As Current Debate Ends, Legal Committee Members Discuss Guidelines for Ongoing Work on Topics Considered from International Law Commission Report
As Current Debate Ends, Legal Committee Members Discuss Guidelines for Ongoing Work on Topics Considered from International Law Commission Report
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
26th Meeting (AM)
As Current Debate Ends, Legal Committee Members Discuss Guidelines for Ongoing
Work on Topics Considered from International Law Commission Report
Approaches Offered for ‘Most-Favoured-Nation’ Status; Treaty
Duration; Obligation to Extradite or Prosecute, Shared Natural Resources
As the Sixth Committee (Legal) concluded its current consideration of the International Law Commission’s annual report, the representative of Sri Lanka called on the Commission’s study group to draft broad guidelines or model clauses on the topic of the “most-favoured-nation clause”, a theme serving as a focus for discussion today along with “treaties over time”, the “obligation to extradite or prosecute” and “shared natural resources”.
Continuing, Sri Lanka’s delegate noted a shift in the importance of the “most-favoured clause” from trade to investment agreements because of the proliferation of bilateral treaties in the area of investments. He said the drafting of broad guidelines or model clauses would bring greater coherence and consistency to the field.
Also on that item, the speaker for the Russian Federation recalled that the study group had been established just last year and was already actively involved in analyzing the evolution and key features of how the clause was applied by economic organizations and in economic integration treaties. She said the analysis would be helpful, regardless of the final form the text would take.
On the topic of treaties over time, Mexico’s representative noted that treaties were the cornerstone in evolving relations between States. He said global affairs were dynamic and thus raised many challenges. That made the topic both timely and important. Interpretation and subsequent practice were the dynamic elements. Flexibility was essential to achieve a balance between stabilization and change. A study of the relationship between treaty law and customary law should be undertaken.
Continuing on that topic, South Africa’s delegate said the strength of the Vienna Convention on the Law of Treaties stemmed from its flexibility. While some treaty provisions became obsolete, other provisions evolved with subsequent agreements and practice in interpretation by both judicial and quasi-judicial bodies, as well as by international organizations and domestic courts when determining the impact of a given treaty on a domestic platform.
Belgium’s representative said his country had been the first to introduce legislation for the prosecution of war crimes committed in situations of armed conflict not international in scope. Such legislation had served as the basis for the Tribunals in Rwanda and the former Yugoslavia, as well as for the International Criminal Court. The Rome Statute had upgraded the Geneva Conventions to include three new kinds of war crimes committed in a non-international context: the use of poison gases, the use of asphyxiating gases and the use of hollow-tipped spreading bullets.
Finally, on the obligation to extradite or prosecute, Israel’s delegate said that the “principle” of the obligation should be clearly distinguished from the “concept” of universal jurisdiction. The very consideration of the latter was questionable since there was no basis for extending the obligation beyond the terms of binding international treaties.
On the matter of shared natural resources, India’s delegate said the Commission should not take up the transboundary oil and gas aspects of the issue since it was best to deal with the issue bilaterally. Geological features, regional needs, and the capacity and efforts of neighbouring countries were all to be taken into consideration. Codification could affect established bilateral treaty obligations or an assiduously achieved political agreement.
Finally, touching on another issue in the Commission’s report, Chile’s delegate noted that the protection of people in natural disasters involved two principles, one the primary responsibility of the affected State and the other the international obligation to cooperate. He said the relationship between the two did not detract from State sovereignty. Rather, it associated the sovereignty with the obligation also incumbent on States to cope with disasters in a way that met the urgent needs of those affected.
The Commission’s Special Rapporteur on the obligation addressed the Committee and said the linkage between the obligation and the principle of universal jurisdiction was under study, however difficult was the attempt to find its basis in customary law. Work for the next year would focus on the legal basis for the obligation, the material scope to be addressed, the content of the text and the conditions for triggering the obligation.
In closing remarks, the Chair of the International Law Commission emphasized the importance of the contribution States made to the Commission’s work through the Legal Committee. He said it was a unique and important feature in the Commission’s working methods and assured members of the Committee that the Commission’s work product responded to the practical needs of States.
The Special Rapporteurs who had participated in the Committee’s work had used their own resources, he added. Committee members could help alleviate the enormous burden that such an arrangement placed on everyone by ensuring that some ameliorative steps were taken in the Assembly’s relevant committee so as to establish a more sustainable system.
Finally, he said delegations could keep in mind that written comments on “responsibility of international organizations” were due on 1 January of next year those on “reservations to treaties” were due before 31 January.
Also speaking today were the representatives of Thailand, United States, Netherlands, Cuba, Poland, Republic of Korea, Brazil, Spain and Singapore.
The Committee will meet again at a time and place to be announced.
The Sixth Committee (Legal) met today to conclude its current consideration of the report of the International Law Commission with a focus on “obligation to extradite or prosecute”; “treaties over time”; “the most-favoured nation clause” and “shared natural resources”. (For background on the report and themes, see Press Release GA/L/3399 of 25 October.) The Committee was also expected to hear the introduction of draft resolutions and take action on others.
Before the Committee were four draft resolutions on the Report of the United Nations Commission on International Trade Law (UNCITRAL). The first was the annual omnibus resolution (document A/C.6/65/L.4), by which the Assembly would take note of the report and would welcome the Commission’s work. It would reaffirm the importance of the Commission’s work, particularly for developing countries being assisted with technical cooperation in the field. Activities such as the reported panel discussion and resulting decisions would be noted, as would the lack of sufficient funds to respond to the growing need for uniform interpretation of Commission texts.
By a draft resolution on arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) as revised in 2010 (document A/C.6/65/L.5), the Assembly would express appreciation for the adoption of the relevant text. It would recommend the Rules be used in settling disputes arising out of international commercial relations and would ask the Secretary-General to make all efforts toward making the Rules known and available.
A draft resolution on UNCITRAL’s legislative guide on secured transactions: supplement on security rights in intellectual property (document A/C.6/65/L.6) would have the Assembly express appreciation for the completed text and request the Secretary-General to disseminate it broadly, including electronically. The Assembly would also recommend its use by States to assess the economic efficiency of their intellectual property rights financing and to give favourable consideration to the text when revising relevant national legislation and to advise the Commission when they had done so. Finally, States would be encouraged to consider becoming party to the United Nations Convention on the Assignment of Receivables in International Trade and to implement recommendations of the Trade Law Commission’s Legislative Guide on Secured Transactions.
Finally, a draft resolution on the Commission’s legislative guide on insolvency law on the treatment of enterprise groups in insolvency (document A/C.6/65/L.7) would have the Assembly express appreciation for the text and would request the Secretary-General to transmit the document to Governments and interested bodies. It would recommend that States use the Guide to assess the economic efficiency of their insolvency law regimes and for revising legislation. The Assembly would recommend that States continue to implement the Model Law on cross-border insolvency and that judges, insolvency practitioners and other stakeholders give due consideration to the Guide.
On other subjects, the Committee has before it a draft on criminal accountability of United nations officials and experts on mission (document A/C.6/65/L.3), by which the Assembly would strongly urge States to take all measures to ensure that crimes by United Nations officials on mission did not go unpunished. States would also be strongly urged to consider establishing jurisdiction over crimes by their nationals while serving on mission with the United Nations. The Secretary-General would be urged to strengthen existing training on United Nations standards of conduct while States would be urged to provide information to the Secretary-General on their handling of credible allegations of misconduct by their nationals.
Further, the United Nations would be urged to continue cooperating with States exercising jurisdiction by providing information and materials for purposes of criminal proceedings. The Secretary-General would be requested to report on implementation of the resolution at the next Assembly session.
A draft on diplomatic protection (document A/C.6/65/L.9) would have the Assembly commend the articles on diplomatic protection as presented by the International Law Committee to Member States, who would be invited to submit views in writing. States would also be asked to submit views on whether a convention based on the articles should be elaborated or whether any other action should be taken.
Further Statements on Law Commission Reports
THEMBILE JOYINI ( South Africa) said the issue of “treaties over time” was pertinent to contemporary international relations, noting that certain provisions of treaties became obsolete due to events and developments that occurred. The 1969 Vienna Convention provided for changing, evolving circumstances and he pointed out that the strength of the Vienna Convention stemmed from its flexibility. This was due to the role of subsequent agreements and subsequent practice in the interpretation of a treaty, which both judicial and quasi-judicial bodies, as well as international organizations utilized, as did domestic courts when determining the impact of a given treaty on a domestic platform.
He noted that relevant subsequent agreements, as well as subsequent practices of States, were not always well-documented and often came of light during legal proceedings. He observed that a renewed interest in this issue illustrated that international courts were increasingly interpreting treaties in a “purpose-oriented and objective manner”. He recalled the case before the International Court of Justice concerning a 1977 Treaty between Hungary and Slovakia in which it was stated that subsequent agreements and subsequent practice were aimed at finding a flexible approach to treaty application.
KRIANGSAK KITTICHAISAREE ( Thailand), speaking of the “obligation to extradite or prosecute”, said that the old conventions needed to be evaluated in light of the recent developments in international law. The Commission should consider if there were emerging or established State practice that led to a variety of outcomes, among others, whether or not the requested State was “bound by a treaty or customary international law to extradite the offender to the requesting States unless there [existed] an objectively justifiable condition against such extradition”. He urged that the conditions of extradition be scrutinized so that they not be abused by the requested State to “unjustifiably shield the offender” from prosecution by the requesting State.
On the topic of “the most-favoured nation” clause, he said this was of particular importance to developing countries seeking to attract direct foreign investment. It was probably the only topic on the Commission’s current agenda that was specifically related to international economic law, and he emphasized that the clause was an important feature in the economic development of States, with far-reaching political, social and financial effects on the rest of the international community. He suggested that the clause be studied within multilateral investment-related treaties, bilateral investment treaties, and free trade agreements among States.
He said he agreed with the Commission’s decision to not continue consideration on the topic of “shared natural resources (oil and gas) as it was unlikely to lead to progressively developing or codifying international law on this subject. However, he would support any consensus among States if the Commission did take up this issue and would exclude matters concerning land and maritime boundaries from the scope of its deliberations.
HERNAN SALINAS BURGOS ( Chile) said the purpose of the draft articles on “effects of armed conflicts on treaties” was to protect the legal security and continuity of treaty relations between States. The legal values involved were important in both international and domestic armed conflicts, in which at least one State was party to a treaty. They were summed up by draft article 3 on absence of a rule under which treaties were terminated, and draft article 6 on conclusion of treaties during armed conflict. However, more consideration should be given to the use of the word “absence”, since it did not properly reflect the context of the article. In addition, treaties establishing borders should be within the scope of the articles and more work should be devoted to draft article 8 on notification since this gave stability to treaty relationships and strengthened dispute settlement mechanisms.
On the “protection of persons in disasters”, he said consideration should be given to including the concept of the right to extend cooperation and to exploring the scope of that right in relation to the aid accepted by the affected State. The term “neutrality” should be clarified and should not be used in context of impartiality. There were two principles involved: one was the primary responsibility of the affected State for dealing with a disaster, which could not be diminished; the other was the obligation to cooperate, which was recognized in international law. He said the relationship between the two did not detract from State sovereignty, but associated that sovereignty with the obligation also incumbent on States to cope with disasters in a way that met the urgent needs of the affected people.
TODD BUCHWALD ( United States) applauded the decision of the Law Commission not to pursue further consideration of the question of transboundary oil and gas in the topic “shared natural resources”.
Turning to “the most-favoured nation” clause, he said such provisions were principally a product of treaty formation and tended to differ in structure, scope and language. Furthermore, he said, they were dependent on other provisions in their specific agreements, and thus they “resisted a uniform approach”. He did not believe interpretative tools or revised draft articles were appropriate outcomes. He urged that the study group continue its consideration of current jurisprudence, which would serve as a useful resource for governments and practitioners.
On the topic of the “obligation to extradite or prosecute”, he said there did not seem to be a sufficient basis in customary international law or State practice to formulate draft articles that would extend an obligation to extradite or prosecute beyond the binding international legal instruments that contained such obligations. States should, instead, undertake such obligations by joining binding international legal instruments that contained relevant provisions; those obligations extended over to the other States party to the instruments. Further, a comprehensive view of State practice was essential in considering if there was a basis for “inferring a customary international legal norm” in this matter.
On “treaties over time”, he said that it would be helpful if States responded with information on the jurisprudence of their national courts with regard to the role of subsequent agreement and practice in treaty interpretation. This information was less accessible to States than the jurisprudence of international tribunals, and said he was interested in how other States addressed the “shifting interpretations of international agreements”, based on subsequent practice after ratification.
PATRICK DURAY (Belgium) said, with regard to treaties over time, that his country had been the first State to introduce legislation for the prosecution of war crimes committed in situations of armed conflict that were not international in scope. Such legislation had served as the basis for the tribunals in Rwanda and the former Yugoslavia. The rationale was to upgrade conventional treaties to apply to evolving situations. The ultimate expression of the principles involved was the establishment of the International Criminal Court. Further, the Rome Statute had extended the Geneva Conventions to include three new kinds of war crimes committed in a non-international context: the use of poison gases, the use of asphyxiating gases and the use of hollow-tipped spreading bullets.
ADY SCHONMANN ( Israel), discussing the matter of reservations to treaties, said the nullity of an invalid reservation did not depend on objection or acceptance by a contracting State or organization. At the same time, there should be no obligation by States to formulate an objection, or to do so “as soon as possible.” Time constraints and vague drafting could result in the inability of States to fulfil such an obligation. In addition, the title of “guide to practice” did not accurately reflect the context. First, it was often difficult to make a clear distinction between proposals relating to codification and those aimed at progressive development; secondly, actual practice and desirable practice were not always the same, and finally the text was based on insufficient or unclear practice. The final product contributed to the clarification of many aspects of the issues involved and should be called a “study”.
On other matters, she said the topic of expulsion of aliens was complex and involved a delicate balance between the right of States and the safeguarding of fundamental human rights. It touched on issues of immigration and national security, both on a legal and political level, in areas that were sensitive and unique. She said the term “armed conflict” in the draft articles on that subject related to treaties which incorporated the definition of aggression in an overly sweeping way. Transboundary oil and gas should not be considered in context of shared natural resources but should be left to bilateral consideration. And the principle of obligation to extradite or prosecute should be clearly distinguished from the concept of universal jurisdiction, if that was even considered. There was no basis for extending the obligation beyond the terms of binding international treaties.
ALEJANDRO RODILES ( Mexico) said treaties were the cornerstone in developing relations between States. The reality was that global affairs were not static and thus raised many challenges and questions in this regard, making the topic of “treaties over time” timely and important. Interpretation and subsequent practice were dynamic elements in treaties; flexibility was essential. Thus it was crucial to find a balance between stabilization and change. He supported a comprehensive approach to this issue, in particular on the relations between treaty law with customary law, and the systematic integration of, and possible modification, of treaties by agreement.
On the topic of “shared natural resources”, he said he appreciated the cautious approach of the Commission, since these were bilateral matters with highly political and technical content. He was sorry no attempt had been made to find a “third option or middle road” that would guide States when negotiating on these issues. Echoing other delegations on this matter, he said that it would be useful to have a template that included applicable practices, best practices and experienced gathered. This would focus on the general principles that were applicable in the exploitation of natural resources, such as the principle of precaution and the obligation to prevent transboundary harm. He said this topic must not be “fully abandoned”; doing so might run counter to the needs and concerns of the international community.
PALITHA T.B. KOHONA ( Sri Lanka), on the topic of “expulsion of aliens”, said the right to expel fell within State sovereignty. However, that right needed to be exercised in accordance with international law, and in that regard, he said he was in broad agreement with the draft articles. The obligation to respect the dignity of persons could be reflected as an overarching principle in an introductory section, as it was a general principle from which human rights flowed, and not a specific human right.
Turning to the relevant draft articles on the “effects of armed conflicts on treaties,” which addressed treaties to which international organizations were a party, he said there was a scarcity of practice on this complex matters, which needed further and separate study. He also said that the term “protracted” be retained in relation to “armed conflict”, especially if the draft articles were to include non-international armed conflicts.
On the issue of “protection of persons in the event of disasters,” he said that this was of particular importance to his country which had suffered devastating effects from the 2004 Tsunami. He said a legal framework that clearly articulated the rights and responsibilities of those involved would “facilitate greater co-operation” among States. Turning to another topic, he said there had been a shift in the importance of the “most-favoured clause” from trade to investment, because of the proliferation of bilateral investment treaties. He hoped the work of the study group would culminate in the drafting of broad guidelines or model clauses that would bring greater coherence and consistency
He then said that in regards to “treaties over time” that treaties had been deemed living instruments that were “not frozen in time” but continued to evolve as a result of intentional and treaty related acts, events and developments. Taking into account subsequent practice in treaty interpretation would ensure that such treaties would remain relevant in contemporary times as well as encourage practical application and treaty longevity. Concluding, he urged the Commission to be guided by the “requirements of practical utility to Member States and contemporary needs of the international society” when formulating its future work. He also called for the General Assembly to reconsider the issue of the honoraria of the Special Rapporteurs, as those financial limits compromised support for the research work of Special Rapporteurs from developing nations.
CETA NOLAND ( Netherlands) said the work on the topic of the “obligation to extradite or prosecute” could make a potentially significant contribution toward the development of an effective international criminal justice system. The Special Rapporteur’s future reports should aim toward presenting draft articles to the Commission. She said she regretted the apparent lack of progress since the item was placed on the Commission’s agenda; progress on this should be made a priority.
Turning to the topic of “treaties over time”, she commended the study group’s “fruitful approach”, in particular for information on subsequent agreements and subsequent practice as a means of interpretation and application of treaties. She said the study group’s comprehensive approach on the issue of the “most favoured nation clause” reflected the multi-faceted nature of the subject. She looked forward to the group’s future work, notably in the area of investment protection, as well as on the Vienna Convention on the Law of Treaties.
NATALIA SILKINA (Russian Federation) recalled that the working group on the most-favoured-nation clause had been established just last year and was already actively involved in analyzing the evolution and key features of the application of the clause by economic organizations and in international treaties on economic integration. The analysis would be helpful for States and organizations regardless of the final form of the work.
On shared natural resources, she said the 2008 set of draft articles on the law of transboundary aquifers was a step forward in confirming State sovereignty over natural resources, while also fixing the principle of equitable use of resources, without causing considerable damage to them. Adoption of the articles as a convention could be considered but was premature at present. Rather, they should be annexed to a General Assembly resolution with the recommendation that they be used as the basis for concluding bilateral, multilateral and regional agreements. Questions of transboundary oil and gas resources were subject to bilateral cooperation.
LESTER DELGADO SÁNCHEZ ( Cuba) said the obligation to extradite or prosecute must be enforced, not only for the fight against crimes such as terrorism but also as part of the process of codifying progressive international law. It had legal and political contexts and needed to be separated from the concept of universal jurisdiction. Both were important in the regime of instruments ensuring that human rights were not violated.
He said the work on treaties over time must be undertaken carefully so as not to violate provisions of the Geneva Conventions. Consideration of events that affected treaties over time should not be restricted to “subsequent events” but should include other factors, such as termination or suspension, unilateral acts or grave violations. The work on the most-favoured-nation clause would prove of value in investment protection treaties, which would be an important addition to the regime since the current way that the clause was interpreted by Tribunals indicated that investors did not understand the terms of the clause. Arbitral tribunals were often eager to establish jurisdiction and gave superfluous interpretations. Use of the most-favoured-nation clause should be limited.
PIOTR DOLATA (Poland) said that given the slow pace of States reporting practices in applying the principle of aut dedere aut judicare (obligation to extradite or prosecute), the establishment of a working group was a step in the right direction. Future reports of the Special Rapporteur should contain the group’s study surveying multilateral conventions, and it should address the legal bases, material scope and content and conditions of the obligation. A step-by-step process to address this issue guaranteed positive effects deriving from a cautious approach taken by the Special Rapporteur and followed by the Commission and its working group. A thorough analysis of practice States, though time consuming, was necessary.
On the topic of treaties over time, he said treaties had evolved resulting from intentional acts and situations, and applying subsequent agreements in practice could ensure the treaties’ future relevance. He hoped that work related to subsequent agreements and practice would be completed in the near future and Poland supported the idea of a producing a repertory of practice that would conclude a series of guidelines for future purposes.
On the most-favoured nation clause, he stressed that the variety of clauses included in the investment and trade agreements needed the detailed analysis on the appropriateness of the proposition to generally follow the systematics of the 1978z draft. Discussions over the outcome of the work should take into account different contexts and the different nature of most-favoured nations in bilateral, regional or global treaties.
PARK CHULL-JOO ( Republic of Korea) said the obligation to extradite or prosecute was a duty under treaties, in which States were a party, and not a duty under international customary law. The principle of aut dedere aut judicare (the legal basis of the obligation) was neither equivalent to nor synonymous with universal jurisdiction. However, by being a signatory to treaties incorporating the obligation, a State may exercise jurisdiction as appropriate. In this context, the principle of aut dedere aut judicare was inextricably linked to universal jurisdiction. In respect of treaties over time, he said the interpretation of treaties was decided by the ordinary meaning to be given to the terms of the treaty. However, questions needed to be addressed, including what if the subsequent practice was contrary to a provision of a treaty, and what if the subsequent practice contrary to the provision becomes international customary law.
Turning to another topic, he said that since the most-favoured-nation clause was discussed under international law of trade, the Commission should consider how the clause could be examined in other traditional areas of international law. On shared natural resources, he said the Republic of Korea welcomed the Law Commission decision to not discuss oil and gas, since these resources should be treated differently. Turning to immunity of State officials from foreign criminal jurisdiction, he said he regretted that the Commission had not had enough time to discuss the issue at its sixty-second session. The purpose and extent of immunity needed to be considered.
MARCELO BÖHLKE (Brazil), on the issue of “reservation to treaties”, said his Government had taken note of the question raised during the Law Commission’s sixty-second session on the disparity between the provisions of the Vienna Convention on the Law of Treaties, and the Secretary-General’s practice as depositary of treaties. Brazil noted with interest the Commission’s analysis on interpretative declarations, and its distinction between such declarations which were “simple” and those which were conditional. As the Convention did not deal with the legal effects of a reservation that did not meet conditions of permissibility and formal validity, he encouraged States to collaborate with the Commission on the issue.
Turning to expulsion of aliens, he said the exact meaning of “expulsion” required clarity. His country defined that term as an exceptional measure applied to those who could, for instance, represent a threat to national security or public order. It may also be important to extend protection to cases where a death sentence had not been passed on a given alien, but where there was a risk it could be imposed in the receiving State.
As for the protection of persons in the event of disaster, he said special attention should be given to the need for balancing State sovereignty and protecting human rights, analyzing the responsibility of the affected State, and the need to respect the principle of non-intervention in internal affairs.
CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) said the topic “obligation to extradite or prosecute” was of great importance to her country and that a correct interpretation would constitute an instrument of great use in the fight against impunity. There was an increased awareness of the subject in practice, reflected in relevant Secretariat reports which recognized a significant number of multilateral agreements containing the principle. Bilateral agreements also “enshrined” it. The Commission should take significant steps forward on this, since the issue was also closely connected to other items on its programme, such as extraterritorial jurisdictions, among others, and she keenly awaited the outcome of this work.
On the topic of “treaties over time,” she spoke of the underlying problems in practice for States, and she affirmed that Spanish practice would be submitted in writing as it might be useful to the efforts of the working group. In respect of the “most favoured nation” clause, she said that this category was of general scope and was applicable in all spheres of international law. She shared the focus of the study group as to the importance of this clause in the scope of investments. She suggested a list of themes and topics be developed that would structure the work of the study group in its efforts to toward draft articles or a guide to practice
With regard to the topic of “shared natural resources” she shared the concerns of the Commission regarding the difficulties on addressing transboundary oil and gas. However, she had reservations of the abandonment of this, without a set of common guidelines in existence.
GOPINATH MUNDE ( India) discussed the paper of the Special Rapporteur on the topic of the obligation to extradite or prosecute. He noted the working group’s point that future reports should be oriented towards presenting draft articles for the Commission’s consideration, based on the general framework agreed in 2009. He said India strongly supported crime suppression and upholding of the rule of law. In his country the 1962 Extradition Act, which contained provisions on the duty to extradite or prosecute, as well as bilateral extradition treaties, and relevant international conventions, governed such matters. Refusal of an extradition request meant that accused persons must be considered for prosecution. India had made no reservation under any convention concerning the duty to extradite or prosecute.
Turning to the most-favoured-nation clause, he drew attention the study group’s assessment of the 1978 draft articles and decision to deal with eight related papers, and expressed his hope that the International Law Commission would add clarity to the use of that clause. He said India also welcomed the creation of a “treaties over time” Study Group. In the area of shared natural resources, India fully subscribed to the views and concerns expressed by the working group, and also agreed with its recommendations that the Commission not consider the “transboundary oil and gas aspects” of shared natural resources. Such issues were best dealt with bilaterally, bearing in mind geological features, regional needs, and the capacity and efforts of neighbouring countries. Any codification could affect established bilateral treaty obligations, or an assiduously achieved political agreement.
LIONEL YEE ( Singapore) said that there was a limit to delving into State practice when addressing the topic of “treaties over time” and that the cornerstone of interpretation was in the wording of the treaty itself. However, it was also important that in order for a treaty to work over time that it be flexible and be able to adapt to changing circumstances. Noting the risks involved in allowing practice to “easily overcome” the wording of a treaty, he pointed out it was common for complex treaties to provide special mechanisms for amendment if the need arose. He urged that “practice” should amend a treaty only in exceptional circumstances.
Turning to “most-favoured nation” clause, he said he agreed with the approach of the study group, noting the expansion of scope to include trade in services and intellectual property issues. The focus of international law was shifting from trade to these newer issues. He said Singapore had engaged in free trade agreement negotiations with many different trading partners and he noted that the scope of the most-favoured-nation obligation had been a perennial issue when negotiating these agreements. There was considerable uncertainty of interpretation, which was reflected in the different approaches by the dispute settlement bodies to these clauses. He urged the Commission to expedite work in this area, so as to provide “much needed clarity”.
On the issue of “shared natural resources”, he said that although his country did not have aquifers or gas/oil resources, the management of such shared resources between nations was of great political, economic and security significance. Thus, the Commission’s work in this area did not just benefit the States directly involved, but the wider international community. He respected the decision of the Commission to not continue further on transboundary gas and oil resources, but instead to focus on the draft articles on aquifers. However, he expressed hope that at some future point, if the matter were revisited, the draft articles on aquifers might provide guidance.
Statement by Special Rapporteur
ZDISLAW GALICKI, Special Rapporteur on the topic of the “obligation to extradite or prosecute,” said too few States had responded to the request to provide information on State practice relating to the matter. The compilation of relevant jurisprudence by the Secretariat was useful. Other such studies had been carried out, but that by the Secretariat seemed to provide the best foundation for work going forward. The linkage between the obligation and the principle of “universal jurisdiction of law” was under study, however difficult it was to find its basis in customary law. Work for the next year would focus on the legal basis for the obligation, the material scope to be addressed, the content of the text and the conditions for triggering the obligation.
Statement by Chair of the International Law Commission
NUGROHO WISNUMURTI, Chair of the International Law Commission, said the feedback received from Governments through the Legal Committee, and in written comments, was unique and an important feature in the Commission’s working methods. It assured that the Commission’s work product responded to the practical needs of States.
He said he would not respond to the comments made in the Committee. Delegations, however, should rest assured that their comments would be considered by the Commission at the appropriate time. Also, delegations could keep in mind that written comments on “responsibility of international organizations” were due on 1 January of next year and those on “reservations to treaties” were due before 31 January.
Finally, he pointed out that Special Rapporteurs who had come to New York to participate in the Committee’s work had used their own resources. That arrangement placed an enormous burden on everyone. The Committee could help by ensuring that some ameliorative steps were taken in the Assembly’s relevant committee, so as to establish a more sustainable system.
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