Legal Committee Begins Work on Issues of Extradition, Durability of Treaties, ‘Most Favoured-Nation’ Trading Policies
Legal Committee Begins Work on Issues of Extradition, Durability of Treaties, ‘Most Favoured-Nation’ Trading Policies
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
22nd Meeting (AM)
Legal Committee Begins Work on Issues of Extradition, Durability
of Treaties, ‘Most Favoured-Nation’ Trading Policies
Debate on Final ‘Cluster’ of Topics from International Law Commission
The Sixth Committee (Legal) today continued its consideration of the report of the International Law Commission by turning to the new topics of “obligation to extradite or prosecute”, “most-favoured-nations clause”, and “treaties over time”, while completing its debate on the last cluster.
Introducing the new topics, the Chairman of the Law Commission gave an overview of the progress made. A working group on the topic of obligation had established a framework which covered the legal bases for the obligation, including the relationship between the obligation and other principles such as universal jurisdiction, the conditions for triggering the obligation, and the relationship between obligation and surrender, the so-called “third alternative”, among others.
He noted that a study group had begun a preliminary assessment of the 1978 draft articles on the most-favoured-nation clause with a particular focus on scope, interpretation and application to investment. He said this would help “tease out” contemporary issues.
Turning to treaties over time –- factors affecting the operation of a treaty over the span of its existence, as one delegate put it -- he said that the study on this topic addressed whether to focus on subsequent agreement and practice, or to focus on a broader approach.
The representative of Austria said the definition of international crime would need to be addressed if the investigation on the obligation to extradite delved into whether or not the existing legal material had been condensed into relevant rules of customary international law and, if so, whether such rules were restricted to certain crimes or general in scope. South Africa’s representative said that when there were fears about torture or the death penalty being applied, a State could investigate such conditions before submitting to the extradition process. The delegate of New Zealand said the fundamental question was whether an obligation to extradite or prosecute existed under customary international law. He said the relationship between the customary nature of the obligation and specific crimes should be examined.
On the subject of the most-favoured-nations clause, the delegate of Brazil urged the Commission not to lose sight of the effect of its application on development. The representative of the United Kingdom said the issue had been already considered by other bodies such as the United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Cooperation (OECD); to avoid replication of work, the Law Commission should focus on identifying whether most-favoured-nation clauses had any relevance outside the economic sphere.
Concluding the Committee’s debate on protection of persons in the event of disaster, Ghana’s representative urged the Commission to consider suggestions regarding the need for scientific and technical assistance and technology to be made available to disaster-stricken countries free of charge.
The Special Rapporteur on the protection of persons in the event of a disaster said that five draft articles had been finalized and would be submitted to the General Assembly in 2010, along with any additional measures to be adopted. Views expressed by the Committee members during the recent discussion would be reflected in the Law Commission’s next report. He also noted that the draft articles represented the common ground achieved by the Commission through rigorous discussion on scope and definition, and the principle of cooperation. They reflected the best approach to the protection of persons in disasters.
The representative of Austria then introduced two draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL).
Also speaking today were the representatives of Ireland, Mexico, Romania, Iran and Thailand.
The Observer for the International Federation of Red Cross and Red Crescent Societies also addressed the Committee.
The Committee will meet again at 10 a.m., tomorrow (Tuesday, 3 November) when it is expected to continue its debate on the International Law Commission report.
The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on “protection of persons in the event of disasters”, “shared natural resources”, “obligation to extradite or prosecute”, and “treaties over time”. (For background on the Commission’s report, see Press Release GA/L/3374 of 26 October.)
The Sixth Committee also has before it two draft resolutions. By a draft on the report of the United Nations Commission on International Trade Law (UNCITRAL) (A/C.6/64/L.10), the Assembly would welcome the progress made by the Commission on the revision of its Model Law on Procurement of Goods, Construction and Services and of its Arbitration Rules, as well as progress on a draft legislative guide on the treatment of enterprise groups in insolvency and a supplement to the Legislative Guide on Secured Transactions dealing with security rights in intellectual property. It would endorse the UNCITRAL decision to undertake further work in the area of arbitration, electronic commerce, transport law and commercial fraud, as well as in the areas of insolvency and security interests, and would welcome decisions regarding the holding of international colloquiums on electronic commerce and on security interests.
Further by the draft, the Assembly would affirm the importance of the Commission’s work, particularly for developing countries, in technical assistance and cooperation in international trade law reform and development, including through initiatives towards expanding those programmes and building partnerships towards that end. Among other provisions, the Assembly would express appreciation for contributions to the trust fund providing travel assistance to developing country members of UNCITRAL, and would decide to continue considering travel assistance grants to members which are least developed countries.
The draft would welcome the review of UNCITRAL’S work methods in light of its increased workload, and would welcome the discussion in the Commission on the role of modern private law standards in the area of international trade as an essential element for advancing good governance and development. The Assembly would also affirm the view that promotion of the rule of law in commercial relations should be an integral part of the broader United Nations agenda to promote the rule of law, including through the Rule of Law Unit. The Commission’s proposed strategic framework for 2010-2011 would also be welcome.
Recalling resolutions on partnerships, the Assembly by the draft would request the United Nations Secretary-General to explore options to facilitate timely publication of the Commission’s Yearbook on international trade law and would stress the importance of implementing the Commission’s conventions for global unification and harmonization of trade law. Digests of case law would be also welcome.
The other draft resolution before the Sixth Committee relates to UNCITRAL’S practice guide on cross-border insolvency cooperation (A/C.6/64/L.11). By the text, the Assembly would request the United Nations Secretary-General to publish, including electronically, the text of the Practice Guide and to transmit it to Governments. It would also recommend that the Guide be given due consideration by judges, insolvency practitioners and other relevant stakeholders. Finally, the Assembly would recommend that all States continue to consider implementing the Model Law.
EBENEZER APPREKU ( Ghana), speaking on the topic of “reservations to treaties” said he supported the position that a reservation or an interpretative declaration should not defeat the object and purpose of a treaty. He supported an approach encouraging States to seek judicial interpretation in case of disputes arising from the application or implementation of a treaty. Reservations that did not defeat the object and purpose of a treaty could be an incentive for a State to become a party to a treaty, thus encouraging universal participation, especially in light of the right for a State to withdraw from a treaty. Expressing reservations also allowed a State to “buy time for further reflection” on the complexities of a treaty and not yield to pressure by other parties.
On the topic of “expulsion of aliens” he said he supported the relevant draft articles that included the right of persons facing expulsion to have certain procedural guarantees, since they had the same inherent dignity as citizens. “Too often aliens are arrested in the street and rushed to detention facilities en route to the nearest air or land port,” he noted, thus being expelled against their will without the chance to challenge their deportation in court. Further, it should not be lawful for a donor country to make the receiving of expelled aliens to be tied to the granting of development aid.
He also spoke on the issue of protection of persons in the event of disasters, and said that Ghana, at a national level, established policies and legislation to address disaster risk reduction and had identified inadequate capacity-building and resources, and also noted the need for the coordination of public awareness in its national strategic plans. The Law Commission should consider further the suggestions of some States regarding the need for scientific and technical assistance and technology to be made available to disaster-stricken countries free of charge. He said there should be no distinction between natural and man-made disasters since they were, in many cases, interlinked.
He commended the work of the Special Rapporteur and the Commission on the topic of shared natural resources, and said he would submit comments in writing on the Commission’s questionnaire.
Nuala Ní Mhuircheartaigh ( Ireland), on the protection of persons in the event of natural disaster, said her Government had no difficulty with the scope of the draft article on the topic. It also agreed that the Law Commission should focus on mechanisms for dealing with disasters that had occurred, leaving the important question of prevention and risk management for a later stage. While the Government of Ireland could accept a reference to a “rights-based” approach to disaster relief, it believed the reference should be limited to human rights generally, without specifying which rights. It would be helpful to complement a reference to “rights” with a reference to “needs”.
She said it would not be helpful to focus on broad conceptual debates at the expense of progress on the technical task of building a legal framework to underpin and facilitate disaster relief. Among several complex issues needing to be examined were questions of access and freedom of movement of personnel into affected territories and their legal status and immunities; customs clearance for humanitarian supplies, and tax and duty arrangements; and recognition of professional qualifications for humanitarian or specialized personnel. The Commission, she added, should formulate arrangements that States could implement at the time of greatest stress on receiving States; no distinction should be drawn between natural and man-made disasters.
Observing that the draft article seemed to suggest that “large-scale material or environmental damage” was sufficient to trigger applicability, without an impact on human life, she said it was qualified, as well, by a requirement that the events in question “seriously disrupt” society’s functioning. The Government of Ireland would question whether the concept of “society” could exclude a disaster that affected regions of a State but not a State as a whole.
She said the draft should contain an article that specified that the draft was “without prejudice” to the rules of international humanitarian law. The duty to cooperate was understood as not going beyond what was established in customary international law. Close cooperation with organizations such as the International Federation of the Red Cross was valuable and appropriate.
ALEJANDRO RODILES ( Mexico), on the topic of shared natural resources, said transboundry hydrocarbon sites represented a great complexity because of their distinct commercial nature. It would be difficult to establish a general legal regime given the very different geography and nature of particular States and the manner of legislation of each of them. However, the Commission’s work was still relevant in certain applicable elements, and he cited the rulings of the International Court of Justice on the North Sea continental shelf cases in 1969, which addressed equitable exploitation of a transboundary site. The Court’s determination was not about applying equity based on abstract justice, but on the rule of law of equitable principles.
He said the issues of regulation and exploitation of hydrocarbon resources were often addressed through convening bilateral agreements between the parties involved. However, there were general principles to be engaged when addressing shared resources such as the principle of precaution, equitable and rational utilization and the obligation to cooperate in the exploration and exploitation of the said resources. This was a sensitive subject, he noted, but the Law Commission’s work could help “fill the gap” in the bilateral regulations on this situation.
OANA FLORESCU ( Romania), on the protection of persons in case of disaster, said that although she supported the limited implementation to natural phenomena only, andthe approach that emphasized human rights and the right to assistance for each individual. Further, the inclusion of “without prejudice” in the relevant draft article was welcome, since a clear-cut distinction between armed conflicts and disasters was not possible. The principle of cooperation among States in case of disasters needed further clarity. There should be further analysis of the obligation to cooperate and the role of the initiative of the State.
Turning to the topic of shared natural resources, she said that the joint management of such resources should be viewed by States as a specific issue, and that each case be considered with specific regulations tailored to that situation. She supported the position of the Law Commission that joint management of oil and gas resources be given a broader examination, because those resources were frequently shared.
On the issue of obligation to extradite or prosecute, she said the efforts of the open-ended working group and its resulting framework would contribute to a “fruitful analysis” of the topic. She said she looked forward to the conclusions of the Commission’s study group on the topic of treaties over time, as well as the development of jurisprudence of the International Court of Justice and other international courts and tribunals in the coming year.
MARWAN JILANI, Observer, International Federation of Red Cross and Red Crescent Societies, said the Law Commission’s initiative on protection of persons in disasters was complementary to his organization’s guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance. More than a dozen countries had already either adopted new regulations using the guidelines or were in the process of internal legal reviews. He said the Commission’s acknowledgement of his organization’s traditional approach of addressing the rights and duties of both States and non-State actors was welcome. The failure to account for the non-State sector was an important gap in older treaties related to disaster cooperation; the modern trend was to ensure coverage of those critical actors, as demonstrated by the guidelines.
He noted that his group’s traditional approach to disaster response, based on needs and informed by rights and said human rights, was a crucial component of the regulatory framework for the response; humanitarian assistance was a fundamental right. However, as the Commission had noted, not all practical problems could be resolved through a “rights-focused lens”.
He said the complexities in arriving at a definition of disaster were recognized. So the definition adopted by the Law Commission should be directly informed by the extent and type of legal consequences it is considered to trigger. Nevertheless, a distinction should be made between situations of armed conflict and other types of humanitarian emergency; whether or not armed conflicts coincided with natural disaster, they involved unique operational dynamics and implicated international humanitarian law. Rules governing relief should be distinct in situations where there was no conflict. A simple “savings clause” to apply humanitarian law may not capture the distinction.
Finally, he said member societies of the Red Crescent/Red Cross Societies played a unique role in cooperation with public authorities as “auxiliaries in the humanitarian fields”. The meaning and scope of the auxiliary role as an international norm had been recently clarified. The Commission’s articles should take that into account.
Statement: Special Rapporteur on Protection of Persons
EDUARDO VALENCIA-OSPINA, Special Rapporteur on protection of persons in the event of disasters, said five draft articles that had been finalized would be submitted to the General Assembly in 2010, along with any additional measures that would be adopted. They represented the common ground achieved by the Commission after much discussion with regard to scope, definition and the principle of cooperation. They showed the way in which the Commission had formulated the issue, for example in weighing the question of which had primacy --, a needs-based approach or vice versa. Also under consideration had been the possibility of extending the scope to encompass human-made disasters beyond natural ones, and even whether to extend the scope to include disasters in situations of armed conflict.
He said pre-disaster elements had been considered, including disaster prevention and awareness. Some changes had addressed views expressed by members of the Legal Committee. For example, the scope and definition were now addressed in two separate draft articles, so as to distinguish more clearly between them. Derogation of rights in some emergencies had been addressed, which would be relevant to future work. The drafting committee had also decided not to necessarily exclude situations of armed conflicts. Instead, a new draft article 4 stipulated that the articles would not apply in situations where other provisions of international law prevailed. The unclear reference to civil society had been removed and replaced by a reference to relevant nongovernmental organizations. A reference to the International Red Cross/Red Crescent Societies was now included.
He said draft article 5 now set out the various levels of cooperation in disaster response. Among a number of notable provisions were the elaboration of terminology covering the duty of States to render assistance in line with principles such as good will and good faith, and also specific mention of the principles that domestic laws in foreign territories must be respected, with assistance in disasters being primarily a duty of States while the role of organizations was acknowledged.
The drafting committee, he added, had decided that articles on exclusion would not be covered at present, and neither would those relating to solidarity. It was also decided that the responsibility to protect was not applicable. Other principles such as the requirement for the consent of an affected State to receive assistance were covered in article 5.
He said the Committee’s views would be reflected in the Commission’s next report. The discussion had affirmed the view that the five articles already adopted reflected the best approach to the protection of persons in disasters.
Statement by Law Commission Chairman
ERNEST PETRIC, Chairman of the International Law Commission, introduced the themes of “obligation to extradite or prosecute”, “most-favoured-nation clause” and “treaties over time”.
On the obligation, he noted that a plan of action guided the work begun in 2005. Three draft articles had been articulated and were yet to be referred to the drafting committee. A working group had been established and a general framework set out. The framework, comprising seven sections, covered the legal bases for the obligation; material scope; content; relationship between the obligation and other principles such as universal jurisdiction; conditions for triggering the obligation; implementation; and relationship between obligation and surrender, the so-called “third alternative”.
He said the general framework did not take a position on whether treaties constituted the exclusive source of the obligation or whether the obligation also had a basis in customary international law. The framework was also not a definite answer as to how comprehensive the approach should be. However, the understanding was that the work would not involve a detailed consideration of extradition law or the principles of international criminal law. It was aimed at facilitating the work of the Special Rapporteur while leaving to him considerations such as the order in which to consider questions and linkages between aspects of the topic.
On the question of the most-favoured-nation clause, he said a study group had conducted a preliminary assessment of the 1978 draft articles related to the topic, so as to review developments that had taken place since then. In particular, consideration would centre on scope, interpretation and application to investment in eight areas that had been identified for a two-fold purpose, first to appreciate the existing background material and second, to “tease out” emerging contemporary issues.
Three categories of draft articles had emerged from that preliminary assessment, he said. One was a group that remained of relevance, including many dealing with scope and the problematic question of the definition of “investment”. Caution was expressed with regard to extrapolating from one area of trade to others. Also to be borne in mind for future work was the fact that no multilateral regime covered the area of investment. The second category was a set of articles, such as one dealing with the facilitation of frontier traffic, which was also of relevance but unclear as to continued applicability. The final category was a set of articles that did not raise issues of core relevance. Their provisions were either premised on distinctions no longer prevalent or they reflected self-evident propositions consistent with contemporary practice. A future paper would clarify those areas.
Turning to treaties over time, he recalled that the item had been added to the Commission’s agenda last year and that the work of a study group had focused on identification of issues to be covered, working methods and possible outcome. On the scope, the main question concerned whether the focus should be on subsequent agreement and practice, or whether a broader approach should also deal with issues such as effects of acts on treaties, effects of supervening other sources of international law on treaties and either amendments or modifications to treaties. It was suggested that the final outcome could be an elaboration of a repertory of practice.
He said the Commission took note of the study group’s recommendation to start with a focus on subsequent agreement and practice while exploring the possibility of approaching the topic from the broader perspective. A report would be prepared for next year on the basis of the jurisprudence of the International Court of Justice and other relevant international courts and tribunals. Information from others, including regional groups, would be invited.
GERHARD HAFNER ( Austria) said it would be interesting to see whether the existing legal material on the obligation to extradite or prosecute had already condensed into relevant rules of customary international law, and that if such a rule existed whether it was restricted to certain crimes or general in scope. That would bring up the definition of international crime.
On universal jurisdiction in context of the obligation, he said it should be noted that jurisdiction was a necessary prerequisite for the obligation, and the question of universal jurisdiction could arise only under that condition. As to conditions that could trigger the obligation, the Commission should consider approaches towards compliance with requests, either to allow for a formal examination of the request or to require a substantive scrutiny. Reference to a “standard of proof” would be involved, but clarification would be helpful.
The issue of guarantees in cases of extradition had raised concerns in inter-state negotiations recently. The question had been raised whether diplomatic assurances were acceptable, and sufficient to remove responsibility under human rights conventions. The issue was closely related to that on control of implementing the obligation, and to the extent to which control measures such as attendance by consul at proceedings would be enough to guarantee respect for the extradition conditions. On the “third alternative”, relating to obligation and surrender, he said it was possible that sufficient material already existed to ascertain an established pattern of activities that could lead to general rules; in any case, the item did not constitute a priority on the topic.
On the subject of treaties over time, he said it would be useful to focus on subsequent agreement and practice before considering the widening of the scope. The study group’s report would be of great interest.
GUILHERME PATRIOTA ( Brazil) said that because this technical issue of reservations to treaties had serious practical implications, the proposal of draft guidelines was the best option, and he urged the Law Commission to streamline the draft guidelines and make them more “user-friendly”. He added that in the relevant draft guideline, the “catch all phrase of ‘subject of the rules of the organization’” required more in-depth analysis. He stressed the importance of addressing the issue of interpretative declaration, since it was not an object of specific regulation on the Vienna Conventions and was a part of current practice in international law. With regard to the relevant draft guidelines, he said he looked forward to the consideration of permissible and impermissible reservations and objections to reservations.
On the topic of expulsion of aliens, he said there was no clear meaning of “expulsion” and which situations would be covered by the draft articles; this might have to do with State national legislation. He said his country’s legislation covered four situations including deny of entry, deportation, expulsion and extradition. He observed that the Law Commission had not considered extraditing under the area of expulsion. He asked that the Commission offer more clarity in that area. Addressing human rights in the relevant draft articles, he said that by including a specific reference to certain rights, it would be a “stronger appeal” for human rights to be upheld. To ensure that all rights be protected he requested that the relevant article refer to “human rights” rather than “fundamental rights”.
On the subject of most-favoured-nations clause, he said this was of great importance, and he urged the Commission not to lose sight of the broad application of the clause and its effect on development. The Commission’s reference in its report of the 1978 draft did not include material concerning new rules of international law in favour of developing countries. The issue of development in the draft should be expanded.
JIM MCLAY ( New Zealand) on the responsibility of international organizations, said the variety of international organizations differed greatly in purpose, function, membership and competence, and that presented great challenges in addressing complexity of the topic. He was pleased that such diversity was taken into account in the relevant draft article. Turning to the issue of countermeasures, he said that because of the scarcity of practice, this issue lacked clarity and certainty; he supported the relevant draft articles, stating that countermeasures not be a primary means of ensuring compliance of States. They should be subject to the organization’s applicable rules.
He said the issue of reservations to treaties was one of great practical importance. The draft guidelines should be simplified and shortened; a separate document setting out the main principles based on guide to practice would be worthwhile. The reservations regime should not be transposed to interpretative declaration, although it would be useful to align the two regimes in regards to interpretative declarations that might be recharacterized as reservations.
On the topic of expulsion of aliens, he said he supported a broader reference to human rights, with other draft articles devoted to specific rights in the context of expulsion. On protection of persons in the event of disasters, he said he agreed with the Special Rapporteur’s consideration of the needs of persons in the rights-based approach, focusing on the consequences of the enforcement of such rights could benefit affected individuals. Cooperation was the central principle underpinning the protection of persons in the events of disasters and he suggested that other principles such as neutrality, impartiality and non‑discrimination also be included.
He said the proposed general framework of the working groups addressed many practical questions on the issue of the obligation to extradite or prosecute. These included the conditions that would trigger such an obligation. He was also interested in the group’s investigation on the fundamental question on whether an obligation to extradite or prosecute existed under customary international law and said he favoured examining the relationship between the customary nature of the obligation and specific crimes.
JESSE CLARKE ( United Kingdom) said that the obligation to extradite or to prosecute arose as a result of a treaty obligation, which could not yet be regarded as a rule or principle of customary international law. The terms of international agreements governed both the crimes in respect of which the obligation arose and the question of whether the custodial State had the discretion to extradite or prosecute. The Law Commission’s further consideration of the question should begin with a review of relevant treaty provisions, domestic legislation and judicial decisions. The establishment of the open-ended working group was welcome.
On the most-favoured-nations clause, he said the Commission’s work should take into account the fact that the question had been considered by other bodies such as United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Cooperation and Development (OECD), in the fields of trade and investment, respectively. To avoid replication of this body of work, his country believed the Commission’s working group should focus on identifying whether the most-favoured-nation clauses had any relevance outside the economic sphere. If so, broad principles should be drawn in relation to scope and application of the most-favoured-nation clauses. That could prove difficult, since the interpretation of the clauses by tribunals had been heavily dependent on wording and it could be doubtful whether this was ultimately an area suitable for codification. Similarly, general principles on the relationship between favoured‑nation clauses and national treatment clauses may be difficult to draw.
He said the study group on treaties over time should be guided by a narrower approach, rather than attempting to take account of all possible factors affecting the operation of a treaty over the span of its existence. It was not clear that it would be either practical or possible to devise guidelines or draft articles that went much further than the Vienna Convention on the Law of Treaties.
DJAMCHID MOMTAZ ( Iran) said that the definition of the word “disaster” in the topic of the protection of persons in the event of disasters, would affect the “entire edifice of the project”. It should be exclusively concerned with natural disasters and not include man-made catastrophes. He said the language “serious human hardship”, in defining disaster, should be added since disasters could happen without resulting in physical loss of life but could significantly damage the infrastructure of a society, which would then result in hardship.
He said the concept of “protection” was aimed at providing effective and timely assistance to those in dire need, thus entering the domain of humanitarian assistance. He suggested that the word “assistance” rather than the word “protection,” be used. Utilizing a rights-based approach implied that States must accept international aid, which impinged on the State’s responsibility to provide assistance to its citizens, to ensure proper coordination of relief measures, and to refuse an offer of assistance made with “no good intention”.
He said the element of consent by an affected State in its cooperation with the international community was based on the principles of State sovereignty and non-interference in internal affairs.
On the subject of the obligation to extradite or to prosecute, he said that because of the diversity of international practice, and the wide range of crimes that could fall under this topic, the Law Commission should focus on the codification rather than the development of international law. The Commission should not examine the issue of surrendering suspects to international criminal tribunals, because that situation was governed by distinct legal rules. In addressing “treaties over time”, he said that because this issue addressed the effect of the passage of time on State obligation under international treaties, the study group should focus on subsequent practice. It should not engage in any work that would lead to the undermining of the legal stability of contractual obligations or affect the continuity of treaty relations or system of law of those treaties.
ITTIPORN BOONPRACONG ( Thailand) said that the obligation to extradite or prosecute was instrumental in the fight against immunity. Questions on the interrelation between such an obligation and universal jurisdiction, as well as the source of the obligation, needed to be explored. Universal jurisdiction could find its source in customary international law, but the extent to which obligation to extradite or prosecute could be exercised with regard to specific crimes needed to be examined.
He said that there was also a need to examine how States defined the scope of the obligation in their domestic legislation, which in his view needed to be exercised in respect of other principles of international law, such as double jeopardy, among others. On a national level, he stated, Thailand considered the surrendering of a person if it were an extraditable offence and not prohibited under Thai law, and it was not a political or military offence. If there was no extradition treaty, the requesting State could commit to grant the same in a reciprocal manner. Further, he said, implementing such an obligation needed to be in accordance with the principle of due process; Thai law also provided a separate procedural regime for extradition that complied with due process.
THEMBILE JOYINI (South Africa) said the elements to be considered with respect to the obligation to extradite or prosecute included the type of crime subject to the principle under customary international law; the list of treaties placing the obligation on States, and the existence of the principle in customary international law. State practice prevailed through the International Criminal Court and international tribunals when it came to determining which crimes were to be covered by the obligation. He said those were the crimes that shocked the human conscience, including genocide and war crimes. Conventions on terrorism had put the obligation on ratifying States with respect to treaties, although the obligation did not extend to non-States parties to the Conventions.
The material scope should be limited to international crimes, he said. The usual limitations to extradition should apply in considering the relationship between the obligation and other principles, such as the related but clearly distinct one of universal jurisdiction. Conflicts between principles should be resolved. For example, when a State entertained fears about torture or the death penalty being applied, it could solicit conditions to address concerns before submitting to the extradition process.
He said the so-called “third alternative” to extradite or prosecute -- in the form of surrendering an alleged offender -- was different from extradition since it was a process more akin to one court in a State district handing over the
case to another court in the same State. It should not be subject to the rigours or difficulties of the extradition process between States. An international tribunal to which a State was party should also be viewed as an extension of State’s jurisdiction rather than as a foreign one since it was established by the State.
Introduction of Drafts on Trade Commission
The representative of Austria introduced the draft resolution on the report of United Nations Commission on International Trade Law (UNCITRAL) (document A/C.6/64/L.10).
She then introduced the draft on UNCITRAL’S practice guide on cross-border insolvency cooperation (document A/C.6/64/L.11).
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