As Debate Concludes, Legal Committee Urges International Law Commission to Establish Global Rules of Customary Law Based on State Practice

6 November 2012
GA/L/3449

As Debate Concludes, Legal Committee Urges International Law Commission to Establish Global Rules of Customary Law Based on State Practice

6 November 2012
General Assembly
GA/L/3449
Department of Public Information • News and Media Division • New York

Sixty-seventh General Assembly

Sixth Committee

22nd & 23rd Meetings (AM & PM)


As Debate Concludes, Legal Committee Urges International Law Commission

 

to Establish Global Rules of Customary Law Based on State Practice

 


Delegates Also Approve Draft Resolution

Heralding Third Decade of Manila Declaration


During the Sixth Committee’s (Legal) final debate on the International Law Commission’s annual report, delegates urged the Geneva-based body to diligently study State practice and, where possible, arrive at international rules of customary law to rectify the divergent views on several pressing issues before the Commission.


The universal application of customary rules had become improbable over the past half century, Jamaica’s delegate said, as the number of sovereign States grew.  The rules of a few Powers could no longer define customary law, which spanned diverse contexts and geographies.


Despite that diversity, Slovenia’s delegate called for a settled practice in international customary law that could be used to guide judges and lawyers.  Speaking specifically about the granting of immunity to officials from foreign criminal jurisdiction, he said it was through the detailed examination of State practice, jurisprudence and doctrine, and contemporary international law principles that international law could be progressively developed in that area.


The Special Rapporteur leading the study of that immunity said the need to analyse relevant practice was undeniable, and thanked those States that had made contributions.  Such immunity also had to be examined closely with international law principles, including those related to combating impunity.


New Zealand’s delegate said the study of State practice was also paramount to the provisional application of treaties, a new subject on the Commission’s agenda.  Legal regimes governing how treaties were provisionally applied could not be divorced from a State’s constitutional and procedural requirements.  On the topic of the obligation to extradite or prosecute, she said whether or not that obligation existed under customary international law should also be further examined.


Italy’s delegate expressed doubt about existing rules of customary law governing that obligation, which relied upon the cooperation of States.  Such cooperation had prevented States from becoming safe havens for those committing serious crimes.


Algeria’s delegate pointed out that the obligation had been developed in treaty law, in the international practice of States complying with international law, and in the fight against impunity.  He said any topics selected for the Commission’s review should be sufficiently grounded in practice.  To increase its effectiveness in examining those topics, the Commission should hold part of its session in New York City, where delegations’ legal advisers were stationed.


Lucius Caflisch, Chair of the International Law Commission, closed the debate, reminding the Committee that the Commission relied on them to harvest the views of States on the Commission’s discussions.  All views, he stressed would be seriously considered in the work ahead.


The Committee also approved, without a vote, the draft resolution, entitled “Thirtieth anniversary of the Manila Declaration on the Peaceful Settlement of International Disputes”.  The representatives of the Philippines and Armenia, speaking after the action, confirmed the centrality of the peaceful settlement of disputes to upholding the rule of law.


And finally, the Committee took note of the oral report by the representative of Sri Lanka on the activities of the Working Group on measures to eliminate international terrorism.


Other speakers on the Law Commission’s report were representatives of India, Greece, United Kingdom, Belgium, Thailand, Singapore, Spain, Cuba, Russian Federation, Malaysia, Japan, Ghana, Congo, Sri Lanka, Viet Nam, Israel and Iran.


The Committee will meet again Friday, 9 November, at 10 a.m. to take up several draft resolutions and to hear the reports of its working groups.


Background


The Sixth Committee (Legal) met today to continue its annual consideration of the report of the International Law Commission.  For background please see Press Releases GA/L/3446, GA/L/3447 and GA/L/3448.


The Committee was also expected to hear an oral report by the Chair of the Working Group on Measures to Eliminate International Terrorism.  Additionally, the Committee was expected to take action on a draft resolution, introduced by the Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization, entitled “Manila Declaration on the Peaceful Settlement of International Disputes” (A/C.6/67/L.3).


By the draft resolution, the Assembly would recognized the Manila Declaration as a concrete accomplishment of the Special Committee; urge all States to observe and promote the Declaration in the peaceful settlement of their international disputes; and encourage all Member States to commemorate the Declaration’s thirtieth anniversary.


Also before the Committee were two draft resolutions related to United Nations Commission on International Trade Law (UNCITRAL).  The first was entitled “Recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law as revised in 2010” (A/C.6/67/L.7).


By that resolution, the Assembly would express its appreciation to UNCITRAL for having formulated and adopted those recommendations and would recommend their use in settling disputes arising in the context of international commercial relations.  It would also request the Secretary-General to transmit and publish the recommendations broadly.


The second draft was on the Report of the United Nations Commission on International Trade Law on the work of its forty-fifth session (A/C.6/67/L.8).  By that resolution, the Assembly would endorse the efforts and initiatives of the Commission, as the core legal body within the United Nations system in the field of international trade law, among other elements addressed in UNCITRAL’s report.


Statements


KATHY-ANN BROWN ( Jamaica) said that there was little doubt that the rule of State immunity was solidly grounded in customary international law and based on the recognition of the need to avoid interference with the exercise of State sovereignty.  Previous Commission reports supported the argument that it would be contrary to international law for one State to seek to exercise criminal jurisdiction over a foreign Head of Government or Minister for Foreign Affairs.  The claim of immunity was of a preliminary procedural nature and did not require the extensive enquiry of a court to determine the merits of a particular case.  Citing additional opinions, she also supported the view that a Head of Government could not be forced to provide evidence in connection with an investigation conducted by a foreign State.


On customary international law, she noted that the Caribbean Court of Justice was searching for evidence of State practice in the region, but cautioned that the increase of sovereign States over the past half century impacted the extent to which rules, identified as customary, could claim universal application.  Acceptance of such law must be demonstrated in different cultures and regions; it was no longer the case that the rules accepted by the few great Powers could define customary law.


In regard to the other subjects in the Commission’s report, she said that the protection of persons in the event of disasters was of particular interest to her country because of its vulnerability, as witnessed by the effects of Hurricane Sandy.  The provision of adequate resources and technology for adaptation to climate change was critical.  Response to disasters, furthermore, must be in accordance with the principles of humanity and impartiality, taking into account the most vulnerable and the human rights of affected persons.  Finally, she stressed that the Commission’s work on the most-favoured-nation clause and other trade matters where greater clarity was needed, was very important.


VISHNU DUTT SHARMA ( India), noting that immunity of State officials from foreign criminal jurisdiction was complex and politically sensitive, said consideration of the topic required a balanced approach that took into account existing law and practice.  In that regard, an in-depth examination of the International Court of Justice’s judgment in February of this year in the Jurisdictional immunities of the States’ case which inter alia identified State practice in respect of immunities before national jurisdictions would be desirable.  The relationship between immunity ratione materiae and immunity ratione personae would also need to be examined by taking into account the State practice and the Court’s judgment in the case.  Concerning the applicability of immunity ratione personae beyond the troika, a clear criterion must be identified in establishing such practice by taking into consideration the Court’s judgment in the Arrest Warrant case.


Concerning the new topic of provisional application of treaties, he stated that the regime established under article 25 of the 1969 Vienna Convention on Law of Treaties should be preserved.  Turning to the formation and evidence of customary international law, he said the Commission’s work should focus mainly on ways and methods concerning the identification of the rules of customary international law and how the evidence of those rules could be established.


He then said that, in regards to the obligation to extradite or prosecute, he was in alignment with those members of the Commission who had opined to delink the topic from universal jurisdiction.  He expressed appreciation for the Commission’s efforts in providing authoritative guidance on the interpretation of the most-favoured-nation clause, adding that it could consider the studies that had been undertaken by other trade related bodies, such as the World Trade Organization (WTO), UNCITRAL and Organization for Economic Cooperation and Development (OECD).


MARIA TELALIAN ( Greece) said the Commission should be cautious when examining the topic of provisional application of treaties, which touched on sensitive areas in the relationship between international law and national law.  Recourse to the provisional application of treaties should actually depend on the specific circumstances and national legislation of each State.  Thus, the Commission’s work should rely on the research and analysis of existing State practice.  Moreover, it would be useful to elucidate the legal situation arising out of the provisional application of a treaty, including the exact meaning of the expression itself, and its difference in relation to the term of the provisional entry into force of a treaty, which first appeared in the 1966 draft articles on the law of treaties.  It would be interesting to examine whether the rule of pacta sunt servanda was applicable to a treaty provisionally applied, and whether a breach of the obligations of the latter could entail the international responsibility of the State(s) concerned.


On the topic of treaties over time, she said work should aim to supplement the relevant provisions of the Vienna Convention, and avoid modifying or contradicting them.  Special attention should be given to safeguarding the principle of stability and continuity of treaty relations.  That work should focus on elaborating a set of general conclusions which could provide practical guidance to States when negotiating and applying treaties.


She then addressed the subject of formation and evidence of customary international law, saying that while she agreed that flexibility remained the main feature of customary law and that it should in any case be preserved, the work of the Commission on this subject could be of great practical and theoretical usefulness for all those — whether judges or practitioners — who applied that law, not only at the international, but also at the national level.


Turning to the topic of expulsion of aliens, which she had not been able to address last week due to time constraints, she said that while the text before the Committee was comprehensive, there could have been, among other possible modifications, a stronger emphasis on the voluntary departure of persons under expulsion.  She said, in conclusion, that she was uncomfortable with the text as it stood now, which was very close to an international treaty in the field of human rights, setting out concrete and precise rights, obligations and procedures.  She, therefore, preferred that the text be adopted by the Commission as guidelines or best practices rather than as draft articles.


NICOLA SMITH ( United Kingdom) stated that her delegation was still considering how to most appropriately answer the specific questions on the topic of immunity of State officials from foreign criminal jurisdiction.  Offering the following answers on a provisional basis, she said that on the distinction betweenimmunity ratione personae and immunity ratione materiae, the general position remained that the plea of immunity ratione materiae in criminal cases was a plea by the State that the act of its official was an act of the State itself, which was an acknowledgement of the State’s responsibility and, therefore, meant that any claim or remedy would lie at the level of international law.


However, she went on to note two cases (Pinochet and Bat Khurts) that suggested some qualification to that general rule.  As to the criteria applied to identify the persons covered by immunity ratione personae, her country’s courts had drawn considerable assistance from the International Court of Justice decision in the Arrest Warrant case.  The key questions had centered on the seniority of the individual and their functional need to travel for the purposes of promoting international relations and cooperation.


Turning to the topic of provisional application of treaties, she said it would be useful to build on the body of work on treaties undertaken by the Commission, including the recently completed Guide to Reservations of Treaties. Given the topic’s nature, it could lend itself better to a study of how article 25 of the Vienna Convention was applied in practice, perhaps leaving general proposition or commentaries, if any, to be drawn out subsequently.


On the topic of formation and evidence of customary international law, she said that issues increasingly arose in new contexts, where the relevant decision-makers or legal advisers did not necessarily have the same familiarity with the sources and methods of international law as a legal advisor to a foreign ministry.  In that respect, the role of the national judge in identifying relevant rules of customary international law had a particularly interesting aspect, which underlined the benefit of the Commission providing guidance.  A clear and straightforward set of propositions or conclusions with commentaries could become an important reference tool for those judges and other practitioners.


She then turned to the topic of the obligation to extradite or prosecute, saying that the United Kingdom’s position continued to be that the obligation to extradite or prosecute arose as a result of a treaty obligation.  While she looked forward to the Commission’s in-depth analysis, she was not convinced that it would be a good use of the Commission’s time to continue with the topic.  Touching briefly on the topic of treaties over time, she welcomed the Commission’s decision to narrow its focus and rename it.  Lastly, she expressed support for the decisions and intentions of the Study Group on the most-favored-nation clause, which would aim towards a draft report, and avoid considering the relationship between investment agreements and human rights.


JEAN-CÉDRIC JANSSENS DE BISTHOVEN ( Belgium) said that immunity ratione personae was afforded to a limited number of officials in their personal capacity and applied to all acts committed by those people, including acts that were personal.  Such immunity was temporary, applied to crimes of international law, and while officials were still serving their posts. Immunity ratione materiae, conversely, was not temporary, continued to apply to officials even after they had stepped down from their posts, and did not apply to crimes of international law, even when those crimes were perpetrated on behalf of States.


International law, he continued, obliged all States to prosecute perpetrators of serious international crimes.  The two types of immunity could be renounced by the State.  Functional criteria should determine who enjoyed immunity ratione personae, as in the Arrest Warrant case.  The nature of those functions, as exercised for the States, as well as the hierarchy of those functions, should be taken into account.  Lastly, he said that his country was not inclined to accord immunity ratione personae to any people outside of the troika.


Regarding the formation and identification of customary international law, he said express references to international customs in official State declarations were rare.  However, in the 1980s, certain declarations made by Belgian authorities before Parliament had confirmed that international customary law could be found in several provisions of the Geneva Conventions and their Additional Protocols.  Thus, in 2008, the Commission was informed of his country’s stance that there was a universal obligation to prosecute international crimes under international law, reflected in a number of international texts, General Assembly resolutions, Security Council positions and in the Rome Statute.  Because references to international customary law in the decisions and arrests of Belgian courts and tribunals were limited, however, it was essential to follow long-standing customary rules.


MATEJ MARN (Slovenia), addressing the issue of immunity of State officials from foreign criminal jurisdiction, expressed confidence in the systemic approach proposed in the Special Rapporteur’s preliminary report, specifically the proposal to submit the first set of relevant draft articles in her next report.  However, given the sensitivity of the topic, efforts should focus on the progressive development of international law through a detailed examination of State practice, jurisprudence and doctrine, as well as the principles of contemporary international law.  It was essential to make distinctions between immunity ratione personae and immunity ratione materiae.  Noting that other high-ranking officials outside the troika participated in international relations, he said that despite their participation, the troika still maintained a distinctive level of representative functions.


Turning to the formation and evidence of customary international law, he said the outcome should be a set of conclusions that would serve as practical guidance for judges and lawyers, with commentaries which would help to identify rules of customary international law, specifically for domestic courts.  Noting that a great many scholars had studied the issue, which had been addressed by international and national courts, he called for a settled practice, together with opinio juris.


Regarding the obligation to extradite or prosecute, he said the essence of that obligation was to end impunity for core international crimes.  It was paramount to clarify whether that obligation had attained customary legal status.  In the 2010 judgement of the International Court of Justice, Questions Relating to the Obligation to Prosecute or Extradite, that question had not been answered.  A study of that obligation should include in-depth analysis of the Court’s judgement and be closely linked with the two aforementioned topics.  The fight against impunity was also addressed by additional topics before the Committee, including the immunity of State officials from foreign criminal jurisdiction and the scope and application of the principle of jurisdiction.  He, therefore, suggested that the Commission deliberate comprehensively on those matters by considering the inclusion of a new topic — State responsibility to end impunity for international crimes — in its agenda.


ALICE REVELL ( New Zealand), while expressing support for many of its views, said the Study Group’s work on the most-favoured-nation clause should be located against the background of general international law and the Commission’s prior work, including the 1978 draft articles on the clause.  Concerning the obligation to extradite or prosecute, there was merit in exploring the question of whether that obligation existed under customary international law.  The Commission’s 1996 draft Code of Crimes against the Peace and Security of Mankind contained such an obligation for the core crimes in international law.  She looked forward to the working paper on the topic and encouraged further consideration of the relationship of that topic with universal jurisdiction.


She then turned to the immunity of State officials from foreign criminal jurisdiction, saying that it required a careful balancing between fundamental principles of sovereign equality, non-interference in internal affairs and independent performance of State activities on the one hand, and individual criminal accountability and the need to protect human rights and combat impunity for serious international crimes on the other.


The Commission’s approach in the 1996 draft Code of Crimes against the Peace and Security of Mankind, she continued, was preferable as it provided for an exception to immunity when a State official was accused of international crimes, particularly when prohibition of an international crime had reached the status of a jus cogens norm.  Any extension of immunity beyond the troika must be clearly justified and include a careful analysis of customary international law.


On the provisional application of treaties, she said that the Commission’s work would greatly benefit from considering the differing practice of States regarding provisional application.  The legal regime of provisional application could not be divorced from a State’s constitutional and procedural requirements.


FARID DAHMANE ( Algeria) said the obligation to extradite or prosecute had been developed in treaty law, in the international practice of States complying with international law, and in the fight against impunity.  Nevertheless, the existence of a general obligation to extradite or prosecute had not been formally established by the Commission, with the exception of certain grave crimes, serious violations of international humanitarian law, genocide, war crimes and crimes against humanity.  He urged that terrorism be added to that category.


He said immunity of State officials from foreign criminal jurisdiction was enshrined in international law and the hypothesis of the existence of exceptions must be proved.  Mere intuition was not enough to indicate there was a trend to restrict that immunity.  Immunity ratione personae must not be limited to the troika.  Such an interpretation would not be in line with international norms.  Further, the Commission could not take up the matter separately from the question of it being used in a politicized manner, which was often selective and which negatively impacted on the independence of justice systems and rules of due process.


Echoing other speakers, he said that immunity should continue for officials who were no longer exercising their functions, but the scope should be defined.  On the other hand, immunity of State officials from foreign criminal jurisdiction should not be considered in isolation separate from the obligation to extradite or prosecute or universal jurisdiction.  Universal jurisdiction was important to immunity for officials and in upholding the international legal order.


With respect to the Commission’s programme of work, he said topics selected should be sufficiently established in practice to justify their review.  He supported the proposal made by numerous delegations that the Commission hold part of its session in New York City, noting that the presence of the Commission’s 34 experts would be positive for the codification and development of international law and would help increase the Commission’s effectiveness by bringing it closer to delegations’ legal advisors stationed in the City.


MARCUS SONG ( Singapore) said that the provisional application of treaties was well used in the area of bilateral and multilateral civil aviation treaties.  As an aviation hub, those matters were not just of academic interest to Singapore, but also of interest for its practical application.  Concerning the formation and evidence of customary international law, he expressed support for the Special Rapporteur’s comment that the outcome of the Commission’s work could be a set of conclusions or guidelines with commentaries and that a convention would scarcely be appropriate in that field given the need to preserve the degree of flexibility inherent in the customary process.


Concerning the obligation to extradite or prosecute, he said that the work of the Working Group would be given greater impetus by the recent judgment of the International Court of Justice in the Belgium v. Senegal case.  Concerning treaties over time, the manner in which interpretation of treaties could be affected by subsequent practice or silence was of vital and practical application.  In that regard, he appreciated the progress made by the Study Group in arriving at six additional preliminary conclusions which would serve to guide their thinking in that area of international law that was presently clouded with uncertainty.


He then turned to the most-favoured-nation clause, expressing support for the objectives of the Study Group to safeguard against the fragmentation of international law and to stress the importance of greater coherence in the approaches taken in the arbitral decisions on the clause’s provisions.  The Study Group’s product could make a significant contribution towards greater certainty and stability in the field of investment law.  As a country with its economy heavily dependent on trade, he urged the Commission to expedite work on that issue and to provide much needed clarity in that area of law in order to alleviate one of the perennial issues Singapore and other Member States faced in negotiating free trade agreements and bilateral investment treaties.


JOSÉ MARTÍN Y PÉREZ DE NANCLARES (Spain), taking up the immunity of State officials from foreign criminal jurisdiction, noted progress made by the Commission, specifically towards determining themes of debate and identifying points of controversy.  Calling the subject complex and extraordinarily sensitive, he said “we were faced with a question that deserved a well-balanced and prudent analysis.”  In that regard, impunity could not be absolute, while the setting of limits could not undermine its essence.  Limitations for immunity had to be established based on realistic criteria, and the Commission would have to decipher between codification and progressive development of international law.  The systemic approach proposed by the Special Rapporteur would be of great importance, in particular to the central controversy related to exceptions to penal jurisdiction, specifically in terms of immunity ratione materiae.


Concerning other topics on the Commission’s agenda, he said the provisional application of treaties was necessary because it allowed for verification of the interpretation and application of treaties.  Its utility was evident in the European Union’s practice related to joint trade agreements involving third States.  As for the formation of international customary law, the complex topic required different theoretical approaches, and the usefulness of any final results would depend on their practicality.


He then turned to the obligation to extradite or prosecute, saying it was difficult to systemically address the topic because of the differences in practice.  Regarding treaties over times, the change in the structure of the Commission’s work towards a more limited approach would be a positive approach to the thorny subject.  Lastly addressing the most-favoured-nation clause, he said the reflections of the Special Rapporteur on the matter were interesting, and he urged States to proceed with caution when negotiating investment treaties.


SALVATORE ZAPPALÀ ( Italy), in regards to the immunity of State officials from foreign criminal jurisdiction, said despite divergent approaches to the matter, there were a few fundamental principles that ought to be upheld.  State officials, for instance, must be immune from foreign jurisdiction for actions carried out in their official capacity, apart from cases concerning crimes of international law.  However, that did not mean that there would not be responsibility for unlawful acts.  Additionally, acts performed by State officials in the private sphere remained under the scope of ordinary jurisdictional rules, unless special categories of immunities applied, as in the case of the troika.  The most divergence existed around a few categories of specific international crimes.  Some serious crimes might entail the responsibility of the individual and the State to whom the crimes were attributable.


As for the obligation to extradite or prosecute, he said that obligation was an important tool for avoiding impunity, which relied on a principle of State cooperation.  That cooperation principle was useful in preventing States from becoming safe havens for alleged perpetrators of serious crimes.  Although there were provisions on that obligation in conventional rules and domestic legislation, there were also doubts as to the possibility of identifying numerous principles of customary law.


Turning to the formation and evidence of customary international law, he said that although the subject was important and appealing, forming any reasoning that would restrict the actions of judges and other interpreters should be avoided.  Customary law arose spontaneously through a variety of actors and the temptation to build predetermined procedures might be too artificial.  Although a study in the area might help towards analysing a list that concurred with customary international law, it should not be an exhaustive process.  Likewise, developing a sort of meta-language on the topic might be too broad and might turn out to be unduly constraining.  Thus, he urged flexibility in the approach applied to gather evidence on customary international rules.


IVIAN DEL SOL DOMINGUEZ ( Cuba) said the Commission must codify norms of existing international law in order to avoid exceptions to immunity.  In no way should the principle of universal jurisdiction or the obligation to extradite or prosecute be applied to officials who enjoy immunity.  Cuban norms guaranteed that no immunity would be granted to those responsible for violations of international law and crimes against humanity.  She reiterated support for all initiatives aimed at clarifying content and preserving the sacred regime of immunity of State officials, based on international conventions and international law.


She said provisions related to the obligation to extradite or prosecute were enshrined in the United Nations Charter — especially the principles of sovereign equality of States and non-interference in a State’s internal affairs — and must be strictly implemented.  A study on the subject should record general principles governing extradition.  It was necessary to determine extraditable crimes while still maintaining the right of each State to determine in its national legislation crimes which would lead to extradition.  Further, the obligation to extradite or prosecute existed only if there was an existing treaty between two States.


She said the Vienna Convention on Treaty Rights must be the starting point for analysis of the most-favoured-nation clause.  Study of the clause was of great importance, in particular its relationship with treaties for investment protection.  Concerned how arbitrary tribunals were unduly applying agreements for protection of investment based on the clause, she said a broad interpretation of the clause affected balance of investment protection agreements and restricted sovereignty of the recipient State of investment and expressed support for any initiative aimed at clarifying the content, scope and limit of the clause, as well as supporting the Vienna regime on treaties and principles of international law.


SERGEY LEONIDCHENKO ( Russian Federation) said he approved of the distinction between immunity ratione personae and ratione materiae, and saw good prospects for the adoption of the related draft articles.  On specific matters, he said that the emergence of international criminal justice should not affect the issue of immunity from criminal jurisdiction of another State.  Attempts to restrict the immunity of foreign officials had led only to political frictions and ran counter to the main objective of serving justice.  Further, decisions made in absence of litigants or in absentia did not provide evidence that extending such justice was desirable.  Decisions of the International Court of Justice and other cases had consistently shown that the personal immunity of members of the so-called “troika” was a firmly established norm that did not presume any exceptions.


He continued, saying that analysis of values in the discussion of immunity — pitting the fight against impunity against international stability — was overly complicated and unnecessary, as immunity transferred the judicial responsibilities to the State under which an official was employed.  Further study was necessary, however, on the question of immunity’s application beyond the troika.  He stressed that the development of de lege ferenda should be carried out very carefully and welcomed the approach proposed by the preliminary report.  The work of the Commission on provisional application of treaties should also follow a careful, measured and pragmatic approach, as strict rules might be counterproductive.  He welcomed the proposal for a special memorandum by the Secretariat.


Turning to customary international law and seeing a lack of common understanding of the topic, he again urged a careful approach and supported the nomination of a related Special Rapporteur, as well as the proposals for the Commission’s work format.  The search for evidence of customary norms was inseparably linked with research on the process of the formation of customary international law.  In addition, attention should be paid to the practices of all States, rather than just a dozen, and he proposed the creation of a glossary on the topic in all official United Nations languages.


On the obligation to extradite or prosecute, he reiterated his call for the scope of the principle to be expanded to include the gravest crimes with international repercussions.  However, it was not practical to combine that topic with the notion of universal jurisdiction, an idea he called doubtful.  Finally, he welcomed progress on the topics of treaties over time and the most-favoured-nation clause and welcomed flexibility in the Commission’s treatment of principles regarding the protection of the atmosphere.  In that regard, making the principles legally binding did not give any added value, as it limited the progress of international law in the area.


NORIZAN CHE MEH ( Malaysia) said lex lata or lex feranda could not be addressed in isolation.  The appropriate approach would be to take into account lex lata considerations and to include an analysis of de lege ferenda of some topics.  With regard to immunity ratione materiae, the scope of official acts or acts done in an official capacity ought to be determined before embarking onto other issues, including exceptions to such immunity or the waiver of immunity.  Concerning immunity ratione personae, she urged the Commission to be cautious in exploring the possibilities of extending such privilege outside the troika.  There had been suggestions that international crimes against humanity or jus cogens acts could fall as an exception to immunity of State officials.  In that regard, the scope of immunity ought to be determined prior to the study of whether international crimes against humanity could be considered as an exception.


Concerning formation and evidence of customary international law, she said views concerning what was or was not customary international law were evidently polarized.  In that regard, there was a need to analyse the formation and identification of customary international law in depth.  State practices from all of the principal legal systems of the world and from all regions must be considered.  Concerning the obligation to prosecute or extradite, she said that although the judgment of the International Court of Justice in Belgium v. Senegal did not seem to have the effect of rendering the obligation as a customary international law, it shed some light as to how the provisions containing such obligation should be interpreted, applied and implemented in a treaty.  In that regard, the Commission must ascertain the status of the obligation, as it required further clarification to the meaning and the nature of the obligation before it embarked on progressive development on that area of international law.


Concerning the most-favoured-nation clause, she said that the legal import of better procedural treatments from other treaties was the issue that required critical analysis.  That trend showed diverging jurisprudence on whether the clause could be used to override procedural pre-condition constituting circumvention of admissibility requirements, whether jurisdiction could be formed by incorporating provisions from another treaty by means of a most-favoured-nation clause, or whether the clause should, in principle, be applied to dispute settlement provisions.  The elaboration of the clause should remain as a non-legally binding set of guidelines that should not crystallize into States’ practice or customary international law.


TOMOYUKI HANAMI ( Japan) said his country’s laws did not stipulate immunity ratione personae and immunity ratione materiae.  Further, its State practice was insufficient to provide the Commission with concrete information on the criteria for identifying persons covered by immunity ratione personae.  The number of cases it had experienced in applying its criminal law to foreign State officials was quite limited.  When the Ministry for Foreign Affairs received requests from the National Police Agency to decide on immunity, it usually referred to past International Court of Justice decisions and what was generally accepted by international lawyers and State practice.  If the Commission were to consider expanding immunity ratione personae beyond the troika, it would need to discuss the criteria to define the scope of the officials.


Concerning the obligation to extradite or prosecute, he supported the Commission’s conclusion that an in-depth analysis of the Court’s 2010 judgment in the case, Questions relating to the Obligation to Prosecute or Extradite, would be required in order to fully assess its implications, as well as decide whether to continue consideration on the matter.  Noting that the topic would be useful in the Committee’s ongoing discussion of the scope and application of universal jurisdiction, he urged that work continue.


Concerning treaties over time, he appreciated the difficulty in collecting evidence of State practice on such issues as the subsequent agreement and subsequent practice, noting that much remained to be worked out regarding the contour of those notions.  Caution needed to be taken in deciphering what would fall under those two notions as the means to interpret treaties.  In light of the importance of the most-favoured-nation clause in bilateral investment treaties and trade agreements, the Commission’s comprehensive study was useful and helpful for every State.  The final report with guidelines and model clauses for the negotiation of the clause based on State practice could make a huge contribution towards assuring greater certainty and stability in that field.


EBENEZER APPREKU ( Ghana) said that given the objections of many African States concerning the Rome Statute’s provisions, the African Union Commission on International Law was examining related immunities and had, as well, begun discussions with the Commission.  Pointing out the international community’s failure to reach consensus on whether an international criminal court could be established for genocide with universal jurisdiction, he recalled that the Commission and Sixth Committee had thought a treaty-based permanent international criminal court with universal membership would resolve the controversy.


He said that, in light of the trend whereby State officials had been prosecuted or held to account by national and international tribunals after leaving office, the Special Rapporteur might wish to consider certain aspects in her study including, among others, whether the framers of the Rome Statute deliberately intended to create a lex specialis as related to the immunity of Heads of State and other State officials, and how the International Court of Justice would respond if the serious crime for which it sought to exercise jurisdiction had been committed prior to the appointment of the official concerned.


Turning to the obligation to extradite or prosecute, he said the topic properly belonged in the avenue of customary international law.  He pointed out that, historically, universal jurisdiction had been shuffled between the Commission and Sixth Committee due to lacking consensus on its scope and definition.  The solution to such an impasse should not be to refer the efforts of the Sixth Committee’s Working Group back to the Commission; rather, that Working Group should focus on making progress directly with the Committee.


As for the provisional application of treaties, he said it was common to find States enquiring about whether bilateral treaties to which Ghana was a signatory could enter into force provisionally.  Ghana was committed to ratifying treaties as soon as possible, and any negative consequences that arose from provisional application could be mitigated by the fact that a signatory State was not bound to act in a manner that would defeat the purpose of the treaty.


Regarding the formation and evidence of customary international law, he called for greater efforts in searching for and reflecting State practice, precedents and doctrines of national and regional organizations.  As the Commission’s work could not cover all aspects of customary law, it should attempt to bring further clarity to jus cogens.  The ultimate goal of that work should be greater precision, clarity and certainty in existing rules of customary international law.


ERNEST TCHILOEMBA TCHITEMBO ( Congo) said that the many sources of international law made it difficult to identify and study the formation of customary international law.  However, since the Commission took up the topic wherein Governments’ observations could be useful, he said his delegation would do its utmost to respond and would submit relevant information about their national laws.  The formation of custom was something that was flexible.  Identifying rules of customary law should be the exclusive purview of national and international judges within their fields of competence.


On the scope of that topic, he acknowledged that the Commission’s ultimate goal was the preparation of a set of conclusions with commentaries, thus signifying that the practical approach should be paramount in preparing a guide for jurists.  Urging caution in using the terms formation and evidence, he said the term formation should be linked to the theoretical aspects of the Commission’s draft outcome document on the matter.


Referring to the Special Rapporteur’s comment that the practical outcome of the Commission’s work must be grounded in a detailed and thorough study including theoretical underpinnings, he stressed that matters relating to formation of custom should cover a broad range of authors from various parts of the world represented in the United Nations.  The guidelines, conclusions and commentaries to be prepared by the Commission should be based on observations by practitioners, including case law from domestic courts and tribunals.


He then turned to the question regarding the extent to which jus cogens should be considered within the context of evidence and of formation of customary international law.  Noting the Special Rapporteur’s stance that imperative norms were derived from treaties and from customary international law, he said the question was a matter which, in fact, was not covered in the present topic.  At most, the Commission might consider preparing practical guidelines which would help in the process of formation and identification of imperative rules for jus cogens.


ROHAN PERERA ( Sri Lanka), focusing on the most-favoured-nation clause, said the Study Group on the matter was intended to provide greater coherence and stability in the foreign investment law, particularly by addressing the inconsistency which had arisen in arbitral jurisprudence.  The first dispute referred to the International Centre for Settlement of Investment Disputes under a bilateral investment treaty was AAPL vs. the Government of Sri Lanka.  Since then, investment disputes before the Centre had grown, and with the Maffenzi Award and its aftermath, the environment of international arbitral jurisprudence had become shrouded in controversy and complexity.  Recalling his country’s history of negotiating bilateral investment treaties, he said that Sri Lanka was currently engaged in developing a new model treaty, taking into account new trends in arbitral jurisprudence.


Citing the two working papers which constituted the core of the Study Group’s deliberations, he said the paper by the Chair on the interpretation of most-favoured-nation clauses by investment tribunals, highlighted the lack of consistency in the process undertaken by tribunals and the conclusions reached.  Those trends and factors identified in the paper as having influenced the tribunals deserved closer analysis.  The second paper, on the mixed nature of investment tribunals, had injected a new and important dimension to the question of the applicability of a most-favoured-nation clause in a bilateral investment treaty.


He went on to say that the paper also highlighted the unique nature of investment arbitration, where an individual investor had the right to recourse in dispute settlement provisions and to pursue a claim against a host State.  The informal working paper on model most-favoured-nation clauses, post-Maffenzi, would also provide valuable guidance to States negotiating bilateral investment treaties.  In closing, he said he expected that the Study Group’s work would culminate in the development of guidelines and model clauses that would address uncertainty and provide practical guidance to both States and tribunals.


PHAM THI THU HUONG ( Viet Nam) said it was essential to thoroughly consider the methodological, substantive and procedural aspects related to immunity of State officials from foreign criminal jurisdiction given the complexity of the topic and its political sensitivities.  With respect to methodology, she was not compelled to draw a sharp distinction between codification and progressive development of international law.  They were incorporated into the mandate of the Commission, which should, in its consideration of the topic, bear in mind both lex lata and lex feranda.


As to the scope, she said it would be inappropriate, in that context, to address the issue of immunity from civil jurisdiction, although the differentiation between immunity from civil and criminal jurisdictions should be kept in mind.  As well, the question of jurisdiction, including the extent to which universal jurisdiction could bear on that topic, should be noted.  When investigating the question of immunity ratione personae and immunity ratione materiae, there must be careful consideration of an official’s status and role, not only in regular, but also in special circumstances, as well.


On the formation and evidence of customary international law, she stated her agreement with the Special Rapporteur and other members of the Commission that general study of jus cogens should not be included within the scope of the topic.  Though customary international law might have some jus cogens norms, it was not necessary to deal with that issue as it did not really link to formation of customary law.  The topic should focus on an analysis of elements of State practice and opinion juris, including their characterization, their relevant weight and their possible manifestations in relation to the formation and identification of customary international law.  The Special Rapporteur’s proposal on the development of a tool, possibly in the form of guidelines with commentaries, was welcomed and would be helpful for States in their interpretation and application of public international law.


Concerning the obligation to extradite or prosecute, she said the International Court of Justice’s judgment in the case Belgium v. Senegal confirmed the established role of that obligation in the fight against impunity and implementation of international justice.  Although an attempt to harmonize different multilateral treaty regimes on the obligation was less than a meaningful exercise, further consideration of the topic would be useful for the implementation of the existing treaties on the subject.


NIMROD KARIN ( Israel) said that the concept of immunity of State officials from foreign criminal jurisdiction was already the result of balancing several international law principles, including State sovereignty and equality, as well as accountability for crimes.  In that regard, it was important to retain the distinction between immunity ratione personae and immunity ratione materiae, the latter of which was absolute and should be applied equally to other State officials beyond the traditional troika.  The Commission should define general criteria to assist States to identify, on a case-by-case basis, senior officials entitled to immunity ratione personaeLex lata was the appropriate framework for studying the topic, and it was premature at the current stage to discuss the final outcome of the Commission’s work.


He said that Israel had followed with concern the simplified process by which certain rules had been characterized as having a customary nature.  Due to the significant implications that such conclusions had on the States’ legal obligations, it was important to adopt a careful and responsible approach to formulating rules of customary international law.  The Commission should focus on State practice.  Weight that was given to international organization’s resolutions, which could be political in nature, should be considered with great caution.  New peremptory norms of general international law should not be considered nor should the final outcome of the Commission’s work on the topic.


As for the obligation to extradite or prosecute, he expressed considerable doubt as to whether the Commission should continue with the topic due to questions raised about its usefulness and the fact that its legal source was solely derived from treaty-based obligations.  As well, the concept of universal jurisdiction should be clearly distinguished from that obligation.


HOSSEIN GHARIBI ( Iran) noted the critical importance of the immunity of State officials from foreign criminal jurisdiction to stable inter-State relations.  However, the Commission still had to decide which acts should not be considered official and for which immunity would cease to be applied.  The Commission should focus on codifying the existing rules of international law in that area rather than engaging in progressive development.  Immunity before national criminal jurisdictions was a deeply established principle under contemporary international law.  The Commission should not struggle to develop a contrived rule when there already was an authoritative, clear, real rule from the International Court of Justice which was to the contrary.


Regarding the provisional application of treaties, he said that although the topic was new, it was related to the Commission’s work on treaties over time and customary international law.  The Special Rapporteur could, therefore, exploit the Commission’s findings under those topics to accelerate work on the matter.  It would be overly difficult, based on the 1969 Vienna Convention and State practice, to extract a unified practice capable of forming customary norms.  In that regard, a calculated and balanced approach should be applied to assess the weight of regional and local practices and the decisions of domestic courts.


As for the formation and evidence of customary international law, he urged the Commission to make a clear distinction between State practice, international courts and tribunals’ jurisprudence, on the one hand, and that of domestic courts.  They could not be on equally strong footing.  The Commission should also follow a cautious approach in gauging the role of unilateral acts when identifying customary international law, which could not be counted as evidence of an emerging rule or change of an existing rule.


Addressing the obligation to extradite or prosecute, he said it was not possible to prove the existence of a general obligation of customary international law.  The Draft Code of Crimes against Peace and Security of Mankind had established that obligation concerning persons suspected of having committed certain crimes, but it had not been well received by States.  Further, it was progressive development of international law, not codification.  In closing, he objected to linking that obligation with the concept of universal jurisdiction.


Statement by Special Rapporteur


CONCEPCIÓN ESCOBAR-HERNÁNDEZ, Special Rapporteur on the immunity of State officials from foreign criminal jurisdiction, said that there was an undeniable need to examine the topic by first examining practices based on lex lata, and from there, moving to an assessment based on lege ferenda.  Expressing gratitude to the delegations supporting the systemic approach elaborated in her report, she stressed that such an approach would help avoid inconsistencies that could be detrimental to international law.


Summarizing the debate, she said there had been general consensus on the importance of the matter, as well as its degree of difficulty and sensitivity.  Calling for a careful approach to the subject, delegations had emphasized that immunity from foreign criminal jurisdiction had to be closely linked to State immunity.  The type of immunity under discussion was an instrument for preserving stable international relations, and was of a functional nature which had to be addressed closely with principles of international law, including those related to combating impunity.


She noted that there remained differences in opinion on the meaning and scope of such immunity, specifically related to those who could enjoy immunity and the category of official acts for which immunity could be applied.  There needed to be a careful examination of both of those issues, with specific proposals in the form of draft articles.  Delegations had also considered the possibility of applying immunity ratione personae beyond the troika, for which related criteria had to be analysed.  The distinction between ratione materiae and personae also earned general support from delegations, although in the future it would be necessary to define the borders of each.


In her conclusion, she said the hypotheses in her preliminary report were valid, and through its working plan, the Commission should be able to address the topic comprehensively and systematically over five years, adopting draft articles at the end of its work and on first reading.  She reiterated that it was important to identify the new practice of States in this area and thanked delegations for their responses to questions posed by Commission and their presentation of national practice.


Statement by the Chairman of the International Law Commission


LUCIUS CAFLISCH ( Switzerland), Chair, International Law Commission, noting the Committee’s conclusion of its examination of the Commission’s report, thanked all delegations who had spoken to various chapters of the report.  The Commission relied on the Committee so that it could harvest views and reactions of States regarding the general guidelines and trends of the Commission’s discussions, as well as the various items raised on its agenda.


Views expressed by States, he continued, were extremely valuable to the Commission, and he requested States to send their comments about the draft articles on first reading that addressed the topic of expulsion of aliens.  Those comments prepared by Governments would be of considerable help to the Commission for its second reading of the draft.  Further, he encouraged Governments to provide the Commission with comments on various matters raised on Chapter III of the report.


Noting that the Commission was a collegiate body, he said it was not his place to react or reply to the comments, suggestions or criticisms expressed.  However, its Secretariat would prepare a summary of the debate and make it available.  As well, the text of statements made would be sent to the Special Rapporteur.  Stressing that the Commission would take seriously all views expressed, he said he was grateful to the Committee and its Chair for a very friendly welcome.


Report of Working Group


ROHAN PERERA (Sri Lanka), Chair, the Working Group on measures to eliminate international terrorism, said that the Group, in efforts to finalizing the draft comprehensive convention on international terrorism and to continue discussing items included in its agenda, had held three meetings on 22 and 24 October and on 6 November of this year.  They discussed outstanding issues relating to the draft comprehensive convention and then considered the question of convening a high-level conference under the auspices of the United Nations.  Both he and the Coordinator of the draft comprehensive convention, Maria Telalian had engaged in bilateral contacts with interested delegations on the outstanding issues related to the draft convention.


During the informal consultations, he said delegations had reiterated their strong condemnation of terrorism in all its forms and manifestations and stressed the importance of concluding a draft comprehensive convention.  Several delegations had asserted that they were ready to proceed on the basis of the 2007 proposal, having observed that it had not been rejected by any delegation.  Certain delegations had viewed the proposal as a viable, legally sound compromise solution, which should be accepted without further change.


However, he said, other delegations asserted that the remaining issues were not only political, but legal, and that the 2007 proposal did not resolve all of the problems raised during the course of negotiations.  Some delegations reiterated their preference for the 2002 proposal of the Organization of Islamic Cooperation, which was based on previously accepted language drawn from the International Convention on the Suppression of Terrorism Bombings and other recent counter-terrorism instruments.  They did, however, expressed their willingness to continue to consider the 2007 proposal.  Among other issues, there was still a need for a clear legal definition of terrorism, which distinguished terrorism from the legitimate struggle of peoples fighting in their exercise of their right to self-determination.


He said the Coordinator, acknowledging the statements made by delegations that indicated political agreement on the draft convention remained elusive, had reiterated to the Group the rationale behind the elements of an overall package which had been presented in 2007.  She also reminded them that the elements of an overall package had been the outcome of intensive deliberations among delegations over several years, and had emerged from an effort to find consensus.  The draft convention was intended to fill gaps in the law and enhance cooperation in the prevention and prosecution of terrorist acts.  The definition of acts of terrorism contained in draft article 2 would represent the first time such a comprehensive definition had been included in an international legal instrument.  The draft convention was a law enforcement instrument that focused on the individual and not the State.  Further, the Coordinator, noting that positions among delegations were not yet gravitating towards a possible compromise, even after a year of reflection, thought it would be of little purpose to continue convening meetings when there did not seem to be any demonstration of serious compromise despite repeated attempts to explain the rationale of the elements of the overall package.


On the question concerning a high-level conference, he went on to say, the sponsor delegation, Egypt, had reiterated its proposal, originally made in 1999, to provide a forum to address all relevant issues.  It was underscored, though, that the convening of a conference should be considered on its own merits and should not be linked to the conclusion of the draft comprehensive convention.  Some delegations reiterated their support for the proposal, viewing it as a new way forward and one that should be convened as soon as possible without any preconditions.  Still others, although supportive of the conference in principle, questioned its timing and effectiveness, suggesting that the draft convention should continue to be the priority and that the Working Group and the Ad Hoc Committee continue to be the forums for negotiation on outstanding issues.


Action on Drafts


The Committee took up the draft resolution on the Manila Declaration on the Peaceful Settlement of International Disputes.  It was approved without a vote.


Introduction to Texts


A representative of Austria introduced the two draft resolutions on recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law as revised in 2010 (A/C.6/67/L.7) and on the Report of the United Nations Commission on International Trade Law on the work of its forty-fifth session (A/C.6/67/L.8).


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