Delegates Take Up Drafts on ‘Crimes Against Humanity’, ‘Provisional Application of Treaties’, as Sixth Committee Reviews International Law Commission Report
GENERAL ASSEMBLY SIXTH COMMITTEE
SEVENTY-SECOND SESSION, 18TH MEETING (AM)
The interaction between the Sixth Committee (Legal) and the International Law Commission was central to the codification and progressive development of international law, the Committee heard today as it began its comprehensive consideration of the Commission’s report on its sixty‑ninth session.
Describing the history of that relationship, João Miguel Ferreira De Serpa Soares, Under-Secretary-General, Legal Affairs and United Nations Legal Counsel, recalled that it was at the recommendation of the Sixth Committee that the General Assembly in November 1947 had first entrusted the International Law Commission with the preparation of a draft code of offences against the peace and security of humankind.
While that project faced many challenges, he pointed out that the Sixth Committee did not relent and the Commission’s mandate was renewed in 1981. At the recommendation of the Committee, the Conference of Plenipotentiaries on the Establishment of an International Criminal Court in 1998 was convened, leading to the adoption of the Rome Statute of the International Criminal Court. Looking forward to the Commission’s seventieth session in 2018, he said that the first part would be held in New York, and the second in Geneva.
The International Law Commission, noted Georg Nolte, its Chair, would be marking that important milestone with a series of events, based on the theme, “70 years of the International Law Commission — Drawing a balance for the future”. Introducing the report on the sixty‑ninth session (document A/72/10), he added that it demonstrated the vibrancy with which the Commission had commenced its work, with re‑elected members working closely with newly elected ones.
Outlining the progress made, he focused on the first of three topic clusters, which included overviews of the Commission’s session on specific subjects, as well as its decisions and conclusions. During the session a complete set of draft articles on “Crimes against humanity” had been adopted, and consideration on the remaining draft guidelines on “Provisional application of treaties” had been concluded.
Calling the draft articles on “Crimes against humanity” a significant achievement, he pointed out that among the three core international crimes only crimes against humanity lacked a treaty focused on building up national laws, national jurisdiction and inter‑State cooperation in the fight against impunity. If adopted on second reading, those draft articles would provide a model for States to fill that lacuna through a new treaty. The texts also demonstrated that the Commission continued to work in the most classical part of its mandate, which was to prepare texts which had the capacity to become treaties.
He also highlighted work on the principle of non‑refoulement, which obligated a State not to return a person to another State where there were substantial grounds for believing that he or she would be in danger of persecution or some other specified harm. Draft article 5 applied that principle to prevent persons in certain circumstances from being exposed to crimes against humanity.
In the ensuing discussion, speakers praised the work of the Commission while also seeking clarifications. The representative of Mexico, on the rights of victims, called for a review of comments on draft article 3 in order to reflect current academic discussions; there were very few rulings in that area. However, he called draft article 5 on non-refoulement wise and appropriate, noting that the principle existed in international treaties. He also praised the draft preamble for the references to prevention and primary responsibility of States for investigating those crimes, both fundamental concepts of international law.
Switzerland’s delegate also applauded the emphasis on prevention in the draft preamble and praised the draft convention for being concise. Raising the issue of conflicting requests for extradition, she stressed that the draft must include a provision allowing for extradition to be refused in case of requests from countries that still applied the death penalty unless the requesting State gave assurance that the death penalty would not be sought or carried out.
China’s representative, however, highlighted draft article 6 on criminalization under national law, arguing that there were major differences between corruption, transnational organized crime, sale of children and financing of terrorism and crimes against humanity. He also advised the Commission to proceed with caution on “Provisional application of treaties”, especially with regard to the “default rule” established in draft guideline 6. The key to determine whether provisional application equalled a treaty coming into force was to ascertain the real intent of the parties and examine the relevant practice of States, he said.
France’s delegate also sought clarifications concerning that draft guideline, questioning whether provisional application of a treaty meant strict application of the treaty or a mutatis mutandis application. Furthermore, draft guideline 4 needed to be more precise regarding the point at which an international organization resolution should be considered an agreement on provisional application. Provisional application of treaties was largely a matter of States’ constitutional law.
Also speaking today were representatives of El Salvador (for the Community of Latin American and Caribbean States), Sweden (for the Nordic Countries), Austria, Australia, Portugal, Italy, and Singapore, as well as the representative of the European Union.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 24 October, to continue consideration of the first cluster of topics from the report of the International Law Commission.
International Law Commission
JOÃO MIGUEL FERREIRA DE SERPA SOARES, Under-Secretary-General, Legal Affairs and United Nations Legal Counsel, said that the Sixth Committee and the International Law Commission (ILC) both played a central role in the progressive development of international law and its codification. It was at the recommendation of the Sixth Committee that the General Assembly, in resolution 177 of 21 November 1947, first entrusted the International Law Commission with the preparation of a draft code of offences against the peace and security of humankind.
“While this project faced many challenges, the Sixth Committee did not relent and renewed the Commission’s mandate in 1981, by resolution 36/106”, he continued. Upon the completion of its work, the Commission recommended the convening of a diplomatic conference, a recommendation on which the General Assembly, through the Sixth Committee, acted in 1996. As a result, the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, also known as the Rome Conference, opened on 15 June 1998. After five weeks of arduous negotiations, on 17 July 1998, it adopted the Rome Statute of the International Criminal Court.
The Commission was planning to hold the first part of its session next year in New York, from 30 April until 1 June 2018, he said. It would then convene the second part of its session at its regular seat in Geneva. Over the next few days the subject of crimes against humanity, as well as other legal issues, would be discussed. A large part of international law had already been codified, but it continued to develop progressively, he said.
GEORG NOLTE, Chair of the International Law Commission, introduced the Commission’s report (document A/72/10), stating that it demonstrated the vibrancy with which the new Commission had commenced its work, with re‑elected members working closely with the newly elected ones. Outlining the topics in the first cluster of the report, he noted that the Commission’s important progress was summarized in Chapter II. Work had been completed on “Crimes against humanity”, with the adoption of a complete set of draft articles.
The Commission had started work on “Provisional application of treaties,” “Protection of atmosphere,” “Immunity of State officials from foreign criminal jurisdiction,” and “Peremptory norms of general international law (jus cogens)”, he continued. Consideration of “Protection of the environment in relation to armed conflicts” had been in transition since the departure of the previous Special Rapporteur, but work had commenced on a new topic, “Succession of States in respect of State responsibility”.
Turning to specific issues as outlined in Chapter III, on which comments were of particular interest to the Commission, he said that views would be welcome on two new topics in its long‑term programme of work, including “General principles of law” and “Evidence before international courts and tribunals”. Noting that the Commission would be marking its seventieth anniversary next year, he added that plans were already underway for events to be organized under the theme “70 years of the International Law Commission — Drawing a balance for the future”, to be held in both New York and Geneva.
As a result of its consideration of “Crimes against humanity” in Chapter IV, he said that a complete set of draft articles, including a preamble, 15 articles and a draft annex, together with commentaries, had been adopted on first reading. That was a significant achievement for the Commission, he underscored, pointing out that among the three core international crimes, only crimes against humanity lacked a treaty focused on building up national laws, national jurisdiction and inter‑State cooperation in the fight against impunity.
If ultimately adopted on second reading, those draft articles would provide a model for States to fill that lacuna through a new treaty, if they so wished, he said. More generally, by provisionally adopting those draft articles on first reading, the Commission had shown that it continued to work in the most classical part of its mandate, which was to prepare texts which had the capacity to become treaties.
Highlighting draft article 5 on non‑refoulement, he said that the principle obligated a State not to return a person to another State where there were substantial grounds for believing that he or she would be in danger of persecution or some other specified harm. The article applied the principle of non‑refoulement to prevent persons in certain circumstances from being exposed to crimes against humanity. Draft article 12 was a new provision relating to “victims, witnesses and others” affected by the commission of a crime against humanity. It addressed considerations of access, including the right to complain, the right to participate in the proceeding and the right of reparation.
Turning to Chapter V on “Provisional application of treaties,” he said that the Commission had concluded its consideration of the remaining draft guidelines proposed by the Special Rapporteur. It also had before it a memorandum prepared by the Secretariat, reviewing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, that provided for provisional application, including treaty actions related thereto.
Outlining each draft guideline, he said that while draft guideline 5 on “commencement of provisional application” was modelled on article 24, paragraph 1 of the 1969 and 1986 Vienna Conventions, on entry into force, draft guideline 6 dealt with the “legal effects of provisional application”. According to that guideline, the provisional application of a treaty or part of a treaty produced the same legal effects as if the treaty were in force between the States or international organizations concerned.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), speaking for the Community of Latin American and Caribbean States (CELAC), voiced support for the decision to hold the Commission’s next session in both New York and Geneva. Holding a session in New York would provide the opportunity to strengthen the relationship between the Sixth Committee and ILC. In that regard, he encouraged the exchange of views between Sixth Committee members and the Commission’s independent legal experts.
Taking note of the adoption of draft articles on “Crimes against humanity,” “Immunity of State officials from foreign criminal jurisdiction” and “Succession of States in respect to State responsibility”, among other recent work, he spotlighted the need for Member States to provide information to the Commission related to national legislation, judicial decisions, treaties, doctrine and diplomatic correspondence. He also expressed satisfaction regarding the incorporation of the new topics that referred to the General Principles of Law and Proceedings before Courts and International Tribunals.
LUCIO GUSSETTI, representative of the European Union, said that the topic, “Provisional application of treaties” was of great interest. He noted that the International Law Commission had decided to enlarge the scope of the draft guidelines to include also treaties entered into by international organizations, and that the provisionally adopted draft guidelines reflected that. He welcomed that approach.
He also welcomed the efforts of the Commission that were directed at clarifying the relationship between provisional application and other provisions of the 1969 Vienna Convention. The Commission was of the view that provisional application was not subject to the same rules of the law of treaties provided for in part V, section 3 of the 1969 Vienna Convention (point 5 of the commentary to draft guideline 6). As evident from the intervention last year, he pointed out that the position of the European Union on the applicability of article 60 of the Vienna Convention to provisionally applied treaties differed from the one taken by the Commission.
ELINOR HAMMARSKJOLD (Sweden), also speaking for the Nordic countries (Denmark, Finland, Iceland and Norway), said that in regards to “Crimes against humanity”, she was pleased to see that the draft article on non‑refoulement had been moved upwards in the draft. It now followed draft article 4, which pertained to prevention, a logical placement; the principle of non‑refoulement was concerned with prevention. The current draft article 5 was an important provision for the purpose of preventing persons from being exposed to crimes against humanity. Although the provision was focused on avoiding exposure of a person to such crimes, it was without prejudice to other obligations of non‑refoulement arising from treaties or customary international law.
On “Provisional application of treaties”, she commended the Commission’s provisional adoption of eleven draft guidelines and commentaries. While it was clear that domestic legislation played an important role, the topic also presented a number of questions. It might be useful if the Commission could develop model clauses on provisional application. At the same time, while acknowledging the challenges involved, in some cases provisional application might provide a suitable instrument for bringing a treaty into effect sooner than the actual entry into force. In that regard, model clauses might be of assistance. According to the Commission’s report, the Special Rapporteur was planning to propose model clauses in his report to the next session of the Commission.
She also welcomed the inclusion of two new topics in the long-term programme of work, “General principles of law” and “Evidence before international courts and tribunals”. Priority should be given to the first topic. The Commission could provide an authoritative clarification on the nature, scope and function of that important source of law. Regarding the second topic, she noted that the syllabus needed further elaboration before the Commission could include it in its programme of work.
HELMUT TICHY (Austria), speaking on “Crimes against humanity”, expressed support for the elaboration of an instrument, preferably a convention, that would address extradition and mutual legal assistance. However, there were other relevant international initiatives concerning legal cooperation with regard to the prosecution of atrocity crimes. In order to avoid duplication, the Commission should be fully informed about those initiatives.
Turning to “Provisional application of treaties”, he welcomed draft guideline 4 on “form of agreement” that indicated the various ways in which a provisional application could be agreed upon. However, the agreement on provisional application by a separate treaty might have more stringent consequences than other forms of agreement on provisional application. That applied in particular to the termination of a provision application.
On the “Settlement of international disputes to which international organizations are parties”, he said that the field was of the utmost practical importance. Disputes with private parties, governed by domestic law, were most relevant and had raised important questions, including the scope of privileges and immunities enjoyed by international organizations. An investigation by a Special Rapporteur could continue the work of the Commission in the field of the law of international organizations.
Turning to “General principles of law”, he said that subject was open to divergent interpretations and required clarification. Irrespective of the vagueness of the general principles of law, they had to be clearly distinguished from the general principles of international law, although they were frequently treated as identical. Whereas the general principles of international law were general normative concepts created by customary international law or by treaties, the general principles of law originally resided in the legal framework of national law and acquired their nature as sources of international law only through acknowledgement by States.
On the proposal for a further topic on “Evidence before international courts and tribunals”, he voiced his reluctance to support the specific work of the Commission on that topic. It was for the international courts and tribunals themselves to assess the value of evidence.
MICHAEL BLISS (Australia), in regards to “Crimes against humanity”, said that States needed to abide by their international obligations and condemn other States and non‑State actors that committed those crimes. He also welcomed the draft articles that complemented the legal framework for such crimes. In regards to the definition of those crimes, the draft articles should avoid any conflicts with States’ obligations under the Rome Statute.
Adoption of national laws that would enhance inter‑State cooperation for investigation, prosecution and punishment was welcomed, he continued, adding that his country’s comprehensive criminalization of those crimes was consistent with the Rome Statute and draft article 3. Similarly, he encouraged States to implement effective legislative, administrative, judicial or other preventative measures as envisaged by draft article 4.
Turning to “Provisional application of treaties”, he recalled the importance of various other draft applications and guidelines, including provisional application of treaties, the draft guidelines 1 to 11 and draft guidelines 9 and 10 without prejudice to articles 27 and 26. Flexibility would be crucial in enabling States to shape the procedural aspects and substantive consequences of those applications. In that regard, he welcomed draft guideline 11 which acknowledged the rights of States to limit provisional application on the basis of their own internal laws, and draft guidelines 5 and 6 which provided scope for contracting parties to agree on those issues themselves.
SUSANA VAZ PATTO (Portugal) said the draft articles on “Crimes against humanity” provided a solid basis for the discussion about a future convention. However, the Commission should proceed carefully when considering solutions that were successful for other types of crimes. Regarding draft article 12, “victims, witnesses and others”, the question of compensations should be addressed in a separate article as it would make the text clearer. Furthermore, a single article dedicated to the issue of compensations would give more emphasis to the rights of victims.
Turning to “Provisional application of treaties”, she acknowledged the need for an almost instant production of effects of treaties. However, the focus should be to clarify the legal regime of the Vienna Conventions, without widening its scope. Nonetheless, such clarification should not compel States to change their national constitutional practices. The voluntary nature of the provisional application should be further emphasized. While commending the revised draft of guidelines 1‑11, she noted that guideline 11 dealing with the agreement to provisional application might be misconstrued as a default rule. Thus point (2) of the Commentary would be better positioned in the text of the guideline, to avoid imprecision.
DAMARIS CARNAL (Switzerland) applauded the draft preamble on “Crimes against humanity” for emphasizing the prevention of such crimes, which was just as important as the punishment for those crimes. She also welcomed the reference to the Rome Statute. The new draft articles were based on the existing international legal framework, she said, pointing out that article 13, paragraph 2 rightly pointed out that offences constituting crimes against humanity were not under any circumstances to be regarded as political offences that would justify a request for extradition.
While the draft convention was concise and stuck to the essentials and covered the main questions, she added, “one might ask whether the convention should not also address the issue of conflicting requests for extradition.” Furthermore, she stressed that the draft convention must include a provision allowing for extradition to be refused in case of requests from countries that still applied the death penalty unless the requesting State gave assurance that the death penalty would not be sought or carried out.
ALEJANDRO ALDAY (Mexico) commended the adoption of the fifteen draft articles on “Crimes against humanity,” calling them clear in structure and legally rigorous. He also welcomed the references in the preamble to fundamental concepts of international law, including primary responsibility of States for investigating those crimes and the importance of prevention. In addition, draft article 5 on non‑refoulement was wise and appropriate as the principle existed in international treaties. Regarding the focus of draft article 12, which recognized the rights of victims, he said that it was necessary to review the comments on draft article 3 in order to reflect, in a more balanced way, current academic discussions; there were very few rulings in that area.
Turning to “Provisional application of treaties,” he said that the guidelines reflected a pragmatic view that would make them easy to use. They reflected significant research and referenced various multilateral and bilateral treaties. Furthermore, the guidelines were in line with the Vienna Convention and other relevant sources of international law. However, underscoring the importance of taking into account current practices by States, he also said it would be worthwhile to consider adding a guideline on termination or suspension of application of a treaty if the treaty was breached by one of the parties.
XU HONG (China), in regards to “Crimes against humanity”, said that many provisions of the related draft articles lacked empirical analysis, as they derived mainly from analogous provisions of existing international conventions on international crimes and required a comprehensive review of the existing practice and opinio juris of States. Since “Peremptory norms of general international law” (jus cogens) was an ongoing topic of the Commission, he said that the issue of the character of such law warranted further studies.
He further reiterated reservations over the omission of the terms “committed in time of armed conflict” in respect to the definition of crimes against humanity in draft article 2. Regarding paragraph 8 of draft article 6, he argued that there were major differences between corruption, transnational organized crime, sale of children and financing of terrorism and crimes against humanity; the issue of legal persons was better left to the States in that last case.
While commending progress on “Provisional application of treaties”, he said that the Commission should proceed with utmost caution in regard to the “default rule” established in draft guideline 6. The formulation represented a major development of the rules governing the topic as defined by the Vienna Convention on the law of treaties. The key to determine whether provisional application equalled coming into force of a treaty was to ascertain the real intent of the parties and comprehensively examine the relevant practice of States. Regarding the commentary on draft article 6, he asked the Commission to clarify whether the difference in the legal effects of provisional application existed in cases of reservation to treaties, State succession or other special situations.
FRANCOIS ALABRUNE (France) observed that the International Law Commission’s work sessions had been shortened from 12 to 10 weeks per year and that the number of topics had considerably increased — almost doubling over about 12 years. He also pointed to difficulties encountered this year regarding the “Immunity of State officials from foreign criminal jurisdiction”, which should alert the Committee to risks of the Commission working too rapidly.
Turning to “Provisional application of treaties”, he said that, in regards to draft guideline 4, the Commission must be more precise on the point at which an international organization resolution should be considered an agreement on provisional application. Examples provided by ILC to support its proposal did not clarify criteria required to determine whether an agreement on provisional application existed. To a great extent, the provisional application of treaties was a matter of States’ constitutional law. The existence of an agreement to provisionally apply a treaty should not be readily presumed. The Commission must explain in more detail criteria required to determine whether an agreement on provisional application existed.
Regarding draft guideline 6, he said the wording of the provision was unclear, questioning whether provisional application of a treaty meant strict application of the treaty or a mutatis mutandis application. More generally, he queried whether provisional application meant the treaty became binding or only that provisional application had permissive power. It was essential the Commission clarified that point, which it had been silent about thus far.
As for draft guideline 7, he said the Commission’s work would have benefited from the support of international practice and precedents, to which reference was not made. The draft guideline was aligned with the draft articles of 2001 on State responsibility and 2011 on international organization responsibility, but it was unclear if all those articles reflected international customary law. The same could be said of draft guidelines 9 and 10, whose commentaries did not contain any reference to practice or precedents.
ANDREA TIRITICCO (Italy), in regards to “Crimes against humanity”, voiced support for the draft articles, but stressed the need to avoid any conflict between the draft articles and the rights and obligations of States with respect to competent international criminal tribunals. Noting that concerns about relationships with international criminal tribunals had been taken into account, he expressed hope to add a general formulation that would eliminate any risk of contrasting State obligations.
With regards to the protection of rights of alleged offenders in draft article 11, he said the text would benefit from emphasizing the importance of applying standards of respect for international human rights, as referenced in article 11, paragraph 1. He welcomed the provisions concerning extradition and mutual assistance contained in the draft articles, including “horizontal” inter‑State cooperation, as addressed in the draft articles, provided that those provisions would not replace or limit the effectiveness of cooperation with international criminal justice.
Turning to “Protection of the atmosphere”, he said he appreciated the care to avoid interference with ongoing political negotiations on environmental protection. His Government supported efforts to enhance a systematic interpretation and integration between the various bodies of international law with regard to its work. In that context, he expressed appreciation for paragraphs 1 and 2 in draft guideline 9, as well as commentary 7 to 13. Noting the important balance between protection of common goods and economic development with regards to particularly vulnerable persons and groups, he also voiced his support for the inclusion of paragraph 3 to that draft guideline.
On “Immunity of State officials from foreign criminal jurisdiction”, he said the debate around exceptions or limitations reflected a lack of consensus among States. Acts constituting corruption fell outside the objective scope of functional immunity (ratione materiae) and therefore were not required to be exempted. The “territorial tort exception” in draft article 7(1) (c) did not reflect lex lata or de lege ferenda. Thus, the elements of State practice were insufficient to establish the existence of the exception to the customary rule of immunity.
He went on to say that, in that context, he welcomed the Drafting Committee’s curtailing of the list of crimes in relation to which immunity ratione materiae did not apply, while changing the title of article 7(1). He also said he favoured the choice of referring to those crimes as strictly defined in the relevant treaties. Similarly, he welcomed the deletion of paragraph 2 of article 7 on the understanding that it was prejudice to article 4(2). In addition, he also welcomed the deletion of article 7(3) in view of detailing the deleted “without prejudice” clauses in a separate article and expanding the scope of application to the whole text of the draft provisions on that topic.
LIONEL YEE WOON CHIN (Singapore), in regards to “Crimes against humanity”, said that States had varying views on the precise scope and ambit of key articles related to the topic. That topic would stand to benefit from further detailed consideration. The final outcome of the Commission’s work should take into account States’ views, he said, adding that Singapore would respond to the Commission’s request for comments before the requested deadline of 1 December 2018.
On “Provisional application of treaties” — which he described as a tool of immense practical value in modern international life — he said that the Commission’s draft guideline 6 could be more definitively stated; it should be recast in terms of an explicit reference to the “binding” character of provisional application instead of using the term “legal effects”. In that same draft guideline, the commentary should elaborate upon the exception to the default position contained in the proviso “unless the treaty provides otherwise or it is otherwise agreed”.
He went on to say that the Commission should consider citing specific examples of clauses that would fall within that proviso as a useful reference point for States and international organizations. Regarding the matter of termination, referenced in draft guideline 6 as well as draft guideline 8, he said a more definitive statement could be made in absence of express treaty language or agreement to the contrary.
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