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29 October 2008 - Report of the International Law Commission on the work of its sixtieth session (item 75) - Chap. II, III. General Observations - Speech delivered by Mrs Edwige Belliard

63th session of the United Nations General Assembly, Sixth Committee

Speech delivered by Mrs Edwige Belliard, Director of Legal Affairs, Ministry of Foreign and European Affairs

New York,

Mr. President,

Even if some may wonder whether the "golden age" of the International Law Commission is now behind us, we believe that the extensive work as reflected in this year’s ILC report attests to the utility of this institution and to the major contribution that it continues to make towards the codification and progressive development of international law. Nevertheless, I would like to mention that the search for "the very substance" of customary international law and the codification of this law should not be overlooked for the sake of relative normativity, or for exclusively theoretical or academic study of matters unready for codification.

Last spring, the celebration of the sixtieth anniversary of the Commission facilitated gainfully discussing these diverse challenges facing us, whether we be government legal advisors or independent members of the I.L.C. I would like to express the hope that the productive exchanges that we had at the sixtieth anniversary are kept up so as to maintain this delicate balance in the future, on which the success of the efforts towards codification of international law is built.

It is in this spirit that I would like to address some of the questions the Commission reviewed this year. Before doing so, I would like to welcome the completion, at a second reading, of the Commission’s work on the question of law of transboundary aquifers, as well as the adoption, at its first reading, of the draft articles relating to the effects of armed conflicts on treaties. As regards the first item, it will be the General Assembly’s responsibility to decide on any follow-up to the project proposed by the Commission. Given the highly technical nature of the topic and underlying scientific questions, which call for in-depth review of the project by Member States, I believe the recommendation made by the I.L.C. should be endorsed. In the first phase, by allowing States the time to test their own implementation of the articles recommended by the I.L.C, and by concluding with the related arrangements, the General Assembly could better assess, during the second phase, the opportunity to draw up a general convention on the law of transboundary aquifers. As regards the draft articles relating to the effects of armed conflicts on treaties, I would like to commend the work completed at its first reading by the Commission, on which France will express its views in a detailed manner with written observations.

Mr. President,

If there is one topic that demonstrates the usefulness of the efforts towards codification, through both the existence of a large body of customary law and the need for legal security, I believe this to be the question of immunity of State officials from foreign criminal jurisdiction. We also welcome the fact that the I.L.C. has started its review.

In this respect, on behalf of my delegation I would like to warmly congratulate Mr. Kolodkin for his preliminary report on the immunity of State officials from foreign criminal jurisdiction. I believe this report satisfactorily defines the scope of the study that the Commission should carry out on this complex and sensitive theme.

In particular, I think several guidelines should be endorsed.

First, I fully subscribe to the Special Rapporteur’s proposal to include all State officials in the scope of the study. Although it is certain that a special section should be devoted to the most senior State officials - and I will return to this matter later on - I believe that the work of the Commission on this theme would be significantly less relevant if it were to be restricted to the review of immunity from criminal jurisdiction of the head of State, head of government and the foreign affairs minister. Furthermore, I share in the Commission’s general view that immunities for members of diplomatic missions and consular posts, State officials in or at international organizations and special members of missions do not fall within the framework of this topic. Lastly, my delegation endorses the Special Rapporteur’s position of not addressing the question of family members of State officials as they do not have immunities in accordance with international customary law.

Second, the subject must be limited to the immunity of State officials from foreign criminal jurisdiction. It is not the Commission’s responsibility to review the question of immunity from jurisdiction of the official in question’s State of nationality, which is exclusively a legal question specific to this given State, no more than that of immunity from international criminal jurisdictions, which have their own rules as regards immunities.

Third, I believe it useful for the Commission to review not only the immunities of serving officials, but also the immunities of officials once they are no longer in office.

In this regard, I would like to emphasize a point that I believe to be critical regarding the relationship between immunity from jurisdiction and universal jurisdiction. Naturally, recent developments as regards universal or quasi-universal jurisdiction might account for one of the reasons explaining the relevancy of the question of immunity of jurisdiction of State officials today. However, this is not the only reason - in the event of offences committed abroad, criminal jurisdictions of a State might be recognized as competent on other grounds, in particular on the grounds of the victim’s nationality. However, I believe it is crucial that there be no confusion between universal jurisdiction and immunity. As the International Court of Justice rightly recalled in the case relating to the Arrest Warrant: "rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction." When the Commission reviews the question of possible exceptions to immunity in international customary law, it will be essential that it does not lose sight of this distinction.

Mr. President, please allow me to briefly address the question of the distinction between immunity ratione personae and immunity ratione materiae. I believe this distinction is key, not only from a standpoint of the basis of immunity which, ultimately, is mainly functional, but also with respect to the extent of immunities that an official might claim, depending upon their rank in the State. In the view of my delegation, this distinction must be upheld and refined. In this respect, it would be advisable for the Commission to examine the criteria for determining which officials could receive immunity ratione personae, especially in light of the judgements of the International Court of Justice.

Lastly, to conclude on this subject, I would like to point out that my delegation is particularly interested in any review that the Commission could carry out on the effect of immunity in the pre-litigation phase and that it would favour the Commission’s inclusion of the question of the inviolability of state officials in the scope of the study, given the close ties between the two concepts.

Mr. President,

I now come to the topic of expulsion of aliens, on which I will just make a few brief observations. I fear that the two questions addressed this year have somewhat drawn the Commission away from the essence of the subject. On the first question, my delegation believes that holding dual or multiple nationalities does not justify being treated differently to other nationals. Consequently, the principle of non-expulsion of nationals must also apply to individuals with one or more other nationalities. A separate draft article on this item is not necessary, as the comments on the current draft article 4 may be able to clarify the issue. In addition, as regards the second issue, I concur with the Special Rapporteur’s conclusion that the question of loss of nationality or denationalization linked with deportation is not grounds for drawing up a specific draft article. In this regard, it would certainly be sufficient to refer to the rules on nationality in the commentaries, while taking into account the fact that questions on loss of nationality or denationalization are arising independently of the possible future deportation of the person concerned.

Extremely meticulous further deliberations on the topic of reservations to treaties prompted the Commission to temporarily adopt a large number of draft guidelines, which will undoubtedly contribute to the exhaustiveness of the future guide of the practice. However, I will not dwell on this issue. Conversely, the Commission expressed the desire to learn States’ perspectives on the legal effects of interpretative declarations and the various reactions arising from them. We are therefore addressing questions which the ILC will have to review in the future part IV of its draft, even though on this occasion, distinction must certainly be made between the effect of interpretative declarations and that of reservations. It appears to me that this distinction should be borne in mind when we examine the reactions to declarations or reservations and their respective effects. We indeed know that the system of reservations, acceptances and objections adheres to the rules of treaty law, whose legal technicality is illustrated by the current work of the ILC. The same is not entirely true with respect to interpretative declarations and reactions to them, which sometimes come under a broader context than the single treaty which they deal with, to address the way in which States interpret their rights and obligations in international law. I would therefore particularly support the Special Rapporteur’s cautiousness when, for the purposes of the current draft, he indicates that he does not want to enter into a study of the general theory of acquiescence. The same should probably be true with respect to the analogy that can be made between approving an interpretative declaration and agreement between parties as regards the interpretation of the treaty, an analogy whose in depth consideration would go far beyond what is necessary for a project on reservations to treaties.

Despite this, classifying different reactions to the interpretative declarations seems completely acceptable to me and, it would appear, includes different hypotheses which can be considered in practice: silence, approval, opposition and redefinition. From the point of view of their effects, these different types of reaction do not, however, raise the same difficulties. With specific regard to silence, I think that an affirmative response can be proffered to the question on whether there are circumstances in which silence in response to an interpretative declaration can be construed as acquiescence. However, the principle selected must of course remain the one that has been highlighted by the Special Rapporteur in his draft guidelines 2.9.8 and 2.9.9, i.e. that acceptance of an interpretative declaration cannot be presumed and cannot be inferred from silence. In the end, everything is a question of circumstances, even particular or exceptional circumstances, in which the silence or the behaviour of a State directly and substantially interested by the detail or clarification added by the interpretative declaration of another contracting State will inevitably be taken into account for the purposes of interpretation of the treaty, e.g. in the event of a dispute between two contracting States. I do not, however, believe that silence, when it does not constitute acquiescence to an interpretative declaration, can be called upon to play a role in the legal effects that the declaration can produce. In any case, the option open to contracting States to clarify or specify the meaning of a treaty or its provisions through such declarations should not be forgotten. Lastly, with regard to the consequences of an interpretative declaration for a State which expressly approves or opposes it, I believe that it should be possible to stick to a general reference to customary rules on the interpretation of treaties. Overall, I feel that reactions to interpretative declarations cannot be straitjacketed in formal or substantive rules. Except in the case of one or several other contracting States redefining an interpretative declaration as a reservation, which shifts the debate to the field of the effects of reservations, I believe that there is a certain inherent flexibility in the system of interpretative declarations and the reactions that they produce, in accordance with the essential role of the intention and interpretation of parties in the life of a treaty.

This leads me to emphasize my delegation’s interest in the Commission’s recent work on treaties over time, particularly the practice and agreements subsequent to the treaties. It could indeed be particularly useful to specify the characteristics of the customary rule on the interpretation of treaties which is codified in article 31, paragraph 3 a and b of the 1969 Vienna Convention. We believe that it is important to accurately identify processes which can bring about change in written international law, particularly with regard to extraneous considerations to the practice or the agreement of parties which are sometimes taken into account for the purposes of progressive interpretation of the treaties.

Mr. President, thank you very much./.

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