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Ministry Statements and Speeches 2009

Sixth Committee, Agenda item 81, Report of the International Law Commission

Statement, by H.E. Jim McLay, Permanent Representative, Monday 2 November 2009

Mr Chairman:

New Zealand thanks the International Law Commission for the report on its work in the 61st session, and its Chairman, Mr Ernest Petric, for his introductory comments.

New Zealand welcomes the Commission’s progress in the provisional adoption on first reading of the draft articles on the Responsibility of International Organisations.

The Special Rapporteur’s report seeks observations from Governments as to whether the Commission should consider issues concerning international responsibility between States and international organisations. In principle, we support the Commission addressing these questions expressly in draft articles with commentary.

International organisations differ greatly in purpose, functions, membership, and competence - diversity that presents a major challenge for this topic. We support the Drafting Committee’s suggested proviso requiring that special circumstances of particular organisations to be taken into account, supplementing the lex specialis provision in draft Article 63.

We are pleased that the diversity of international organisations has been taken into account in other parts of this topic. For example, the draft Article 9 indicates it is not desirable to determine which rules of an international organisation constitute an obligation under international law.

The draft Article 6 raises the difficult issue of attribution. Perhaps the “effective control” test is not always appropriate for a wide range of types of international organisations. We note that the Special Rapporteur concluded that no change to the draft article was required in light of the European Court of Human Rights’ decision in the cases of Behrami and Saramati, but acknowledged the Court had “applied a different criterion for attribution and … reached a conclusion that differed from the one that would have been reached on the basis of [draft] article [6]”.

The right of international organisations to take countermeasures remains a sensitive issue, as scarcity of practice means this area of law lacks clarity and certainty; so we welcome the clarifications in the Special Rapporteur’s 7th report, and in the draft articles and commentary. In particular, we support draft Articles 51 and 21(2), which provide that countermeasures should not be a primary means of ensuring compliance of member States, and that countermeasures should be subject to the organisation’s applicable rules.

The new General Provisions in Part 6 are a positive development. Article 64 usefully makes it clear that the general rules of international law should continue to govern questions of responsibility that aren’t otherwise addressed. We welcome in particular the inclusion of draft Articles 65 and 66, which ensure the draft articles do not prejudice individual responsibility arising out of the conduct of international organisations or the UN Charter.

Mr Chairman:

New Zealand regards the Commission’s work on reservations to treaties, addressing issues not resolved in Articles 19 to 23 of the 1969 Vienna Convention on the Law of Treaties, as being of great practical importance.

We strongly support the Special Rapporteur simplifying and shortening the draft guidelines, and believe a separate document, setting out the main principles on which the Guide to Practice is based, would be very worthwhile.

It is appropriate that the reservations regime was not simply transposed into interpretative declarations. However, it is useful that the two regimes be substantially aligned with regard to interpretative declarations that may be recharacterised as reservations. As the Vienna Convention states - if a unilateral statement, however phrased or named, purports to exclude or modify the legal effect of certain provisions, it is in fact a reservation.

Mr. Chairman:

Both the Special Rapporteur’s 5th report on the Expulsion of Aliens, and the restructured work plan, provide useful guidance as to how that topic might progress. It may be useful for the Commission to look closely at the direction of this challenging topic, the structure of the draft articles and the nature and form of the instrument that might ultimately be submitted to the General Assembly.

New Zealand supports the approach of the draft articles, providing a broader reference to human rights, with other draft articles devoted to specific rights of particular importance in the context of expulsion.

A New Zealand response on issues of particular interest will shortly be submitted to the Commission.

New Zealand welcomes the Special Rapporteurs 2nd report on the Protection of Persons in the Event of Disasters, analysing the scope of the topic and the definition of “disaster”. We support the Special Rapporteur’s flexibility, and his readiness to complement the rights-based approach with a consideration of the needs of persons. We believe that focusing on the consequences that might flow from rights, including implementation and enforcement, could be of the most practical benefit to affected individuals; and that cooperation is the central principle underpinning the protection of persons in the event of disasters. It would, however, also be useful for the Commission to consider other principles that might also be included, such as neutrality, impartiality, and non-discrimination.

We look forward to the study, by the Special Rapporteur on Shared Natural Resources, on aspects of the topic relating to trans-boundary oil and gas resources.

While reserving judgment on the outcome, New Zealand supports the Commission’s cautious approach, and tends to the view that the topic is not ripe for codification.

New Zealand has also prepared a response to the re-issued questionnaire on this topic.

The proposed general framework drafted by the Working Group on the Obligation to Extradite or Prosecute appears relevant and useful; addressing, as it does, many questions of a practical nature, including those relating to conditions for triggering the obligation to extradite or prosecute, and the implementation of that obligation.

It can often be difficult to implement an obligation to extradite or prosecute - for example, for evidential reasons – so we would be interested in the Commission's views on the point at which the obligation to pursue extradition or prosecution would be regarded as satisfied in such cases.

We are also interested in the fundamental question whether an obligation to extradite or prosecute exists under customary international law; and agree with the suggestion that the customary nature of the obligation in relation to specific crimes should be examined.

We are disappointed that no report was presented this year on Immunity of State Officials from foreign criminal jurisdiction, an important and topical issue, and look forward to its consideration during the 62nd session.

The work of the Study Group on The Most-Favoured-Nation Clause suggests that its final product will provide practical guidance on the interpretation of such clauses. The Group’s road map of future work seems an excellent way to progress that topic.

The Study Group on Treaties over Time has highlighted subsequent agreement and practice of States parties as the most pressing issue for consideration.

We look forward to the Chairman’s report on this issue, as addressed in the jurisprudence of the International Court of Justice and other international courts and tribunals; and, regarding the possible outcome, support the Chairman’s proposal of deriving guidelines from a representative repertory of practice.

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