Remarks by Steven Hill, Counselor, United States Mission to the United Nations , General Assembly Sixth Committee (Legal), November 1, 2011: Report of the International Law commission on the Work of its 63rd Session (Part III):

Steven Hill, Counselor, United States Mission to the United Nations

New York, NY

November 1, 2011

FOR IMMEDIATE RELEASE

Immunity of State Officials from Foreign Criminal Jurisdiction

Mr. Chairman, with respect to the topic Immunity of Foreign Officials from Foreign Criminal Jurisdiction, we are greatly appreciative of Roman Kolodkin’s efforts over the past several years as the ILC’s Special Rapporteur for this controversial and difficult topic. He has produced three comprehensive reports on both its substantive and procedural aspects, and we commend him for his contribution to the work of the ILC.

Important and pressing questions remain. The United States stands ready to participate as consideration of this topic continues and remains committed to striking the right balance between the prevention of impunity and the protection of immunity. We must keep in mind these twin goals in order that those guilty of gross crimes do not go unpunished and state officials performing their official duties overseas are adequately protected.

The Obligation to Extradite or Prosecute

Mr. Chairman, with respect to the topic Obligation to Extradite or Prosecute, we appreciate the contributions that the Special Rapporteur, Mr. Zdzislaw Galicki, has made to this topic. We also appreciate the contributions of the Working Group Chairman, Alain Pellet, and the temporary Chairman of the Working Group during the 62nd ILC session, Enrique Candioti.

The United States is a party to a number of international conventions that contain an obligation to extradite or submit a matter for prosecution. We consider such provisions to be an integral and vital aspect of collective efforts to deny terrorists and other criminals a safe haven.

In 2007, the Commission reiterated the importance of ascertaining State practice in this area before proceeding to any conclusions. General Assembly resolution 62/66, highlighting a request from the Commission, invited Governments to provide information on legislation and practice regarding the topic. The Special Rapporteur similarly indicated in his third report to the Commission that there was still insufficient information provided in response to these requests. The United States has provided the requested information and appreciates the submissions made thus far by other States.

The United States agrees with the Chairman’s observation that certain of the issues identified, such as whether and to what extent the obligation to extradite or prosecute has a basis in customary international law, may be considered only after a careful analysis of the scope and content of the obligation to extradite or prosecute under existing treaty regimes. The Secretariat submitted to the Commission a Study containing a survey of multilateral conventions that address the topic. Based upon the Study, the Special Rapporteur submitted a working paper proposing a description and typology of relevant multilateral instruments. The Working Group, however, also noted that the survey of multilateral practice needed to be complemented by a study of other aspects of State practice. During the last session, the Special Rapporteur introduced his fourth report on the obligation to extradite or prosecute. The report summarizes the work of the Commission on this topic and discusses descriptively the potential sources of the obligation to extradite or prosecute – treaties and customary international law. The report also includes several draft articles.

The United States continues to believe, however, that its practice, as well as the practice of other States, reinforces the view that there is not a sufficient basis in customary international law or State practice to formulate draft articles that would extend an obligation to extradite or prosecute beyond binding international legal instruments that contain such obligations. Instead, States only undertake such obligations by joining binding international legal instruments that contain relevant provisions, and the obligations extend only to other States that are parties to such instruments and only to the extent of the terms of such instruments. Otherwise, States could be required to extradite or prosecute an individual under circumstances where the States lacked the necessary legal authority to do so, such as the necessary bilateral extradition relationship or jurisdiction over the alleged offense.

Treaties Over Time

On the subject of treaties over time, I would like to thank the Chairman of the Study Group, Professor Georg Nolte and other members of the group for the commitment and scholarship that they bring to bear on this important topic. The United States continues to believe that there is a great deal of useful work to be done on the subject of subsequent agreements and practice, and thus little need to broaden the topic, at least at this point, to include other aspects of “Treaties over time.”

In general, we are following Professor Nolte’s reports with interest, including his recent work addressing the extent to which, in his sense, the special nature of certain types of treaties – e.g. human rights and international criminal law – might affect the approach of relevant adjudicatory bodies to treaty interpretation. We look forward to seeing additional analysis of this and other issues.

In conducting its work on subsequent agreements and practice, we note the Commission’s renewed request for information from governments on examples of subsequent agreements or subsequent practice that have been relevant to the interpretation or application of one or more of their treaties, particularly regarding subsequent practice and agreements that have not been subject to judicial or quasi-judicial proceedings by an international body. To the extent States have not already done so, we continue to believe that it would be extremely helpful if states responded with information on jurisprudence of national courts that have considered the role that subsequent agreement and practice play in treaty interpretation. Any information that states might offer on this issue, of course, would be useful but we think that consideration by national courts would be a particularly fruitful source of information. Among other things, we are curious to learn how other States address the domestic legal questions raised by shifting interpretations of international agreements on the basis of subsequent practice after ratification, if the legislative branch is involved in approving such agreements prior to ratification.

This is an interesting topic and we are looking forward to continuing to learn from, and provide feedback on, the Study Group’s reports.

The Most Favored-Nation Clause

As regards the Most-Favored-Nation Clause topic, we appreciate the extensive research and analysis undertaken by the Study Group, and again wish to recognize Mr. Donald McRae and Mr. A. Rohan Perera in particular for their stewardship of this project as co-chairs of the Study Group, as well as the other members of the Commission who have made important contributions to helping to illuminate the underlying issues.

We support the Study Group’s decision not to prepare new draft articles or to revise the 1978 draft articles. MFN provisions are principally a product of treaty formation and tend to differ considerably in their structure, scope and language. They also are dependent on other provisions in the specific agreements in which they are located, and thus resist a uniform approach. Given the nature of MFN provisions, we agree with the Study Group that interpretive tools or revised draft articles are not appropriate outcomes. We encourage the Study Group to continue with the study and description of current jurisprudence, which can serve as a useful resource for governments and practitioners who have an interest in this area, and we are interested to learn more about what areas beyond trade and investment the Study Group intends to explore.

Working Methods of the Commission

With regard to the Working Methods of the Commission, we thank Mr. Hussein Hassouna for his chairmanship of the working group and the members of the working group for the comprehensive report that they completed, which included a number of recommendations for improving the working methods of the Commission. We would mention at this time our agreement that it would be helpful if Special Rapporteurs annually prepared a substantive report on their respective topics of no more than 50 pages. While some reports may require more or less than 50 pages, we believe that it is useful for Commissioners to have a general benchmark to inform their work. We also agree that it could be useful for Special Rapporteurs to prepare concise draft commentaries that explain the draft articles adopted at each session on their topic, as soon as possible after the draft articles are completed. Such a standardized process will aid states in assessing the draft articles along with their respective commentaries as soon as possible. We also support the Commission’s goal of fostering greater dialogue with the Sixth Committee.

Thank you, Mr. Chairman

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