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Ministry Statements and Speeches 2011

UN General Assembly - Sixth Committee- Agenda item 81 - part III: Report of the International Law Commission on the work of its sixty-third session: Chapters VII (immunity of State officials from foreign criminal jurisdiction); X (the obligation to extradite or prosecute); XI (treaties over time); XII (the Most-Favoured-Nation clause)

Statement by Ms Alice King Legal Adiviser, Mnistry of Foreign Affiars and Trade, 1st November 2011

Mr Chairman,

Since this is the first time my delegation takes the floor during this debate on the International Law Commission, we would like to thank the chairman of the Commission, Mr Maurice Kamto, for presenting the report of the Commission and congratulate the members of the Commission for the high quality outcomes achieved over the past year.

Mr Chairman,

New Zealand appreciates the excellent work of the Study Group on the Most-Favoured Nation Clause and its co-chairs Professor Donald McRae and Ambassador Rohan Perera.  We consider the two documents before the Study Group, including the working paper on the “Interpretation and Application of MFN Clauses in Investment Agreements”, prepared by Professor McRae, will provide a valuable resource on the factors and considerations taken into account by tribunals in interpreting and applying MFN clauses. 

New Zealand welcomes further consideration of the question of MFN in relation to trade in services and investment agreements, including its relationship to the core investment disciplines, as well as the relationship between MFN, fair and equitable treatment, and national treatment standards.  We also support the Study Group’s proposal to look at the use of the MFN clause in other areas of international law and acknowledge the Commission’s request for information in this respect.

We support the Study Group's general understanding on MFN including its methodologies in reaching this understanding.  In particular, we support the Study Group’s approach that no further interpretation is necessary where an MFN clause expressly includes or excludes dispute settlement procedures. New Zealand has taken this approach in our modern Free Trade and investment agreements, following the case of Maffezini.

New Zealand looks forward to seeing the draft report and considers that it will be of great assistance to States to include an overview of the general background, an analysis of the case law, and appropriate recommendations, as proposed.  We look forward to the Study Group completing its work in the second year of the coming quinquennium.  Given the constantly evolving nature of international investment jurisprudence, we would consider the Commission's work a timely and valuable contribution.

Mr Chairman,

New Zealand acknowledges the efforts of Special Rapporteur Professor Zdzislaw Galicki in producing a fourth report on the Obligation to Extradite or Prosecute and the work of the Working Group in charting a productive way forward on this topic.

We consider there is merit in exploring the question of whether an obligation to extradite or prosecute exists under customary international law.  However, we acknowledge the topic presents inherent difficulties in light of the precision necessary in domestic criminal law in this area.  We encourage further work to clarify the direction to be taken, in line with the 2009 general framework for the Commission’s consideration of the topic, including the relationship between this topic and universal jurisdiction as well as the duty to cooperate, before further substantive work is undertaken.

Mr Chairman,

New Zealand thanks the Chair of the Study Group on Treaties over Time, Professor Georg Nolte, for his second report on jurisprudence under certain international economic regimes, international human rights regimes and other regimes resulting in twenty “General Conclusions”.  We consider this report, along with the introductory report, to provide an excellent platform for further study on this topic. 

We appreciate the Study Group’s consideration of both reports, and the resulting nine preliminary conclusions reformulated by the Chairman.  We are generally supportive of the initial conclusions reached and anticipate the final conclusions will greatly assist those working in this field.

We look forward to the third phase of the Working Group in considering practice of States and acknowledge the Commission’s reiteration of its request to Governments to provide examples of subsequent agreements or practice relevant to the interpretation and application of their treaties. 

We look forward to the work on this topic being concluded in the next quinquennium as anticipated by the Study Group, and agree with the proposal that conclusions be reached on the basis of a repertory of practice. 

Mr Chairman,

New Zealand welcomes the inclusion of the topic Immunity of State Officials from Foreign Criminal Jurisdiction in the Commission’s work programme and considers this to be an important and timely topic for consideration.  We thank Special Rapporteur Ambassador Roman Kolodkin for his work in preparing the second and third reports on this topic which provide a sound foundation for further discussion on the issues.

New Zealand views the law of immunity of state officials from foreign criminal jurisdiction as requiring careful balancing between fundamental principles of sovereign equality; non-interference in internal affairs; and independent performance of state activities on the one hand, and individual accountability and the desire to end impunity for serious international crimes on the other.  While it remains vital that officials not be subjected to politically-motivated actions in the courts of foreign countries, equally, in an increasingly globalised world shifting public attitudes on the issue may indicate increasing support that officials be held accountable for serious crimes.

New Zealand looks forward to further consideration on the question of possible exceptions to immunity, and agrees that this consideration should include whether to take a purely lex lata or lex feranda approach.  New Zealand continues to prefer the approach of the Commission in the 1996 draft Code of Crimes against the Peace and Security of Mankind, which provides for an exception to immunity when a state official is accused of international crimes, particularly when prohibition of an international crime has reached the status of a jus cogens norm.  We welcome the suggestion that terms such as ‘international crimes’ ‘grave crimes’ or ‘crimes under international law’ be clarified for the purpose of this topic, noting that these terms may overlap with other topics of the Commission.

We are pleased to see the scope of immunity being given careful consideration and look forward to further analysis in this area, particularly around whether immunity ratione personae should be absolute and apply prior to and while in office, both in an official and personal capacity.  We continue to consider that any extension of immunity beyond the troika of Heads of State, Heads of Government and Foreign Ministers must be clearly justified and include a careful analysis of customary international law.  We would also be interested in further study on whether immunity ratione materiae should apply to unlawful acts or acts ultra vires.

We acknowledge the Commission’s requests for information from States on this area under Chapter III of its report.  Like other states, New Zealand’s law on diplomatic privileges and immunities provides for the protections contained in the Vienna Convention.

Mr Chairman,

To conclude, my delegation would like to express its appreciation for the work of the Commission.  New Zealand continues to be a strong supporter of the important work of the Commission and wishes the members of the Commission every success in the next quinquennium.


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Page last updated: Wednesday, 09 January 2013 14:49 NZDT