04 Nov 2011
STATEMENT BY MS DAVINIA AZIZ, DELEGATE TO THE 66TH SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 81, ON CHAPTERS VII, X, XI, XII & XIII OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 63RD SESSION, SIXTH COMMITTEE, 4 NOVEMBER 2011
Madam Chair
1. My delegation thanks the International Law Commission for its report on the topics "Immunity of State officials from foreign criminal jurisdiction", "The obligation to extradite or prosecute (aut dedere aut judicare)", "Treaties over time" and "The Most-Favoured-Nation clause".
2. We turn first to the topic "Immunity of State officials from foreign criminal jurisdiction". We thank the Special Rapporteur, Mr. Roman A. Kolodkin, for his very helpful and thorough reports on this topic. The comments that follow are structured around the specific issues put to States by the Commission in Chapter III of the report.
3. First, we wish to respond to the Commission's question whether States would prefer the Commission to approach this topic from the perspective of lex lata or lex ferenda. We have reviewed the comprehensive reports of the Special Rapporteur, as well as the relevant portions of the Commission's report and summary records. Based on this review, while we agree that the lex lata is the appropriate point of departure for the Commission's analysis, we are not convinced that an approach to this topic based purely on the lex lata would be particularly useful given the many open questions in this area of international law. As a more general point, it bears repeating that the Commission's Statute plainly provides that the Commission "shall have for its object the promotion of the progressive development of international law and its codification".
4. In short, the Commission should proceed in a manner that best serves to systematize the rules of international law relating to the immunity of State officials from foreign criminal jurisdiction. This will inevitably involve considering this topic from the perspectives of both lex lata and lex ferenda.
5. However, Singapore requests that in the course of its work on this topic, the Commission should clearly indicate to States those elements which the Commission considers statements of lex lata, and those which the Commission considers statements of lex ferenda. We ask that this be done in the reports of the Commission while work on this topic is in progress, as well as in its final form. This will allow States to respond more precisely to the Commission's work.
6. Second, on the issue of immunity ratione personae for holders of high office in the States beyond the so-called "troika", my delegation believes there is a plausible view, de lege ferenda, that some high officials beyond the "troika" might enjoy such immunity. Such a position would simply reflect the reality of how foreign policy is conducted today among States, involving high officials other than the Minister for Foreign Affairs. However, consistent with the policy reasons for immunity ratione personae, and in the light of its broad material scope, any expansion of the list of high officials with such immunity beyond the "troika" must be contingent on the specific functions entrusted to such high officials by the State. My delegation would welcome the Commission's views on this issue from the perspective of the progressive development of international law.
7. Third, we turn to the question of what crimes are, or should be, excluded from immunity ratione materiae. My delegation cannot agree with the Special Rapporteur's characterisation of the "predominant view"-as summarised in paragraph 113 of the report-that there are no exceptions to immunity ratione materiae. Existing sources of international law certainly provide for exceptions. It may, however, be useful to focus on safeguards to ensure that exceptions to immunity ratione materiae are not applied in a wholly subjective manner. As such, a more pragmatic way to begin the analysis might be to ask:
(a) Who is entitled to decide whether immunity ratione materiae exists in respect of a specific crime?
(b) In each case, what would be the legal basis for such a decision? For example, would the International Criminal Court take jurisdiction over such a crime on the basis of a customary international law exception to immunity ratione materiae, or on the basis of a treaty-based exception, applying only to States Parties to the Rome Statute?
(c) What evidential threshold is required before a decision-maker can make a conclusive legal finding that an exception to immunity ratione materiae exists in respect of a specific crime?
Framing the analysis in this way might be more useful than an attempt to specify a list of crimes (whether lex lata or lex ferenda) at the outset.
8. Finally, we note the Commission's request to States for information on their law and practice in this field, particularly the procedural issues covered in the Special Rapporteur's third report. We will consult with our relevant domestic agencies, and endeavour to provide the Commission with a written response through the Secretariat in due course.
9. Next, we turn to the topic "The obligation to extradite or prosecute (aut dedere aut judicare)". We thank the Special Rapporteur, Mr. Zdzislaw Galicki, for his fourth report on this topic, which includes a set of proposed draft articles that were considered by the Commission in its plenary meetings. Our understanding is that no draft articles were adopted by the Commission at this session. However, we would like to offer some preliminary views on draft article 4.
10. My delegation has serious difficulties with the legal methodology underlying draft article 4. Singapore strongly reaffirms the existing customary prohibitions against serious crimes under international law. However, we do not agree that a customary international law prohibition of a specific conduct, or a customary international law characterisation of a breach of that norm as a crime automatically produces a customary international law obligation on the part of states to extradite or prosecute. We note that this is also the view of some members of the Commission, as reflected in the report, and would align ourselves with that view.
11. My delegation places the highest importance on the Commission's work regarding this critical topic. However, we are sympathetic to the difficulties encountered by the Special Rapporteur in drawing out the customary content of the obligation to extradite or prosecute. One way forward might be for the Commission to first consider the topic "Formation and evidence of customary international law". Though we are aware that this is a somewhat unusual suggestion, the methodologies developed by the Commission under that topic might then be applied to the customary international law element of the Commission's work on aut dedere aut judicare.
12. Finally, we would like to make some brief observations on the work of the two Study Groups constituted by the Commission to consider the topics "Treaties over time" and "The Most-Favoured-Nation clause". We thank the Chair of the Study Group on "Treaties over time", Professor Georg Nolte, and the Co-Chairs of the Study Group on "The Most-Favoured-Nation clause", Mr. Donald McRae and Mr. Rohan Perera, for their efforts in this connection. My delegation was interested to note that much of the material before the Commission in relation to these two topics originates from international trade and investment law. We welcome efforts to mainstream international economic law into the work of the Commission. That said, we note that the Study Group on "The Most-Favoured-Nation clause" has asked for examples of the use of Most-Favoured-Nation clauses in fields other than trade and investment law. We think this is an important query. My delegation has indeed encountered such clauses in fields other than trade and investment law. We will provide these examples in writing to the Commission through the Secretariat in due course.
13. To conclude, my delegation will make some brief comments on the Commission's consideration of its relationship with the Sixth Committee, as reflected in Chapter XIII of the report. My delegation strongly supports the Commission's ongoing engagement of States through dialogue with this Committee. We welcome the presence of members of the Commission, including Special Rapporteurs, in New York during "international law week", and would support the idea of having one half-session each quinquennium in New York so as to facilitate direct contact between the Commission and delegates of this Committee.
Thank you, Madam Chair.
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