C6: Report of the International Law Commision, Agenda Item 81, Part III

Last updated: 11/1/2011 // This Nordic statement was delivered to the sixth committee of the General Assembly by Deputy Director General, Ms. Margit Tveiten. The Nordic countries addresses four issues linked to the International Law Commision.

”Thank you, Mr Chairman,

I have the honour to speak on behalf of the five Nordic countries, Denmark, Finland, Iceland, Sweden, and my own country Norway.

We will adress here four issues, first, the issue of immunity of State officials from foreign criminal jurisdiction. We would like to express our gratitude to the International Law Commission and in particular to its Special Rapporteur, Mr. Roman Kolodkin, for having submitted important analytical contributions to the discussion of this important and challenging topic.  The papers presented and discussed during the 63rd session of the Commission contain the results of impressive research. The material gathered and analysed is, both quantitatively and qualitatively, to be highly commended. At this preliminary stage of work it is undoubtedly useful to have at hand a thorough anatomy of issues, seen through the prism of a search for the traditional roots of the notion of immunities of States and their officials.

The concept of sovereignty is closely linked to that of equality of States, and both are reflected in the classic maxim “par in parem non habet imperium” – no State can claim jurisdiction over another sovereign State. Traditionally we have seen these notions crystallizing not merely into international comity or courtesy in international relations, but also into positive legal obligations emanating from customary international law.

Mr. Chairman,

In the discussions on jurisdictional immunities of States and their property, which resulted in an important UN Convention in 2004, a number of notable developments of law were recognized. These involved the realisation that if a State engages in a commercial transaction with a foreign natural or juridical person and that State therefore cannot invoke immunity from the jurisdiction of a court of another State – this does not give rise to any threat to the celebrated maxim of “par in parem non habet imperium” or, in other words, to the sovereign equality of States.

Today it would be difficult to construe the exercise of jurisdiction by national courts over commercial activities carried out by another State, as constituting as such a threat to the sovereign equality of the latter State. In a globalized and increasingly inter-dependent society based on the civilizing vision of an international rule of law, huge numbers of transactions are carried out by States, while being at the same time exposed to the jurisdiction of other States’ domestic courts, outside the protection of immunities de jure imperii, without this being perceived as a threat to the respect for the independence and dignity of the sovereign States concerned.

In our view, the analogy, if such an expression might be used here, would be to take a closer look at the developments of law that may shed light on the scope “ratione materiae” of an official act and acts in the exercise of the functions of a State official. This examination should take into account that rules of customary international law change over time. Requirements of immunity also as regards “ratione personae” should in our view therefore be considered now in the light of development of international law relating to international crimes of concern to the international community as a whole.

Immunities of state officials are not to be equated with impunity or lack of responsibility. Under articles 6 and 7 of the Charter of the Nuremberg International Military Tribunal of 8 August 1945 certain crimes against humanity were declared to be within the jurisdiction of the tribunal, and the official position of defendants, “whether as Heads of State or responsible officials in government” (our emphasis) would not exempt them from responsibility. The judgement of the tribunal itself stated, among other important utterances relevant to our topic:

"The principle of international law which, under certain circumstance, protects the representatives of a State cannot be applied to acts condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position to be freed from punishment."

By its resolution passed unanimously on 11 December 1946, this General Assembly of the United Nations affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal. We note the normative relevance of this unanimous resolution. We also note that, even though what has been known as the Nuremberg Charter concerned the establishment of a particular form of international jurisdiction, the principles here quoted are general. In accordance with these sources, no State official could have been in any doubt about his or her potential personal responsibility if participating in acts regarded by international law as crimes of concern to the international community as a whole.

Mr. Chairman,

In his preliminary report, the Special Rapporteur had interpreted his mandate as excluding immunity from international criminal jurisdiction. We fully share this point of departure, as entirely relevant. However, it will appear already from our references to the 1946 unanimous resolution of this Assembly as regards the Nuremberg principles, that we regard important developments relating to international criminal justice as having contributed significantly to the normative production and clarification of rules pertaining to the scope for invocation of immunities. Consequentially, international criminal justice has a bearing on the general state of the law of immunities, which ought to be recognized.

We further recognize that practical situations may indeed require a coherent approach to the immunity issues, for example if a case is referred from an international tribunal, which acts under international criminal jurisdiction, to a national court.  If such a referral is to take place, a consistent and predictable solution must be found to the immunity issues. The consideration of this topic should also take into account the relevant rules pertaining to immunity before international jurisdiction and not only the relevant rules applicable in the jurisdiction of the forum State.

The five Nordic countries are convinced that an analysis of the current status of international law by the Commission should take full cognizance of the resolution of this Assembly in 1946 and other sources of law, including decisions of international and national courts, as part of a broader movement towards the recognition of crimes against international law. We are certainly convinced that the commission of genocide, for example, should not be considered to be an official act under international law, or constitute an act in the exercise of the functions of a State official.  And such a conclusion cannot merely be derived from treaty obligations incumbent upon the parties to the 1948 Genocide Convention, it must surely be broader. An important priority in the work of the Commission should therefore be to promote a greater coherence of international law in taking into account major developments, including the Nuremberg principles and their further crystallization in the ensuing decades.

We agree with the Special Rapporteur’s conceptual point of departure, that the immunity of a State official may largely be derived from State immunity; that immunity is the general rule; and that absence of immunity in a particular case is the exception to this rule. However, having carefully studied the second and third reports of the Special Rapporteur, it is our opinion that perhaps too strict a standard has been applied when it comes to establishing exceptions to immunity.  In particular, we would caution against any constructivist approach that would not take into full account important developments of international law, together with the need to promote the latter’s coherence, by integrating important principles that have evolved over time.

In this respect it may be worthwhile to recall the separate opinion of judges Higgins, Koojimans and Buergenthal in the 2002 judgement in the case between the Democratic Republic of Congo and Belgium concerning the Arrest Warrant of 11 April 2000, where it was stated that “what is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution”.  This contrasts the perhaps more static approach taken in the reports.

However, we commend The Special Rapporteur’s adoption of a practical approach in trying to define the scope of immunity de lege lata.  This approach certainly is the most sensible one in preparation for a future drafting process, provided the findings of the report can foster the widespread support needed to serve as the cornerstone of such a process.

Mr. Chairman,

In our intervention on behalf of the Nordic countries on this topic during the 63rd General Assembly, we indicated other areas where, in our opinion, the future work of the Commission would have benefitted from further examination of important and recent sources of law.

This included the clarifications provided by the International Court of Justice in the 2008 case between Djibouti and France concerning “Certain Questions of Mutual Assistance in Criminal Matters ”.  We are pleased to note that the findings of the Court are discussed in depth in the Special Rapporteur’s second report (including paras 21 etc. and 41-43).

We have also note that in his preliminary report, the Special Rapporteur seemed to take the position that immunity represents a limitation of jurisdiction, which in turn seems to imply that foreign courts would be under a duty to observe it ex officio.  In the third report, this is discussed in more detail. The conclusions are both subtle and arguably more nuanced.  In this regard, we are pleased to see that an important obiter dictum in the 2008 case now seems to be duly reflected in the Special Rapporteur’s report. This concerns the Court’s observations to the effect that any immunity of State officials other than Heads of State or Heads of Government or Ministers of Foreign Affairs would have to be claimed actively by the official’s home State.

Mr. Chairman,

Another interesting observation that may be drawn from the 2008 judgment of the International Court of Justice is the possible correlation between a State invoking immunity for one of its officials and the automatic assumption of responsibility for any corresponding international wrongful act committed by that official. This correlation appears to have been endorsed by the Special Rapporteur, as he argues in his report that” there are no objective grounds for drawing a distinction between the attribution of conduct for the purposes of responsibility on the one hand and for the purposes of immunity on the other” (paragraph 93(c)).  This argument would seem inherently logical at the outset. At the same time, we believe there may be reason to distinguish between a presumption for such State responsibility and the final determination of the latter.  The purpose behind the rules for responsibility for internationally wrongful acts and the rules on immunity for State officials are indeed quite different.

Mr. Chairman,

In the future work of the Commission on this topic we would encourage further work, reflecting the well-structured and analytically strong reports so far submitted, supplemented with a more functional analysis.  We have in general terms recalled the already well established distinctions in international law between acta iure imperii and acta iure gestionis as regards State immunity.  The development and refinement of this distinction in international law remind us both that immunity is not absolute and that the purpose for which immunity is accorded has a direct bearing on its scope.  We would favour further studies of the distinction between acts and situations that require immunity for the purpose of allowing States to act freely on the inter-State level without interference, and those where immunity is not needed for this purpose.

Mr. Chairman,

We have noted with appreciation that the Commission in its annual report has posed three concrete questions to member States regarding what approach should be taken to the future work on this topic; which holders of high offices enjoy or should enjoy immunity and what crimes are or should be excluded from immunity.  The Nordic countries will, in due course, offer their points of view on these specific issues, as invited by the Commission.

In concluding on this topic, Mr. Chairman, let me express our support for the ILC’s continued work in this field, and also our sincere congratulations to the Special Rapporteur, Mr. Roman Kolodkin, for the impressive results he has produced in his tenure as Special Rapporteur. This topic is both complex and challenging.  We believe the three reports submitted by Mr. Kolodkin form a solid basis for the Commission’s continued endeavours in this respect.  We look forward to the follow-up and promise to remain constructively engaged.

Mr. Chairman,

Now turing to the topic aut dedere aut judicare, the Nordic countries would like to welcome  the fact that there is a report by the Special Rapporteur this year on this important and complex topic. The obligation to extradite or prosecute is a cornerstone in the fight against impunity which is a key policy objective of our governments. Together with the principle of universal jurisdiction it serves to ensure that there is no safe haven for perpetrators of international crimes. It would be of significant importance if the rules of international law on this issue are clarified in order to ensure maximum effect and compliance with the obligations of existing rules and, where necessary, the basis for analysis of where additional rules may be required. The Nordic countries trust that the work of this committee will be guided by the common policy aim of fighting impunity.

The importance of the principle of aut dedere, aut judicare is, unfortunately, not matched with the clarity of the existing rules. As the considerations of the Commission and the Special Rapporteur on the issue of sources show, there is significant diversity of opinions about fundamental issues of sources as well as the existence of a general obligation to cooperate as addressed in draft article 2.

We have noted the question posed by the Commission in Chapter III of its report to Member States regarding whether there is a basis in customary international law for an obligation to extradite or prosecute. We would find it helpful if the Rapporteur and the Commission were to deal more systematically with the identification of the core crimes and we would encourage a rather more elaborate consideration of the issue of creation of custom in this field. As mentioned, this process could be embarked upon while in due course we may also benefit from the ICJs pronouncement on certain of these questions. On a more informed basis we would be ready to discuss, if necessary, steps in the direction of the possible progressive development of international law in this field. We have, however, an expectation that a more thorough analysis, related to specific crimes, will demonstrate that there exists a customary basis for an obligation to extradite or prosecute in international law. The Nordic countries would like to emphasize the significance of the Commission’s continued attention to and work on this important topic during the new quinquennial starting in 2012.

Mr Chairman,

Concerning the topic of Treaties over Time, the Nordic countries would like to thank the Commission for its report and express our continuing support for the work on the topic. We find the different aspects of treaty interpretation, as put forth by the Commission to be related to several topical issues of international law. We would like to call attention to the correlation which may be discerned between the topic of treaties over time and that of fragmentation of international law. We find that the understanding of how different adjudicatory bodies make use of subsequent agreements and practice, may be of importance in gaining a broader view of the coherent application and integrated interpretation of various treaties in accordance with the principles reflected in the Vienna Convention of the Law of Treaties, article 31. . Therefore, we welcome an enhanced reliance by adjudicatory bodies operating on the basis of different competences pursuant to the relevant treaties on the general rule of treaty interpretation. We also welcome  continuous discussions on the approach of different adjudicatory bodies towards the nature of certain treaties, the recognition of subsequent agreements and practice as well as other conclusions reached in the Commission's second report. Furthermore, the Nordic countries find it important that the Commission pronounces upon the definition of subsequent practice as such and that, in this regard; it is relevant to ask for commentaries from governments.

Finally, Mr Chairman, on the issue of the Most-Favoured Nation Clause, we would like commend the work of the ILC Study Group, ably co-chaired by Mr Donald McRae and Mr Rohan Perera. We believe that the on-going attempts to methodically promote the identification of the normative content of various MFN clauses may constitute an important contribution to a greater coherence of international law in this field. It is fully in keeping with the analysis provided by the Commission in the context of its study of fragmentation of international law, to ground its methodic approach in the principles reflected in articles 31-33 of the Vienna Convention on the Law of Treaties. Furthermore, drawing upon the practice and considerations that have emerged from GATT, the WTO, OECD and UNCTAD, and considering a typology of various sources of production of case-law, including in particular arbitral awards, has been important. This has shown the existence of divergences or differences in approaches taken in particular by various arbitrators. We believe that it would be useful for the Commission to provide its input, to promote legal certainty. The Nordic countries therefore support the continuation and completion of this work, according to the time frame indicated by the Commission.

As regards the proposal to include the topic “The Fair and Equitable Treatment Standard in International Investment Law” among the new topics of the ILC, we note the relationship between this topic and the MFN clause, and believe that the work on the topic currently under consideration should be completed before any decision is taken by the Commission on the inclusion of such a new topic. This will also ensure that any consideration of a new topic benefit to the maximum from the methodic findings that are currently being made.

Thank you, Mr Chairman.”

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