A/HRC/43/55
F.
Articles 10, 11 and 12
85.
The Chair-Rapporteur introduced article 10 by explaining that, while the procedures
and substantive preconditions for accessing mutual legal assistance remained unchanged
from the previous draft, certain modifications had been made to add precision and ensure
consistency with other international instruments. He noted that, beyond the reordering of
clauses, article 11 was substantially the same. Certain improvements had been made to article
12 in line with the Convention on the Elimination of All Forms of Discrimination against
Women and the World Health Organization Framework Convention on Tobacco Control.
Article 12 (6) had been made less prescriptive without undermining the goal of ensuring
compatibility between the legally binding instrument and other instruments, both with respect
to interpretation and implementation.
86.
Several delegations and non-governmental organizations recognized the importance
of articles 10, 11 and 12, particularly articles 10 and 11, for the effective implementation of
the future legally binding instrument. However, there were some calls for the text to be made
more concise and precise.
87.
With respect to article 10, several delegations requested that a clearer distinction be
made between those provisions applicable to civil matters and those applicable to criminal
matters. One delegation also raised administrative matters. It was noted that procedural rules
and legal principles differed, sometimes substantially, depending on the type of proceeding.
Thus, it would aid implementation if the legally binding instrument treated civil and criminal
matters separately. If a future draft were to focus more on criminal matters, some delegations
suggested including language covering extradition. There were several requests for
clarification on how the legally binding instrument should be interpreted and implemented in
relation to other mutual legal assistance treaties, particularly in cases involving States that
were not parties to the legally binding instrument. Some delegations recalled the breadth of
instruments and mechanisms already available to aid mutual legal assistance; there were calls
to avoid duplication and to ensure coherence with other processes. Specifically regarding the
recognition and enforcement of judgments in articles 10 (9) and 10 (10), the proposal was
made that the working group seek guidance from the recently adopted text of the Hague
Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in
Civil or Commercial Matters, as well as the United Nations Convention on International
Settlement Agreements Resulting from Mediation.
88.
Several suggestions were made to amend the text of the many provisions in article 10.
One delegation recommended adding a reference to “international judicial cooperation” in
article 10 (1). Another proposed adding “criminal, civil or administrative” before the word
“proceedings” in the same provision. As for article 10 (3), one delegation proposed removing
article 10 (3) (j) since, in its view, it went beyond traditional mutual legal assistance
principles. Another delegation argued for the provision to remain and to be strengthened,
potentially by borrowing language from the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Some delegations proposed that more
flexibility was needed in article 10 (5), requesting that the word “shall” be replaced with
“may”. One delegation requested clarification as to the meaning and scope of article 10 (8),
and another suggested removing the provision. Some non-governmental organizations
argued that article 10 (10) should be strengthened by removing potential grounds for refusing
recognition and enforcement of foreign judgments. There were calls in particular to remove
article 10 (10) (c). However, some delegations considered that the provision did not provide
enough flexibility to States. One delegation stated it would be unable to support the current
text, and another proposed allowing State authorities to trigger the grounds found in article
10 (10) (c) in addition to defendants.
89.
Several delegations and non-governmental organizations highlighted the importance
of article 11 on international cooperation and called for it to be strengthened. The suggestion
was made that the article include language on technical assistance. At least two delegations
supported a proposal for the creation of a fund to help States with capacity-building.
90.
Several delegations requested clarification as to how article 12, on consistency with
international law, should be interpreted with respect to States that were not parties to the
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