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Diplomacy in Action

21. U.S. remarks at UN 6th Committee (ILC report), extradite or prosecute obligation (November 3, 2006)


United States Statement

61st UNGA Sixth Committee

Report of the International Law Commission on the Work of its 58th Session

Effect of Armed Conflicts on Treaties; The Obligation to Extradite or Prosecute; Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law

Mr. Chairman, I would like to thank the chairman of the Commission, Mr. Guillaume Pambou-Tchivounda, for his introduction of the Commission’s report.

Effect of Armed Conflicts on Treaties

First, I would like to restate my government’s appreciation for the Commission’s substantial contribution to international law through its work in the law of treaties arena. We encourage the Commission’s continuing contribution to international law in this area through its attention to the effects of armed conflicts on treaties.

I must also thank the Commission’s Special Rapporteur, Professor Ian Brownlie, for his second report on this important topic. This report provided a careful and thoughtful account of the complexities that surround this topic.

The Special Rapporteur’s second report specifically highlighted many of the questions that must be carefully studied before this topic may be fully analyzed, including: the scope of the draft articles, the definition of the terms used in the articles, the question of the parties’ intent as to the effect of armed conflict at the time of their conclusion of the treaty, and the problems with attempting to categorize specific treaties to decide the effects of armed conflict on those categories.

My government is encouraged by the great strides the Commission has already made to address these complexities. In general, we feel that it is important to strive for an approach that preserves reasonable continuity of treaty obligations during armed conflict, taking into account particular military necessities. However, we must be careful to avoid rigid rules based on categorizations of treaties or based on an alleged “intent” of the parties, when in most instances the parties will not in fact have had any particular intent about what should happen in the case of armed conflict.

It might be most productive if the Commission could enumerate factors that might lead to the conclusion that a treaty or some of its provisions should continue (or be suspended or terminated) in the event of armed conflict. The identification of such factors would, in many cases, provide useful information and guidance to states on how to proceed.

As the Special Rapporteur rightly noted, there are many questions that need further consideration.

Extradite or Prosecute

With respect to the topic of The Obligation to Extradite or Prosecute, I would like to thank the Commission’s Special Rapporteur, Mr. Zdzislaw Galicki, for his exploratory work on the topic.

As reflected by the discussion in the Report, we recognize that there are a number of threshold issues that need be addressed in deciding whether and in what form to move forward with this topic. These include the extent to which customary international law in the area is sufficiently established to warrant progressive development and codification and whether an extradite or prosecute obligation is recognized outside the context of international conventions. We appreciate the preliminary work on this topic, and the difficult issues raised by the Commission during its discussions on how work on this topic should develop.

We would echo the comments of many other states during the initial consideration on this topic that the Commission’s work should focus on obligations under existing treaties. We also endorse the suggestion that the Commission first begin its work with a study of state practice to ascertain whether there is a basis for any obligation to extradite or prosecute under customary international law.

Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law

Finally, on the topic of Fragementation of International Law, we express our appreciation for the work of the Special Rappartour on this topic, Mr. Martii Koskenniemi, particularly for giving shape to this difficult and complex topic and for guiding it to completion.

We appreciate the discussion of the many of the challenging issues on this topic in its analytical study, and believe that this academic work will certainly stimulate much discussion in the field. We also note the conclusions of the Study Group -- as the Commission refers to them, “guidelines to help thinking about” some of these difficult and complex issues.

We do remain uneasy with the procedures used in dealing with this topic, including the limited ability of governments to provide comments as the topic moved to conclusion. We believe the opportunity for government comment should remain an important element in the Commission’s work. At the same time, we have questions about the statement that the Study Group emphasized that its conclusions had to be read in connection with the much-longer analytical study, including questions related to the fact that the analytical study appears not to be a product of even the Study Group as a whole. That said, we welcome the decision by the Commission to conclude work on this topic with these products, rather than to attempt to develop more proscriptive set of principles or make any statement representative of customary international law. We agree that progressive development in this area would not be fruitful.

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