As Review of International Law Commission Report Continues, Legal Committee Tackles Definitions, Interpretations of Draft Texts

29 October 2013
GA/L/3466

As Review of International Law Commission Report Continues, Legal Committee Tackles Definitions, Interpretations of Draft Texts

29 October 2013
General Assembly
GA/L/3466
Department of Public Information • News and Media Division • New York

Sixty-eighth General Assembly

Sixth Committee

18th Meeting (AM)

As Review of International Law Commission Report Continues, Legal Committee

 

Tackles Definitions, Interpretations of Draft Texts

 

Commending Inclusion of ‘Crimes against Humanity’

In Long-Term Work Programme, Delegates Debate Nature of Consideration

As they continued deliberations on the International Law Commission’s annual report, Sixth Committee (Legal) delegates tackled an array of issues on the newly drafted conclusions that addressed the interpretation of treaties, and raised questions regarding the Commission’s consideration of crimes against humanity.

Commending early steps taken on the topic, “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, delegations agreed that the Vienna Convention on the Law of Treaties was the primary source of the rules of treaty interpretation.  The Commission’s initial draft conclusions largely restated provisions from the Convention.  However, the commentaries to them provided a rich and considered analysis of the interpretation and application of those provisions.

One of the most difficult tasks in interpreting treaties, said Slovakia’s representative, was how to place appropriate weight on various means of interpretation, as foreseen in articles 31 and 32 of the Vienna Convention.  To that end, it was essential to have a common understanding of the meaning of the terms “subsequent agreements” and “subsequent practice”.

At the same time, Ireland’s delegate, while agreeing with the distinctions made between agreed subsequent practice under article 31, and other subsequent practice, in a broad sense, under article 32, pointed out that the distinction might imply the former was of greater interpretive value.  The flexibility international courts and tribunals currently enjoyed in interpreting treaty terms or provisions in light of subsequent practice must be maintained, he stressed.

A number of speakers also raised the issue of the evolution of interpretation of treaties over time, with the Republic of Korea’s representative stating that interpretation must evolve according to social and other developments.  However, such evolving interpretation should not be forced beyond the extent intended by the original drafters of the treaty.

Concurring, Hungary’s delegate said that it was vital to provide the possibility – and not the obligation – to States that were parties to a treaty to give meaning to a term which was capable of evolving over time by “subsequent agreement” and “subsequent practice”.

Looking ahead, a number of delegations also addressed the Commission’s inclusion of “crimes against humanity” in its long-term programme of work.  The Netherlands’ representative, urging that the issue be studied in light of the Rome Statute, pointed out that what was missing was not a definition of the crimes, but the tools to ensure prosecution.

“[T]he missing link is an international instrument on mutual legal cooperation covering all the major international crimes, including crimes against humanity,” she stated.  Along with several other delegations, she proposed that negotiations for such an instrument be opened at the United Nations Crime Commission in Vienna.

However, South Africa’s delegate noted that a number of parties to the Statute, including his country, had utilized it as a basis for the criminalization of those crimes.  A new convention on crimes against humanity would, therefore, not necessarily remedy the concern that an insufficient number of States had done so.  He asked the Commission to reconsider whether the topic in its current form should be a priority.

Also speaking today were representatives of Belarus, United Kingdom, Canada, Peru, Germany, Chile, Greece, Czech Republic, Romania and Ireland.

The Sixth Committee will reconvene tomorrow, Wednesday, 30 October at 10:00 a.m. to continue its consideration of the report of the International Law Commission.

Background

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission.  For background, see Press Release GA/L/3465.

Statements

ANDREI POPKOV ( Belarus) expressed support for draft conclusions 1-4, noting that the interpretation of international treaties was, to a significant extent, a creative process.  At the same time, it was important to establish guidelines, including by progressively developing relevant provisions of the 1969 Vienna Convention on the Law of Treaties.  Among several comments made in regards to the conclusions, he noted that in conclusion 1, paragraph 2, there were some doubts about the need to repeat, word-for-word, the Vienna Convention’s relevant provisions.  More emphasis should be placed on exploring the meaning of wordings used in the Convention.  Turning to draft conclusion 2, he noted the complex issue regarding the definition of subsequent practice, for example, in the case of a violation of a treaty by one party in the absence of objection by other parties.  Further study of those cases would be helpful.

He agreed with the Special Rapporteur that the practice of officials of lower or middle levels could also be regarded as State practice in interpretation of international treaties.  Further work on that could enrich the understanding on State responsibility for internationally wrongful acts.  Interpretations could be regarded as authentic only when they reflected the intention of all States parties, not just one or several parties to a treaty.  The practice whereby international treaties monitoring bodies placed themselves on equal footing with States in respect to interpretation of treaties without having been so accorded by States was of concern.  Quasi judicial monitoring bodies were important only to the extent they were acting within the context of powers drawn to them.  Similarly, intergovernmental organizations helped in the analysis of the practice of States, but their input must not replace the practice of States.

IAIN MACLEOD (United Kingdom), among other comments, stated his support for the Commission’s approach on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, stressing the importance of articles 31, 32 and 33 of the Vienna Convention, and calling for streamlining of conclusions to prevent overlap both between conclusions and with the terms of the Convention.  The focus on interpretation of a treaty being a “single combined operation” was welcomed.  However, the term “authentic means of interpretation” might be inappropriate because “authentic” had a particular technical meaning.  “Accepted” and “valid” were possible alternatives.

He went on to say he was grateful for the Commission’s progress on “immunity of State officials from foreign criminal jurisdiction”.  Noting the adoption of three draft articles on the subject, he observed that the special rules outlined in the relevant article could be based on customary international law or treaty provisions, and that the list provided was not exhaustive.  The Commission should consider potential questions that could arise about applicability of immunity in relation to national legal processes, like arrests and evidence seizures that took place in cooperation with an international Court.  Observing that immunity ratione personae appeared to be limited to Heads of State and Government and Ministers for Foreign Affairs, he pointed to the International Criminal Court’s judgement in the Arrest Warrant case as the clear authority for their immunity.  However, the Court’s judgement did not limit immunity to those officials.  The immunity was based on the importance of officials maintaining international relations, meaning other high-ranking office-holders could enjoy immunity.

HUGH ADSETT (Canada) said, in regards to the topic “expulsion of aliens”, that while certain principles such as non-refoulement were well developed and widely accepted, the draft articles also contained standards drawn from a wide array of international and regional instruments, which did not enjoy universal adherence.  It was important to maintain the careful balance struck in international law between promoting and protecting human rights, such as the right to seek asylum, and States’ sovereignty over their borders.

GUSTAVO MEZA-CUADRA ( Peru), stressing the Commission’s work should be done in close coordination with the Sixth Committee, said that participation in all processes should be effective and inclusive.  With respect to draft conclusion 1, he said if the interpretation of a treaty were a single-combined operation, article 32 should be applied only on a discretionary basis for cases described in the article.   When there was a need to consider the purpose of a treaty, it was useful to consider its nature, for example, if its provisions focused on economic issues.

On draft conclusion 3, he said that, following the reasoning of the Commission on economic treaties, there might be evolving criteria according to development that might take place.  The same could happen with human rights treaties which responded to developments over time and should be interpreted from the most favourable perspective.  He welcomed the new topics in the Commission’s programme of work, and would contribute to the work of the Special Rapporteurs’ in that regard.  As well, the development of “crimes against humanity” would assist other work done by the Commission, such as on the “obligation to extradite or prosecute (aut dedere aut judicare)”.

LIESBETH LIJNZAAD ( Netherlands), on “subsequent agreements and subsequent practice in relation to the interpretation of treaties” said that the initial draft conclusions largely restated provisions from the Vienna Convention on the Law of Treaties.  However, the commentaries to them provided a rich and considered analysis of the interpretation and application of those provisions.  Noting the value of the Commission’s analysis of Member States’ input on State practice and opino juris for international courts and tribunals, she expressed the hope that the Commission would be able to distil conclusions from such input that went beyond restatement of existing provisions, thus providing added value.

Turning to the “immunity of State officials from foreign criminal jurisdiction”, she said that the term “representative of the State acting in that capacity” would be more suitable than “State officials” to cover the intention of the Commission and States to extend immunity beyond the traditional troika. Regarding “crimes against humanity”, she said that the issue should be addressed in light of the Rome Statute.  Article 7 of that text contributed much to defining such crimes, and was applicable to those who were party to the Statute, as well as to those who were not.  A reinforced focus on improving international capacity to prosecute such crimes at the domestic level, while maintaining the integrity of what was agreed in the Statute, was required.  What was missing was not the definition, but the tools to ensure prosecution.  Relevant judicial systems needed to be connected to ensure cooperation. “Thus, the missing link is an international instrument on mutual legal cooperation covering all the major international crimes, including crimes against humanity”, she stated.  She proposed, with several other delegations, the opening of negotiations for such an instrument at the United Nations Crime Commission in Vienna.

THEMBILE JOYINI ( South Africa) said, in regards to the “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, that the Vienna Convention was the primary source of the rules of treaty interpretation.  The Commission’s work on that topic should therefore serve to clarify and support the rules set out in the Convention, and should not seek to create new or compelling rules.  For that reason, draft conclusions were the more appropriate product for the topic.

On “immunity of State officials from foreign criminal jurisdiction”, he said there must be a careful balance between the need to protect the well established norm of immunity for representatives of States from the jurisdiction of foreign States, while preventing impunity for serious crimes.  Finding the appropriate balance required Member States to critically assess, and not just assume, the existence in law and State practice of immunity, the extent of such immunity, as well as available exceptions, if any.

On the topic of “crimes against humanity” he said that South Africa, in implementing legislation of the Rome Statute, had criminalized crimes against humanity.  A number of other parties to the Statute had similarly utilized it as a basis for the criminalization of crimes.  A new convention on crimes against humanity would, therefore, not necessarily remedy the concern of an insufficient number of States criminalizing crimes against humanity.  He asked the Commission to reconsider whether the topic in its current form should be a priority, bearing in mind that the gaps identified in the syllabus were not prevalent for all States, and in particular, for those States that were party to the Rome Statute.

CSABA PÁKODZI ( Hungary) suggested that topics being considered by the Commission that had not seen substantial progress in the last two years be suspended so that new topics might be introduced.  Turning to “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he welcomed a separate conclusion on the evolving terms, “treaty terms over time”.  However, it was vital to provide the possibility – and not the obligation – to States parties to a treaty to give a term included in that treaty a meaning which was capable of evolving over time by “subsequent agreement” and “subsequent practice”.  Further, the Commission had made the first fundamental steps in consideration of the topic by defining those two terms.

He said that “immunity of State officials from foreign criminal jurisdiction” should only be enjoyed by those persons who represented or acted on behalf of a State by virtue of their office.  While the “protection of persons in the event of disasters” was primarily a national issue, he also expressed support for the inclusion of the duty to provide assistance when requested, if carefully worded.  Further, jus cogens should be dealt with under the topic “formation and evidence of customary international law”.  He also agreed that a temporal perspective should be taken on the topic, “protection of the environment in relation to armed conflicts” rather the perspective of various areas of international law.  He supported the proposal to focus the work on Phase I (obligations to a potential armed conflict) and Phase III (post-conflict measures).

MARTIN NEY ( Germany) said, among other comments, that the draft conclusions provided excellent guidelines for the interpretation of treaty provisions.  A good example of its well balanced approach was the differentiation between “subsequent practice” under article 31 of the Vienna Convention and “other subsequent practice”.  The differentiation made it possible to also use non-consensual practice in the implementation of a treaty, i.e., practice that was shared by a large number of States, but not by all States parties to a treaty. On the other hand, draft conclusion 4 clarified unequivocally that such non-consensual practice might only serve as supplementary means of interpretation under article 32 of the Convention.  Draft conclusion 5 clarified that it was the contracting States which were the “masters of the treaty”.  Consequently, it was their subsequent practice in implementing it which was relevant under articles 31 and 32.

He also noted that there were good reasons for limiting immunity ratione personae to the so-called troika of Heads of State, Heads of Governments and Ministers of Foreign Affairs.  However, he said there might be a very limited number of other high-ranking officials enjoying immunity ratione personae.  Frequent travel as such would not be sufficient to include an official in that category, but particular exposure to judicial challenge might carry weight.  In that regard, the question needed further discussion.  Although it could be viewed from the perspective of both lex lata and lex ferenda, he reiterated that the Commission should base its work on lex lata.  The rules of immunity were predominantly rooted in customary international law, not without reason.  Questions of immunity were politically highly sensitive as they referred to the delimitation and mutual respect of sovereign powers of States.  Hence, a fine balance of the sovereign rights of States concerned was required.  The rules of lex lata had proven to fulfil those prerequisites.

PETER KLANDUCH ( Slovakia) said that one of the most difficult tasks in interpreting treaties was how to place appropriate weight on various means of interpretation, as foreseen in articles 31 and 32 of the Vienna Convention.  To that end, it was essential to have a common understanding of the meaning of the terms “subsequent agreements” and “subsequent practice”.  The Commission should elaborate further on how to assess the relevance of the different methods of interpretation.  While its narrow elucidation of the terms under article 31 of the Vienna Convention and a broader concept of “subsequent practice” falling within the ambit of article 32 was helpful, he requested further elaboration on the relation between subsequent practice in a broader sense and other supplementary means of interpretation under article 32.

HERNAN SALINAS ( Chile) said it was crucial for the Commission to clarify fundamental concepts, such as State officials, official acts, and jurisdiction, in the draft articles.  As there seemed to be differences in language versions, it would be advisable to have a definition of “State officials”.  In the Spanish version, the expression “funcionarios” should be used, as it best reflected persons who would enjoy immunity.  Immunity from foreign criminal jurisdiction was procedural and not substantive in nature and it could not, in any way, imply exempting a person from criminal responsibility. That was something that should be explicitly reflected in the articles.

Noting the restrictive approach the Commission had taken on personal immunity in draft article 3, he said that he agreed with the criterion it had adopted.  Immunity would certainly extend to those individuals and it was not clear that immunity could be extended to others, reflecting the current state of international law in that area.  There was sufficient evidence that those particular categories were in fact representatives of a State in international relations.  It was logical that because of their positions, they enjoyed personal immunity, as had been recognized by the International Court of Justice for all those categories.  However, he did not agree with the Commission’s commentary that it was irrelevant whether those officials were nationals of a State or not.  Nationality was one of the essential factors for persons to benefit from personal immunity, as explicitly indicated in the Vienna Convention on Diplomatic Relations.  That matter should be given further study.

MARIA TELELIAN ( Greece) said, in regards to draft conclusion 1 on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, that article 31 of the Vienna Convention was the general rule of treaty interpretation which, when taken together with article 32, provided an integrated framework for the interpretation of treaties.  Among her many comments on that matter, she said that the distinction made between the terms “authentic means of interpretation” and “authentic interpretation” was not operative.  If the parties to a treaty collectively agreed to modify or terminate it, they could, a fortiori, interpret it by means of a subsequent agreement regarding its interpretation or the application of its provisions.  Such interpretative agreement between them should necessarily have a binding effect.

Turning to the “immunity of State officials from foreign criminal jurisdiction”, she commended the report for taking into account discussions both within the Commission and the Sixth Committee, as well as new developments over the past year, particularly in international and national jurisprudence.  Addressing several issues on various draft articles, she said that draft article 1 rightly stated that immunities enjoyed by an official before an international criminal tribunal were not covered, as those tribunals had their own legal regimes.  Draft article 2 needed to clarify that the list of special immunity regimes was not exclusive.  In relation to possible exceptions to immunity to be explored in subsequent reports, she said that immunity should be set aside for the most serious crimes of international concern, such as genocide, crimes against humanity and serious war crimes.

PETR VÁLEK ( Czech Republic) said that as far as special regimes unaffected by the articles were concerned, it might be useful to elaborate on a distinction between the “absolute” immunity ratione personae, dealt with in the draft articles, and the immunity ratione personae enjoyed by State officials, including high-ranking officials, while on special missions abroad.  The Commission had mentioned that some sources, such as the Convention on Special Missions or the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, had differentiated between the Heads of State, on the one hand, and the Heads of Government, Ministers of Foreign Affairs and other persons of high rank on the other.  In that regard, the limitation of “absolute” immunity ratione personae to the Heads of State and Government could also be given further consideration in the Commission’s future work.

He recalled that in the 2006 report, the Commission had agreed to include in its long-term programme of work “jurisdictional immunity of international organizations”.  He said that topic was becoming increasingly important and practically relevant, owing to more intense economic and other activities of international organizations, as well as to more frequent cases brought unsuccessfully against international organizations before national courts.  Pointing out that, compared to other areas of immunities provided under international law, there was a relative scarcity of materials concerning the immunities of international organizations, he asked the Commission to consider the appropriateness of the inclusion of that topic in its programme of work.

KIM IN-CHUL (Republic of Korea), commenting on the draft conclusions of “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, said that the commentary to draft conclusion 1, stating there was no hierarchy among means of interpretation provided for in article 31 of the Vienna Convention, contributed to resolution of that long-standing question.  Identifying the means of interpreting a treaty belonged to individual States.  The commentary of draft conclusion 2 would play an important role in elucidating what the term “authentic” meant, but further deliberation on the matter would be helpful.  Although he agreed with draft conclusion 3 that interpretation must evolve according to social and other developments, such evolutive interpretation should not be forced beyond the extent intended by the original drafters of the treaty.

He went on to say that the “immunity of State officials from foreign criminal jurisdiction” related to the principal rules of international law, and that it was indispensable for the Commission to work for the codification and progressive development of relevant international rules.  Among his comments on the draft articles, he expressed doubt concerning an eventual extension of immunity ratione personae, but said he supported the subjective, material and temporal scopes of such immunity.  He further noted that although immunity was well-established under international law, he expressed the hope that the Commission would contribute to identifying possible exceptions.

ALINA OROSAN (Romania) said that while the nature of a treaty could be relevant for its interpretation, it could not be used to establish the consideration given to various means of interpretation, as situations that required treaty interpretation could not be anticipated in an exhaustive manner.  She considered the arguments put forward by the Commission to maintain a balanced approach between the “contemporaneous” interpretation and the “evolutionary” interpretation of the treaties to be justified.  Either of the approaches was relevant depending on the circumstances of the situation.

On the draft articles on “immunity of State officials from foreign criminal jurisdiction”, she said the term “officials” should be carefully analyzed, not only because of its different meanings or translations into various languages, but also because of its wide scope within the national systems.  Given that the Commission had limited the scope of the draft articles to the immunity ratione personae from foreign criminal jurisdiction of Heads of States, Heads of Governments and Ministers of Foreign Affairs, it could be useful to reconsider reflecting, even in the title of the draft articles, that they concerned both immunity ratione personae and immunity ratione materiae of a very limited number of State officials.  Similarly, since “foreign” criminal jurisdiction could be understood to mean any other jurisdiction but the jurisdiction of the State concerned, and thereby could include the jurisdiction of international courts and tribunals which was excluded from the scope of the topic, it would be beneficial to refer in the draft articles to “the criminal jurisdiction of another State” instead of “foreign criminal jurisdiction”.

JAMES KINGSTON ( Ireland) said that, in regards to the draft conclusions on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”, he agreed with the distinction between agreed subsequent practice under article 31 as an authentic means of interpretation, and other subsequent practice, in a broad sense, under article 32.  However, that implied a greater interpretative value to the former.  In that context, he stressed the importance of maintaining the flexibility currently exercised by international courts and tribunals in interpreting treaty terms or provisions in light of subsequent practice, in the broad sense.  He also welcomed the decision not to limit the scope of relevant conduct in draft conclusion 5.

Noting the considerable progress made since last year on the “immunity of State officials from foreign criminal jurisdiction”, he said that, regarding draft article 1, the immunity of foreign State officials was procedural only, meaning that it did not absolve an official from the obligation to respect the laws of a foreign State in which he or she was present.  On draft article 3, commenting that immunity ratione personae beyond the troika would constitute progressive development, he nonetheless was open to carefully considering the matter.

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