Evidence Production, Management Crucial to Fair Judicial Outcome in Disputes between States, International Court President Tells Legal Committee
Draft Resolutions on International Trade Law Commission, Programme of Assistance Approved without Vote
Before approving three draft resolutions without a vote today, the Sixth Committee (Legal) heard the President of the International Court of Justice address select aspects of evidentiary practices of the United Nations principal judicial organ, in addition to continuing its deliberations on the International Law Commission’s report.
Peter Tomka, President of the International Court of Justice, underscored to delegations that “the production and management of evidence constitute the most crucial building blocks in ensuring a just and well-reasoned judicial outcome in a dispute between sovereign States”. It was the Court’s overarching objective to obtain all relevant evidence on both facts and law, so that its rulings would be based on issues of substance, rather than grounded primarily in technical and/or procedural rationales.
There were no highly formalized rules of procedure governing the submission and administration of evidence before the Court, he pointed out. There were also no restrictions on the types of evidentiary materials that parties appearing before it might present. The Court had unfettered freedom to weigh that evidence against the circumstances of each case and in the context of relevant international legal rules.
While the Court’s evidentiary practice was flexible compared to that of most domestic courts and tribunals, it nonetheless applied a great degree of caution when handling certain evidentiary items, he said. It rigorously scrutinized all evidence put before it, balancing relevant standards against the facts, circumstances and subject-matter of each case. That ensured that it carried out its duties in the most effective and impartial way, namely the search for objective truth, the peaceful settlement of disputes and the promotion of the international rule of law.
In the ensuing interactive dialogue covering a wide-range of questions, Mr. Tomka, responding to the representative of Morocco’s inquiry on the criteria by which reports were viewed as evidence, emphasized that the Court did give some weight to reports by the Organization’s bodies; however, those documents did not form conclusive evidence.
He also stressed to Thailand’s representative on how the Court determined whether national laws and regulations could be considered evidence, pointing out that States invoking such national legislation had to furnish not only the statutes’ texts, but also information on how those texts had been interpreted by their highest legal jurisdictions.
The Sixth Committee’s work for the Court was of great importance, he told delegations. That was demonstrated in the genocide case, Bosnia and Herzegovina v Serbia, that was currently being considered. In its work on the matter, the Court had looked to the Committee’s summary records as far back as the 1940’s.
Also during the day-long debate, the Committee approved without a vote a draft resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, as well as two draft resolutions on the Report of the United Nations Commission on International Trade Law on the work of its forty-seventh session, and on the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration.
As well, it continued its debate on the second cluster of topics from the Report of the International Law Commission. During those interventions, Palau’s representative said that “protection of the environment” raised a myriad of legal issues, whose complexity reinforced the Commission’s utility in continuing to explore them. He suggested that an international convention considering all “piecemeal efforts” that had been taken to date might even be considered.
A number of delegations also expressed concern that overemphasis on “subsequent agreements and subsequent practice in relation to the interpretation of treaties” might go beyond the Vienna Convention on the Law of Treaties. The Special Rapporteur on the matter responded, noting that the draft conclusions were meant to give guidance within the context of the Law of Treaties. He suggested that Member States look at the topic as ensuring that States and Governments retained a voice in treaty interpretation.
Also speaking today were representatives of the United Kingdom, Germany, Czech Republic, Switzerland, Netherlands, China, Poland, Singapore, Australia, Japan, Cuba, Peru, Liberia, Israel, Slovakia, El Salvador, South Africa, Spain, Malaysia, Hungary, Ireland, Chile, Thailand, United States, Cyprus, Portugal, Iran, Greece and Mongolia.
The Sixth Committee (Legal) would reconvene at 10 a.m. Monday, 3 November to conclude its debate of the second cluster of topics from the Report of the International Law Commission, and commence consideration of the third and final cluster.
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 would also hear from the President of the International Court of Justice, and take action on three draft resolutions 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); the Report of the United Nations Commission on International Trade Law on the work of its forty-seventh session (document (A/C.6/69/L.5); and the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (document A/C.6/69/L.6).
Statements
PAUL SCULLION, Foreign and Commonwealth Office, United Kingdom, said the “obligation to extradite or prosecute” arose from treaty obligations. While welcoming the Commission’s survey of relevant provisions in multilateral State instruments, he agreed that it would be futile to attempt to harmonize them. He welcomed the Commission’s work to identify missing pieces in the conventional regimes, notably with respect to crimes against humanity and war crimes in international and non-international armed conflicts.
Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that it was concerning that draft conclusion 8 was too prescriptive, and did not reflect the intention behind it. It would be key to explain the difference between “interpretation” of a treaty and “application” of a treaty, and he welcomed that explanation in draft conclusion 6.
On “protection of the atmosphere”, he noted that the report recognized the challenges associated with finding a role for contributing to protect the environment within the context of the 2013 understanding. However, he questioned whether it was a useful topic for further consideration by the Commission, and expressed concern about importing the concept of “common concern of humankind” from conventions that dealt with specific and narrowly defined issues, to atmosphere protection, which was much wider in scope.
The topic, “immunity of State officials from foreign criminal jurisdiction” was of genuine practical significance, he went on to say. A treaty that contained proposals for the progressive development of law would be an appropriate outcome of the Commission’s work. Greater clarity was needed, including confirmation of the broad meaning given to article 2(e), on the text “who represents” and “State functions,” in regards to the immunity of officials performing official acts versus private acts.
He continued, providing examples of exceptions to immunity rationae materiae, such as the decision of the House of Lords in the Pinochet case, and the Khurts Bat case, in which immunity of State officials was considered. The Commission might consider updating the Secretariat’s 31 March 2008 Memorandum which analysed, with great care, State practice and case law on the issue.
MARTIN NEY (Germany) expressed support for the draft conclusions on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, commending their well-balanced approach. An example was draft conclusion 7, paragraph 3, establishing the presumption that by a subsequent agreement or subsequent practice, the parties intended to interpret the treaty, rather than to amend or modify it. That approach was “realistic”, and accurately reflected State practice, providing an excellent guideline for interpretation.
Turning to “protection of the atmosphere” he said the long-term work of the Commission on the matter would raise the visibility of the issue and counteract the increasing fragmentation of international environmental law through horizontal analysis and cross-cutting approaches, which looked beyond individual environmental regimes. He pointed out that essential to the successful outcome of the project was the prevention of interference with political negotiations. The Commission should focus on the identification of general principles of international environmental law and to clarify whether or not they were applicable, in order to avoid any appearance of interference.
On the “immunity of State officials from foreign criminal jurisdiction”, he questions whether the definition of “State official” in draft article 2 was overly broad. In Germany, teachers and professors in State-run schools and universities also exercised State functions. Would that then qualify them for immunity? The functional necessities of inter-State relations lay at the heart of established rules on immunity. Hence, it was necessary to proceed carefully, especially where changes to the scope of immunity were contemplated. It was of paramount importance to specifically identify opino juris and relevant State practice for the subject at hand.
PETR VALEK (Czech Republic) said he shared the Commission’s views and recommendations relating to the “obligation to extradite or prosecute” and was aware of their connection to the topic “crimes against humanity”, as well as with discussions concerning the exercise of universal jurisdiction. He said he was prepared to consider any initiatives in that regard.
He went on to say that the topic “protection of the atmosphere” might represent an opportunity for the Commission to address issues from the perspective of general international law. At the same time, there were current difficulties concerning the topic. It was not yet entirely clear what the general orientation and direction of the topic should be and whether the Commission could make a relevant contribution to the topic, with regards to other existing global endeavours in the protection of the atmosphere.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, he said immunity ratione materiae was based on the principle, according to which State officials were immune from the jurisdiction of a foreign State with regard to “acts performed in an official capacity“, since those acts were attributable to the State they represented. It was useful to consider those issues in the context of the relevant provisions of Chapter II of the articles on the responsibility of States for internationally wrongful acts, which described the attribution of conduct to a State, and dealt also with de facto links between individuals and the States.
Furthermore, he said, it would be useful to take into account relevant criminal law treaties, such as the Convention against Torture or the International Convention for the Protection of All Persons from Enforced Disappearance, which provided for an extra-territorial criminal jurisdiction, and expressly contemplated prosecution of crimes committed in an official capacity, including de facto official capacity.
DAMARIS CARNAL (Switzerland), on the “immunity of State officials from foreign criminal jurisdiction”, drew attention to draft article 2(e), which defined the beneficiaries of immunity. According to the definition, “State official” meant any individual who represented the State or exercised State functions. The two conditions were not cumulative, and a person could be either a State representative or a person who exercised State functions. It was up to the Commission to define the acts for which those individuals would enjoy immunity.
She went on to question if a person representing the State in legal proceedings would be able to enjoy immunity from criminal jurisdiction. An example was that of an employee of a private security firm, charged with the function of a prison guard exercising elements of governmental authority. In that scenario, would that employee be the beneficiary of immunity from criminal prosecution? It was his intention to return to that subparagraph when work on the draft articles had advanced further. He also raised the idea that draft article 5, “State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction”, might be subject to misinterpretation.
LIESBETH LIJNZAAD (Netherlands) said that the draft conclusions on “subsequent agreements and subsequent practice” should be seen more as a “practice pointer” to assist the interpreter, rather than a prescriptive set of rules. As to whether subsequent practice might have the effect of modifying a treaty, she pointed out that the dividing line between interpretation and modification could be difficult to draw in practice. Thus, the process of amending or modifying treaties through articles 39 to 41 of the Vienna Convention on the Law of Treaties should be clearly distinguished from the process of interpreting treaties.
Turning to the “immunity of State officials”, she preferred the use of the term “representative of the State acting in that capacity” to the term “State official”. While that concern had been addressed in draft article 2(e), in defining the term, the definition seemed too broad. She also found the term “State functions” too vague. She suggested that terminology resembling the definition of “State organ” in the Articles on State Responsibility might be preferable. Furthermore, a paragraph should be included expressly referring to members of special missions. On draft article 5, she cautioned that it must not be read as providing all State officials acting in that capacity with immunity ratione materiae in all circumstances, as international law recognized that it did not cover private acts committed while in office.
XU HONG (China) said the result of the study on “the obligation to extradite or prosecute” demonstrated that that obligation applied to a great variety of crimes via widely different corresponding operational mechanisms. As such, its scope of application should be based on the provisions of specific treaties concerned. Therefore, the obligation to extradite or prosecute was a treaty-based obligation. There was no general practice or opino juris to prove that it had become a rule of customary international law, he said, adding that he agreed with the conclusion that there was no definitive link between the obligation to extradite or prosecute and universal jurisdiction.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, he said that, in addition to Heads of State and Government and foreign ministers, high officials such as Heads of Parliament, Deputy Prime Ministers, and Government ministers were increasingly taking part in international exchanges, and exercising functions directly on behalf of States. Consequently, they should also be accorded immunity ratione personae. Although the international community had identified crimes of genocide, ethnic cleansing, and crimes against humanity as serious international crimes, it had not developed rules of customary international law on disregarding immunity of State officials in such crimes. When the Commission considered exceptions to such immunity in the future, it should research national practices comprehensively and handle the matter prudently.
On the topic of “protection of the atmosphere”, he said the Commission’s work should be carried out prudently and rigorously, in order to constructively complement relevant mechanisms and ongoing efforts. In addition, the Commission could consider looking at difficulties related to capital, technology and capacity building in the context of international cooperation for environmental protection, and provide guidance from the perspective of international law. The development of draft guidelines should be based on common international practice and current laws. Noting the narrow scope of the Special Rapporteur’s report, he said the Commission should comprehensively consider general international practices of more regions and mechanisms, and codify relevant legal rules on the basis of current laws.
ANNA WYROZUMSKA (Poland) voiced full agreement with the Commission’s principal conclusion that the “obligation to extradite or prosecute” (aut dedere aut judicare) should be considered a crucial element of combating impunity for crimes of international concern. The clarifications on article 32 were particularly useful.
Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said that paragraph 3 of conclusion 6, based on differentiation of interpretation and application of the treaty, contained important and useful clarification. It was appropriate to conclude simply that the possibility of amending or modifying the treaty by subsequent practice had not been generally recognized. On conclusion 8, it was more convenient to use the terms “clarity, “specificity” and refer to “repetitiveness”, rather than the terms “uniform”, “consistent” and “common”.
Regarding “immunity of State officials from foreign criminal jurisdiction”, she said that the Commission should find an equilibrium between respecting the immunity of officials of sovereign States and ensuring accountability for heinous crimes as a crucial element of the rule of law in international relations.
On the topic “immunity of State officials from foreign criminal jurisdiction”, she said she agreed with the enumeration of persons enjoying immunity ratione persone, which was included in draft article 3. With regard to immunity ratione materiae, she supported emphasizing the functional nature of that immunity; however, the crucial issue was its material scope. In addition, it was necessary to draft an article regarding temporal scope of immunity ratione materiae.
LUKE TANG (Singapore) said that the “obligation to extradite or prosecute” was marked by a complex web of treaties, and the Commission’s report would be a useful tool for understanding the conventional landscape. The report was also valuable for its examination of the implementation of that obligation, and for its comprehensive consideration of the various comments and queries posed by delegates to the Sixth Committee over the past year.
Turning to the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said that the key issue was the extent to which evidential value of weight might be accorded to subsequent practice. Noting draft conclusion 8, he added that while a conscious and mindful repetition might be perceived as having more weight than one that was not, a practice may also be repeated mechanically, precisely because of a clear intention and understanding between the parties.
On the subject of “immunity of State officials from foreign criminal jurisdiction”, he stated that there was merit in the doubts expressed by some Commission members about the need to define the persons who enjoy it, since the essence of immunity ratione materiae was the nature of the acts performed, and not the individual who performed them. However, the definition could provide coherence to the draft articles on the topic, he said, noting that he would keep an open mind until the Special Rapporteur’s next report.
BILL CAMPBELL (Australia) said the Working Group’s final report had highlighted two important considerations concerning the application of the “obligation to extradite or prosecute”. The first was the gap between the existence of the obligation and its implementation. In relation to that, States should fulfil their obligations to investigate and prosecute or extradite those responsible for relevant offences. The second consideration was the need to ensure a wider application of the principle to achieve a more comprehensive coverage. In relation to that, he assumed the Commission would consider a broader application of the obligation to extradite or prosecute to crimes again humanity. In the meantime, States should cooperate to ensure the full investigation and prosecution of such crimes under the framework of applicable bilateral mutual legal assistance and extradition agreements and arrangements.
TOMOYUKI HANAMI (Japan) said “the obligation to extradite or prosecute” was provided for primarily by treaty regimes, and, as the Commission had concluded, points of deliberation had already been exhausted. However, some points taken up were closely related to other topics, such as “immunity of State officials from foreign criminal jurisdiction” and “crimes against humanity”. In that regard, he voiced hoped that the outcome of the discussion under the topic would contribute to addressing those other topics and to the development of international criminal law in general.
On the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said the Commission should, among other things, clearly explain the relationship between article 31 paragraph 3 and article 32 of the Vienna Convention on the Law of Treaties. In the draft conclusions 6, 7, 8 and 10, both articles were referred to as if they equally stipulated the subsequent practice. There was scepticism about such an assumption, particularly on article 32, as it did not include wording “subsequent practice”. Any type of acts, which could be categorized as “other subsequent practice”, should not be treated as the same as subsequent practice stipulated under article 31 paragraph 3. Article 32 should complement the rules of article 31; their interrelationship was not equal.
On the topic of “protection of the atmosphere”, he said the first report was written in a prudent manner, and had introduced several binding and non-binding documents to elucidate the international regime on the protection of the atmosphere. In that regard, he did not see that the report had deviated from the prescription that work on the topic should not interfere with relevant political negotiations, nor deal with specific polluting substances.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, striking a balance between the concepts of “fight against impunity” and “State sovereignty” was necessary for deliberation in the Commission. The Commission’s effort to reconcile the apparent conflict between the rule of immunity of State officials and the evolving concept of the fight against impunity was essential for sound international criminal justice.
TANIERIS DIEGUEZ LAO (Cuba) said the “obligation to extradite or prosecute” was derived from the commitment of each State to fight impunity. In studying the topic, essential general principles that governed extradition must be applied. The obligation arose only when there was a treaty enforced between States, or lacking that, under the principle of reciprocity, or in the framework of a multilateral convention. Concerning the obligation in relation to the principle of universal jurisdiction, the Commission’s study should evaluate the relevance of specifying crimes to which those principles would be applied, as an inappropriate use of them would have a negative effect on the sovereignty of States.
On the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, the provisions of articles 31 and 32 of the Vienna Convention on the Law of Treaties should be considered together in treaty interpretation. It was important not to alter the Vienna regime, as it reflected customary law in the area of interpretation on international instruments. The interpretation of treaties should be undertaken in a manner that evolved over time. Stressing the importance of respecting the will of parties, she said it would be impossible to study the interpretation of treaties without bearing in mind the will with which parties signed instruments.
She said her country would closely follow the Commission’s work on the topic of “protection of the atmosphere”. While airspace was recognized in international treaties and countries had sovereignty over airspace, she pointed out that the legal treatment of atmosphere could not be the same as that given to the high seas.
The Commission should codify existing norms of international law to avoid its dangerous inclusion in customary law of exceptions to immunity, she said. In no way should there be application of universal jurisdiction or the obligation to extradite or prosecute to officials who benefited from immunity. She pointed out, however, that Cuban norms guaranteed that there was no impunity for those who violated international law or committed crimes against humanity.
Remarks by International Court of Justice President
PETER TOMKA, President of the International Court of Justice, addressing select aspects of the evidentiary practice of the Court, said “[T]he production and management of evidence constitute the most crucial building blocks in ensuring a just and well-reasoned judicial outcome in a dispute between sovereign States.” Evidence was central to establishing an accurate historical record of events and facts relevant to a dispute before the Court, particularly bearing in mind that the principal judicial organ of the United Nations was both a court of first and last instance.
In each case brought to it, he said, the Court was called upon to sift through vast evidentiary records, establish the factual complex related to the proceedings and, ultimately, reach well-supported and just conclusions, both on the facts and the law, thus settling peacefully the disputes of which it was seized. The rule of thumb in that regard was flexibility. There were no highly formalized rules of procedure governing the submission and administration of evidence before the Court, nor restrictions on the types of evidentiary materials that parties appearing before it might present.
The Court’s overarching objective was to obtain all relevant evidence on both facts and law so that its rulings would be based on issues of substance, rather than grounded primarily in technical and/or procedural rationales, he continued. Historically, the Court’s predecessor, the Permanent Court of International Justice, had identified that as its dominant judicial philosophy as early as 1932.
Parties could call witnesses, including experts, who could also be cross-examined, he said. Such testimonial evidence had played a role in recent oral proceedings before the Court, entailing intricate factual complexes. One of those, concerning Whaling in the Antarctic opposing Australia and Japan, and the second concerning the Application of the Convention on the Prevention, entailed consideration of highly scientific evidence. The Court’s judgments demonstrated its ability to handle such evidence and deliver judgments of analytical clarity.
While States had broad freedom in what evidence they could submit, he noted, evidentiary documents to be used in support of claims must be presented at the time of written pleadings. However, more and more frequently, States sought to introduce such evidence at a later stage. The Rules of Court did authorize the production of such evidence if it was “`part of a publication readily available’”. The Court had also recently adopted a new practice direction for States appearing before it regarding the introduction of new, or previously unproduced, audio-visual or photographic material at the oral proceedings stage.
Turning to the admissibility of evidence, he pointed out that the Court allowed parties to submit pretty much any form or type of evidence, with the caveat that the Court had unfettered freedom to weigh it against the circumstances of each case, and by reference to relevant international legal rules. However, unlawfully obtained proof was one instance where evidence was inadmissible.
Noting that the Court was often called upon to weigh the evidentiary value of reports prepared by official or independent bodies which provided accounts of relevant events, he said that the probative value of such evidence hinged on, among other things, its source; the process by which it had been generated; and the quality or character of the item. All audio-visual techniques of presentation were admissible as evidence at the World Court.
Turning to more substantive matters, he said that the burden of proof before the Court resembled that found in most domestic judicial proceedings on civil matters, namely, a party alleging a fact typically bore the burden of proving it. However, in the Diallo case, while that principle was affirmed, the Court qualified its application, declaring that “`it would be wrong to regard this rule, based on onus probandi incumbit actori, as an absolute one, to be applied in all circumstances'".
When parties invoked domestic law before the Court, he said that the party alleging its existence generally bore the burden of proof, while the Court was presumed to know international law and how to apply it, despite efforts by the disputing parties to demonstrate that relevant international principles supported their own claims. Similarly, the Court could take judicial notice of well-established facts, or “`matters of public knowledge’”, obviating the need for parties appearing before the Court to prove such types of facts. However, in its judgment in the Military and Paramilitary Activities in and against Nicaragua case, the Court pointed to the risk that “`[w]idespread reports of a fact may prove on closer examination to derive from a single source’”. Thus, such evidentiary items were not capable of proving facts but could, in some instances, corroborate the existence of a fact.
While the Court’s evidentiary practice was rather flexible when compared to that of most domestic courts and tribunals, he continued, the Court nonetheless applied a great degree of caution when handling certain evidentiary items, rigorously scrutinizing all evidence put before it and balancing relevant evidentiary standards against the facts, circumstances and subject-matter of each case. The Court also embraced new technology and innovative ways of establishing factual records. The idea of evidentiary collaboration between the parties and the Court — supplemented by a productive dialogue between the bench and the agents and counsel of the parties — ensured that the principal judicial organ of the United Nations carried out its duties in the most effective and impartial way, namely the search for objective truth, the peaceful settlement of disputes and the promotion of the international rule of law.
In the following interactive dialogue, a representative of Morocco noted that the Court accepted reports, such as those produced by the United Nations, as evidence. However, he pointed out that, no matter how well-done, reports, like newspaper articles, could not help but contain a “touch of subjectivity”, thus posing the question of how the Court could use such subjective evidence in producing a judgment.
Responding, Mr. Tomka said that the Court did give some weight to reports by the Organization’s bodies, particularly those that had been rigorously prepared. However, they did not form conclusive evidence. Furthermore, the other party had the right to present elements that could cast doubt on what was in the report. Nevertheless, such reports were given greater weight than, for example, newspaper reports, where it was possible that public relations firms had been employed to create certain impressions.
In response to a question from the representative of Thailand on how the Court determined the meaning and scope of national laws and regulations referred to it as evidence, Mr. Tomka explained that in such instances, States invoking national law had to furnish not only the legislative texts, but also how those texts had been interpreted by their highest legal jurisdictions.
Following a question from Peru’s representative on side trips by the Court to see, first hand, circumstances relating to a case pending before it, Mr. Tomka pointed out that such trips were not initiated at the whim of the Court, but resulted from what States put in the judges’ folders to be considered as evidence.
Addressing the question by Liberia’s representative of when the burden of proof shifted from the prosecution to the defendant, Mr. Tomka pointed out that the International Court of Justice was not a criminal jurisdiction. However, in the Diallo case, Mr. Diallo had been expelled to his native Guinea without proper notification, having lived and conducted business in the Democratic Republic of the Congo for many years. In that instance, Mr. Diallo may have been in a better position to prove that he had not been properly notified.
Mr. Tomka also stressed the importance of the Sixth Committee’s work to the Court. He noted that in the genocide case, Bosnia and Herzegovina v Serbia, currently being considered, it looked to the Committee’s summary records as far back as the 1940’s.
Statements
SARAH WEISS MAU’DI (Israel) said “protection of the atmosphere” was an important issue in light of the global problems of air pollution and climate change. Because of its complexity, the matter should be addressed with caution, so as not to interfere with States’ ongoing and future negotiations regarding related international treaties. Echoing the concerns raised by the Commission’s members regarding the Special Rapporteur’s reliance on non-governmental actors and scholarly works, she stressed that only State practice should be looked upon for identification of international customary law.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, she voiced support for the approach that the term “State officials” accentuate the nature of the act without specifying which acts should be covered by such immunity. The determination of whether the individual acted on the State’s behalf, and consequently was entitled to immunity, should be the State’s prerogative. With respect to immunity ratione personae, the group of high-ranking State officials who enjoyed that immunity was not and should not be limited to the troika, as it currently appeared in draft article 4.
She said there was not a sufficient basis under current international law or State practice to extend “the obligation to extradite or prosecute” beyond binding international treaties, which explicitly contained that obligation. When drafting treaties, States could and should decide for themselves which conventional formula regarding the obligation best suited their objective in a particular circumstance. It would be futile to try to harmonize the various provisions and set out one model for all situations and treaties, owing to the great diversity in the formulation, content and scope of the obligation in treaty practice.
BARBARA ILLKOVA (Slovakia) emphasized the need to define either the term “State functions” or ”official acts” to establish immunity ratione materiae and its beneficiaries. In addition, immunity ratione personae should be limited to the troika. The draft articles on the topic showed balance between the fight against impunity and the maintenance of harmonious international relations, founded on the sovereignty and equality of States.
On the “identification of customary international law”, she welcomed the Commission’s approach, which considered generally accepted practices as law. With respect to the terminology debate on opinio juris and “accepted as law”, the term used by the International Court of Justice should be followed. That approach fared better with the legal position of States and, more particularly, showed the individual and cumulative relationship between those two elements.
She noted that there were further questions on a number of points, including whether draft conclusion 9 might upset draft conclusion 8, which called for a non-hierarchy among different forms of practice. The inclusion of the practice of international organizations was welcomed, but preference should be given to the practice of States.
PILAR ESCOBAR PACAS (El Salvador), noting the close link between the “obligation to extradite or prosecute” and the fight against impunity with respect to serious crimes, said the Commission should bear in mind that link in its work, adding that she supported the development of a State’s obligation to ensure enforcement of the obligation to extradite or prosecute, in line with their domestic legislation. In order to meet that obligation, a State should not merely look at ratification of international agreements; it must also adopt national measures to codify those crimes and establish jurisdiction for them.
On the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, she said proposals that were broadly-grounded in practice on international jurisdiction allowed for better understanding of the draft conclusions. Positive impact could arise from subsequent agreement and subsequent practice, as they complemented interpretation that had already been offered.
While “protection of the atmosphere” was of great concern to the international community, she said there was still no legal framework that addressed problems related to it in a comprehensive manner. The Commission’s work should serve as a starting point, and focus on establishing concepts that would be used. The Commission should also bear in mind the practical implementation, in order to give more solidity to the guidelines that would be developed later.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, she said the idea of immunity must be founded on the function of the post. Article 5 on immunity ratione materiae should expressly refer to the nature of those acts. Referring to the language used in the Spanish text to refer to officials who benefited from immunity, she said that it would be advisable to not use “benefit from”; that the term “enjoy”, as agreed in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, was more appropriate.
TANIERIS DIEGUEZ LAO (Cuba) said the “obligation to extradite or prosecute” was derived from the commitment of each State to fight impunity. In studying the topic, essential general principles that governed extradition must be applied. The obligation arose only when there was a treaty enforced between States, or lacking that, under the principle of reciprocity, or in the framework of a multilateral convention. Concerning the obligation in relation to the principle of universal jurisdiction, the Commission’s study should evaluate the relevance of specifying crimes to which those principles would be applied, as an inappropriate use of them would have a negative effect on the sovereignty of States.
On the topic of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, the provisions of articles 31 and 32 of the Vienna Convention on the Law of Treaties should be considered together in treaty interpretation. It was important not to alter the Vienna regime, as it reflected customary law in the area of interpretation on international instruments. The interpretation of treaties should be undertaken in a manner that evolved over time. Stressing the importance of respecting the will of parties, she said it would be impossible to study the interpretation of treaties without bearing in mind the will with which parties signed instruments.
She said her country would closely follow the Commission’s work on the topic of “protection of the atmosphere”. While airspace was recognized in international treaties and countries had sovereignty over airspace, she pointed out that the legal treatment of atmosphere could not be the same as that given to the high seas.
The Commission should codify existing norms of international law to avoid its dangerous inclusion in customary law of exceptions to immunity, she said. In no way should there be application of universal jurisdiction or the obligation to extradite or prosecute to officials who benefited from immunity. She pointed out, however, that Cuban norms guaranteed that there was no impunity for those who violated international law or committed crimes against humanity.
Action on Draft Resolutions
The Committee took action on three draft resolutions previously introduced. The first, on the Report of the United Nations Commission on International Trade Law on the work of its forty-seventh session (document (A/C.6/69/L.5) and the second, on the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (document A/C.6/69/L.6), were approved without a vote.
Before action on the draft resolution 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), a statement on financial implications was made by the Secretariat. That draft was then also approved without a vote.
Statements
ANDRE STEMMET (South Africa), on the “obligation to extradite or prosecute”, voiced support for the Commission’s approach that in order to reach a conclusion on the obligation’s nature and scope, the relevant conventions should be analysed on a case-by-case basis. Numerous States had enacted legislation implementing the Rome Statute that provided for a third option beyond extradition and prosecution. Meaningful consideration of the topic had to be centred on universal jurisdiction. The obligation was essentially a treaty obligation undertaken mainly on the basis of treaty provisions.
Turning to “subsequent agreements and subsequent practice”, among several detailed comments, he said that the Vienna Convention was the primary source of treaty interpretation, with article 31 reflecting customary international law. The Commission’s work should complement and supplement articles 31 and 32. Conclusion 6 had been described as “not overly prescriptive” and “a practice pointer”; the Commission should continue its project in that manner, acknowledging and promoting the primacy of the Convention, while contributing to the development of international law. On changing treaty practices, the challenge lay in determining whether subsequent agreement or practice related to the treaty being interpreted. That was a factual situation to be determined case-by-case.
Noting further progress on “immunity of State officials”, he agreed with the definition of “State official”, and with the approach of the Commission in not identifying eo nomine State officials who enjoyed immunity ratione personae, but in using an open definition. Elaboration of the concepts was welcome, but there remained “considerable toiling to be done in this vineyard”. Ratione materiae immunity prevented State officials from being liable for acts that were in essence those of the State and for which State responsibility must arise, and prevented immunity of the State from being circumvented by proceedings against those acting on behalf of the State.
On “immunity of State officials from foreign criminal jurisdiction”, he said, among other points made, that the question of immunity from jurisdiction of international criminal tribunals clearly fell outside the scope of the draft articles, and it was not clear whether immunity of either variety would still apply if the crime committed was an international crime. The Convention against Torture provided for jurisdiction by a State when the alleged offender was present in any territory under its jurisdiction, while the Convention on the Prevention and Punishment of the Crime of Genocide allowed for State officials to be charged with genocide extraterritorially, and for the exclusion of any procedural defence based on either variety of immunity. The Commission should carefully consider the possible limits to be set to immunity in the draft articles.
JOSE MARTIN Y PEREZ DE NANCLARES (Spain) said, in regards to the “obligation to extradite or prosecute”, that the fight against impunity for the perpetration of the most serious crimes against humanity was an irrevocable obligation of the international community. Nevertheless, the issue that must be dealt with was not entirely clear. The obligation operated rather differently in various conventions, and resisted systematization. There was great disagreement on whether the obligation had become a rule of customary international law, either general or regional. No meaningful conclusions could be drawn from the frequently cited judgment of the International Court of Justice (Belgium vs. Senegal 2012).
Turning to “subsequent agreements and subsequent practice”, he said that the wording of conclusions 6 to 10 might not measure up to the report, as they were sometimes too general and vague. The Drafting Committee should carry out a deeper study to get a proper definition of the term “interpretative agreement”, and clearly distinguish between interpretation and application of the treaty. It would be convenient to keep the processes on interpretation and modification of a treaty apart, as their legal consequences were different.
In reference to “protection of the atmosphere”, he wondered whether the topic really fit within the Commission’s functions, taking into account that it could not replace the absence of international consensus to legally develop the topic. However, the fragmentation resulting from the existence of different systems could leave space for the identification and systematization of common principles.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, he said the definition proposed for the term “official” was evidence of the complexity of the matter. The link between the individual and the State should, by no means, be interpreted so broadly as to encompass all de facto officials. The reference to the exercise of State functions was also far too imprecise and vague.
WAN MOHD ASNUR WAN JANTAN (Malaysia), in regards to “subsequent agreements and subsequent practice”, said that draft conclusion 7 could only be done in line with articles 39 to 41 of the Vienna Convention. There was concern that comments and recommendations made by some human rights treaty bodies could alter treaty provisions or interpret them too broadly. The criteria in conclusion 8 should be subjected to other treaty interpretation rules contained in the Vienna Convention, particularly article 31. It was necessary to exercise extreme caution in relation to the question of silence as acceptance, which was contained in draft conclusion 9. Heavy scrutiny of the sentence was needed, along with consideration of more views of various adjudicatory bodies. On draft conclusion 10, inclusion by the Special Rapporteur of the phrase “including by consensus” did not suitably dispel the notion that a decision by consensus would necessarily be considered an agreement in substance.
Turning to “protection of the atmosphere”, he said that his country was conducting internal consultations relating to draft article 1 to ensure acceptability of the definition. The specific type of “human activities” intended to be covered by article 2 should be elucidated by the Special Rapporteur, in order to avoid overlap with “human activities” covered by the existing international regime on environmental protection. The terms “deleterious substances” and “energy” should be clarified, especially the differences between those terms and common terms like “hazardous substances”, “pollutants” and “waste”. Though not currently in a position to comment on the legal status of the atmosphere, he said that his delegation was doing an analysis on the five concepts highlighted to determine that status.
On the topic, “immunities of State officials from foreign criminal jurisdiction” among several observations made, he said that there should be a focus on the immunities accorded under international law, particularly customary law, and not under domestic law. It was not necessary to re-examine previously codified areas, such as the immunities of diplomatic agents, consular officials, members of special missions and representative of States to international organizations. Those categories of persons should be excluded from any definition of “State officials” for the study’s purpose.
FERENC DANCS (Hungary), aligning his delegation with the European Union, noted the adoption of the 31 draft articles on “expulsion of aliens”. Since the goal of codifying the topic was to find a balance between protecting human rights and State sovereignty, the Commission should have focused on codifying the minimum rules rather than developing existing customary law.
Draft article 19, detention of an alien for the purpose of expulsion, reflected the relevant European law and Hungarian legislation he said, adding that he was also delighted to see that draft article 29, readmission to the expelling state, had been modified to reflect his delegation’s previous comments; however, its formulation was still too broad.
On the legal consequences of expulsion, he said that it should contain a separate provision regarding States’ obligations to readmit their own nationals. Draft article 31, on the highly debated issue of diplomatic protection, was not closely related to the subject of the draft articles, and should not have been omitted.
Regarding Chapter V on the “protection of persons in the event of disaster”, he said that the Commission had made substantial progress by adopting the first set of readings of 21 draft articles, together with commentaries.
Turning to “protection of the environment during armed conflicts”, he said Hungary was a party to several international treaties, which directly or indirectly ensured the protection of the environment during armed conflicts. In order to comply with the principles and requirements in those instruments when defence-related tasks were carried out, the Ministry of Defence of Hungary had developed an Environmental Protection Doctrine.
CALEB OTTO (Palau), associating himself with the Pacific Islands small developing States and the Federal States of Micronesia, said “protection of the atmosphere” was a key priority for his small island nation. The atmosphere was a fundamentally important natural resource, the integrity of which was inextricably linked to the health of all other natural resources. In that regard, his country was committed to exploring ways to alleviate the atmosphere’s further degradation that resulted in climate change, the depletion of the ozone layer and transboundary air pollution, through its active participation in the processes of the United Nations Framework Convention on Climate Change, among other efforts.
However, the topic raised a myriad of legal issues, he went on to say. The complexity of those issues reinforced the utility of the Commission in continuing to explore them, perhaps even to consider an international convention that considered all “piecemeal efforts” that had been taken to date. Issues of obligations should not constrain Member States’ collective desire and greater responsibility to protect the planet, and render it a safe and healthy place for children and generations to come. From a legal perspective, the topic required an integrated approach to treat the atmosphere as a “single global unit”, because the atmosphere was a dynamic and fluid substance, moving all the time across national boundaries. Ensuring inter-linkages with the Law of the Sea would also be extremely important, because the conditions of the ocean and the atmosphere were very closely related and intricately linked.
JAMES KINGSTON (Ireland), commenting on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, supported the decision to distinguish between subsequent practice under articles 31 and 32 of the Vienna Convention, respectively. He also supported the reformulation of draft Conclusion 8. In particular, the use of the formula “common, concordant and consistent” posed a danger of being understood in an overly prescriptive manner.
Concerning the “immunity of State officials from foreign criminal justice”, he said that there were limits to what extent draft article 2(e) and draft article 5 could be analysed. Both provisions would interrelate significantly with the provisions on the material and temporal scope of immunity ratione materiae, which had yet to be developed. He agreed with the use of the term “State official” in favour of the alternatives, in particular “State organ”. However, the definition of the term in draft article 2(e) might be overly broad.
Regarding the “obligation to extradite or prosecute”, he said that many delegations had drawn a connection between universal jurisdiction and that obligation at the previous year’s session. He said he hoped that the International Law Commission’s work on the obligation would not lessen the likelihood of it making a contribution to the consideration of universal jurisdiction.
CLAUDIO TRONCOSO (Chile), on “subsequent agreements and subsequent practice in relation to treaty interpretation”, said that the issue and that the Commission draft left open the possibility that a treaty could be modified by subsequent practice when practice indicated agreement by parties to modify it. The Vienna Conference rejected the Commission’s proposal, however, with arguments against it, including the fact that modification “would evade constitutional control”, affecting the stability of treaties and the pacta sunt servanda rule. Some Latin American authors who had represented their countries in Vienna were “adamant that it was the opinion of the Conference” that subsequent practices were useful for interpretation of a treaty, but could never amend or modify it. No International Court of Justice judgement stated otherwise, and the Special Rapporteur’s analysis of case law had confirmed that.
“Immunity of State officials from foreign criminal jurisdiction” could not protect “those who are responsible for serious crimes defined by international law”, he said, adding that the two “elementary but admirably clear” texts presented by the Special Rapporteur could have a major influence on subsequent treatment of the whole topic of immunity of State officials. The problem of which State officials enjoyed immunity ratione materiae was resolved in article 5 in a “simple, precise and satisfactory” manner, that did not prejudge the question of which acts could be covered by the immunity, which was not covered by the Special Rapporteur.
He said that the terms used by the Special Rapporteur on “identification of customary international law” were “more forceful and precise than those usually employed”, as they stated that custom consisted of a material element and a subjective element. The material element — general practice — meant that the practice of States contributed to the creation of rules of customary international law. Practice could take a wide range of forms; draft conclusion 7 noted that “inaction” could also serve as practice. The Special Rapporteur should develop the point further, and outline examples of inaction. Other issues could also be explored in the Third Report, including the creation of customary rules.
While endorsing the broad agreement on “provisional application of treaties”, he said it was important to consider aspects of domestic law that could, in practice, limit provisional application of certain provisions “in cases where those provisions require, in compliance with domestic requirements, prior approval by the respective legislatures”.
He went on to say that the Commission’s future work on “crimes against humanity” should not consist of redefining the concept, but of regulating the effects and consequences of categorizing behaviour as such a crime. The first consequence should be the obligation either to prosecute or extradite the perpetrator. It could also help to define the possible scope of universal jurisdiction, and the circumstances in which the State where a crime was committed should preferably try the case.
Incorporation of a jus cogens rule in the Vienna Convention was “one of the most important contributions” made by the Commission, he said. While many States had abstained or voted against the concept at the Conference, he knew of no State today “that rejects the concept”; it was “one of the basic foundations underlying the current international legal order”. While the concept and its effects were non-controversial, several issues relating to the concept justified its inclusion in the Commission’s programme of work.
KRAIRAWEE SIRIKUL (Thailand), noting that the work of the Commission on the “obligation to extradite or prosecute” provided useful guidance for States to combat impunity and promote the rule of law, then turned to the topic “immunity of State officials from foreign criminal jurisdiction”. His country, as a State party to the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963, granted immunity from criminal jurisdiction to persons entitled to such immunity under the respective conventions.
However, while it was not a State party to the Convention on Special Missions, Thailand accorded immunity to persons covered by host country agreements between his country and international organizations, he said. Apart from those agreements, the national courts hardly had experience in dealing with granting immunity to foreign State officials from Thai criminal jurisdiction. The Commission’s work on that topic should achieve the right balance between according necessary immunity to State officials from foreign criminal jurisdiction and combating impunity.
With respect to persons enjoying immunity ratione materiae, he said the focus should not be on the identification of who was an “official”, as the term had yet to be firmly defined by international law; it was defined differently under various regimes of domestic law. The Commission should take due consideration of State practice in that area. Noting the difficulty of drawing up a list of all the office or post holders who would be classified as “officials” that were acceptable to all States, he said persons covered by immunity ratione materiae could only be determined using “identifying criteria” to be applied on a case-by-case basis.
MARK A. SIMONOFF (United States), addressing the “obligation to extradite or prosecute”, noted that there was no obligation under customary international law to extradite or prosecute individuals for offenses not covered by treaties containing such an obligation. The Commission should focus on specific gaps in existing treaty regimes.
In studying the conclusions and commentary on the “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he said it appeared that in a number of cases, the conclusion relied too heavily on the commentary to flesh out the meaning set forth in the draft conclusions. That resulted in undesirable ambiguity in the meaning of the conclusions, which was only clarified in the commentary. It would be better to include important limitations and explanations in the conclusions themselves. With respect to draft conclusion 10, there was concern that the text and commentary could suggest that the work of such Conferences generally involved acts that could constitute subsequent agreements or subsequent practice in the interpretation of a treaty. The fairly general language should be modified to indicate that those results were neither widespread nor easily demonstrated.
He said that the topic “protection of the atmosphere” was not a useful one for the Commission to address, since various long-standing instruments already provided, not only general guidance to States in their development, refinement, and implementation of treaty regimes, but very specific guidance tailored to discrete problems relating to atmospheric protection. As such, any exercise to extract broad legal rules from environmental agreements concluded in particularized areas would be infeasible and unwarranted, and potentially harmful, if doing so undermined carefully-negotiated differentiation among regimes.
Recalling the understanding issued by the Commission in 2013 to limit the scope of the Special Rapporteur’s work to areas where there might be some utility and to prevent the work from straying into areas where it might do harm, he said it was unfortunate that the Special Rapporteur did not adhere to that understanding. The report had evinced a desire to re-characterize the understanding altogether, and generally took an expansive view of the topic.
On the topic of “immunity of State officials from foreign criminal jurisdiction”, and with respect to immunity ratione materiae in particular, he said that it was important to resolve the ambiguity relating to the definition of “State official” and the acts covered by that immunity. The other major areas yet to be addressed were exceptions to immunity and procedural aspects of immunity. Very broad immunity could be limited by exceptions or by strict procedural requirements. Despite the impressive progress made by the Commission to date, a great deal of difficult ground remained to be covered.
CHRISTINA HIOUREAS (Cyprus), associating herself with the European Union, addressed the “protection of persons in the event of disaster”, and expressed commitment to providing disaster relief and supporting regional and international collaboration in that regard. Furthermore, her country was raising its preparedness to respond, as well as to facilitate international cooperation for response, to such crisis situations. She also agreed with that work to promote greater clarity on jus cogens should be undertaken.
RITA FADEN (Portugal) said that the Commission had been unable to find solutions and give clear answers on issues related to the “obligation to extradite or prosecute”, and therefore had faced difficulties continuing its work. The aims of the obligation were to fight impunity and to prevent existence of safe havens for offenders. The Commission’s recent work that was contained in the final report of the Working Group formed a good basis for continued discussions of the subject.
The five draft conclusions on “subsequent agreements and subsequent practice” offered valuable guidance in interpretation of treaties and reflected customary international law, she said. Subsequent practice differed between article 31, paragraph 3, and article 32. The redrafting by the Drafting Committee that made clear the distinction between the two different situations was welcome. It was expected that the Commission and the Special Rapporteur would continue to address the two articles at different levels. The weight of subsequent practice in the interpretation of treaties depended on whether and how often the practice was repeated. Continuity in time and character of repetition demonstrating “how rooted a particular position of States regarding the interpretation of a treaty is,” and insertion of such a reference, was welcome. The Commission had to avoid going beyond the Convention, and should strive to “clarify and guide” States.
She agreed with the Commission’s position that it would refrain from intruding into political negotiations related to “protection of the atmosphere”. The topic needed immediate attention in the policy realm. However, study of the issue from a legal perspective could make a good contribution to finding solutions in a broader diplomatic setting. An international law approach could contribute to development of a global environmental ethic and accentuate the need for universal, distributive and equitable action. She supported the methodological approach based on the “cause and effect” double element.
“Immunity of State officials” was a legally complex and politically challenging topic, requiring a clear, restricted and value-laden approach that balanced State sovereignty, the rights of individuals and the need to avoid impunity, she said. The distinction between immunities ratione personae and ratione materiae was methodological in nature, and relevant because it enabled recognition of a State official solely by virtue of his or her office. In both cases, immunity should apply only to official acts. The material scope of immunity must be given precedence over its subjective scope, and it was the official nature of the act that indicated that an official enjoyed immunity. The commentary on the definition of State officials had to establish very precise criteria for such interpretation.
She also voiced support for the use of the term “official” over use of the term “organ”, as “official” clearly referred to an individual, while “organ” lent itself to confusion with a legal person. Immunities were functional in nature, and should remain as limited as possible. It was worth referring in commentaries to the fact that immunities were without prejudice to States’ general obligation to consider withdrawing immunity when requested. Otherwise, States had a legal obligation to prosecute at home their own State officials who commit crimes abroad in exercise of State functions. The term “acting as such” had been used in draft article 5 precisely to emphasize the functional nature of immunities ratione materiae. The Commission could further explain the minimum content of the necessary link between the official and the State on whose behalf he or she acts, as any official acting ultra vires should not be entitled to immunity.
HOSSEIN GHARIBI (Iran) said the transformation of the subject “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, since its inclusion in the Commission’s work, risked touching upon issues distant from its original mandate. That was particularly evident in the focus of the Special Rapporteur’s work on interpretation of treaties, rather than the topic of subsequent agreements and subsequent practice. A distinction should be made between interpretation of treaties and the act of determining what conduct constituted subsequent practice.
While the topic of “protection of the atmosphere” was tightly interwoven with political, technical and scientific considerations, he said that it did not mean that the importance of the legal issues surrounding the topic should be downgraded. Commenting on several draft guidelines, he said that with respect to draft guideline 2, examining rights and obligations of States regarding the protection of the atmosphere would be impossible without expounding upon principles such as sic utere, polluter pays, cooperation, or precautionary approaches.
Turning to “immunity of State officials from foreign criminal jurisdiction”, he noted that State officials, other than the “so-called troika”, were assuming greater importance than ever before. In that regard, expansion of personal immunity towards State officials, other than the troika, would not be an incongruous exercise, considering the numerous occasions they travelled abroad as representatives of their respective States. On identifying a link between the State official and the respective State, one might opt for “nationality” as the main element for the establishment of a genuine relationship. That appeared to be a strong legal connection based on which immunity from foreign criminal jurisdiction could be triggered.
MARIA TELALIAN (Greece), commenting on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said that the commentaries to the draft conclusions provided a well-balanced and insightful approach to some main features of the topic, including the essential elements; form; and the legal effects of subsequent agreements and subsequent practice. Concerning conclusion 6, she had doubts whether it should include the second sentence of paragraph 1, as it might give the wrong impression about the frequency of the situations in which the parties might have recourse to such practical arrangements. Regarding draft conclusion 10, she was concerned about the need for and desirability of addressing the decisions adopted within the framework of a Conference of States parties, separately, in a draft conclusion specifically dedicated to them.
Turning to the “immunity of State officials from foreign criminal jurisdiction”, she said that the definition of a “State official” in draftarticle 2(e) was useful, as it encompassed all categories of officials who enjoyed immunity. Moreover, for reasons of consistency and uniformity of the draft articles, there must be a separate article on the subjective scope of the immunity ratione materiae, as existed on the immunity ratione personae.
OCH OD (Mongolia), on the topic of “crimes against humanity”, said creating new definitions that differed from already existing ones, such as those in the Rome Statute, could create problems in the determination of the crime, and result in impunity for those responsible. The formulation of article 7 of the Rome Statute had greatly contributed to specifying and defining crimes against humanity. Thus, a specific criminalization of crimes against humanity already existed, and was applicable to States parties and non-States parties to the Rome Statute alike. While “crimes against humanity” was not yet defined in his country’s domestic legislation, the definition contained in the Statute could be applied in legal procedures in Mongolia.
On the “protection of persons in the event of disasters”, he noted the conflicting understanding with respect to the definition of “disaster” in draft article 3 and the commentary on draft article 21, concerning the relationship of those articles to international humanitarian law. According to the commentary, the draft articles would also apply to disasters connected with armed conflicts, to the extent that the rules of international humanitarian law did not address that particular disaster situation. He said the difference between the draft articles and the commentary did not provide a clear understanding, and stressed that the draft articles should not apply to armed conflicts.
GEORG NOLTE, Special Rapporteur on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said that the statements presented had been thorough, substantive and helpful. However, he had noted some “apprehension” from Member States that the topic should not be overemphasized at the expense of other means of interpretation, particularly so as not to go beyond the Vienna Convention on the Law of Treaties. In response, he explained that the project was concerned with giving guidance within the context of the Law of Treaties, and suggested that Member States look at subsequent agreements and practice as ensuring that States and Governments retained a voice in treaty interpretation.
He also noted concerns that the draft conclusions, provisionally adopted, might be either too prescriptive or not prescriptive enough. A difficulty of the topic was that it did not lend itself to clear cut rules. The conclusions were not just for experts, but could offer guidelines to judges in domestic courts. He suggested that the conclusions might be enriched by including some of the commentaries in them. Looking forward, he said the next phase of the work would deal with the relevance and practice of international organizations on the matter, as well as the pronouncements of treaty bodies. Interaction with States themselves would always be included. Finally, the role of national courts would be studied. They not only interpreted treaties, but their activities might be considered as subsequent practice.