Delegates in Sixth Committee Express Respect for Principle of Universal Jurisdiction While Voicing Doubts over Scope of Its Application
Requests for Observer Status Heard as Debate on International Trade Law Ends
Delegates mixed respect for the principle of universal jurisdiction with concern about its scope and application today, as the Sixth Committee (Legal) began its consideration of that subject.
As the Committee took up the relevant report of the Secretary-General (document A/71/111), the representative of Trinidad and Tobago said universal jurisdiction helped to promote accountability and strengthened international justice systems. Speaking for the Caribbean Community (CARICOM), she said the provisions of the Rome Statute of the International Criminal Court applied equally to all persons, without any distinction based on official capacity. No one was immune from such crimes as genocide, crimes against humanity and war crimes, she added.
However, many crimes went unpunished, Canada’s representative reminded the Committee. Speaking also for Australia and New Zealand, she said the principle conferred on every State the ability to exercise criminal jurisdiction over individuals responsible for serious crimes of international concern, regardless of where such the conduct took place or the nationality of the perpetrator.
South Africa’s representative, speaking for the African Group, said that abuse of universal jurisdiction by the courts of non-African States could endanger international law. The cardinal principle of immunity for Heads of State should not be called into question, he cautioned, reminding delegates that as per the Constitutive Act of the African Union, the regional bloc had the right to intervene in situations of genocide, war crimes and crimes against humanity.
The Russian Federation’s representative warned against the possibility of “remote investigations” in implementation of universal jurisdiction, due to the lack of direct access to evidence, witnesses and suspects. Since the principle currently lacked well-recognized legal contours, its arbitrary application could complicate relationships between States, he cautioned.
The Committee also concluded its debate on United Nations Commission on International Trade Law (UNCITRAL), with Peru’s representative, recalling that the Commission had been created in the aftermath of the Second World War to promote reconstruction of the world economy (see Press Release GA/L/3523). He commended Working Group I for its efforts to simplify the rules for establishing and registering small businesses, a topic of particular importance to economies such as Peru’s.
Japan’s representative echoed that sentiment, but also expressed hope that Working Group II would continue to examine challenging topics relating to the enforceability of settlement agreements, particularly the need to coordinate with existing national legislation.
Regarding Working Group III, Israel’s representative said the Technical Notes on Online Dispute Resolution were an important starting point in the facilitation of global dispute resolution, and called for endowing the Notes with additional visibility.
Venezuela’s representative condemned treaty-shopping by corporations and vulture funds, asking that the Commission consider international investment arbitral rules as a future agenda item.
Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs, addressed the Committee today, commending delegates for their commitment to the rule of law and noting how their work was contributing to international courts and tribunals.
The Committee also heard eight requests for observer status in the General Assembly, to which the Chair said it would revert at a later date.
Speaking during the debate on universal jurisdiction were representatives of the Dominican Republic, Iran, Cuba, Czech Republic, Qatar, El Salvador, Peru, Sudan, Burkina Faso, Lebanon, Zambia, Poland, Croatia, Venezuela, Mexico, Singapore, United Kingdom, United States, Brazil and Nigeria.
Participating in the deliberations on UNCITRAL were representatives of Canada, Austria, United Kingdom, El Salvador, Thailand, United States, Republic of Korea, Ecuador, India, Belarus and Cameroon.
Representatives of Cuba, Nicaragua, Algeria, Republic of Korea, Sri Lanka, Cambodia, Lebanon, Philippines, Turkey, Venezuela, Russian Federation, Bangladesh, Syria, Iran, Spain, Peru, Honduras, Fiji, Samoa, Papua New Guinea, France, Brazil, Kenya, Croatia, Morocco, Belgium and Romania spoke on the granting of observer status.
Taking the floor in exercise of the right of reply were representatives of Serbia and Croatia.
The Sixth Committee will reconvene at 3 p.m. on Thursday, 13 October, to continue its consideration of the scope and application of universal jurisdiction.
Statements
ANGEL HORNA (Peru), associating himself with the Community of Latin American and Caribbean States (CELAC), recalled that the United Nations Commission on International Trade Law (UNCITRAL) had been established in the aftermath of the Second World War to promote reconstruction of the world economy. Peru was committed to harmonizing its domestic law with the rules governing international trade. The Government was encouraging small businesses and had established a special tax system for small and medium-sized enterprises. Highlighting the work of Working Group I on legal issues relating to the simplification of rules for establishing and registering small businesses, he said it was particularly relevant to his country’s economic system. Peru also commended Working Group III’s work in creating a non-binding descriptive document on the resolution of online disputes.
JASMINE WAHHAB (Canada) expressed satisfaction that the Commission had decided to continue with the preparation of a Guide to Enactment for the Model Law on Secured Transactions – an important part of UNCITRAL’s work, as it could assist States in adopting legislation based on the Model Law. Noting progress of the Commission’s work on a legislative guide on simplified incorporation and registration for micro-, small and medium-sized enterprises, she said those businesses could benefit from the development of rules specifically tailored to their needs, which would reduce the legal obstacles encountered throughout their lifecycle. In the field of insolvency law, much progress had been made on the facilitation of cross-border insolvency of multinational enterprise groups, the obligations of directors of enterprise group companies in the period approaching insolvency and the recognition and enforcement of insolvency-related judgements. Strides had also been made toward preparing a legal instrument on the enforcement of settlement agreements resulting from international commercial mediation, sending an important message to the business community as to the importance of conciliation or mediation in resolving cross-border commercial disputes.
MIGUEL DE SERPA SOARES, Under-Secretary-General for Legal Affairs and United National Legal Counsel, said that since it had begun its work 70 years ago, the Sixth Committee had made a crucial and continuous contribution to the discharge of the General Assembly under Article 13 (1) of the United Nations Charter. It had progressively developed and codified international law in diverse domains. Its achievements over time included the Convention on the Prevention and Punishment of the Crime of Genocide, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, and the Rome Statute of the International Criminal Court.
As recognized in Sustainable Development Goal 16, peace, stability, human rights and good governance, based on the rule of law, were important conduits for sustainable development. The 2012 adoption of the Declaration at the High-level meeting of the General Assembly on the Rule of Law at the National and International Levels had reaffirmed the desire for an international order based on the rule of law, he said. By including the item “The rule of law at the international and national levels in the agenda of the General Assembly in 2006”, the Committee had proved its commitment to that principle as the foundation of a more peaceful world.
He went on to say that the articles on the responsibility of States for internationally wrongful acts had become an essential tool used by international courts and tribunals in the peaceful resolution of international disputes. The Sixth Committee also had on its agenda diplomatic protection, prevention of transboundary harm from hazardous activities – and the allocation of loss in the case of such harm – and the law on transboundary aquifers, all of which were supported by the International Law Commission, he noted.
The Committee had considered criminal accountability of United Nations officials and experts on mission, as well as the scope and application of the principle of universal jurisdiction for many years, he continued. It was currently considering the report of the United Nations Commission on International Trade Law (UNCITRAL). He also highlighted the item “Measures to eliminate international terrorism”, saying he was aware that negotiations on the draft comprehensive convention had been challenging, but was convinced that the Committee could complete the task.
NADIA ALEXANDRA KALB (Austria) said that UNCITRAL played an important role in discussions on the rule of law, particularly with regard to international treaties, their creation and implementation. Austria recognized the need to strengthen support for Member States in respect of their international obligations in that regard, and was pleased to serve as the coordinator of UNCITRAL resolutions, of which there were four in 2016. The draft resolutions had been circulated to Member States and informal consultations would take place today, she said, urging delegates wishing to co-sign the draft resolutions to do so in order to support the valuable work of UNCITRAL.
HARUKA SAWADA (Japan) said his country understood the importance of reducing legal obstacles faced by micro-, small and medium-sized enterprises throughout their lifecycle and would contribute to the discussion by sending its corporate experts. Japan’s delegation hoped that Working Group II would continue to examine the challenging topics relating to the enforceability of settlement agreements, particularly the need to coordinate with existing national legislations. Also congratulating the Commission on finalizing and adopting the Notes on Organizing Arbitral Proceedings as well as the Model Law on Secured Transactions, he said it was promoting the progressive harmonization and unification of international commercial law.
CHRISTOPHER STEPHEN (United Kingdom) said his country continued to support the development of standards which would reduce the legal obstacles faced by small businesses. Enforcement of international commercial settlement agreements was an issue of concern to a number of Member States, but at the same time, the need for such an instrument had not yet become evident to many other States. He voiced hope that an upcoming meeting in New York would achieve consensus on the best way to move forward. On verified electronic identity, he acknowledged that adopting standards for identity verification and authentication and safeguarding interoperability between national electronic identity schemes was crucial to international trade. In that regard, he said that frameworks put forward to enhance international digital identity interoperability should not mandate a specific technical approach.
AVIGAIL FRISCH BEN AVRAHAM (Israel), congratulating the Commission on adopting the updated 2016 Notes on Organizing Arbitral Proceedings, expressed the hope that the work currently being undertaken by Working Group II would result in a convention for the enforcement of international commercial settlement agreements resulting from conciliation. Such an instrument could provide a mechanism for a significantly less costly dispute resolution process for cross-border transactions. Turning to Working Group III, he said that the Technical Notes on Online Dispute Resolution provided a meaningful contribution to the world of cross-border online trade and signified an important starting point in the facilitation of global dispute resolution. It was important to endow the Notes with additional visibility and his delegation supported the draft resolution that had been circulated which called upon States and stakeholders to make use of that text.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), associating himself with CELAC, welcomed the report of United Nations Commission on International Trade Law (UNCITRAL) and highlighted the efforts made by each of its working groups, particularly Working Group II on arbitral proceedings and Working Group VI on model law. Underscoring the Commission’s importance for developing countries like El Salvador, he said membership ensured that all geographical regions and economic systems were represented in UNCITRAL. It provided developing countries with the opportunity to participate in the modernization and harmonization of international trade law so they could participate in commerce on an equal footing. UNCITRAL also recognized the principle of sovereign equality of States, and the texts it produced were widely accepted across the world, he said.
PONPAT THITTHONGKHAM (Thailand) noted that her country had recently passed the Secured Transactions Act, which conformed to the Model Law on Secured Transactions. She encouraged States to adopt that law as it is fundamental for the harmonization of secured transactions law. In the realm of insolvency law, his country was currently synchronizing its insolvency regime to international standards, especially in the area of facilitation of insolvency for micro-, small and medium-sized enterprises. Thailand was also developing laws to join the United Nations Convention on Contracts for the International Sale of Goods as it was a “uniform and fair regime for contracts”, she said.
EMILY PIERCE (United States) said lack of access to credit was the main obstacle to growth for micro-, small and medium-sized enterprises. Secured transaction reform was one of the most crucial steps that Governments could take to help small businesses thrive. UNCITRAL’s consideration of identity management and cloud computing was timely and critical, especially in the area of international commerce, she said. The Commission was also working on enterprise group insolvency issues and on a model law concerning recognition and enforcement of insolvency-related judgements. All those projects could potentially result in instruments that would significantly advance the development of international commercial law, she said. For those efforts to have their greatest effect, however, the Commission needed broader participation and collaboration, she added, encouraging States to participate in as many of the working group sessions as possible.
YANG JAIHO (Republic of Korea) stated that the adoption of the UNCITRAL Model Law on Secured Transactions was expected to play a significant role in increasing the availability of secured credit across national borders. It would also serve as a comprehensive guidance mechanism to States considering the modernization of their legislation on secured transactions. UNCITRAL was integral to promoting the rule of law at the national and international levels, she added, and it was necessary to increase awareness of its important role across relevant United Nations bodies and to the general public. She also commended the Commission’s Regional Centre for Asia and the Pacific, which had undertaken various capacity building and technical assistance activities.
HORACIO SEVILLA BORJA (Ecuador), associating himself with CELAC, said that UNCITRAL had made significant progress in the codification of international trade law. There had been criticisms of its system with regard to arbitration of Member State disputes. He suggested the establishment of a standing court for cases that involved investor State disputes instead of setting up ad hoc courts for each individual case. Such standing courts should be regional in the first instance, and there should be an appeal level for them.
KOTESWARA RAO (India) noting that the legal texts being developed by the Commission were of “practical value for all of us,” said that if international trade was conducted on the basis of mutual equality, it could lead to the development of friendly relations among nations. States must consider incorporating Model Law provisions into their national legislation. The Technical Notes on Online Dispute Resolution were another major achievement of the Commission this year. The Notes, which were non-binding and descriptive, would ensure the neutrality and impartiality of the online dispute resolution administrators.
RUSLAN VARANKOV (Belarus) said he had an overall positive assessment of UNCITRAL and noted that the revised Notes on Organizing Arbitral Proceedings were important, as they took new developments in international arbitral practice into account. He welcomed the adoption of the Model Law on Secured Transactions, and noted that the promotion of transparency would have a positive impact on States. He also commended the work of the Commission for its work on Case Law on UNCITRAL Texts, known as CLOUT, which was an effective tool to promote knowledge of those texts.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), aligning himself with CELAC, called for a structural reform of the international investment arbitral rules, noting that foreign investors were making use of investment treaties and free trade agreements to threaten States and make undue demands, leading to an imbalance that threatened bankruptcy in small States. That situation was made much worse by multimillion dollar arbitral awards against States. An alternative would be to set up several regional investment tribunals and an appeal mechanism to harmonize the rules and their interpretation. Adding that vulture funds were abusing the system and corporations were taking advantage of the treaty-shopping, he called on delegates to add this as a future item in the work of the Commission.
MICHEL TOMMO MONTHE (Cameroon) paid tribute to UNCITRAL’s three new instruments on harmonizing and updating international trade law. The Model Law on Secured Transactions was an important legislative instrument that had the long-term goal of providing access to credit and making it cheaper, particularly for small enterprises in developing countries. He noted the development of the Technical Notes on Online Dispute Resolution, as well as the adoption of the revised Notes on Organizing Arbitral Proceedings. He also referred to a side event held by his delegation on Monday, where experts told attendees about what was occurring in Africa regarding harmonization of international trade law.
GASTON KENFACK DOUAJNI, Chairperson of UNCITRAL, stressed the Commission’s commitment to working for the development of trade law.
Requests for Observer Status
The representative of Cuba, making a general statement on requests for observer status, said only intergovernmental organizations should be granted that status. Emphasizing that it was not merely a procedural issue, he said it was necessary to follow all the formalities for the analysis of each organization. Furthermore, the Committee had not been provided with information on the objectives and membership of the concerned organizations.
The Committee then decided to recommend the deferral of observer status for the Cooperation Council of Turkic-speaking States and the Eurasian Economic Union in the General Assembly.
It then took up a request for observer status for the Community of Democracies in the General Assembly.
The representative of Cuba said the Community of Democracies was a politically-motivated organization that had not fulfilled the requirements for observer status, as set out in past sessions of the General Assembly.
The representative of Nicaragua joined the consensus on deferring the request, saying that observer status should be enjoyed only by intergovernmental organizations. The Community for Democracies lacked the statutes that would enable the Sixth Committee to verify its intergovernmental status.
The representative of Algeria added that the organization had not fulfilled the necessary requirements as per General Assembly decision 49/462.
The representative of the Republic of Korea said that the charter of the International Conference of Asian Political Parties, representing 350 political parties on the continent, upheld the United Nations Charter, and actively engaged in activities relating to human rights and development. It had also held workshops on poverty alleviation, women’s empowerment and human trafficking.
The representative of Sri Lanka, associating herself with the Republic of Korea’s statement, said the International Conference of Asian Political Parties had been a staunch and steady supporter of the United Nations, with a charter that declared its unequivocal commitment to the Organization’s principles and objective. Emphasizing also the essential role of Parliaments in implementing the 2030 Agenda, she urged Member States to support the draft resolution granting the International Conference observer status in the General Assembly.
The representative of Cambodia noted that the International Conference of Asian Political Parties had been a strong supporter of the United Nations and its activities, and believed that its request for observer status would allow it to play a more active role in global activities.
The representative of Lebanon voiced his country’s support, saying the activities of the International Conference of Asian Political Parties covered matters of interest to the General Assembly, adding that its charter upheld United Nations Charter principles. The International Conference could contribute to major United Nations documents, the 2030 Agenda in particular.
The representative of the Philippines said the International Conference of Asian Political Parties could be an effective channel between the General Assembly and Governments in the region, adding that its. Its members were engaged in environmental protection, natural disasters, poverty alleviation and other matters of interest to the Assembly.
The representative of Turkey said she supported the request to grant observer status to the International Conference of Asian Political Parties.
The representative of Venezuela said the granting of observer status should be confined to States and intergovernmental organizations, emphasizing that his delegation considered it a duty to protect that mandate. The International Conference of Asian Political Parties was a well-respected political organization, but it was not an intergovernmental body, and Venezuela could not recommend it.
The representative of the Russian Federation said the work of the International Conference of Asian Political Parties was of great interest to the General Assembly, but agreed with Venezuela that the organization did not meet one of the important criteria for gaining observer status in the Assembly – it must be intergovernmental in nature.
The representative of Bangladesh said his country supported the work of the International Conference of Asian Political Parties and saw the merit in granting it observer status.
The representative of Syria opposed granting observer status to the International Conference of Asian Political Parties, saying it did not meet the criteria. It had not proved that its activities promoted United Nations objectives and it was not an intergovernmental entity.
The representative of Iran said the International Conference of Asian Political Parties was a positive political force and its declared purpose was to contribute to the work of the United Nations. Iran supported granting it observer status, he added.
The representative of Spain introduced the draft resolution “Observer status for the Conference of Ministers of Justice of the Ibero-American Countries in the General Assembly” (document A/C.6/71/L.5), saying that the Conference was an international intergovernmental organization open to all countries of the Ibero-American community. It encouraged coordination and consultation on such matters as modernizing the administration of justice and tackling transnational crimes.
The representative of Peru said the Conference comprised Justice Ministers or their equivalent from Ibero-American countries. It sought to strengthen the Ibero-American juridical space by forming regional and sub-regional partnerships. Its incorporation as an observer would strengthen its mandate, he added.
The representative of Spain then presented the draft resolution “Observer status for the International Youth Organization for Ibero-America in the General Assembly” (document A/C.6/71/L.6), noting that the body had led the elaboration of the first international treaty on the rights of youth. It continued to design and implement public policies that facilitated the contributions of young people to social transformation.
The representative of Peru added that the organization sought to include young people in decision-making, in full consonance with the 2030 Agenda for Sustainable Development.
The representative of Honduras said that granting the organization observer status would enable it to increase the profile of young people in various United Nations entities.
The representative of Fiji submitted the draft resolution “Observer status for the Pacific Islands Development Forum in the General Assembly” (document A/C.6/71/L.8), emphasizing that Pacific Islanders had long experienced a great disconnection between the efforts of the United Nations and work carried out in the region. Observer status would help to address that, he added.
The representative of Samoa acknowledged the intent of the resolution, but clarified that although her country was a Pacific small island developing State, it was not a member of the Pacific Islands Development Forum.
The representative of Papua New Guinea said his country was not a member of the Forum, but would not stand in the way of the proposal to grant observer status.
The representative of Turkey said that her country, as a foundational partner of that Forum, would support any consensus that could be reached.
The representative of Algeria said his capital was studying the application of the Pacific Islands Development Forum.
The representative of France tabled the draft resolution “Observer status for the International Chamber of Commerce in the General Assembly” (document A/C.6/71/L.7), noting that during negotiations on the Paris Agreement on climate change in December 2015, investors and entrepreneurs had shown themselves willing to do their part in combating climate change. It was high time the private sector became involved in the work of the General Assembly and worked towards sustainable development. With its global profile and position of authority, the International Chamber of Commerce was ideally placed to represent the business world at the United Nations, he said.
The representative of Brazil said that in order to implement the Sustainable Development Goals, the international community must rely on a more varied set of financial resources and partnerships. A decision granting the Chamber observer status would be beneficial for the international community.
The representative of Honduras added that the active support of the private sector was crucial in enabling Governments to achieve their development goals. The Chamber would bring a unique perspective to the United Nations.
The representative of Venezuela, while expressing his delegation’s utmost respect for the Chamber, said he could not support granting it observer status.
The representative of Turkey said he supported the granting the Chamber observer status.
The representative of Kenya said “this is an idea whose time has come”. Trade was a powerful force for peace today, as it had been at the Chamber’s inception. Implementing the Sustainable Development Goals called for more stakeholder partnerships and the Chamber could be a bridge to the business community.
The representative of the Russian Federation said the Chamber did not meet one of the most important criteria for observer status – it must be intergovernmental.
The representative of Croatia said that granting the Chamber observer status would be of benefit to the international community.
The representative of Syria said his delegation agreed with the delegations of the Russian Federation and Venezuela.
The representative of Algeria said he had reservations on the matter since the Chamber did not meet the criteria.
The representative of Morocco said he supported granting the Chamber observer status because that would enable it to be more conversant with the concerns of the international community.
The representative of Belgium said he supported granting the Chamber observe status because it legitimately represented the business world.
The representative of Romania joined the States supporting the proposal, saying that granting the Chamber observer status would help to increase cooperation and exchange between the Chamber and the General Assembly.
Universal Jurisdiction
FRANCISCO ANTONIO CORTORREAL (Dominican Republic), speaking for the Community of Latin American and Caribbean States (CELAC), recalled a document presented by the Sixth Committee’s Working Group during the General Assembly’s sixty-sixth session, which saying it had been intended to contribute to and facilitate debate on the scope and application of the principle of universal jurisdiction. The Working Group had discussed each of the sections prepared by the Chair, including elements of the concept of universal jurisdiction, and its role and purpose; the scope of universal jurisdiction, dedicating several meetings to the possible list of crimes; and the conditions for its applicability, including procedural aspects and interaction with other concepts of international law. As a result, the Working Group had explored several points of common understanding as well as with others that might require further discussion, he said.
In that regard, he pointed out that universal jurisdiction was an international law institution of exceptional character for the exercise of criminal jurisdiction, which served to fight impunity and strengthen justice. As a result of discussions in the Sixth Committee, as well as the information provided by Member States, several delegations had reiterated their view that universal jurisdiction should not be confused with the exercise of international criminal jurisdiction, or with the obligation to extradite for prosecution. CELAC agreed with the understanding voiced by a group of States, which clearly indicated the different legal nature of such institutions, notwithstanding their complementarity for purposes of fighting impunity. Expressing the group’s commitment to work towards establishing guidelines for the application of the principle of universal jurisdiction, he said “it is time to build out of our very fruitful discussions and move one step forward” on the matter.
ALI NASIMFAR (Iran), speaking for the Non-Aligned Movement, urged all States to reflect on the issue with a view to identifying its scope and the limits of its application, and to prevent any inappropriate recourse to it. The sovereign equality of States, as well as the principle of non-interference in the internal affairs of other States, should be observed in judicial proceedings, he emphasized. The exercise of criminal jurisdiction by national courts invoking universal jurisdiction over high-ranking officials who enjoyed immunity under international law was a violation of the sovereignty of States.
He went on to say that invoking universal jurisdiction against some Member States of the Non-Aligned Movement, in violation of the principle of immunity of State officials before the courts of other States, had generated concerns about its legal and political implications. Further clarification was needed to prevent improper resort to universal jurisdiction, he said, noting that decisions of the International Court of Justice and the work of the International Law Commission were among sources that might be useful during the Sixth Committee’s discussions. The legitimacy and credibility of applying universal jurisdiction would be ensured by its responsible application, consistent with international law, he stressed.
THEMBILE ELPHUS JOYINI (South Africa), speaking for the African Group and associating himself with the Non-Aligned Movement, said his Group respected the principle of universal jurisdiction but was concerned about its uncertain scope and application. It was important to respect other norms of international law in the application of universal jurisdiction, including sovereign equality of States, territorial jurisdiction and immunity of officials under customary international law. The Constitutive Act of the African Union gave the bloc the right to intervene in situations of genocide, war crimes and crimes against humanity.
Recalling the view expressed by the International Court of Justice to the effect that the cardinal principle of immunity for Heads of State should not be called into question, he said abuse of the principle of universal jurisdiction by the non-African courts was a development that could endanger international law. The African Group reiterated the request by African Heads of States and Government that warrants of arrest issued on the basis of such abuse should not be executed in any Member State. The African Union had urged its member States to apply the principle of reciprocity in defending themselves against such abuse, he said.
LIZANNE ACHING (Trinidad and Tobago), speaking for the Caribbean Community (CARICOM) and associating herself with CELAC, emphasized that universal jurisdiction offered a subsidiary basis for promoting accountability, closing the immunity gap, and strengthening international justice systems by ensuring that perpetrators of the most serious crimes were brought to justice. Noting that the International Criminal Court’s jurisdiction was only invoked when States were unable or unwilling to prosecute alleged perpetrators, she said national courts had the primary responsibility to investigate and prosecute crimes under their jurisdiction.
Notwithstanding Article 31 of the Vienna Convention on Diplomatic Relations of 1961, she continued, CARICOM supported the jurisdiction of the International Criminal Court, which was governed by the provisions of the Rome Statute. The Statute should apply equally to all persons without any distinction based on official capacity, she said, emphasizing that under international law, no one was immune from such crimes as genocide, crimes against humanity and war crimes. Finally, she reiterated the importance of clearly defining the circumstances under which it would be appropriate to exercise universal jurisdiction.
CATHERINE BOUCHER (Canada), speaking also for Australia and New Zealand, said universal jurisdiction conferred on every State the ability to exercise criminal jurisdiction over individuals responsible for serious crimes of international concern, regardless of the location of such conduct or the perpetrator’s nationality. Primary responsibility for investigating the most serious crimes rested with the State in which it occurred.
She went on to recognize other established bases of criminal jurisdiction, including the exercise of jurisdiction based on the nationality of the alleged perpetrator. Noting that many crimes went unpunished for a variety of reasons, she encouraged States to help national courts prosecute serious international crimes, stressing that they should ensure that universal jurisdiction was only applied to the most serious crimes, such as genocide, war crimes, crimes against humanity, slavery, torture and piracy.
TANIERIS DIÉGUEZ LA O (Cuba), associating herself with the Non-Aligned Movement and CELAC, said States should avoid resorting to the principle of universal jurisdiction unless it was appropriate, adding that such recourse should not be politically motivated. The General Assembly’s core work on universal jurisdiction should be geared towards establishing international guidelines, she said. That principle should be constrained by respect for sovereignty and national jurisdiction of States, she said, adding that universal jurisdiction should be limited to exceptional circumstances, and not to undermine the integrity of legal systems.
PETRA BENEŠOVÁ (Czech Republic) affirmed that universal jurisdiction was an important tool in the fight against impunity for the most serious crimes, allowing the international community to prosecute perpetrators and eliminating safe havens. The scope and application of the principle should be treated as primarily a legal question, meriting thorough legal analysis at the International Law Commission, as previously recommended by the Czech delegation. Following such a referral, the Sixth Committee would still retain responsibility for any action it considered appropriate.
ASMA AL SULAITI (Qatar) said universal jurisdiction enabled the international community to combat impunity for the most flagrant violations of international law. However, implementing that principle entailed major challenges and Qatar believed universal jurisdiction must be part of a comprehensive approach that would include deterrence. Reiterating the importance of good faith in exercising universal jurisdiction, she stressed the need to strike a balance. The nature of the crime should determine whether or not it fell within the scope of universal jurisdiction.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), associating himself with CELAC, said that while universal jurisdiction could help fight crimes against humanity, it was important to remember that it coexisted with other elements, such as the obligation to extradite, as well as the jurisdiction of international courts. Noting that El Salvador had integrated the application of universal jurisdiction into national legislation, he said that, while recognizing the principle’s importance, the international community had enacted various treaties that entrusted the State in which a crime was committed with the primary responsibility for prosecuting the perpetrators. Universal jurisdiction should be applied only where that was not possible or where there was no will to do so.
ANGEL HORNA (Peru) said the international community had seen an increase in serious crimes due to conflict and violent extremism. Universal jurisdiction could serve as an effective response when other accountability mechanisms could not be applied. Peru wished to see substantive progress in defining the concept, he said, adding that crimes subject to that principle should not be exhaustive, but should cover victims of minority groups not recognized by their own States.
OMER DAHAB FADL MOHAMED (Sudan), associating himself with the African Group and the Non-Aligned Movement, said that an impartial, comprehensive and balanced approach to universal jurisdiction should take into account the principles of international law, customary international law and the principles of the Charter. Universal jurisdiction should be considered with absolute respect for sovereignty and national jurisdiction. With regard to impunity, priority should be given to national jurisdiction, he said, adding that universal jurisdiction should complement, not replace it. He expressed concern about misuse of the principle by certain national courts serving political interests.
SERGEY A. LEONIDCHENKO (Russian Federation) said the principle of universal jurisdiction lacked well-recognized legal contours at the moment, adding that arbitrary treatment of such instruments could complicate relationships between States. Emphasizing the importance of preventing abuse of that principle and ensuring respect for the norms of customary international law, particularly those relating to immunity for public officials, he said the international community had more traditional instruments for combating impunity. Furthermore, there were practical complications linked to the implementation of universal jurisdiction, such as the lack of direct access to evidence, witnesses and suspects, which could lead to what amounted to “remote investigation”.
DIE MILLOGO (Burkina Faso), associating himself with the Non-Aligned Movement and the African Group, said universal jurisdiction was integrated into his country’s national legislation and Penal Code, as were most international conventions. The principle was the appropriate mechanism for ensuring that no crime went unpunished by bridging gaps between different national legislations and thereby ensuring that no criminal went unpunished. However, the application of universal jurisdiction bumped up against certain limits, including its relative character. In order to attract consensus with regard to its scope and application, universal jurisdiction should concern those crimes that were an affront to the collective conscience, such as genocide, war crimes, piracy, slavery and trafficking in persons, he said.
YOUSSEF HITTI (Lebanon) said putting an end to impunity was imperative. Universal jurisdiction was of vital importance and could not be applied arbitrarily. It should be defined pursuant to the principles of the United Nations Charter, including the principle of the sovereignty of States. On the issue of types of crime, he noted that some were defined in international treaties while others varied from one State to another. In closing, he stressed that a bona fide definition of the concept of universal jurisdiction was needed.
ELIPHAS CHINYONGA (Zambia), associating himself with the Non-Aligned Movement and the African Group, said there was inadequate legal clarity regarding the scope of the principle of universal jurisdiction. As long as it existed outside of such parameters, it would be subject to abuse. The sovereign equality of States and immunity of its officials were critical and the application of the principle should obligate States to ensure that it was applied in good faith. He also noted that international efforts should complement domestic legal regimes.
PRZEMYSŁAW SAGANEK (Poland) said his country’s criminal law applied to certain acts committed by nationals or foreigners abroad. Those acts were limited to crimes that Poland was obliged to prosecute on the basis of international treaties and as defined in the Statute of the International Criminal Court. Another provision that penalized certain acts included crimes against national security, official Government agencies and crimes connected with false statements made to those officials. The ongoing debates of the Legal Committee revealed the concern of many delegations toward such provisions, he said.
SEBASTIAN ROGAČ (Croatia) said Serbia, through its law on organization and competence of state authorities in war crimes proceedings, was misapplying the concept of universal jurisdiction for political purposes. That law applied only to a handful of States, including Croatia, and had cut deep into the notion of universal jurisdiction. Through the law, Serbia was ignoring Croatia’s readiness to prosecute alleged international crimes committed on its territory. In addition, the law was an example of parachuting into the criminal jurisdictions of neighbouring States, a contradiction of United Nations Charter principles. In short, the law amounted to “an insidious legal aggression” that had nothing to do with universal jurisdiction, but much to do about trying to rewrite history, he said, calling on Serbia to amend the law as soon as possible.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating himself with CELAC and the Non-Aligned Movement, called for a restrictive focus with the crimes likely to be indicated under the universal jurisdiction principle. There was no legal clarity regarding its concept and scope. To ensure impartial and objective applications of that principle, the international community needed clear definitions and transparent mechanisms. Without those, prosecutors could be tempted to initiate cases against public officials in other countries for reasons far removed from justice. Such actions could undermine international law and the principles of sovereign equality of States and non-interference in internal affairs. The application of universal jurisdiction should always be supplementary to national tribunals, he said.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico) said of universal jurisdiction that, under international treaty law, piracy and war crimes were the only two crimes provided for the obligation of States to investigate and try them, regardless of the link or connection to the State only. Other international treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, provided for different principles and the obligation to try or extradite. The question of the scope and application of universal jurisdiction was a technical question of international law, he said noting the Sixth Committee’s timely request that the International Law Commission undertake a study of that matter. The Committee would then have elements in hand for further discussion, he said.
DAVID LOW (Singapore), associating himself with the Non-Aligned Movement, said universal jurisdiction should only be applied for the most serious crimes affecting the international community as a whole. An unwarranted expansion of the principle to include anything less than the most heinous crimes would be a distortion of the purpose for which the principle had been developed. Universal jurisdiction was not and should not be seen as the primary basis for the exercise of criminal jurisdiction. Universal jurisdiction could not be exercised in isolation or to the exclusion of other relevant rules and principles of international law. There must also be a distinction between the exercise of universal jurisdiction and principles found in treaties or international tribunals. The latter two were separate scenarios and the principle of universal jurisdiction should not be confused with them.
CHRISTOPHER STEPHEN (United Kingdom) said universal jurisdiction was distinct from that used in international judicial mechanisms that had been established by a treaty, including the International Criminal Court. It also differed from jurisdiction created under treaties to which State parties established an “extradite or prosecute” regime and from extraterritorial jurisdiction enjoyed as a matter of domestic law by the courts of many States in relation to the conduct of their citizens or residents. Indeed, the scope of universal jurisdiction was relatively narrow and had been established for a small number of specific crimes, including piracy and war crimes. Procedural safeguards needed to be in place to ensure that the principle was exercised responsibly.
EMILY PIERCE (United States) said basic questions remained on how jurisdiction should be exercised in relation to universal crimes and how States’ views and practices related to the topic. The submissions that had been made by States to date, the work of the working group of the Sixth Committee and the Secretary-General’s reports were useful in helping to identify differences of opinion and points of consensus. She underscored the United States’ interest in discussing what criteria States used in determining whether to exercise universal jurisdiction, how they addressed competing jurisdictional claims by other States, issues related to due process and what conditions or safeguards States had placed on the exercise of that principle.
PATRICK LUNA (Brazil), associating himself with CELAC, said that if the universality of the Rome Statute was achieved, there would be a more fertile ground for the values of justice and stability and for an order based on international law. The current debate on universal jurisdiction should not deviate the international community from promoting the Rome Statute system. Universal jurisdiction was one way to achieve accountability, he said, adding that ending impunity was an obligation contained in numerous relevant treaties. Universal jurisdiction should be exercised with full respect for international law and should be limited to specific crimes. It could not be arbitrary and should not be used for purposes other than justice. A proper definition and a clear understanding of its scope were necessary to avoid its selective application.
ABEL ADELAKUN AYOKO (Nigeria), associating himself with the African Group, said the principle of universal jurisdiction remained a controversial issue among Member States because by it, States were allowed to claim criminal jurisdiction over an accused person, regardless of where the alleged crime had been committed and irrespective of the accused person’s nationality. That was underpinned by worthy objectives, but there were a number of issues that should be addressed to make the principle widely acceptable. The principle must be exercised in accordance with others pertaining to international law, including the sovereign equality of States and the immunity of Government officials, he said, welcoming the idea of establishing a working group of the Sixth Committee to continue discussions on the matter.
Right of Reply
The representative of Serbia, speaking in exercise of the right of reply, said there had been deliberate distortions and malicious misrepresentations in the statement made by delegate from Croatia, who had also failed to recall that the Serbian law on war crimes had been prepared in collaboration with international legal experts.
The representative of Croatia, in exercise of the right of reply, said most of what Serbia’s speaker had said had not been established “in either fact or law”.