DECLARATION OF JUDGE CRAWFORD
Article 4 of the Palermo Convention Article 4 (1) not merely a without prejudice
clause Article 4 (1) imposes an obligation in accordance with its terms Article 4 as a
safeguard against intervention on the territory of another State party Legislative history of
Article 4 of the Palermo Convention Legislative history of Article 2 of the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).
1. In this case, Equatorial Guinea relies on Article 4 of the Palermo Convention to attract the
protection of certain rules of international law. Its principal argument is that Article 4 incorporates
by reference the customary international rules relating to the immunities of States and State
officials, since these derive from the principle of sovereign equality with which Article 4 (1)
requires States parties to comply1.
2. This argument assumes that Article 4 (1) gives legal effect, for the purposes of the
application of the Palermo Convention, to the principles of customary international law to which it
refers, namely sovereign equality, territorial integrity and non-intervention in the domestic affairs
of other States. Strictly speaking, it was not necessary for the Court to decide whether this is so,
since for the reasons given in paragraphs 92-102 of the Judgment, with which I fully agree,
Article 4 does not incorporate the rules relating to the immunities of States and their officials.
Moreover, it was a sufficient ground to reject Equatorial Guinea’s separate argument based on
exclusive jurisdiction to point out that neither Article 6 nor Article 15 of the Palermo Convention
confer exclusive jurisdiction over predicate offences on the State where those offences were
committed (see paragraphs 115-117 of the Judgment).
3. However, it has been suggested that Article 4 (1) is merely a without prejudice clause,
which does not impose an obligation on States parties to the Palermo Convention to act in
conformity with the principles of sovereign equality, territorial integrity and non-intervention in
any event. If this were the case, it would have been a simpler and more direct ground for denying
the Court’s jurisdiction under the Palermo Convention, since it would have undercut the very
assumption on which Equatorial Guinea’s Article 4 arguments were based.
4. The Court has not taken this course, and in my view rightly not. Article 4 (1) on the face
of it imposes an obligation; it is in mandatory language (“shall carry out their obligations”) and the
principles of sovereign equality, territorial integrity and non-intervention are established legal
principles with a determinate content. In this as in other respects, Article 4 is quite unlike Article I
of the Treaty of Amity which was considered in Oil Platforms (Islamic Republic of Iran v.
United States of America, Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 803).
Article I proclaimed “firm and enduring peace and sincere friendship” between the parties. It did
not refer to any specific principles or rules of international law, but was aspirational in character.
5. The Palermo Convention, like the 1988 Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, from which Article 4 (1) was transposed, has as its object to
promote co-operation between States to facilitate effective measures to combat transboundary
1 True, Equatorial Guinea did not actually use the term “incorporation by reference”, resorting instead to
synonyms such as “contained within the principles referred to in Article 4” (CR 2018/3, p. 28, para. 1 (Wood); ibid.,
p. 30, para. 8 (Wood)), or “part and parcel of the principles of sovereign equality and non-intervention” (CR 2018/5,
p. 21, para. 16 (Wood)). It was more an argument of incorporation by inference.
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crime (see Article 1 of the Palermo Convention). However, States parties to the Palermo
Convention were concerned to protect themselves against unwanted extraterritorial action by other
States. This concern was expressed, for example, during a meeting of the Working Group on the
implementation of the Naples Political Declaration and Global Action Plan against Organized
Transnational Crime in April 1998. The Working Group, established by the United Nations
Commission on Crime Prevention and Criminal Justice, discussed a report containing options for a
convention against transnational organized crime, elaborated by the inter-sessional open-ended
intergovernmental group of experts in Warsaw in February 1998. The Commission on Crime
Prevention and Criminal Justice discussed the progress of the Working Group at its Seventh
Session. Relevantly, the Report of that session says:
“Prior to the closing of the meeting . . . [t]he representative of Colombia
stated . . . [t]he purpose of the instrument would be to allow State parties to it to afford
one another international cooperation and mutual legal assistance with full respect of
the principles embodied in the Charter of the United Nations, international law,
national legislation and human rights . . . The representative of Pakistan highlighted
the need for the convention to define the term ‘transnational organized crime’, as well
as to include a list of offences. That representative also maintained that, in order to
ensure its wide acceptability, the convention should take into account the principles of
territorial integrity and sovereignty of States.” (Report on the Seventh Session,
Supplement No. 10, Ann. III, United Nations doc. E/CN.15/1998/11, p. 79; emphasis
added.)
6. In December 1998 an Ad Hoc Committee was established by the General Assembly for
the purpose of elaborating a comprehensive international convention against transnational
organized crime. The record of discussion in the Ad Hoc Committee shows that concern was
expressed for the sovereignty and territorial integrity of States parties in the context of provisions
relating to “special investigative techniques”, “joint teams” to be used in law enforcement
co-operation and the draft Article on jurisdiction. In relation to the draft Article on jurisdiction,
several delegations raised concerns that it could be understood to allow States parties to apply their
domestic laws to the territory of other States, for example, by carrying out investigative measures
abroad. In response, it was pointed out that what became Article 4 (1) “emphasized the principles
of sovereign equality, territorial integrity and non-intervention in the domestic affairs of other
States and that those principles applied also to any exercise of jurisdiction”. The focus was on what
became Article 4 as a safeguard against intervention on the territory of another State, including by
way of extraterritorial jurisdiction. The indications are that what became Article 4 (1) was seen by
delegations involved in the drafting of the Palermo Convention as a necessary balance to the
provisions of the Convention dealing with the effective suppression of transnational organized
crime.
7. Support for this conclusion can also be gleaned from the history of Article 2 (2) of the
1988 Drugs Convention. Forty-two States framed a proposal for what became Article 2 (2)
expressly as a without prejudice clause: “Nothing in this Convention derogates from the principles
of the sovereign equality and territorial integrity of States or that of non-intervention in the
domestic affairs of States.” The United States expressed the view that “[t]he main difficulty . . .
with that text was the prevailingly negative tone of the wording”. The United States proposed an
amendment “with the aim of giving it a more positive mode of expression”. The proposal,
ultimately adopted in Article 2 (2) of the 1988 Drugs Convention, provided that States parties
“shall carry out their obligations” under the present Convention “in a manner consistent with the
principles of sovereign equality and territorial integrity”. The Commentary to the 1988 Drugs
Convention records the suggestion that
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“in addition to including . . . safeguard clauses [in relation to national legal systems
and domestic laws], it would be desirable to devise a separate article of general
application, covering the whole Convention, which would ensure that the obligations
assumed by parties would in no way infringe universally recognized legal principles
such as the sovereign equality and territorial integrity of States” (Commentary,
para. 2.1; emphasis added).
It is one thing to say that treaty provisions are without prejudice to some rule or principle of
international law (and Article 12 (9) of the Palermo Convention does say this). It is quite another to
ensure that that is the case.
8. Article 4 of the Palermo Convention was originally part of the Article relating to the
“Scope of application” of the Convention. It was eventually placed as a separate clause, entitled
“Protection of sovereignty”. Although not decisive, this also suggests that Article 4 (1) is more than
a “without prejudice” clause.
9. The legislative history of Article 4 of the Palermo Convention, and of Article 2 of the
1988 Drugs Convention, tends to confirm the conclusion to be drawn from the actual text of
Article 4 (1), viz., that it imposes an obligation in accordance with its terms.
(Signed) James CRAWFORD.
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Declaration of Judge Crawford