Mr. Chairman,
In our opinion the management challenges related to groundwater is quite different from those related to oil and gas. The impacts and effects on the environment, as well as the commercial aspects, are quite different. Furthermore, in relation to oil and gas there is a vast array of bilateral agreements and practices regarding unitization already in place. Moreover, the legal context is also quite different, bearing in mind the framework provided by the Law of the Sea and the more specific legal regulations and arrangements in place, nationally and bilaterally. These complicated issues would have to be adequately addressed should further work commence and the exercise would not be a simple one
In our opinion a different approach is called for: The exploitation of oil and gas often requires investments of a certain magnitude. Moreover, there is a duty to cooperate in good faith to promote rational and sound solutions. Often the States on both sides thus have an economic incentive to cooperate and find practical solutions to the benefit of all parties concerned. Otherwise, it might not be economically feasible for either State to exploit the resources. Bilateral agreements can provide for practical solutions that can take into account the specific circumstances of each particular case. In our opinion, this is the best way to address the issue – as more general and broad regulations would not easily provide the specific practical solutions that are needed.
Therefore, bearing in mind the complexity of the topic, the very real and practical possibility that bilateral agreements taking into account the specific circumstances of each particular case would be concluded, and the uncertainty of the added value of the exercise, it is our opinion, that it would be more fruitful for the Commission to accelerate its work on other topics on the Commission’s agenda, rather than to delve into this vast topic. We reserve our judgement as to whether the Commission should further its work on shared natural resources to include oil and gas.
Lastly, Mr. Chairman, I will make a few remarks on the topic of the Obligation to Extradite or Prosecute.
The work on this topic is still at a preliminary stage, but the Nordic countries would like to comment briefly on the three main issues identified by the Commission, namely the source of the obligation, its relation to universal jurisdiction and the content of the alternative obligations to either extradite or prosecute.
As to the possible customary status of the obligation to extradite or prosecute, there are grounds to claim that this can be the case - or that such a development is underway - with regard to crimes such as genocide, crimes against humanity, war crimes, torture and terrorist crimes. It may also be recalled that the Commission concluded in its 1996 Draft Code of Crimes against the Peace and Security of Mankind that genocide, crimes against humanity and war crimes would fall under the obligation aut dedere aut judicare. The importance of the practical commitment of States to ending impunity for these crimes is also reflected in the Rome Statute of the International Criminal Court, which builds on the principle of complementarity.
The anti-terrorist conventions and protocols adopted under the auspices of the United Nations contain an aut dedere aut judicare obligation formulated in a consistent way. They set forth an obligation on the State party in the territory of which the alleged offender is present, if it does not extradite that person, to submit the case to its competent authorities for the purpose of prosecution. UN Security Council resolution 1373 (2001) as well as subsequent resolutions on threats caused by acts of terrorism have also promoted the consolidation of this obligation by urging all States to become parties to the relevant instruments and by expressly stating that terrorist offenders must be brought to justice. Although the obligation to extradite or prosecute is a common feature in modern criminal law conventions, the specific formulations differ, and the clause does not always set forth a clear obligation.
The Commission has presented a number of questions related to how States see the obligation to extradite or to prosecute, asking whether it "is connected to universal jurisdiction". Whether treaty-based or customary, this obligation, like universal jurisdiction, would entail a broad right to States to exercise jurisdiction even where the crime, its perpetrator or the victims do not have a connection to the State. To the extent that aut judicare can be seen to create an absolute obligation to exercise extraterritorial jurisdiction in case the State does not extradite the alleged offender to another State (which is not clear in all the conventions), it must nevertheless be distinguished from universal jurisdiction because of its mandatory nature. As a practical matter, the quasi-universal jurisdiction established by the aut dedere aut judicare obligation may come close to the principle of universality, in particular in jurisdictions that do not recognise the principle of vicarious administration of justice. Moreover, extending the principle of universal jurisdiction to the relevant crimes may often be an effective way to implement the obligation to extradite or prosecute.
As to the content of the clause to extradite or to prosecute, it should be interpreted in the context of each convention separately. Focusing on anti-terrorist conventions and protocols, it is obvious from the recurrent references to the laws of the State, that the obligation to prosecute is subject to prosecutorial discretion in the country. There is thus no obligation to punish (`aut dedere aut punire´) and the obligation is fulfilled by submitting the case to the competent authorities for investigation and possible prosecution. As for extradition as an alternative to prosecution, it will also be implemented within the framework of the judicial system of the State party concerned. As for limitations to extradition, it should be recalled that the clause `extradite or prosecute´, when it was first introduced in the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, was accepted as a compromise designed to reconcile the views of those who advocated an absolute obligation to extradite and those who wished to retain some restrictions to extradition. It should therefore be concluded that any prohibition to apply national law to extradition, such as the prohibition of the political offence exception which is a common feature in recent anti-terrorist instruments, must be clearly expressed in the respective instrument and cannot be deduced from the general nature of the obligation.
Finally, commenting on the "triple alternative", whether or not the Commission will extend its consideration to the surrender to the International Criminal Court, it is clear that States must meet their obligations with respect to international criminal jurisdictions.
This concludes the observations of the Nordic countries.
Thank you Mr. Chairman.