Sixth Committee
2 November 2005
Report of the International Law Commission on the Work of its 57th Session:
Effects of Armed Conflicts on Treaties, Diplomatic Protection, and the Obligation to Extradite or Prosecute
Statement by Georgia Woollett
Adviser
of Australia to the United Nations
(Check against delivery)
Mr Chairman, distinguished members of the International Law Commission,
Australia would like to comment briefly on the effects of armed conflict on treaties. We welcome the initiative being undertaken by the Commission on this topic and appreciate the timely fashion in which the Special Rapporteur has produced the first set of the draft articles for States’ consideration. Australia would like to thank the Special Rapporteur for this significant work, considering that the draft articles put forward represent an extremely useful basis upon which to begin debate.
We would like to make preliminary comments on three particular aspects of the draft articles; namely, draft articles 2, 4 and 7. We strongly agree with the Special Rapporteur’s suggestion that the Commission not attempt to embark upon a comprehensive definition of armed conflict in draft article 2. We also agree that a possible way around this dilemma might be to adopt a simpler formulation, stating the articles applied to armed conflicts whether or not there was a declaration of war.
Draft article 4 adopts the intention of the parties to a treaty as the indicia of its susceptibility to termination or suspension. We share concerns expressed by other States about this criteria. Given that when negotiating treaties States do not usually consider the effect that going to war may have on any given treaty, any relevant intention may be absent or difficult to prove. Australia considers that there is a need to examine the question of intention further, as well as other possible criteria. In particular, it will be important to ensure that any criteria concerning termination or suspension included in the draft articles clearly conform to the Vienna Convention on the Law of Treaties.
Draft article 7 will prove highly controversial given its attempt to outline those categories of treaties which are likely to remain in force during armed conflicts. Australia notes that the list is intended to be illustrative, and not exclusive, in character. Australia looks forward to contributing to debate on the proposed categories of treaties to be included and on relevant state practice.
Mr Chairman
Allow me to mention briefly some other matters. Australia is pleased to note that the Commission has decided that the topic “the obligation to extradite or prosecute (aut dedere aut judicare)” has been included in the Commission’s programme of work. Australia looks forward to the report of the Special Rapporteur, Mr Zdzislaw Galicki, on this principle, which is of critical importance in ensuring effective action against criminal acts. The value of this principle has been highlighted in this Committee’s recent work on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, and its work on the Comprehensive Convention against International Terrorism.
In light of the approaching end of the quinquennium, Australia would welcome the Commission delivering its final report by the end of next year’s session on several subjects, particularly completion of the draft articles and commentaries on diplomatic protection. Australia thanks the Special Rapporteur, Professor Dugard, for his sixth report on diplomatic protection. Australia understands that this item awaits the comments of Governments on the 19 draft articles adopted by the Commission on first reading during its fifty-sixth session. Australia looks forward to the completion of the second reading of the draft articles and commentaries on diplomatic protection, and to their submission to the General Assembly for adoption next year.
Thank you Mr Chairman.