Guidelines to Help States on Role of ‘Most-Favoured-Nation’ Clause in Trade, Investment Law Are Sought by Legal Committee Delegates

2 November 2011
GA/L/3427

Guidelines to Help States on Role of ‘Most-Favoured-Nation’ Clause in Trade, Investment Law Are Sought by Legal Committee Delegates

2 November 2011
General Assembly
GA/L/3427
Department of Public Information • News and Media Division • New York

Sixty-sixth General Assembly

Sixth Committee

27th Meeting (AM)

Guidelines to Help States on Role of ‘Most-Favoured-Nation’ Clause

 

in Trade, Investment Law Are Sought by Legal Committee Delegates

 

As Review of Law Commission Report Nears End, United Nations Legal Counsel

Urges Commission to Align Cost of Sessions with Proposed $2 Million Budget

Proceeding with its debate on the International Law Commission report, the Sixth Committee today discussed the role of the “most-favoured-nation” clause in international trade law and investment treaties and called for the creation of relevant guidelines, which would be of practical utility to States.

The Commission’s study group examining most-favoured-nation provisions should propose definitive answers to issues arising from the many ways the clauses were interpreted, said the representative of Viet Nam.  It should also set limits for interpretation taking account of the situations of recipient States and investors.

India’s delegate said those clauses had been introduced in international trade law and investment treaties to prevent discrimination and to ensure free and fair treatment.  Noting the diverse arbitral decisions on the topic, he underscored the importance of studying different formulations of the clause.

Most-favoured-nation provisions were principally the product of treaties, said the representative of the United States, differing in their structure, scope and language.  They therefore “resisted a uniform approach”.  A description of current jurisprudence, as proposed by the study group, would serve as a resource for Governments and practitioners.

Concurring with the representative of the United States, New Zealand’s delegate also believed that the study group’s efforts would be of assistance to States, particularly through its draft report, which would give a general background, analysis of case law and appropriate recommendations.

The delegate of Iran noted the complexity of the most-favoured-nation issue, which was closely intertwined with other fields of international law covered by the United Nations Commission on International Trade Law (UNCITRAL) and World Trade Organization (WTO).  He was hopeful, however, that the Commission’s efforts would lead to tangible results.

The Sixth Committee heard a statement from Patricia O’Brien, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel.  Speaking about financial matters, she said the budgetary provision of $2,019,200 proposed for the Law Commission during its next biennium might fall short of funding its proposed programme of work by approximately $600,000.  In view of the “extraordinarily difficult economic times” facing the Organization, she urged the Sixth Committee and the Commission to align the proposed budget and the Commission’s sessions.  The Chairman of the International Law Commission, Maurice Kamto thanked the delegates who spoke on the Commission’s report, calling the Commission a “collegial body” that took seriously the opinions expressed during the debate.

The Committee also took up two draft resolutions on the administration of justice at the United Nations, which were approved without a vote.  Two new draft resolutions were also introduced to the Committee.  The first was on criminal accountability of United Nations officials and experts on mission, and the second was on the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

Also speaking today were the representatives of China, Sri Lanka, Spain, Belarus, Cuba, Russian Federation and Portugal.

The Committee will meet to conclude the debate on the report of the International Law Commission on Friday at 10 a.m., 4 November.

Background

The Sixth Committee (Legal) met today to conclude its annual consideration of the report of the International Law Commission, with the third cluster of topics - “immunity of State officials from foreign criminal jurisdiction”, “obligation to extradite or prosecute”, “treaties over time” and “most-favoured-nation clause”.  (For background on the report and themes, see Press Release GA/L/3420 of 24 October.)

Also before the Committee today were two draft resolutions on the administration of justice at the United Nations.  Action was to be taken on the Code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.13), and the Amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14).  (For background on the report and themes, see Press Release GA/L/3425 of 31 October.)

The Committee would also consider two new draft resolutions.  The first, on criminal accountability of United Nations officials and experts on mission (draft resolution A/C.6/66/L.16), would, among other provisions, have the General Assembly urge States to take all appropriate measures to ensure that crimes by United Nations officials and experts on mission not go unpunished.  It would also urge States to consider establishing, if they have not yet done so, jurisdiction, particularly over crimes of a serious nature committed by their nationals while serving as United Nations officials or experts on mission, and encourage States to cooperate with each other and with the United Nations in the exchange of information, and in investigations and prosecution of United Nations officials and experts on mission who are alleged to have committed crimes of a serious nature.

The other draft, on the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (draft resolution A/C.6/66/L.17) would have the General Assembly request that the Special Committee continue its consideration of all proposals concerning the maintenance of international peace and security in order to strengthen the role of the United Nations; to keep on its agenda the question of the peaceful settlement of disputes between States; to reiterate its call for voluntary contributions to the trust fund for the updating of the Repertory of Practice of United Nations Organs, and voluntary contributions to the trust fund for the elimination of the backlog in the Repertoire of the Practice of the Security Council; and call upon the Secretary-General to continue his efforts towards updating the two publications and making them available electronically in all their respective language versions and to continue to address, in particular, the backlog in the preparation of volume III of the Repertory.

Statements

YIN WENQIANG ( China) spoke on:  “immunity of State officials from foreign criminal jurisdiction”, observing that although much progress had been made on the complex issue, the international community had still to develop a “uniform statutory norm”.  He urged the Law Commission to bring clarity to the issue.  He noted the reports of the Special Rapporteur which he said provided a sound basis for the Commission’s codification work towards that next phase.  On the scope of immunity ratione personae (personal immunity) he said that that should at least cover the “troika” of Heads of State, Heads of Government and ministers of foreign affairs.  The rule had its source in customary international law and international practice, and had been sustained in decisions by the International Court of Justice.  However, a great number of situations in international relations were no longer limited to the “troika”, especially since nowadays other high level officials more often participated in international exchanges.  The trend was to grant such immunity to high level officials, since it satisfied a practical need.  He said the Commission should formulate a set of criteria for reference in order to minimize controversy.

As for the exceptions to immunity, he said he agreed with the Special Rapporteur that such exceptions had no evidence in customary international law.  However, immunity of States was not a “courtesy” extended by one State to another, but rather an important principle of international law based on the principle of sovereign equality and par in parem no habet imperium (an equal having no power over an equal).  If those legal principles were to be superseded by other rules, the foundation of modern international relations would be seriously eroded and could “lead to disastrous consequences”.  Further, if a State’s domestic court could prosecute the leader of another State, such prosecuting State might take advantage and interfere in the internal and external affairs of the defendant’s State.  That would upset the principle of non-interference and affect political stability.

He also referred to exceptions that “could induce political abuse of indictment”, which could “poison” bilateral relations between States.  In the case of exceptions being granted, a series of practical legal issues would then be triggered, such as how to avoid double standards in the exercise of jurisdiction over officials of the affected State, as well as how to guarantee due process when faced with a lack of sufficient evidence and an inability to obtain judicial assistance, among other concerns.  Concluding, he said that the topic did not lend itself to being developed into relevant rules of international law, as it would initiate “great controversies” and make consensus difficult.  He urged that the Commission focus on the codification of established rule of international law.

RAUF HAKEEM ( Sri Lanka) said the Commission was to be complemented for its substantial work on draft articles covering a range of topics critically important to contemporary international relations.  Returning to subjects in the first part of the Commission’s report, he said several of the draft articles on the “responsibility of international organizations” were based on limited practice, and there was need for applying “a certain degree of circumspection” when dealing with some of them.  Concerning the “guide to practice on reservations to treaties”, he said the conclusions on the “reservations dialogue” showed the need for a satisfactory balance between safeguarding the integrity of multilateral treaties and securing the widest possible participation in such treaties.

He turned to the Law Commission’s second group of topics and said the draft articles on “the effects of armed conflicts on treaties” followed the orientation that such conflicts did not, ipso facto, terminate or suspend treaty operation.  He said he was also concerned about the definition of “armed conflict” in the articles, which included “internal” armed conflicts.  On the “protection of persons in the event of disasters”, he said the presiding Special Rapporteur had rightly avoided “politically contentious” issues.  He agreed with those who had said it was the affected State which could best determine when a disaster exceeded its national capacity to provide assistance and that State consent to receive assistance was a crucial requirement.  The language “duty to seek assistance” was more appropriate than “duty to request assistance”, as was “duty to offer assistance” rather than “right to offer assistance”.

On the “immunity of State officials from foreign criminal jurisdiction”, he said there was a clear need to agree on matters of principle before formulating draft articles.  Noting that criminal prosecutions could lead to serious frictions in inter-State relations, he said a careful balance must be struck between preserving the immunity of State officials and addressing exceptions to the rule.

Regarding the “obligation to extradite or prosecute”, he said the focus should be on that obligation and how treaties and custom demonstrated the rule.  The Special Rapporteur should undertake a study of State practice, determining which serious international crimes gave rise to a customary law obligation.

Turning to the “most-favoured-nation clause”, he said the study group’s efforts should result in something that would be of practical utility to States, such as general guidelines and model clauses to assist States with negotiating investment treaties.  As for “treaties over time”, he said that considering subsequent practice in the interpretation of treaties would ensure the continued relevance and practical application of the treaty.

FRANCISCA M. PEDRÓS-CARRETERO ( Spain), spoke of the “immunity of State officials from foreign criminal jurisdiction”, commending the “technical rigour” found in both reports of the Special Rapporteur.  However, in light of the diversity of opinions, she emphasized that the topic impinged on contemporary law, and that consideration of the matter should take into account all existing factors and areas of concern.  There was, on one hand, the maintenance of international relations, and on the other hand, the “values of the legal order” in the fight against impunity.  Although consideration of that matter continued to pose a number of difficult issues, it was of great importance and required responses on “the normative scale”.

Turning to the topic of the “obligation to extradite or prosecute” she referred to the lack of progress in that area, noting that the Law Commission needed to give “enhanced attention” to it.  She commended the study groups and Chairs on the topics of “treaties of time” and “most-favoured-nation clause” for the work accomplished, which had contributed to the progress made in both areas.

Concluding, she spoke of the topics suggested by the Commission for future consideration, observing that they clearly reflected the vitality of the Commission.  However, in order to enhance the efficacy of its work, the Commission should focus on reducing the number of topics on its programme of work, in order to progress in a timely manner.  She considered that the proposed new topics of the “formation and evidence of customary international law” and the “provisional application of treaties” should be given priority.

Remarks by Legal Counsel

PATRICIA O’BRIEN, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, addressed the Committee on what she called an important budgetary issue.  She said that these were “extraordinarily difficult economic times”.  In March, when the budget was prepared, the Secretary-General had spoken of “an emergency situation”, where Member Sates were in serious financial distress.  That situation had not changed, she said.

All departments, including the Office of Legal Affairs, had been asked to reduce their requests for financial resources for the 2012‑2013 biennium.  Thus, creative ways of meeting objectives must be sought.  The Secretary-General specifically identified the duration of meetings, documentation and publications as areas where fiscal constraint could be exercised.

The Law Commission should therefore consider the duration of its sessions and whether or not there should be “split” sessions as well as curtailment of summary records of Commission debates.  She said those were uncomfortable questions being raised, but not doing so would be to ignore “stark financial realities”.

Continuing, she said that for the 2010‑2011 biennium, her office had found approximately $550,000 from the regular budget to fund shortfalls connected with the Commission’s work - a considerable sum for a relatively small department.  For the next two years, a budgetary provision of $2,019,200 had been made for the Commission.  If there were two 9-week split sessions, the cost of the Commission’s proposed programme of work could exceed that provision by approximately $600,000.  If not resolved during the current session, that budgetary matter would create a tremendous strain on her office’s budgetary resources for the next biennium.  Absorbing the Commission’s budgetary shortfalls, she noted, was becoming “too much of a struggle”.  She therefore welcomed efforts made by the Sixth Committee and the Commission towards finding ways to align the proposed budget and the Commission’s sessions.

Statements

ANDREI POPKOV ( Belarus) thanked the Special Rapporteur for his detailed analysis of international practice and doctrine related to the “immunity of State officials from foreign criminal jurisdiction”.  The Commission should prepare a document of codification on the matter, whether it was a treaty or a more flexible instrument.  Given the trend in limiting immunities, the topic was a matter of international concern.

He spoke of a need to classify the immunity of State officials – both by personal and functional immunity – and to clarify customary rules.  Once those rules had become clear, they could be codified and then progressively developed.  He was of the view that universal jurisdiction should be considered separately from the topic at hand; more had to be done to examine internationally wrongful acts and how they related to universal jurisdiction. 

He said that rushing through questions on the relation between universal jurisdiction, international crimes and the immunity of State officials would create tension in inter-State relations.  He supported immunity for Heads of State and Government and ministers of foreign affairs.  He hoped that when a discussion of the topic again arose, specific draft articles would be available.

Turning to “the obligation to extradite or prosecute”, he said the obligation should be considered within the broader context of combating crime and related to specific types of crime.  Considering specific aspects of international treaties that criminalized particular acts, as well as relevant international custom, would be beneficial.  Progress on the matter would be facilitated by examining universal jurisdiction with it.

On the subject of “treaties over time”, he said it was important to the day-to-day practice of international law subjects.  He concurred with the study group’s assumption that article 31 of the Vienna Convention was still the starting point for international treaty interpretation.  It was best to examine different ways of interpreting treaties together with the reasons for those interpretation practices.  Clarifying the concept of subsequent practice was also a key aspect of that work.  During codification of the topic, questions might arise as to the distinction between subsequent practice and agreement.  To what extent, he asked, could parties to a treaty stray from it, without violating the treaty or international customary law?

ALIREZA JAHANGIRI ( Iran) said the topic of “immunity of State officials from foreign criminal jurisdiction” was of critical importance in the relations between States.  His delegation shared the Special Rapporteur’s “note of caution” that the Commission should focus on codifying the existing rules of international law rather than engaging in an exercise for progressive development.  The Law Commission should take sovereignty, principally immunity of State officials, as its departure point and avoid “confusing this subject” with that of the accountability of State officials.  He said the principle of immunity of the troika – Head of State, Head of Government, foreign minister - was well established, and it was a key guarantor of stability in international relations.

On the “obligation to extradite or prosecute” (aut dedere aut judicare), he said he supported the position of the Special Rapporteur that it would be difficult to prove in present circumstances the existence of a general obligation to extradite or prosecute based on customary international law.  The increased inclusion of the obligation in international instruments could not in and of itself mean that States would consider subscribing to an existing or emerging customary rule in that regard.  Further, several resolutions of the Security Council and numerous reports of the Secretary-General that addressed impunity could provide for a legal basis for the obligation of States to extradite or prosecute.  However, he stated, the reality was that at the present time it was “just a political goal yet to be achieved”.  Thus, it seemed unlikely that the Commission would be able to identify sufficient evidence to prove the existence of such an obligation under customary international law.

Turning to “treaties over time” he said the role of subsequent practice as a means of treaty interpretation should not be overstated.  He was not sure if it would be suitable to give different organs of the State equal treatment when identifying subsequent practice.  On the topic of the “most-favoured-nation clause”, he noted the complexity of the issue and that it was closely related and intertwined with other fields of international law, in particular with private international law, trade law and investment law areas, covered by the United Nations Commission on International Trade Law (UNCITRAL) and the World Trade Organization (WTO).  However, he expressed hope that the Commission’s efforts would lead to tangible results during that time.

Concluding, he urged the Commission to take up topics that would help resolve practical issues of an international legal nature in international relations.  On the proposed new topic “formation and evidence of customary international law”, his delegation was not yet convinced of its usefulness.  As for the “protection of atmosphere” he said the Commission would have to ensure that the highly technical nature of the topic would not render the exercise futile.

MANUEL DE JESÚS PÍREZ PÉREZ ( Cuba), on the topic of “immunity of State officials from foreign criminal jurisdiction”, said that efforts in that matter strengthened the principles of the United Nations Charter, especially with regard to the sovereignty of States.  He expressed concern that certain developed countries ignored those principles in their political attacks on the functions of developing countries.  On the “obligation to extradite or prosecute” he spoke of the “importance” of the Commission’s work; the principles of the Charter, the sovereignty of States, political independence and non-interference must be “strictly” respected in the matter.

He said the Commission should abstain from invoking the principle of universal jurisdiction in its work on the obligation.  Such an obligation only arose when it was within a treaty in force.  However, certain States had evaded that obligation, “notably in the case of Luis Posada Carriles”, where the State in question had refused on technical grounds to extradite, or had “invented claims” that person would be in danger if extradited.

On the topic of “treaties over time”, he said that important work must only aim at strengthening the Vienna regime and should not amend it; the integrity of the Vienna Convention must be strictly observed.

He said study on the “most-favoured-nation clause” was of great importance, specifically with its ties to investment treaties.  He had concerns on the “broad ways” that tribunals had interpreted that clause in investment treaties, noting instances where investors might not be aware of certain circumstances.  He said those “superfluous” interpretations nullified obligations which were established in bilateral agreements.

SERGEY LEONIDCHENKO ( Russian Federation) said the “obligation to extradite or prosecute” was of great interest to his delegation, as the Russian Federation had been “consistently calling for expanding the scope” of the obligation.  In doing so, it could at least partially fill in the gaps in the fight against impunity.  In draft article 2, the term “crimes and offences of international concern” did not seem sufficiently defined.  He acknowledged that some members of the Commission wanted to integrate the topic of the “obligation” with the principle of “universal jurisdiction”.

Turning to the “immunity of State officials from foreign criminal jurisdiction”, his delegation believed that personal immunity from foreign criminal jurisdiction had been applied to other high-ranking officials besides the troika, as indicated in a case before the International Court of Justice in 2000.  On the question of exceptions, he said an opinion of the Court in another case favoured the personal immunity of the troika as an established norm of international law, without any exceptions whatsoever.  He was also not aware of the existence of exceptions from functional immunity.

He said he did not share the view that it was important to limit personal and functional immunity.  Instead, the fight against impunity should be waged through strengthening the role of the institutions of international criminal justice and expanding the international cooperation of States.  The Law Commission, he added, should take into account the importance of immunity to ensure stability of international relations and should approach the issue of progressive development with “exceptional caution”.

On the topic of the “most-favoured-nation clause”, he noted the range of important issues that the study group discussed.  If resolved, the work would substantially influence the practice of States in drafting provisions that contained this clause.  In particular, he commented that the study group would be determining whether a provision recorded in the treaty between parties could be ignored in virtue of the clause, or if the clause should not substitute a directly expressed intent of the parties.

MATEUS KOWALSKI ( Portugal) said the topic “immunity of State officials from foreign criminal jurisdiction” addressed two major values protected by international law – that of the immunity of State officials and the obligation of fighting impunity.  The approach to that topic could not rest on an “absolute concept of State sovereignty”.  The rights of individuals also needed to be considered as well as, in serving the interests of the international community, a balance between State sovereignty, the rights of the individuals and the need to avoid impunity for serious crimes under international law.  In that regard, he urged the Law Commission not only to seek to identify existing rules but to investigate progressive development.

On the “obligation to extradite or prosecute”, he reiterated his delegation’s view that the obligation found its source in both treaties and custom.  However, he supported further investigation on the matter, as it was a complex topic.  International courts and tribunals should be taken into consideration while studying the obligation, since the surrender of an alleged offender to one or the other was an important factor when fighting impunity.  However, the Commission needed to reach a decision to establish what kind of relationship existed between the obligation and the surrender of an alleged offender.  The answer to that would determine the nature of cooperation with international courts and tribunals.

On the topic of “treaties over time” he said his country was currently undertaking a survey on the matter within its Government departments.  He also supported considering the appointment of a Special Rapporteur on that subject.  In regard to the “most-favoured-nation clause”, his delegation had some doubts as to whether it had been sufficiently debated, in order for codification or to contribute to progressive development of international law.  He supported the plan to study how the clause could be interpreted and applied in practice, as a means to guiding States and international organizations.

PREM CHAND GUPTA ( India) said that there needed to be clear criteria when defining immunity ratione personae beyond the troika.  He stressed the need for enhanced cooperation between States concerning immunity of State officials.  With regard to the waiver of immunity, he agreed that the right to waive immunity of an official rested with the State and not in the official himself.

Turning to the topic of the “most-favoured-nation clause”, he noted that the clause had been introduced in international trade law, and subsequently in investment treaties, in order to prevent discrimination and to ensure free and fair treatment.  However, after the various arbitral decisions on the topic, there was a divergence of interpretation on the scope of application of the clause in the investment regime.  He underscored the importance of studying the different formulations of the clause that could be included in the investment treaties and the precise implication of their inclusion.  This would bring some clarity on the meaning and application of the clause and would benefit countries willing to conclude investment treaties.

On the “obligation to extradite or prosecute” he said his delegation fully subscribed to the view that States had the duty to cooperate in the fight against impunity.  The topic required an in-depth analysis of international norms, both conventional and customary, as well as national regulations.  On a national level, his country’s extradition law clearly incorporated the principle of either extradite or prosecute.  All of India’s bilateral extradition treaties also included the principle.

Concluding, he welcomed the initiative of the Law Commission to develop more efficient working methods, and with regard to new topics to be considered, he urged that they be of practical value for the whole international community.

ALICE REVELL ( New Zealand) said she welcomed the question of the “most-favoured-nation clause” in relation to trade in services and investment agreements, including its relationship to core investment disciplines, the fair and equitable treatment standard and national treatment standards.  She also supported the study group’s proposal to look at the use of the clause in other areas of international law and was pleased with the group’s assertion that no further interpretation was necessary where a most-favoured-nation clause expressly included or excluded dispute settlement procedures.  The study group’s draft report, she predicted, would be of great assistance to States by giving a general background, analysis of case law and appropriate recommendations.

On the “obligation to extradite or prosecute”, she said there was merit to exploring if that obligation existed under customary international law.  On the other hand, the topic presented inherent difficulties in light of the precision necessary in relevant domestic criminal law.  Further work should clarify the direction to be taken on the topic, including the relationship between that topic and universal jurisdiction, as well as the duty to cooperate, before substantive work was undertaken.

Examining the topic of “treaties over time”, she concurred with the nine preliminary conclusions of the study group, and looked forward to the consideration of State practice in that field.  Discussing the “immunity of officials”, she said the law of immunity of State officials from foreign criminal jurisdiction entailed carefully balancing fundamental principles, such as sovereign equality and non-interference, with individual accountability and ending impunity for serious international crimes.  While it remained vital that officials not be subject to the politically-motivated actions of foreign courts in an increasingly globalized world, shifting public attitudes on the matter may indicate that officials be held accountable for serious crimes.  She welcomed further analysis of the scope of immunity, particularly around whether personal immunity should be absolute and apply prior to and while in office, both in an official and personal capacity.  Any immunity beyond Heads of State and Government and foreign ministers must be clearly justified, she said.

NGUYEN HUU PHU ( Viet Nam) said developing clear, stable and adequate legal frameworks at the national and international levels with regard to the “obligation to extradite or prosecute” would contribute positively to international justice.  The Special Rapporteur should further consider the relationship between that obligation and universal jurisdiction.

Regarding the “most-favoured-nation clause”, the study group should propose definitive answers to issues arising from the variable methods used to interpret those clauses.  It should also set limits for interpretation that considered both recipient States and the investors.  That topic, along with two new topics included in the Commission’s long-term programme of work – “formation and evidence of customary international law” and “the fair and equitable treatment standards in international investment law” – were particularly relevant to States promoting global and regional trade and investment under the rules of international law.

Those topics, he said, were at the heart of various disputes involving large amounts of money and might affect the proper functioning of States.  It was unfortunate that such controversies were handled by tribunals with neither interest in, nor capability for, thoroughly considering and examining them.  Work on those matters should therefore be accelerated for the benefit of all stakeholders.

STEVEN HILL ( United States) expressed his country’s willingness to continue to participate in the consideration of the “immunity of State officials from foreign criminal jurisdiction”.  The right balance must be struck between the prevention of impunity and the protection of immunity.  Those “twin goals” must be kept in mind so that those guilty of gross crimes did not go unpunished and State officials performing their official duties overseas were adequately protected.

Commenting on the “obligation to extradite or prosecute”, he noted that his country was party to a number of international conventions that contained such an obligation.  Provisions in those instruments were a vital aspect of collective efforts to deny terrorists and other criminals a safe haven.  Whether and to what extent such an obligation had basis in international customary law could be considered only after analysing the obligation under treaty regimes.

He said he was of the belief that his country’s practice, and the practice of other States, reinforced the view that there was not sufficient basis in customary international law or State practice to formulate draft articles that would extend that obligation beyond binding international legal instruments.  The obligation only extended to State parties to treaties in which it was contained; otherwise, States could be required to extradite or prosecute an individual under circumstances where the States lacked the necessary legal authority to do so.

As for “treaties over time”, he said there was much work to be accomplished with regard to subsequent agreements and practice.  The topic did not need to be broadened to include other aspects.  Regarding the Commission’s request for relevant information from Governments, he encouraged States to respond with information on jurisprudence of national courts that had considered the role of subsequent agreements and practice in treaty interpretation.  He was also interested in learning from other States about how they addressed domestic legal questions raised by shifting interpretations of international agreements on the basis of subsequent practice after ratification.

On the “most-favoured-nation clause”, he supported the study group’s decision not to prepare new draft articles or to revise the 1978 draft articles.  Most-favoured-nation provisions were principally a product of treaty formation and differed in their structure, scope and language; they were also dependent on other provisions in specific agreements in which they were located and thus “resisted a uniform approach”.  A description of current jurisprudence, as proposed by the study group, would serve as a resource for Governments and practitioners.

Briefly taking up the working methods of the Commission, he said it would be helpful if Special Rapporteurs prepared annual substantive reports on their respective topics of no more than 50 pages as a useful benchmark for Commissioners.  It would also be useful if Special Rapporteurs prepared concise draft commentaries explaining the draft articles adopted on their topics.

Remarks of the Chair of the International Law Commission

MAURICE KAMTO, Chair of the International Law Commission, thanked all the delegations who spoke on the topics of the Commission’s report.  He emphasized that the Commission counted on the Sixth Committee for the views, comments and reactions of Governments.  He stressed that written comments from Governments were valuable and he strongly encouraged Governments to respond to the questions raised in Chapter 3 in the report.

Continuing, he said that the Commission was a “collegial body” and that it took very seriously the criticisms and suggestions expressed during the debate.  He conveyed his full appreciation and gratitude, as well as his personal thanks, for the warm reception and the contributions of the delegates to the debate.  He also expressed great satisfaction at the “frank, open and candid” discussions held, notably with the legal advisers.

Action on Draft Resolutions

The Committee took up two draft resolutions on the administration of justice at the United Nations.

The revised drafts were introduced by the representative of Saudi Arabia, the first on the code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.13) and the second on the amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14).  These draft resolutions reflected concerns by States and incorporated revisions and amendments to the texts.  He then read the revised draft resolutions to the Committee.

The delegate of Guatemala, speaking before action, requested clarification on the oral amendment to the draft resolution A/C.6/66/L.13, specifically on the text of the preamble.  The representative of Saudi Arabia identified the changes in the relevant section being discussed, which was then welcomed and supported by the delegate of Guatemala.

The representative of the United States, in stating co-sponsorship, noted that a request had been made to the Internal Justice Council that the term “transparency” be clarified in the matter.  He also thanked those whose efforts brought the drafts to conclusion.  The representative of the Philippines also requested clarification on the issue of “transparency”.

The draft resolution was approved without a vote.

The Committee then took up the second draft resolution on the amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14) which was also approved without a vote.

Introduction of Texts of New Draft Resolutions

The Committee also had before it two new draft resolutions.  The first draft resolution on criminal accountability of United Nations officials and experts on mission (draft resolution A/C.6/66/L.16) was introduced by the representative of Greece who noted amendments and revisions to the text.

Action on the draft resolution would take place at the next plenary meeting on Friday, 4 November.

The representative of Egypt then introduced the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (draft resolution A/C.6/66/L.17) and noted amendments and revisions to the text.

The date for action to be taken on this draft resolution would be announced at a later time.

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For information media • not an official record
For information media. Not an official record.