Continuing Debate on International Law Commission Report, Delegates Discuss ‘Crimes against Humanity’, ‘Provisional Application of Treaties’
Amidst its consideration of the report of the International Law Commission, the Sixth Committee (Legal) today approved two draft resolutions concerning the report of the United Nations Commission on International Trade Law (UNCITRAL) and the Model Law adopted by that body.
By the text on UNCITRAL’s report, the General Assembly would stress the importance of promoting the use of texts emanating from the work of the Commission for the global unification and harmonization of international trade law. It would also end urge States that have not yet done so to consider signing, ratifying or acceding to conventions, enacting model laws and encouraging the use of other relevant texts.
The draft resolution on Model Law on Electronic Transferable Records would have the Secretary‑General publish the Law in the six official languages of the United Nations, and disseminate it broadly. It would also recommend that States continue to consider becoming parties to the United Nations Convention on the Use of Electronic Communications in International Contracts.
Continuing their consideration of the first cluster of topics from the International Law Commission’s report, delegates continued to be divided not only about the final form of the draft articles on “Crimes against humanity”, but on the nature of the draft texts themselves.
The representative of Paraguay, while voicing support for developing the draft articles into a legally binding instrument, also pointed out that crimes against humanity could take place even in the absence of armed conflict. In that regard, her country’s national legislation prohibited genocide, torture, enforced disappearances and abductions.
Ireland’s representative recalled the recent preparatory conference in the Netherlands on a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the most serious international crimes. She called on the Commission, as it continued work on the proposed new instrument, to communicate with the Convening States to guard against any potential fragmentation.
Iran’s delegate however, recommended that draft guidelines be the topic’s final outcome. The deficiency in implementing already existing instruments would not be resolved by codifying the same provisions into a new instrument. Also expressing reservations about the Commission’s work on “Provisional application of treaties,” he urged that a distinction be drawn between multilateral treaties and bilateral treaties, as the latter could not, because of its nature, be provisionally applied. The variety of States practice called for a balance of approach for the early meeting of treaty obligations.
Brazil’s representative also pointed to the current state of practice in the provisional application of treaties, asking if it was relevant enough to allow for the creation of a new rule of international law. The Commission claimed to have identified practice where negotiating States or non‑negotiating States that subsequently acceded to the treaty could agree to provisionally apply it. By distancing itself from article 25 of the Vienna Convention that explicitly mentioned “the negotiating States,” the Commission was navigating uncharted waters, he cautioned.
Also striking a cautionary note, the delegate of the Federated States of Micronesia stressed that the tool of provisional application must not be used to enjoy certain rights under a treaty while avoiding the obligations that came with those rights. He also called for ILC’s inclusion of a new topic addressing rising sea level. “When a State loses its geographical territory, can it still be considered a State under international law?” he asked, noting that he would submit a proposal on the legal implications of sea level rise in the Commission’s long‑term programme of work. The theme had emerged as a natural phenomenon within the last couple of decades, threatening the existence of island States such as his.
Tonga’s delegate also urged the Commission to study the legal implications of climate change on the ocean. While climate change was being felt in all parts of the world with the most evident impacts on the ocean, those impacts had not been addressed in depth under existing international legal frameworks, he said, underscoring that they had not a topical issue at the time the frameworks were being developed and finalized.
Also speaking today were representatives of Israel, South Africa, Spain, Czech Republic, Netherlands, Croatia, New Zealand, Belarus, Japan, Estonia, Turkey, Indonesia, Algeria, United States, Cuba, Viet Nam, and the Republic of Korea.
The Sixth Committee will next meet at 3 p.m. on Thursday, 26 October, to continue its consideration of the report of the International Law Commission.
Statements on Cluster I
BATZION BEN DAVID GERSTMAN (Israel), expressing appreciation for the International Law Commission (ILC) for the valuable work related to the codification of “Crimes against Humanity”, recalled that her country was among the first to join the Convention on the Prevention and Punishment of the Crime of Genocide. Hence, the effective codification of customary crimes against humanity would benefit the international community. However, the process of codification raised certain questions, she said, urging caution when considering the establishment of mechanisms that could potentially be abused by States and other actors in order to advance political goals.
Highlighting draft article 13, paragraph 2 which proposed excluding the “political offence” exception as grounds for not proceeding with an extradition request, she said that approach was in conflict with current extradition practice. Instead, States should be allowed to make an evaluation on a case by case basis.
Turning to “Provisional application of treaties,” she stated that while her country’s practice did not generally permit the provisional application of treaties, there were exceptional circumstances in which it might be allowed. Those included cases in which the internal requirements for the approval of the treaty were lengthy, or where there was an urgent need for the application of the treaty due to political or economic considerations. Voicing support for the development of the draft guidelines, she said that wording of draft guideline 4 on “form of agreement” should be clarified so that it might not be interpreted as allowing other States or entities to initiate the provisional application of a treaty, without the consent of the relevant States.
THEMBILE JOYINI (South Africa) said that draft article 9(3) on “Crimes against humanity” seemed to place a disproportionate burden on a State that took into custody a person alleged to have committed an offence. It required the State to immediately notify all States that had jurisdiction over the offence in terms of draft article 7(1). The current wording of that article seemed perhaps too unconditional for an obligation that was highly dependent on circumstance. While his national legislation did not necessarily require a treaty to be in place for mutual legal assistance, he said he appreciated that the draft articles might also serve as a legal basis for extradition and mutual legal assistance in the absence of a treaty for those States that required the existence of such a treaty.
JOSE MARTIN Y PEREZ DE NANCLARES (Spain) pointed out that the Commission’s work had doubled in past twelve years, while the work time had decreased. More time was needed for work to be developed in an effective and adequate manner. The Sixth Committee should concentrate on the issues at hand in order for the dialogue with the Commission to be real and practical, he said, adding that he was concerned about the adoption of certain draft articles by vote which risk dividing the Commission.
While calling the draft articles on “Crimes against humanity” appropriate and balanced, and offering specific comments, he also said it was regrettable that there was no mention to the military tribunals and States’ margin of appreciation. Regarding draft article 5 on non‑refoulement, it did not reflect the systematic nature of a crime against humanity, while draft article 12, particularly the paragraph concerning reparation of victims of a crime against humanity, did not take the right approach in technical terms.
Turning to the “Provisional application of treaties”, he noted that some provisional applications raised doubts, not to mention problems, to which the 1969 and 1986 Vienna Conventions did not respond. There were guidelines that demanded a study of international practice and jurisprudence. Offering comments on specific guidelines, he also said that, in regards to guideline 6, he disagreed with the statement according to which the rules of the 1969 Vienna Convention on termination or suspension of treaties would not operate in relation to provisional application. However, he applauded the inclusion in draft guideline 9 of a reference to the rules of international organizations.
MARTIN SMOLEK (Czech Republic), on “Crimes against humanity”, expressed general support for the elaboration of a convention regarding prevention, prosecution and interstate cooperation with respect to those crimes. That endeavour went in the same direction as the initiative of the Netherlands, Argentina, Belgium, Senegal and Slovenia to elaborate on a new treaty on mutual legal assistance and extradition concerning the prosecution of the most serious crimes. Both undertakings were highly relevant and compatible.
Regarding “Provisional application of treaties”, he welcomed the adoption by the Commission of the 11 draft guidelines with commentaries. On guideline 1 and 2 on scope and purpose, it seemed that one of them was superfluous. As the outcome on the topic at hand was not supposed to be a legally binding instrument, in which an article on scope would make sense, he suggested that the Commission consider the possibility of merging those two guidelines into a single provision that clarified the purpose rather than the scope of the exercise.
Addressing the inclusion of the topic “Succession of States in respect of State responsibility,” he said that it met the criteria of a subject that was susceptible to the progressive development and codification of international law in terms of the Statute of the Commission. He also voiced support for the inclusion of “General principles of law” in the long‑term programme of work. The discussion of that matter as a distinct source of international law under article 38(1)(c) of the Statute of the International Court of Justice should clarify the nature, scope and functions of the principles.
However, he expressed doubt over the inclusion of “Evidence before international courts and tribunals” in the Commission’s programme of work. It seemed that the procedural issues related to evidence belonged primarily to the competence of individual courts and tribunals.
RENE LEFEBER (Netherlands), addressing “Crimes against humanity, said that the current draft was closer to the objectives identified in 2013. The obligation to establish national jurisdiction for those crimes, combined with the obligation to investigate and prosecute, or extradite, alleged offenders, was of crucial importance.
He went on to say that, as previous reports of the Special Rapporteur had shown, an insufficient number of States had met their obligations under the Rome Statute and the Geneva Conventions in that regard. A future convention on such crimes ‑ once adopted, ratified and implemented ‑ would help strengthen the legal framework in order to provide accountability and fight impunity.
On the “Provisional application of treaties”, he said that matter served a useful purpose in the treaty relations between States and international organizations. Against that background, he welcomed the efforts of the Commission to retain an element of flexibility in the draft guidelines and not be overly prescriptive; it was often the specific circumstances of the case at hand that determined the solutions available and the course of action taken in concrete situations.
He said that in regards to the Commission’s long‑term programme of work, he was pleased to note that the scope of the study would include “General principles of law” and its nature and origin. The Commission’s further clarification on that issue would be desirable.
He also welcomed the inclusion of “Evidence before international courts and tribunals”, adding that he agreed with the notion that the uncertainty faced by States in international judicial settlement mechanisms as to the standard of evidence required was undesirable.
TOMA GALLI (Croatia), on “Crimes against Humanity”, welcomed efforts aimed at developing a global international instrument for the prevention, prosecution and punishment of such crimes. He noted that the definition of “torture” adopted within the work of that topic differed from the definition of “torture” contained in, for instance, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. For the sake of clarity and cohesion of international law, the definition of “torture” must replicate the definition contained in the relevant international law instruments and drafts under the Commission’s consideration. The Commission must pay attention to the established uniform terminology. In exceptional cases, any changes must be thoroughly analysed and explained, allowing only for minimal aberrations. He also proposed inserting the current text of draft article 10, aut dedere aut judicare, immediately after the text of the draft article 5 addressing non‑refoulment.
Turning to “Peremptory norms of general international law”, he said that in regards to draft conclusion 5, especially paragraph 2 on customary international law, and paragraph 3 on general principles of law, further work must take into account and reflect the Commission’s ongoing stance. It should preserve and improve the clarity, consistency and integrity of international law while taking into account the Commission’s ongoing work on “Identification of customary international law”, as well as the proposed topic, “General principles of law”.
Turning to “Succession of States in respect to State responsibility”, he welcomed the inclusion of the topic in the Commission’s programme of work. He also noted the recent dispute on the application of the Genocide Convention in front of the International Court of Justice, during which Croatia presented a multi‑layered argument in support of the Court’s jurisdiction. The Court converted Croatian assumptions into several sub‑questions and found that crimes committed did not constitute genocide because the actus reus was not accompanied with the sole intention to commit genocide. Croatia stood by its position presented in front of the International Court of Justice and strongly supported efforts aimed at clarifying the critical issue and its potential to fill the gaps within international law by developing new norms, he said.
ANA E. ROLON CANDIA (Paraguay), associating herself with the Community of Latin American and Caribbean States (CELAC), commented on “Crimes against humanity, underscoring her country’s commitment to the protection of human rights. Paraguay’s national legislation prohibited genocide, torture, enforced disappearances, and abductions, she said, noting that the country was party to the Rome Statute. Voicing support for developing the draft articles into a legally binding instrument, she pointed out that crimes against humanity could take place even in the absence of armed conflict. The draft articles must establish cooperation mechanisms among States, she said, congratulating the Commission on its forthcoming seventieth anniversary, as well as for its tireless work in promoting the development of international law.
MAHE U.S. TUPOUNIUA (Tonga) urged attention and study by the Commission on the topic, “the legal implications of climate change on the ocean”. Climate change was being felt in all parts of the world with the most evident impacts on the ocean, including the rising of sea level, ocean acidification and coral bleaching. However, those impacts had not been captured or addressed in great depth under existing international legal frameworks or international law. “Simply put, these impacts were not a topical issue at the time these frameworks were developed and finalized,” he said.
As such, there were gaps in the law that must be considered and addressed, he continued. Those included the potential impacts of climate change on the rights of States to the ocean and its resources, maritime boundaries, coastal conservation measures, sovereignty, migration and various activities. The Commission could take a leading role in considering the various views on the topic and produce possible recommendations, interpretations or guidelines on the subject matter.
ABBAS BAGHERPOUR ARDEKANI (Iran), stressing that the Commission’s work on “Crimes against humanity” must not deviate from the Rome Statute of the International Criminal Court, to the exact extent that it dealt with crimes against humanity, expressed concern that draft article 3 made references to the crimes of genocide and war crimes. Furthermore, the obligation of States to prevent crimes against humanity, as currently drafted, was too broad and left little freedom for national systems in terms of administrative and procedural matters. The deficiency in implementing the present instruments would not be resolved with codification of the same provisions in a new instrument, he said, recommending that the Commission opt for draft guidelines as the final outcome of its work on the topic.
Turning to “Provisional application of treaties,” he added that the exceptional nature of the topic and the variety of States practice, as a result of different domestic laws, required a balance of approach on the need for the early meeting of treaty obligations and the national requirements of the concerned States. Also adding that the present work had not addressed the differences between the scope and subject matter of treaties, he added that a distinction should be drawn between multilateral treaties and bilateral treaties, as the latter could not, because of its nature and parties, be provisionally applied.
VICTORIA HALLUM (New Zealand) said that in regards to “Crimes against humanity” the Commission’s work presented an opportunity to address a gap in the international legal framework. She recognized that the focus of the draft articles was on addressing inter‑State cooperation in national laws on the prevention of such crimes. That would complement the Rome Statute, which made provision for that cooperation but did not regulate it.
On the “Provisional application of treaties”, she voiced support for the current draft guidelines 1 to 11, but had some concerns about the current formulation of guideline 6. The default position of that guideline was that provisional application of treaties produced the same legal effects as if the treaty were in force, unless the treaty said otherwise. If provisional application of treaties had the same legal effects as the treaty when it was in force by default, that would undermine entry into force provisions, which were key components of upholding parliamentary democracy and the rule of law in common law systems.
She also expressed support for the addition of the topics “General principles of law” and “Evidence before international courts and tribunals” on the long‑term agenda for the Commission. Given that general principles of law were being analysed as part of jus cogens, there was benefit of using that analysis and further clarifying the nature, scope and functions of “general principles of international law.” In addition, she stated her support for the scope of the topic, “Evidence before international courts and tribunals”, including the conditions that would be required for the rules to apply and the areas that the topic intended to cover.
ANDREI METELITSA (Belarus), commenting on “Crimes against humanity”, said that, in regards to article 1, a future convention should include the protection of victims. He also voiced support for the proposal by Spain to include in article 12 a provision on the rehabilitation of victims. On article 5, some disagreement that existed between paragraph 1 and 2 should be excluded. In paragraph 1, there was discussion about non‑refoulement where there was a danger of a crime against humanity being committed. However, the second paragraph listed other criteria on that matter. To solve that, he proposed that the second paragraph use the criteria of article 3.
Regarding “Provisional application of treaties”, in paragraph 3 on the comment of draft guideline 2, he proposed pointing out examples of international law pertaining to that matter, apart from the Rome Statute. In provision 4, he proposed pointing out the written form of the declaration of the State.
Addressing the proposed new topic, “Evidence before international courts and tribunals”, he drew attention to the fact that delegations had expressed doubts regarding the expediency of working on that topic. At Tuesday’s side event, Mr. Nolte [ILC Chair] had asked the Special Rapporteurs for their opinion on the inclusion of that topic. A representative from one law firm said that developing that topic was not a good idea as the tribunals and courts themselves established the rules for evidence.
JEEM LIPPWE (Federated States of Micronesia), commenting on “Provisional application of treaties”, said that the phrase “in force” in guideline 6 had the “same meaning as the same phrase” in draft guideline 3. When a State or international organization provisionally applied a treaty that had itself entered into force but which had not entered into force for that State or international organization, that provisional application produced the same legal effects as if that treaty had entered into force for that State or international organization.
He went on to say that the tool of provisional application must not be used to enjoy certain rights under a treaty while avoiding the obligations that came with those rights. That important principle must be applied even when the treaty being provisionally applied had not entered into force. Meanwhile, draft guideline 11 provided a viable way to account for such a judicial decision, insofar as the judicial decision held that the State’s provisional application of the treaty was a manifest violation of the internal law of the State regarding its competence to provisionally apply the treaty.
He then expressed intent to submit a proposal for the inclusion of the topic on the legal implications of sea level rise in the Commission’s long‑term programme of work. Sea level rises posed an existential threat to island States. He asked: “When a State loses its geographical territory, can it still be considered a State under international law?” There appeared to be no treaties of other international instruments that directly addressed the legal implications of sea level rise.
In that context, the Commission could conduct a fruitful study of those implications by examining a large number of international instruments with relevance to sea level rise, he stated. While the legal implications of sea‑level rise might not be the sort of topic traditionally considered by the Commission, the theme had emerged as a natural phenomenon commanding international attention within the last couple of decades. The Commission’s study of the topic would be a valuable contribution to the international discourse.
YUKI HIROTANI (Japan), commenting on “Protection of the atmosphere,” said that the Special Rapporteur had invited ILC members to the dialogue session with scientists, facilitating a scientific understanding of the topic. That in turn enabled the Commission to study the matter from a general international law perspective.
On the new topic of “General principles of law,” he said that it was important that the Commission identified the nature and function of that notion through careful examination of State practice, including international and domestic judicial decisions, as well as the development of relevant legal theories. It would be useful for courts, tribunals, and practitioners of international law if the Commission provided an illustrative list of such principles.
Regarding the new topic, “Evidence before international courts and tribunals,” he said that while the judgements of the International Court of Justice and other international tribunals were critical references for States when confronting legal issues, objective analysis and evaluation of their rules of evidence contributed to consistent judgements and the avoidance of the fragmentation of jurisprudence.
Turning to “Crimes against humanity,” he said that since the third report mainly addressed procedural matters, the Commission’s discussion had especially focused on the matter of mutual legal assistance. That discussion would help strengthen the horizontal relationship between States concerning the prevention and punishment of those crimes from a procedural aspect.
ANNE-MARIE O’SULLIVAN (Ireland), in regards to “Crimes against humanity”, recalled that a preparatory conference had taken place in the Netherlands recently on a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the most serious international crimes. She called on the Commission as it continued work on the proposed new instrument on those crimes to communicate with the Convening States to guard against any potential fragmentation.
Turning to “Provisional application of treaties”, she associated herself with the European Union’s statement and noted with appreciation the Secretariat’s memorandum analyzing State practice in that field.
ANNELI LEEGA PIISKOP (Estonia), on “Crimes against humanity”, said that strong legal measures were needed to prevent those crimes. Among the three core international crimes, only crimes against humanity still lacked a treaty that national laws, national jurisdiction and inter‑State cooperation could build upon in the fight against impunity.
On the “Provisional application of treaties”, she suggested that the Commission further develop the commentaries to the draft guidelines in order to provide more clarity on the legal effects and the scope of provisional application. Although they were not legally binding as such, the draft guidelines and the commentaries should aim to reflect the existing rules of international law. The provisional application of treaties was a decision to be made ultimately by States or international organizations and in accordance with their internal laws. She looked forward to the analysis of the information gathered in the Memorandum on State practice and hoped that it could be supplemented by a comparative study of domestic laws and practice.
Turning to recommendations for the long‑term programme of the work of the Commission, she welcomed the suggestion to include “General principles of law.” It would be valuable if the Commission could provide clarification on its nature, scope and method of identification of the general principles of law. In line with the work on interpretation of treaty law and identification of customary international law, it could provide a comprehensive insight into the three principal sources of international law.
FIRAT SUNEL (Turkey) said of “Crimes against humanity” that, as noted in the report, there was no global convention dedicated to preventing and punishing those crimes and promoting inter‑State cooperation. That legal vacuum should be properly addressed. His Government had already codified crimes against humanity in its national law and was supporting international efforts to tackle such crimes. The proposed rules, concepts and mechanisms should be established with the utmost diligence, in an unhurried manner and with full clarity, he emphasized.
Addressing “Provisional application of treaties”, as the Commission deferred the consideration of the memorandum to the next session, he offered some preliminary observations. One of the purposes of the draft guidelines was to provide greater clarity on the terminology. Indeed, an extensive use of terms for provisional application had led to confusion in practice. In that regard, the model clauses, in addition to the guidelines, to be provided by the Commission, could also contribute to the consistent use of terms.
Regarding the proposed topics, “General principles of law” and “Evidence before international courts and tribunals”, he said that the selection of the former topic on general law for consideration was praiseworthy. However, in regards to the latter topic on evidence, he noted that it was not clear that evidences before different courts with diverse jurisdiction and structure would be useful at all; it might even lead to further fragmentation as every international or regional court operated within its own rules of procedure and functions based on their own jurisdiction, competence and composition.
That difference was inevitable, because a large number of those rules were formed according to the specific needs, individual circumstances or priorities of the concerned States at the time of negotiation, he continued. Apart from that, in the light of the foregoing differences, it seemed not to be viable to determine some ideal rules that could foresee and cover all future aspects. He recommended that the Commission channel its energy on more concrete rules.
ANDITYA HUTAMA PUTRA (Indonesia), focusing on “Crimes against humanity”, recommended that draft article 4 be made more specific and prescriptive, elaborating on all aspects of relevant preventive measures. In addition, it would be legally sound to remove the words “other preventive measures” which could lead to multiple interpretations by States and result in legal uncertainty or ambiguity. On article 5, the “extradition” element should be added within the non‑refoulement principle, given the absence of uniformed practice of extradition. Noting that Indonesia had criminalized 10 out of the 11 proposed acts of crimes against humanity in the draft articles, he welcomed the Commission’s use of the provisions and principles in the United Nations Convention against Transnational Organized Crime and the Convention against Corruption.
However, he underlined the need to be cautious and learn from their implementation prior to transferring the provision “as it is”. Furthermore, the Commission should consider making international cooperation provisions mandatory, particularly those mandating the use of the treaty as a legal basis for extradition in a situation where a State made extradition conditional upon the existence of a treaty.
On “Provisional application of treaties”, he said the 1969 Vienna Convention on the Law of Treaties was the basis on which the Commission should develop a mechanism or a set of guidelines. Voicing support for guideline 11, which provided flexibility to a State to confirm to its international constitutional rules, he added that it was indeed the sovereign right of States to decide on what was best for them concerning the provisional application of treaties.
GEORGE RODRIGO BANDEIRA GALINDO (Brazil), associating himself with CELAC, said that, on “Crimes against humanity”, the successful conclusion of the first reading marked a significant step towards a future convention. Such an instrument would be beneficial not only for promoting the harmonization of national legislation, but also for facilitating much‑needed judicial cooperation. On article 13, paragraph 6, when establishing conditions for extradition, national legislations might require the commutation of certain penalties, especially the death penalty or life imprisonment. The Commission should exemplify, at least in the commentaries, different types of conditions in national legislations that did not necessarily imply the refusal of an extradition request.
Addressing the “Provisional application of treaties”, he said that in its commentary to guideline 3, the Commission claimed to have identified practice where negotiating States or non‑negotiating States that subsequently acceded to the treaty could agree to provisionally apply it. By distancing itself from article 25 of the Vienna Convention that explicitly mentions “the negotiating States,” the Commission was navigating uncharted waters. It was questionable whether the current state of practice was relevant enough to allow for the creation of a new rule of international law. It was problematic to admit that there could be a treaty in which some parties agreed to provisionally apply it, while others did not.
Regarding the proposed future topics, he noted that the decision to include “General principles of law” in the agenda would be in line with the work undertaken regarding other sources of international law. General principles of law had an important role in Brazilian domestic law. When approaching that issue, the Commission should focus on its universality, and ensure that identification was based on all legal systems of the world.
Turning to “Evidence before international courts and tribunals,” he said it was important to note that questions regarding the types and burden of proof might be solved differently according to the nature of the dispute.
ZAKIA IGHIL (Algeria), on “Crimes against humanity”, stated that though such crimes constituted one of the most serious violations of international law, the topic should be addressed carefully, bearing in mind the existence of the legal framework dealing with various relevant multilateral treaties. Noting the absence of a provision on immunity in the draft articles, she said it must be clearly stated that the inclusion of the paragraph from the Rome Statute pertaining to that must be without prejudice to the Commission’s topic on immunity of State officials from foreign criminal jurisdiction. Furthermore, draft article 12 was unclear on what the duty of the State to provide reparations and other remedies for victims entailed.
Turning to “Provisional application of treaties”, she said that the draft guidelines would certainly provide States and international organizations with useful guidance and clarification regarding the law and practice in the field, on the basis of article 25 of both the 1969 Vienna Convention and the 1986 Vienna Convention. That approach did not necessarily reflect all aspects of contemporary practice and it would have been useful for the Commission to look more closely at the practice of States through the memorandum prepared by the Secretariat.
RICHARD VISEK (United States), focusing on “Immunity of State officials from foreign criminal jurisdiction”, said that the Commission’s draft articles addressing immunity ratione personae rested on customary international law. However, the same could not be said for the Commission’s work on immunity ratione materiae. There were basic methodological disagreements about how to identify customary international law. Draft articles 5 and 6 on immunity ratione materiae did not reflect the full extent of State practice, he noted, highlighting the prosecutions of foreign officials, including by his own country, for a range of conduct including corruption, violent crimes and cyber‑crimes.
Moreover, he said, decisions of national courts on the matter remained sparse and could be based on treaties or other considerations. In 2016, the Special Rapporteur’s fifth report had claimed a “clear trend”; however it did not provide evidence of such a trend. The Commission had ratified the idea of an asserted trend towards recognizing exceptions to immunity ratione materiae for certain international crimes. Further troubling was in draft article 7 where it said that immunity ratione materiae “shall not apply” to specified crimes. The Committee’s debate on the article demonstrated that no consensus yet existed regarding the contours of the topic. Draft article 7 should be suspended until a consensus of the Commission could endorse all of the articles as sound and principled.
Turning to “Crimes against humanity”, he said that careful consideration and discussion of the draft articles for a convention on the prevention and punishment of such crimes could prove valuable. His delegation was continuing to review the completed draft articles and commentary on that topic carefully, since they presented a number of complex issues.
Regarding “Provisional application of treaties”, he said that it gave rise to a legally binding obligation to apply the treaty or treaty provision in question, although that obligation could more easily be terminated than the treaty itself once the instrument had entered into force. However, draft guidelines 3 and 4 and their commentaries failed to make clear that provisional application within the meaning of article 25 of the Vienna Convention required the agreement of all States and international organizations incurring rights or obligations pursuant to the provisional application of the treaty. The lack of clarity arose from the draft’s use of the passive voice and could be corrected by using the active voice and indicating whose agreement was required.
On the Commission’s decision to include new topics, he expressed appreciation for the syllabus developed on “General principles of law”. However, he voiced concern that there might not be enough material in terms of State practice for the Commission to reach any helpful conclusions on that topic. Regarding “Evidence before international courts and tribunals”, he questioned both the need for and the practicability of discerning general rules of evidence from the heterogeneous practice of international courts and tribunals that had developed over time in light of each forum’s particular circumstances and experience.
ANET PINO RIVERO (Cuba), associating herself with CELAC, welcomed the draft articles on “Crimes against humanity”, adding that it was important to have a specific binding instrument. Expressing agreement with non‑refoulement in principle, she said that paragraph 2 of the relevant article should delete the reference to all relevant considerations and replace that with relevant evidence or proof. Welcoming draft 12 on ensuring protection for victims, she said that victims must have the right to reparations. Noting that article 14 regulating mutual legal assistance, which was essential for locating offenders and obtaining evidence, she said that would help fight impunity.
Turning to “Provisional application of treaties,” she said that the draft should include more detailed language with regard to the practice of extending a treaty. Furthermore, where the treaty did not include a provisional application clause, provisional application might take place through subsequent resolution or declaration issued by State. Draft guideline 6, which established the legal effects of the provisional application of treaties, should also focus on the suspension and termination of a treaty, she said, reiterating that the international community must continue to advocate for the unrestricted respect for international law.
DUONG NAM NGUYEN (Viet Nam), addressing “Crimes against humanity”, said that he supported the punishment of such crimes on the basis of respect for national sovereignty and non‑intervention in domestic matters of other States. On the other hand, against the various challenges that were facing the International Criminal Court, more consideration needed to be given to the necessity and effectiveness of an international treaty dealing with crimes against humanity.
Regarding “Provisional application of treaties”, he said he supported the early completion of the guidelines to meaningfully assist States in the development of consistent practices regarding their provisional application of treaties, despite the non‑binding nature of the guidelines. However, clarification was needed on a number of issues, including on the form of agreement reflected in draft guideline 4(b). An example might be where determining the provisional application was based on an international organization’s resolution that had been adopted by the majority of State parties, while some States had voiced their opposition to such a provisional application. In that regard, s/he asked how that treaty would be applied to such States. If that treaty was provisionally applied to the opposing States despite their opposition, he asked whether the national sovereignty of the States in question would be negatively affected.
SEOUNG‑HO SHIN (Republic of Korea), remarking on “Crimes against humanity”, said the draft convention should address extradition under draft article 13, given that there was no global or universal convention on that practice. It was not necessary to address the issue of dual criminality under the provision on extradition since the draft articles required each State to adopt crimes against humanity as an offence under their own criminal laws. Expressing support for the long‑form provisions on extradition and mutual legal assistance, he added that, on draft article 5, no individual should be expelled, returned, surrendered or extradited to another State if there were substantial grounds for him or her to be subjected to a crime against humanity.
Addressing the criminal responsibility of individuals in official positions addressed in draft article 6 and based on the Rome Statute, he said holding an official position was not grounds for exclusion from criminal responsibility when an individual committed an offense. As there could be a variety of opinions on the relationship between that provision and the one discussed last year under draft article 7 on immunity of State officials from foreign criminal jurisdiction, the substance of those two provisions should be carefully reviewed in the Commission’s drafting process. Finally, he voiced support for the provisions on protecting victims, witnesses and others under draft article 12.
Action on Draft Texts
The Committee took action on two draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL), including one on the report of that body (document A/C.6/72/L.10), and a second on the Model Law on Secured Transactions (document A/C.6/72/L.11). Both texts were approved without a vote.
The Committee also had before it a draft letter to the President of the General Assembly, addressing the agenda item on Administration of Justice in the United Nations. The draft drew attention to certain specific issues relating to the legal aspects of the reports under the agenda item, requesting that it be brought to the attention of the Chair of the Fifth Committee (Administrative and Budgetary) and circulated as a document of the General Assembly. (For background see Press Release GA/L/3547).