliens” was of critical importance for States, as transit countries, which were facing mixed migration flows of unprecedented dimensions, as well as a rise in irregular migration. Those States were striving to ensure humane conditions of reception and screening of foreign nationals illegally entering their territory, to identify and protect vulnerable persons, and to improve detention conditions of aliens under expulsion. However, the elaboration of an international convention on the basis of the draft articles would not be of benefit. Rather, the expulsion of aliens should best be addressed through regional instruments, tailored to the needs of the countries involved.
On the “protection of persons in the event of disasters”, she requested a clearer statement in the commentary to draft article 20, regarding the application of the draft articles in conjunction with any relevant treaty provisions. While the text pointed out that such provisions would be applicable “hand in hand” with the articles, the reference to lex specialis seemed to suggest that such application might be mutually exclusive in some cases. As to draft article 21, on the relationship of the draft articles with the rules of international humanitarian law, the intention seemed to give precedence to the latter in times of armed conflict. The two sets of provisions should apply in parallel, where appropriate, with a “without prejudice” clause so that the draft articles remain applicable in situations of armed conflict and natural or environmental disasters. The draft articles were well-balanced, and could assist States in the interpretation of already existing international instruments.
MAHMOUD KHOUBKAR, Iran, in regards to chapter IV on “expulsion of aliens”, said that in certain emergency situations, a divergence in practice in the grounds for expulsion from that governed by States and treaties was possible. The Commission had described the term “refugees” in a way that went beyond the definition in the 1951 Convention on the Status of Refugees. Other States were of the view that the Refugee Status Determinations must be strictly considered in accordance with that Convention. The conclusion of the Commission should be based on actual practice of States, rather than the practice of the United Nations High Commissioner for Refugees.
Turning to the “protection of persons in the event of disasters”, he recalled that humanitarian assistance should be provided on the basis of appeal by the affected State. Regarding article 7, the principles would have to be observed in parallel with the principles of respect for sovereignty. The core element of draft article 8 should be international cooperation between States, and its title should reflect that. The obligation to cooperate in a situation of armed conflict could not extend to non-governmental organizations other than the International Committee of the Red Cross. He also noted that, in regards to article 13, international law, as it stood, did not recognize the duty of an affected State in a disaster to seek external assistance; its inclusion had raised concerns.
PENELOPE RIDINGS (New Zealand) noted that substantive parts of the draft articles on “expulsion of aliens” represented progressive development of international law, rather than a reflection of the law as it currently stood. The Commission should be cautious about moving too far ahead of State practice in that area. The lack of distinction between the expulsion of aliens who entered the territory of a State lawfully and those who entered unlawfully had caused some challenges, putting that approach at odds with State practice, which often distinguished between those two circumstances.
She went on to say that, while draft article 26, paragraph 4 recognized the peculiarities in State practice related to the procedural rights of aliens, greater clarity would be helpful on that point. In light of those issues, she advised against the elaboration of the articles in a binding document, noting that they could best be utilized as guidance that States could consider and apply in a manner most appropriate to their setting.
She expressed support for the inclusion of specific provisions in the draft articles on “protection of persons in the event of disasters”, including protection of relief personnel and their equipment in disaster scenarios, as an essential condition for any relief operation, and the incorporation of the terminology of “appropriate measures” in draft article 18. She also welcomed the balance which the draft articles sought to achieve between the sovereignty of an affected State and the need to assist affected populations following a disaster.
Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said her country was a strong supporter of the practical application of subsequent agreements and subsequent practice, to allow for the evolving relationship between parties based on mutual acceptance and the shared intentions of the parties. Noting that it had experienced some practical problems where the constituent treaties of certain international organizations had not kept up with evolving realities, she said identifying best practices and providing guidance on implementation would be a key factor in producing a useful outcome for international organizations.
She also welcomed the topic “crimes against humanity” in the Commission’s agenda and encouraged the Special Rapporteur to draw from the definition contained in the Rome Statute, rather than elaborating a new definition of such crimes. The inclusion of the topic jus cogens was also supported by her delegation. She agreed that it would be useful to identify the nature of jus cogens and the requirements for identification of it.
Stressing the value of greater engagement between New York-based delegates and members of the Commission, she said she was pleased that the Commission continued to consider the possibility of holding part of its future sessions in New York, although she recognized the resource constraints on the Secretariat to facilitate such a move. In the meantime, she encouraged the Commissioners and the Secretariat to find opportunities for informal interactions and engagements, which would contribute to dialogue between Member States and the Commission on its work.
JOSE MARTIN Y PEREZ DE NANCLARES (Spain) said that, despite the outstanding work of the Commission, the draft articles on “expulsion of aliens” did not reflect customary international law. It was also not possible to consider them as an appropriate basis for the elaboration of a convention. As expressed by some members of the Commission, the decision to maintain the draft articles against the majority view of the States was a mistake. A widely recognized ensemble of guidelines and principles could be more effective than a convention that might fail to obtain the widespread support of the international community.
On the topic of “protection of persons in the event of disasters”, he welcomed articles 13 and 14; the texts regulated, respectively, the duty of the affected State to seek external assistance in the event that a disaster exceeded its national response capacity, as well as the requirement that the necessary consent of the affected State, in order to receive external assistance, might not be withheld arbitrarily. He also offered some suggestions to improve the wording of the draft articles, including considering the use of a safeguard clause (“without prejudice”) as seen in article 20, rather than the “connection” clause opted for in article 21.
On the topic of “crimes against humanity”, he noted that such crimes were the only ones not subjected to an international treaty obliging States to prevent and punish such acts, and to cooperate among themselves to that end. While the topic of jus cogens was of utmost importance to States, he was doubtful about its inclusion in the Commission’s long-term programme of work, because attempting to draft a list of jus cogens rules might be seen as a kind of numerus clausus, opposing the very essence of the formation of jus cogens as an open process.
SUNG-HO HAN, Director, Treaties Division, International Affairs Bureau, Republic of Korea, voiced reservations about the progressive development of international law being included in the second reading of the draft articles on “expulsion of aliens”. For instance, in article 23, paragraph 2, a State without the death penalty could not expel an alien to a State where the death penalty was applied. That concept could cause State concerns where expulsion would be unnecessarily restricted; many States fell into the category of abolitionist or abolitionist-in-practice, where they had not executed the death penalty, though they had retained the institution.
Regarding the “protection of persons in the event of disasters”, he pointed out that the Committee should provide the States with more exact and detailed information concerning the process of deliberation on draft article changes. As an example, draft articles 17, 18, and 19 were deleted or modified substantially. He expressed hope that the Commission would provide more information in the future.
Turning to “crimes against humanity”, he hoped the Commission would take into account that those crimes should be based on the Rome Statute, as much as on common elements established in the international courts, and that content should be included that all members or non-members of the Rome Statute could accept. The Commission could also consider certain procedural legal aspects, such as which States could prosecute, and how a State would prosecute an individual for crimes against humanity.
On the concept of jus cogens (a norm from which no derogation is permitted), he asked that the Commission step cautiously in its deliberation. Even if a clear effect of a jus cogens violation by a State were regulated, it remained questionable if any entity was capable of enforcement, and how effectively enforcement could be put in place.
WAN AIMA NADZIHAH WAN SULAIMAN (Malaysia) said that the new formulation of article 20 on “expulsion of aliens” had addressed her country’s previous concern. Considering the complexity of the topic and that it was mainly governed by national laws, the final form of the Commission’s work on the topic should be determined at a later stage.
On the topic of “protection of persons in the event of disasters”, she sought clarification as to the application of draft article 11, now renumbered as draft article 14. That had addressed a situation where there was a Government in existence, and it was alleged that consent was being withheld arbitrarily in the face of manifest need for external assistance. Clarification was also sought as to who was to decide on the seriousness of the situation requiring assistance, and who was to decide on whether there was an arbitrary refusal of consent.
In relation to draft article 3 bis, now renumbered as draft article 4, she had reservations for the proposed provision stipulated in subparagraph (e), pertaining to the coverage of “relief personnel”, that also include military personnel. Armed presence in a State might be interpreted as an encroachment of the sovereignty of an independent State, in contravention with the international law principle of sovereignty of State. The affected State should have overall direction, control, coordination and supervision of assistance within its territory.
MANUEL DE JESÚS PÍREZ PÉREZ (Cuba), associating with the Community of Latin American and Caribbean States (CELAC), said the draft articles on the “protection of persons in the event of disasters” must not lead to an interpretation that breached the principle of non-intervention in matters under a State’s domestic jurisdiction. Thus, it was up to a State to request or accept assistance offered in cases of natural disaster. His country had experienced and had a system to confront that type of national phenomenon. In spite of the economic, commercial and financial blockade it confronted, it was broadening cooperation with other countries in situations of natural disasters.
On the topic of “expulsion of aliens”, he recommended, among others, the inclusion of an article on prior communication with the State of destination for expulsion. It was relevant to include the right of expelled persons, or those subject to expulsion, to have communication with the relevant consulate. In relation to article 2, paragraph b, he recommended a reference to “citizenship” rather than “nationality”; citizenship was the political and legal link between an individual and a State. Concepts of children and older children in article 16 should be defined since there was no age range given to consider the vulnerability of those persons.
He expressed appreciation for the Commission’s important contribution in training jurists from developing countries and its work, in general. He also appealed to the Commission to consider in its work the opinions and concerns of States, and not to propose text that could prevent the codification of a subject. A more thorough exchange with Special Rapporteurs would be very useful. He also appealed to Member States to ensure that the Commission’s work not become sterile. Rather, its work should be supported so that it could “bear fruit” to new international conventions that positively contributed to international relations.
NEERU CHADHA (India) took note of the Commission’s recommendation to annex the draft articles on “expulsion of aliens” to a resolution, and disseminate them widely. Expressing general approval for the draft articles, she pointed out that although expulsion and extradition both led to the removal of a person from the territory of a State, they differed in respect to law, and one could not be used as an alternate to the other. In addition, the question of readmission of an alien, discussed in draft article 29, needed further consideration.
Turning to the “protection on persons in the event of disaster”, she noted the three new draft articles adopted by the Commission. The draft articles should not represent codification of law, but could be used as guidelines. The request or consent of the receiving State should be required, as provided in paragraph d of draft article 4. She noted the inclusion of both military and civilian personnel in paragraph e, however, to send such personnel, particularly military personnel, should require the consent of the receiving State. She also noted that a State struck by disaster might not be able to take care of its people, so the article requiring them to do so was troubling.
ANNE CHRISTENSEN, International Federation of Red Cross and Red Crescent Societies (IFRC), expressed appreciation that several of the definitions in the draft articles on the “protection of persons in the event of disasters” had used terminology similar to that of the “Guidelines for the domestic facilitation and regulation of international disaster and initial recovery assistance”, as adopted by the thirtieth International Conference of the Red Cross and the Red Crescent.
However, she voiced concern with the definition of “personnel” in article 4(e), which placed civilian and military personnel in the same category for disaster operations. An indiscriminate mixing of military and civilian relief efforts could create significant risks for the acceptance and security of humanitarians, both in the country where they were used and in others where the precedent would be noted. The Commission’s articles should conform to existing consensus language in the Oslo Guidelines on the Use of Foreign and Military and Civil Defense Assets in Disaster Relief.
Another point of concern with the definition, she said, was its equation of persons sent to provide humanitarian relief with those sent to assist in the field of disaster risk reduction, noting that it was important to maintain the particularity of humanitarian action. The extraordinary measures expected in a humanitarian crisis should be confined to those situations, in order to avoid unnecessary burdens on States’ normal procedures and ensure their willingness to comply when needs were urgent.
She pointed out that there was a missed opportunity in article 20 to expressly address the status of regional agreements and mechanisms for disaster cooperation. Given the increasing importance of regional arrangements in disaster cooperation in recent years, the draft articles must more openly articulate their relationship to them.
Concerning the topic in general, she urged all Member States to ensure the full engagement of their disaster management authorities, as the Commission would benefit greatly from such experiences. The Commission also could solicit comments from experienced non-governmental organizations and private sector actors in international disaster response. On the final form of the draft articles, she said she did not view guidelines as advisable, as they could compete with and hamper implementation of existing guidelines on very similar themes. Strengthening the global legal framework, on the contrary, could further stimulate and enhance the work that had been accomplished through soft instruments.
Introduction of Report — ‘Second Cluster’
KIRILL GEVORGIAN, Chair of the International Law Commission, introducing the second cluster of items under consideration, pointed out that work on “the obligation to extradite or prosecute (aut dedere aut judicare)” had been completed during its current session, having had been on the agenda since 2005. Last year, the report of the Working Group had been well received; finalization took into account the views of Governments, as expressed in the Sixth Committee.
Continuing, he said that those additional matters touched on the customary international law status of the “obligation to extradite or prosecute”; gaps in the existing conventional regime; transfer of a suspect to an international or special court or tribunal as a potential third alternative to extradition or prosecution; the relationship between the “obligation to extradite or prosecute” and erga omnes obligations or jus cogens norms; and the continued relevance of the 2009 General Framework.
The report placed the topic within the broader framework of efforts to combat impunity and respect for the rule of law, he said. It contained a set of considerations regarding the implementation of the obligation, including the criminalization of the relevant offences at the national level; the attendant consequences of delay; the establishment of jurisdiction; the obligation to investigate; the obligation to prosecute; the obligation to extradite; and the consequences of non-compliance.
He then turned to “subsequent agreements and subsequent practice in relation to the interpretation of treaties” and five draft conclusions (numbered 6 to 10), provisionally adopted by the Commission. Draft conclusion 6 concerned “identification of subsequent agreements and subsequent practice”, which stated that such agreements and practice must be so identified to be used as a means of interpretation. Draft conclusion 7 dealt with the “possible effects of subsequent agreements and subsequent practice in interpretation”, which sought to indicate how subsequent agreements and practice could contribute to clarification of a treaty’s meaning.
Draft conclusion 8, entitled “weight of subsequent agreements and subsequent practice as a means of interpretation”, identified some criteria that could help determine the interpretive weight to be accorded those measures in a particular case, he continued. Draft conclusion 9, on “agreement of the parties regarding the interpretation of a treaty”, aimed at capturing the agreement between parties, in substance, regarding the interpretation of a particular treaty. Draft number 10 addressed decisions adopted within the framework of Conferences of States Parties, which might result in a subsequent agreement or subsequent practice.
The first report on “protection of the atmosphere”, a topic first included in the Commission’s programme of work last year, addressed the project’s general objective, he said. That included providing the rationale for work on the topic; delineating its general scope; identifying the applicable sources of the law and relevant basic concepts; and offering perspectives and approaches to be taken with respect to the subject. Three draft guidelines were also presented, which defined the term “atmosphere”; the scope of the draft guidelines; and the legal status of the atmosphere.
He noted that contemporary challenges on the matter concerned three areas: tropospheric transboundary air pollution; stratospheric ozone depletion; and climate change. He recalled that the topic had been undertaken with the understanding that work would proceed in a manner that would not interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution.
The Commission had discussed the methodological approach to the topic, with the Special Rapporteur seeking to focus on the atmosphere per se as a single composite unit, rather than taking into account State practice and practical realities. Some Commission members felt that a focus on the “rights and obligations” of States and non-State actors in the field would be the best guarantor for protection and conservation of the atmosphere. Ultimately, the Special Rapporteur advocated a middle-of-the-road approach, while also appealing for flexibility in identifying issues relevant to the topic.
Turning to the final topic of the second cluster, “immunity of State officials from foreign criminal jurisdiction”, he noted that the topic was proceeding at an “encouraging pace” since the Commission’s provisional adoption of draft articles on the matter last year. The third report of the Special Rapporteur, under consideration during the current session, sought to deal with the “who”. Questions of defining “official acts”, or what acts could be characterized as “acts performed in an official capacity”, as well as whether immunity ratione materiae continued once an official left office, would be treated next year.
Pointing out that that the Commission had provisionally adopted draft article 2, defining “State official” for purposes of the draft articles, he noted that general international law provided no such definition. Thus, some members of the Commission had not considered such a definition necessary, but deemed that the nature of the acts, rather than who had carried them out on behalf of the State, was essential to immunity ratione materiae.
As formulated, the definition was broad enough to cover the troika and those individuals who exercised a range of other State-related functions in a variety of capacities, and combined the “representative” and “functional” approaches, he said. The definition employed the word “individual”, as opposed to “person”, to underscore the fact that legal persons were excluded from the scope of the definition. He reiterated the Commission’s request for States to provide information on their domestic law and their practice, in particular judicial practice, with reference to the meaning given to the phrases “official acts” and “acts performed in an official capacity”, in the context of the immunity of State officials from foreign criminal jurisdiction.
ANDREI POPKOV (Belarus) said work on the concept of aut dedere aut judicare in the form of a practical guide would be very useful for States. A decision by a State not to extradite should not mean a guilty person went unpunished. In that connection, a balanced approach enabling problems to be dealt with in interstate relations should be carried out. On the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he agreed with the approaches and methods used by the Special Rapporteur. The day-to-day conduct of a State applying a treaty did not always imply interpretation of it.
He continued, addressing a number of conclusions, noting that commentary on conclusion 8 should distinguish between repetitive practice and practice which led to the establishment of a rule of customary international law and a change in legal regime in that international treaty. Conclusion 10 should replace words “under these draft conclusions” with “for the purposes of these draft conclusions” to make it possible to limit the scope of application of the draft, and not lead to conflicts with international instruments. The Special Rapporteur should also take into account positions of States as parties to international treaties, including treaties establishing international institutions or bodies.
On the question of “immunity of State officials from foreign criminal jurisdiction”, he said drawing an exhaustive list of individuals who might be added to the troika would be difficult and hardly practical. Identifying general criteria that could help determine the legal status of individuals as they represented a State in international relations could bring greater clarity in that matter. He supported use of the term “State official”, and also called on the Commission to consider replacing “representing a State” with “occupying a State function”, or to broaden the category of persons who enjoyed immunity because of the functions they occupied. It was important to take into account national and international judicial practice as well as treaty practice, the Commission’s earlier work, and national laws relating to immunity.
MARIA ZABOLOTSKAYA (Russian Federation) said the five draft conclusions on “subsequent agreements and subsequent practice in relation to the interpretation of treaties” were balanced overall, and met the final purpose of the topic. Along with the earlier draft conclusions provisionally approved last year, they could be used as guidance. However, with regards to draft conclusion 7, interpretation of a treaty could only be narrowed if it would not alter the treaty’s original intent. She cautioned against amending or changing a treaty through subsequent practice, which was not recognized by judicial bodies. Regarding draft conclusion 8, she said that “practice” implied repetition.
She welcomed continuing progress on the “immunity of State officials from foreign criminal jurisdiction”, expressing support for both of the new draft articles. On the “obligation to extradite or prosecute” she said that the report, which accurately reflected the views of States, was the proper format for finalization of the topic. There was doubt, however, as to whether work should proceed on “protection of the atmosphere”, as a number of issues were already the subject of international instruments that had found a balance only with great difficulty. That balance should not be disturbed. She agreed with the Commission that the draft articles should not be forwarded to the Drafting Committee.
Introduction of Draft Resolutions
The representative of Ghana, introducing the draft resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, noted that because it resembled the General Assembly’s resolution on the matter at its previous session, she would focus on new provisions contained in the current draft resolution.
Those new provisions recognized that the budget for the biennium 2014-2015 did not provide sufficient resources for the Programme of Assistance, in particular for the regional courses and the Audiovisual Library, despite successive Assembly resolutions requesting such resources. In addition, the text of the resolution would request the Assembly to revisit the provision of such resources in the current biennium, particularly those regional courses that had been cancelled, and the Audiovisual Library, which might be discontinued due to lack of resources.
Further, by the text, the Assembly would be asked to request the Secretary-General to include additional funding in the next biennium to ensure that the three regional courses be held each year beginning in 2016, as well as the continuation and further development of the Audiovisual Library. That would also require further consideration and action by the Committees providing guidance to the Secretary-General on preparation of the proposed programme budget for the next biennium.
In addition, by the text of the resolution, the Assembly would consider the question of providing regular budget funding for the Hamilton Shirley Amerasinghe Fellowship on the Law of the Sea. The Secretariat had stated that that would have no budget implications for the current biennium.
The representative of Austria then introduced two draft resolutions related to UNICTRAL on the work of its-forty seventh session. The draft resolution would request the Secretary-General to continue the publication of Commission standards and the provision of summary records of the Commission’s meetings, including committees of the whole established by the Commission for the duration of its annual session, relating to the formulation of normative texts.
The draft resolution on the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration would suggest the General Assembly adopt that Convention, and call upon Governments and regional economic integration organizations that wished to make the Rules on Transparency applicable to arbitrations under their existing investment treaties, to consider becoming a party to the Convention.
Statements
JONAS BERING LIISBERG (Denmark), speaking also for Finland, Iceland, Norway and Sweden, said that, despite divergent views, he had hoped the Commission’s work on “the obligation to extradite or prosecute” could have yielded more detailed results on fulfilment of the obligation, thus providing a stronger basis for further codification and progressive development of the principle. Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he underlined the importance of uniform and coherent interpretation of treaties, and supported the requirement in draft conclusion 9 that an agreement under article 31 required the awareness and acceptance of the parties.
Expressing approval of including “protection of the atmosphere” as a topic for the Commission, he said its work should be to identify common principles in existing treaties and practice for the protection of the atmosphere. He expressed support for the 2013 understanding on the scope of the topic, and underlined the importance of maintaining the distinction between the atmosphere and air space.
On the “immunity of State officials from foreign criminal jurisdiction”, he said that the Commission’s adoption of two draft articles represented a step towards a common understanding of the relevant international legal norms. However, while the Commission’s approach, where distinctions were drawn between such concepts as immunities ratione personae and ratione materiae, enhanced understanding of aspects of immunity, he underscored the importance of avoiding fragmentation as a result.
He went on to say that he agreed that individuals who might be termed “State officials” for the purpose of immunity ratione materiae would have to be determined on a case by case basis. As the definition indicated, there needed to be a specific link between the State and the official, as well as a representation of the State or the exercise of State functions. The character of the act in question would be the determining factor.
Looking forward to the next report on the topic, which would address exceptions to immunity, he said that no State officials should be shielded by rules of immunity for the most serious crimes. Crimes such as genocide, crimes against humanity and serious war crimes should not be included in any definition of acts constituting immunity.
HELMUT TICHY (Austria), on the “obligation to extradite or prosecute”, said the report seemed to be the only way to deal with the matter; there was no duty to extradite or prosecute under customary international law, except under treaty provisions. The Commission’s observation in paragraph 14 that there was a gap in international conventional regimes regarding most crimes against humanity should be addressed in the framework of crimes against humanity under the ‘first cluster’.
Taking up the matter of “subsequent agreements [...]”, among other points, he shared the view in draft 7, paragraph 3, that under pacta sunt servanda (agreements must be kept), parties to a treaty were presumed not to amend or modify by subsequent agreement or practice. However, it seemed clear that a subsequent practice establishing an agreement to modify a treaty should be regarded as a treaty modification, whereas a subsequent practice defined as an act of interpretation should not. State parties to a treaty could create customary international law through subsequent practice if accompanied by opinio juris. An agreement, as formulated in draft conclusion 9, paragraph 1 under article 31, paragraph 3, subparagraph a and b of the Law on Treaties, “need not be legally binding”; it only had to be an “understanding,” and not be a treaty in the sense of the Vienna Convention. Informal and non-binding arrangements could amount to relevant subsequent agreements.
Turning to the “protection of the atmosphere”, he noted that because States would be reluctant to accept an all-encompassing regime for atmospheric protection, a report on the legal options to improve it would be an important contribution. He wondered why draft guideline 1 restricted the use of terms to troposphere and stratosphere, leaving out mesosphere and thermosphere, terms other conventions had included. Regarding the exclusions on the 2013 understanding of liability of States and their nationals, the polluter-pays principle, the precautionary principle, common but differentiated responsibilities, and the transfer of funds and technology to developing countries, he said that it demonstrated that the understanding of 2013 might be too narrow to permit any meaningful work.
Touching on the “immunity of State officials from foreign criminal jurisdiction”, he said the definition of “State official” in draft article 2, subparagraph e, needed further explanations. It was unclear whether the scope of “State functions” was only determined by internal State law, or by internationally agreed definition. It would be useful to study the relations between the articles on State responsibility to clarify how far acts would fall under the subject matter jurisdiction. Draft article 5 on persons enjoying immunity under ratione materiae also raised questions, for example in defining whether persons acting in excess of authority or in contravention of instructions should enjoy immunity.
JANE J. CHIGIYAL (Federal States of Micronesia) agreed with the Special Rapporteur that the protection of the atmosphere was a “common concern of mankind”. While each State had sovereign rights to the airspace above it, that airspace was legally distinct from the atmosphere, which was a unitary whole spanning the entire globe, and which all States must strive to protect. The Commission should focus its work on air pollution, ozone layer depletion and climate change. Those three issues were the subject of robust but separate international environmental law regimes, and the Commission could delve into those regimes and glean core rules and principles that could assist in crafting a unified regime. He recommended the consideration of the precautionary principle, the principle of sustainability and the principle of international cooperation as core elements in the Commission’s review.
His country had been an active participant in each of those regimes, he went on to say. It had, among other efforts, advocated for the wider use of the Commission’s draft articles on the prevention of transboundary harm from hazardous activities, and had made a proposal to amend the Montreal Protocol on Substances that Deplete the Ozone Layer, in order to decrease the production and consumption of hydrofluorocarbons. Ultimately, the Commission should adopt draft guidelines on the protection of the atmosphere, in order to aid States and international organizations during political negotiations in certain international environmental regimes. As well, those guidelines could provide the foundation for an all-inclusive international mechanism for the protection of the atmosphere that the international community would craft.
FRANÇOIS ALABRUNE (France), on the topic of “immunity of State officials from foreign criminal jurisdiction”, said the definition of an individual who enjoyed immunity ratione materiae must not be based on the nature of the act carried out. While both were closely linked, the nature of the act was the basis on which a judge could determine if, in that instance, the State official could justify his claim of immunity. Concerning the terminology used, he was not convinced of the relevance of using “State official” — a concept that was a source of ambiguity. In that regard, the commentary could state that the term was being used only for purposes of the study.
Turning to “identification of customary international law”, he said a cautious approach was needed when considering acts of international organizations in the formation of customary international law. While such acts could be useful sources of information, it was primarily the acts of States that established customary rule required of them.
On the “protection of the environment in armed conflict”, he doubted the need to define “environment” and “armed conflict” in the context of the subject, noting that the concept of armed conflict fell under international humanitarian law. Drafting a specific definition would risk fragmentation of normative interpretations on the subject.
He shared similar doubts about work on the “protection of the atmosphere”, noting that the highly technical subject did not really fall within the Commission’s jurisdiction for codification and progressive development of international law. Moreover, the inclusion of the subject in 2013 was subject to several conditions. A draft should not fill in treaty regime shortfalls. In that context, the proposal to include such protection under common concerns of humanity did not correspond to the rule of law, and would have major implications. Environmental protection would be an obligation for all States, which could then give rise to referenda and international disputes.
On the topic of “expulsion of aliens”, he said further comments would be provided in writing, but pointed out that the draft articles must be used as guidelines, and should not be perceived as a basis for drafting a convention. He also questioned the inclusion of jus cogens in the Commission’s programme of work, noting that it was a controversial matter on which States remained highly divided. The need for a convention on the topic of “crimes against humanity” was also questionable. Universal participation under the Statute of the International Criminal Court and effective implementation of existing norms would be preferable. A risk of contradiction between those norms and a draft convention should be feared.
Concerning the functioning of the Commission, it would be desirable to avoid multiplication of working groups or drafts that would not facilitate a deep study of the subjects under consideration and slow down progress at work. Lists of subjects for which States were requested to make observations were particularly long this year. Of the 11 subjects, the Commission had asked States for observations on 7 of them, making it difficult for most States to address all those issues within those deadlines. In addition, he voiced objection to the proposal to stop summary records of the Commission, as they were supplementary resources for interpretation and were also used as testimony for preparatory work done on the Commission’s texts.
He said he did not agree with shortening the session of the Commission. Given the long list of its programme of work, before reducing the duration, it would be preferable to shorten the list of subjects. He also doubted the advisability of holding further sessions in New York. Underscoring the importance of equality of United Nations languages, he said forwarding the date of the Commission’s working session would facilitate the publication and dissemination of the report in various languages. That would enable delegations to have sufficient time for preparation.
Mr. ZAHARIA (Romania) said that at least some of the report’s findings concerning the “obligation to extradite or prosecute” should be reflected in the future work of the Commission under the topic “crimes against humanity”. Although his country was not a party to the Vienna Convention on the Law of the Treaties, it applied most of its provisions as customary international law. His delegation shared the Commission’s conclusions regarding “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, but proposed some changes to the language used in conclusions 7, 9 and 10, including that the effort in conclusion 7 to draw the line between interpretation of a treaty and amendment to a treaty on the basis of State practice was not always self-evident.The formulation in paragraph 3 stating the presumption that State practice in the application of a treaty would imply its interpretation and not its amendment or modification would be sufficient.
On the “protection of the atmosphere”, he said there was a well-functioning global treaty regime addressing ozone depletion and a vigorous global negotiation process dealing with climate change, but no regulation of transboundary air pollution at the international level. Regarding “immunity of State officials from foreign criminal jurisdiction”, there was no need to explicitly mention the beneficiaries of immunity ratione personae, namely the Head of State, Head of Government and the Minister of Foreign Affairs, since they were covered by the expression “State official”. The identification of a “State official” on a case-by-case basis seemed to be the most appropriate approach since it was impossible to draw up an exhaustive list of the individuals covered by immunity ratione materiae.
ANDREA TIRITICCO (Italy) voiced support for draft conclusions 6, 8, 9 and 10 on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”. However, conclusion 7 should distinguish more clearly the possible effects of subsequent agreements and subsequent practice on “interpretation” from their actual, or potential, impact in terms of “amendment” and/or “modification”.
On “immunity of State officials from foreign criminal jurisdiction”, he said he agreed with the Commission that identifying “State officials” in immunity ratione materiae required a specific link between the State and the official, namely representation of the State or the exercise of State functions. The rule on functional immunity from foreign criminal jurisdiction of military personnel for official acts was to be considered crystallized in customary international law, and thus generally binding.
Turning to the “obligation to extradite and prosecute”, he said the report correctly concluded that, when drafting treaties, States could decide for themselves which formula best suited their objective in a particular circumstance: a duty to prosecute only after the refusal of extradition, or a duty to prosecute, with extradition being an option. For the “protection of the atmosphere”, he said that the understanding reached by the Commission last year should be considered sufficient for the work to proceed.