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Mr. Chairman,
I will speak today on three topics – reservations to treaties, shared natural resources and the obligation to extradite or prosecute.
New Zealand thanks the Special Rapporteur, Mr Alain Pellet, for the eleventh and twelfth reports on the topic of reservations to treaties. These two reports contain a great deal of useful material.
We welcome the Commission’s provisional adoption of nine draft guidelines with commentaries on determination of the object and purpose of the treaty, and incompatibility with the object and purpose of a treaty. We are pleased with the further development of this topic and very much hope that the topic can be brought to a conclusion in the present quinquennium.
We also welcome the invitation to States in Chapter III of the Commission’s report to provide comment on the specific questions listed in that Chapter. New Zealand will endeavour to respond to that invitation because we recognize that those questions bear on important issues of treaty law and practice. In this statement, however, we will limit our observations to a few key issues.
We support the Commission’s flexible approach in draft guideline 3.1.5 to indicate a general direction, rather than precise criterion, for defining the object and purpose of a treaty. We note that the draft guideline attempts to define the object and purpose by reference the treaty’s “essential elements” and “general thrust” as well as its raison d’être. New Zealand has previously expressed concerns with the difficulty of spelling out precisely what constitutes the object and purpose of any given treaty. We continue to wonder whether terms such as “essential elements” and “general thrust” really take us very much further than the words “object and purpose” in providing generic guidance as to the meaning of “object and purpose”. That said, the explanatory material provided by the Special Rapporteur in the Commentary, we think, is very valuable as a guide to ascertaining the object and purpose of a particular treaty.
The question of whether a particular category or categories of treaty should be treated differently from others with regard to the consequences of an invalid reservation is a very difficult one. In principle, we would prefer that the same set of rules for reservations apply to all treaties. That said, we also have some sympathy with the argument that some treaties, in particular human rights treaties, may call for different treatment. It would not be a satisfactory outcome if a State could, in effect, limit its undertakings in a human rights treaty by formulating a general reservation, that either severely limited the State’s undertakings to respect the human rights of its citizens or, by inviting objections, absolved the State from giving effect to the treaty at all. Similar arguments might be made in respect of some other categories of treaties. Accordingly, while we believe a coherent approach would be the most beneficial for international law and the stability of treaty relations, we also recognize that exceptions may be necessary. We will be giving this matter further thought in the context of preparing responses to the questions in Chapter III of the report.
In terms of the guidelines that the Commission presented and discussed this year, we support for the Special Rapporteur’s suggestion of extending the idea in guideline 2.6.10 (a recommendation on the desirability of States providing reasons for objections to reservations) to include a further guideline recommending that States provide reasons when making a reservation.
We look forward to the Special Rapporteur and Commission’s upcoming work on the most challenging and interesting legal issue under this topic – the consequences of reservations incompatible with the object and purpose of the treaty.
New Zealand welcomes the fourth report of the Special Rapporteur, Mr Chusei Yamada, and commends him for his excellent work on the draft articles on the law of transboundary aquifers. We also thank Mr Enrique Candioti for his successful contributions as chairman of the Working Group for this topic.
We welcome the Commission’s adoption on a first reading of the draft articles on the law of transboundary aquifers. We consider the draft articles represent a good balance of the competing interests at stake, including the crucial importance of the use and preservation of this scarce natural resource.
We agree with the Special Rapporteur’s recommendation that the Commission complete the second reading of the draft articles independently of any future work on issues relating to oil and natural gas. We are pleased the Commission supported this recommendation. As to whether the Commission should deal with issues related to oil and natural gas in future, we consider the completion of consideration of the draft articles on transboundary aquifers will help us to determine the potential direction, substance and value of any work that could be carried out by the Commission on oil and natural gas.
We recognise that the way in which transboundary aquifers are managed has to take account of the specific features of each individual aquifer, and in practical terms must be worked out by the relevant countries at the regional or local level. Accordingly, we are inclined to think that the draft provisions may be more effective if the final form of the work is cast as recommendatory principles rather than a convention. The risk with a convention on this kind of topic is whether enough States will be sufficiently motivated to support it, become party, and bring it into force. In contrast, a set of recommendatory principles would represent an authoritative statement of the international standards and best practice that should be followed and given practical effect in appropriate detail at the bilateral and regional level. As such, draft principles could be expected to be the framework against which the necessary bilateral and regional negotiations would be conducted, and potential disputes resolved.
We look forward to Special Rapporteur and Commission’s further work and hope that the second reading of the draft articles may be accomplished in the near future.
New Zealand has read carefully the second report of the Special Rapporteur, Mr Zdzislaw Galicki, on the topic of the obligation to extradite or prosecute. The report helpfully identifies several aspects of the topic that require careful analysis. It leaves us in no doubt as to the complexity of this subject.
We welcome recognition by the Special Rapporteur of the importance of a thorough analysis of the international treaty obligations and national laws bearing upon the obligation to extradite or prosecute. We consider this essential to developing a more detailed understanding of the scope of the obligation, and for guiding the Commission’s future direction in this topic. In that regard, we encourage the Commission at this early stage to be open-minded regarding the final form of its work.
We support the Special Rapporteur’s careful treatment of the relationship between the obligation to extradite or prosecute and the principle of universal jurisdiction. While there is a degree of connection, universal jurisdiction is a separate concept including for reasons of its purpose and the consequences which flow from its invocation. At this stage, we would be cautious about excessively addressing the principle of universal jurisdiction as part of this topic. Our preference would be to deal with universal jurisdiction to the extent necessary and perhaps only in the commentaries to the final product of the Commission.
We also welcome the Special Rapporteur’s approach to refrain at this point from further examination of the so-called ‘triple alternative’. We note that surrender to an international tribunal differs in some important respects from the act of extradition, and is governed by a distinct set of treaty obligations and arrangements.
We prefer to treat with caution the question of the possible customary status of the obligation of extradite or prosecute. We consider this has not yet been established in a thorough review of the level of State practice and opinion juris. In this regard, the Special Rapporteur and Commission’s further work will aid our understanding.
We welcome the appointment of Mr Eduardo Valenica-Ospina and Mr Roman Kolodkin as Special Rapporteurs for the new topics of “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction” respectively. We look forward to receiving their preliminary views on these topics. We also welcome the establishment of the Working Group on the Most-favoured-nation (MFN) clause under the chairmanship of Mr Don McRae. It is encouraging that the Commission is willing to tackle a subject of this kind. It is also fortunate that there is a Chair with Mr McRae’s expertise in the area to guide the taking of this work forward.
Thank you, Mr Chairman
