Statement by Ms. Pham Thi Thu Huong
Representative of Viet Nam
At the Meeting of the Sixth Committee
On Agenda Item 79: Report of the
International Law Commission on the Work of Its Sixty-fourth Session (Part II -
Chapters VI, VII, VIII, IX, X & XI)
First of all, we would like to
thank the International Law Commission for its comprehensive report on the work
of its 64th Session, as well as members of the International Law Commission for
their work and significant contribution to the codification and progressive
development of international law over the past year.
will in this intervention, make general comments and observations on Chapters
VI, VIII, IX, and X of the Report.
of State Officials from foreign criminal jurisdiction
the topic “Immunity of State Official from foreign criminal jurisdiction” in
Chapter VI, we welcome the preliminary report of the Special Rapporteur and her
considerations on methodological, substantive and procedural approaches. Given
the complexity of the topic and its political sensitivities, it is essential
that those aspects must be considered thoroughly and comprehensively before any
further step is taken.
respect to the methodology, even though the topic was a classic topic in
international law, we do not find it compelling to draw a sharp distinction
between codification and progressive development of international law when dealing
with it. They are incorporated into the mandate of the Commission. In the consideration
of the topic, at any stage, the Commission should bear in mind both lex lata and lex ferenda. We believe that the practice of the Commission does
not support such a distinction for the purpose of methodology. It is necessary,
in our view, for the Commission, to take a systemic approach which could ensure
the coherence and consistency in the international legal system and give due
consideration to the respect for sovereignty and the protection of human right
and combat impunity.
As to the scope of the topic, since it is confined to
the issue of immunity of State officials from foreign criminal jurisdiction, we
consider that it would be inappropriate to address, in this context, the issue
of immunity from civil jurisdiction though the differentiation between immunity
from civil and criminal jurisdictions should be kept in mind, as well as the
question of jurisdiction, including the extent to which universal jurisdiction
may bear on this topic.
regards the question of immunity ratione
personae and immunity ratione
materiae, we are of the view that the emphasis needs to be put on functional
base. Immunity ratione personae
attaches to the status of a person while immunity ratione materiae attributes to the acts he performs on behalf of a
State. For this reason, in order to identify the persons covered by immunity ratione personae, it would be
appropriate to take a careful consideration of his status and role, not only in
regular but also in special circumstances. The list of the beneficiaries of
immunity ratione personae, in this
connection, could be open. In determining the scope of official acts subject to
immunity ratione materiae, which in
our view is necessary, the official acts of a State which enjoy immunity should
be taken in to account.
these substantive issues require further research and examination. In this
regard, we support the plan of the Special Rapporteur to proceed on the basis
of a thorough review of the State practice, doctrine and jurisprudence, both
national and international levels as well as her intention to submit draft
articles on this topic in her next report.
2. Formation and evidence of customary
With regard to the Chapter VIII on the formation and
evidence of customary international law, we welcome the Commission’s study of
this topic which would make a contribution to the clarification and
implementation of the rules of law in international affairs and we would like
to thank its Special Rapporteur,
Sir Michael Wood, for his note on fundamental questions which are useful to initiate
debate, setting out the road map for the future work on this topic.
As to the scope of the topic, we
agree with the Special Rapporteur that the topic should cover the formation and
evidence of customary law in various fields of international law. The
clarification of the process of formation and the identification of customary
international law are of great theoretical and practical importance for its
acceptance and implementation by States. We also share the view with the
Special Rapporteur and other members of the Commission that a general study of jus cogens should not be included within
the scope of this topic. Though customary international law may have some jus cogens norms, it is not necessary to
deal with this issue as it does not really link to formation of customary law.
Concerning the points that may be
covered in this topic by the Commission,
we support the suggestion that the topic should focus
on an analysis of the elements of state practice and opinio juris, including their characterization, their relevant
weight and their possible manifestations in relation to the formation and
identification of customary international law. These elements play a key role
in formation and identification of
customary law and would help to clarify this process. In addition, the
relationship between custom and treaties, including its implications on the formation
of custom should also be considered and paid much attention.
In connection with the form of
outcome of the Commission‘s work on this topic, we are in favor of the Special
Rapporteur’s proposal on development of a tool possibly in the form of guidelines
with commentaries. We believe that such a tool would be helpful for states in
the interpretation and application of public international law.
3. The obligation to extradite or prosecute
Turning to the Chapter
IX on the obligation to extradite or prosecute, we would like to state that the
Judgment made by the ICJ on Questions relating to the Obligation to Extradite
or Prosecute in the case between Belgium and Senegal on 20 July 2012 confirms
the established role of this obligation in the fight against impunity and
implementation of international justice.
In this regard, even
though we concur with the views expressed in the Commission that an attempt to
harmonize different multilateral
treaty regimes on the obligation to extradite or prosecute is less than
meaningful exercise, we still believe that further consideration of the topic would
be useful for the interpretation and implementation of the existing treaties on
the subject. We agree with some members of the Commission that the absence of a
determination on the customary law nature of the obligation would not pose
insurmountable obstacle in the further consideration of the topic since the
Commission’s mandate is both codification and progressive development of
would like to recommend the Commission, before taking any decision on whether
and how to proceed with the topic, to review the general background of the work
and study the Judgement of the ICJ in the case between Belgium and Senegal on 20 July 2012. The proposed general framework
prepared by the Working Group in 2009 should also be taken in to consideration.
With respect to Chapter X on Treaties over time, we
would like to welcome the decision of the Commission to change the format of
the work as recommended by the Study Group and to appoint Mr. Georg Nolte as Special
Rapporteur for the topic “Subsequent agreements and subsequent practice in
relation to the interpretation of treaties”. The new format would enable the
Commission to focus on the outcome of the work.
In view of this change, the
main focus of this topic would be on Article 31 paragraph 3 (a) and (b) of the
Vienna Convention on the Law of Treaties, namely the legal significance of
subsequent agreements and subsequent practice for interpretation of treaties.
This issue, in our view, needs to be clarified to avoid any conflict that may
arise from interpretation of treaties.
We support the plan suggested by the Chairman of the
Study Group on how to proceed with the work on this topic. His preliminary
conclusions which are based on judicial decisions practice of States raise some
key issues for further consideration and deserve attention. We encourage the
Chairman to continue his work in the same manner and look forward to his first report
as Special Rapporteur of the topic.
In conclusion, we would like once
again to thank the Commission and its Special Rapporteurs for their hard work
during sixty-forth session. We will continue to extend our full support to the
work of the Commission and wish it further success in the future.