Statement by Todd Buchwald, Assistant Legal Adviser, Office of the Legal Adviser, Department of State, on Agenda Item 79: Report of the International Law Commission on the Work of its Sixty-Second Session (Part Three), in the Sixth Committee

by Todd Buchwald, Assistant Legal Adviser, Office of the Legal Adviser, Department of State
New York, NY
November 1, 2010




AS DELIVERED

Madame Chairperson,

Once again, I would like to thank the Chairman of the Commission, Mr. Nugroho Wisnumurti, for his introduction of the Commission’s report. I appreciate the opportunity to comment on the topics that are currently before the Committee.

Shared Natural Resources
In the area of Shared Natural Resources, the United States wishes to thank the Chairman of the Working Group on Shared Natural Resources, Mr. Enrique Candioti, for his excellent work on the topic. We also would like to thank Mr. Shinya Murase for his preparation of a working paper on the transboundary oil and gas aspects of the topic. The paper took account of the views provided by states about their current practice in this area, as well as the views provided by states on that subject in this committee. We agree with the conclusion of the working paper and the recommendation from the Working Group to the Commission that the transboundary oil and gas aspects of the Shared Natural Resources topic should not be pursued further by the Commission.

We appreciate the significant work that the Commission has undertaken on the Shared Natural Resources topic.

The Most Favored Nation Clause
As regards the Most-Favored-Nation Clause topic, we appreciate the extensive research and analysis undertaken by the Study Group, and wish to recognize Mr. Donald McRae and Mr. A. Rohan Perera in particular for their stewardship of this project as co-
chairs of the Study Group, as well as the other members of the Commission who have made important contributions toward helping to illuminate the underlying issues.

Most Favored Nation provisions are principally a product of treaty formation and tend to differ considerably in their structure, scope and language. They also are dependent on other provisions in the specific agreements in which they are located, and thus resist a uniform approach. Given the nature of Most Favored Nation provisions, we do not believe interpretive tools or revised draft articles are appropriate outcomes. We encourage the Study Group to continue with the study and description of current jurisprudence, which can serve as a useful resource for governments and practitioners who have an interest in this area.

Obligation to Extradite or Prosecute
Madame Chairperson, with respect to the topic Obligation to Extradite or Prosecute, we appreciate the contributions that the Special Rapporteur, Mr. Zdzislaw Galicki, has made to this topic. We also appreciate the contributions of the Working Group Chairman, Mr. Alain Pellet, and the temporary Chairman of the Working Group during the past ILC session, Mr. Enrique Candioti.

The United States is a party to a number of international conventions that contain an obligation to extradite or submit a matter for prosecution. We consider such provisions to be an integral and vital aspect of collective efforts to deny terrorists and other criminals a safe haven.

In 2007, the Commission reiterated the importance of ascertaining State practice in this area before proceeding to any conclusions. General Assembly resolution 62/66, highlighting a request from the Commission, invited Governments to provide information on legislation and practice regarding the topic. The Special Rapporteur similarly indicated in his third report to the Commission that there was still insufficient information provided in response to these requests. The United States has provided the requested information and appreciates the submissions made thus far by other States.

The United States agrees with the Chairman’s observation that certain of the issues identified, such as whether and to what extent the obligation to extradite or prosecute has a basis in customary international law, may be considered only after a careful analysis of the scope and content of the obligation to extradite or prosecute under existing treaty regimes. The Secretariat has prepared a survey of multilateral instruments that proposes a framework for assessing current treaty-based formulations of the obligation.

The United States continues to believe, however, that its practice, as well as the practice of other States, reinforces the view that there is not a sufficient basis in customary international law or State practice to formulate draft articles that would extend an obligation to extradite or prosecute beyond binding international legal instruments that contain such obligations. Instead, States only undertake such obligations by joining binding international legal instruments that contain relevant provisions, and the obligations extend only to other States that are parties to such instruments and only to the extent of the terms of such instruments. Otherwise, States could be required to extradite or prosecute an individual under circumstances where the States lacked the necessary legal authority to do so, such as the necessary bilateral extradition relationship or jurisdiction over the alleged offense.

Moreover, the United States continues to believe, in accordance with the framework established by the Working Group in 2009, that a comprehensive view of State practice in this area is essential to any consideration of whether there is a basis for inferring a customary international legal norm to extradite or prosecute. This is particularly the case where, as here, the State practice reported to date is largely confined to implementing treaty-based obligations which have been recognized by the Special Rapporteur as varying widely in scope, content, and formulation. While the lack of consistent and sustained State practice to extradite or prosecute in the absence of a treaty-based obligation should suffice to determine that there is not yet such a customary international law norm, any consideration that there might in fact be such a norm would necessitate a broader range of reporting.

As has been noted by the Commission ever since its first report on this topic, if the obligation to extradite or prosecute exists only under international treaties, draft articles on the topic would not appear to be appropriate. In light of the completion of the survey of multilateral instruments by the Secretariat, we urge the Commission, if it continues to believe that consideration of a customary norm in this area might be warranted, to allow sufficient time to receive and evaluate further information provided by States.

Treaties Over Time
On the subject of Treaties over time, I would first like to thank the Chairman of the Study Group, Professor Georg Nolte, as well as his co-chairs and other members of the group for the commitment and scholarship that they bring to bear on this important topic. I also would like to compliment Professor Nolte on his Introductory Report. Among other things, the report demonstrates that there is a great deal of useful work to be done on the subject of subsequent agreements and practice, and thus little need to broaden the topic, at least at this point, to include other aspects of “Treaties over time.”

In conducting its work on subsequent agreements and practice, we note the proposed request for information from governments on this subject, particularly regarding instances of subsequent practice and agreements that have not been addressed by an international body.

In light of this request, we believe that it would be extremely helpful if states responded with information on the jurisprudence of their national courts that have considered the role that subsequent agreement and practice play in treaty interpretation. This information is less accessible to States than the jurisprudence of international tribunals and is of considerable interest. Among other things, we are curious to learn how other States address the domestic legal questions raised by shifting interpretations of international agreements on the basis of subsequent practice after ratification, and if the legislative branch is involved in approving such agreements prior to ratification.

One of the questions raised in the Introductory Report is whether the topic lends itself to the elaboration of “guidelines,” “practice pointers,” or “conclusions.” It may be too early to make such a decision, but based on the work done thus far, it would seem that “practice pointers” would be helpful, while there may not be enough consistent practice among states in this area for the Commission to formulate strict “guidelines or “conclusions.” This is an interesting topic and we are certainly looking forward to learning from, and providing feedback on, the Study Group’s reports.

Thank you, Madame Chairperson.

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PRN: 2010/267