Legal Committee Reviews Right of Parties to Express Reservations on Treaty Provisions, or Make ‘Interpretative Declarations’

28 October 2009
GA/L/3376

Legal Committee Reviews Right of Parties to Express Reservations on Treaty Provisions, or Make ‘Interpretative Declarations’

28 October 2009
General Assembly
GA/L/3376
Department of Public Information • News and Media Division • New York

Sixty-fourth General Assembly

Sixth Committee

17th & 18th Meetings (AM & PM)

Legal Committee Reviews Right of Parties to Express Reservations

on Treaty Provisions, or Make ‘Interpretative Declarations’

Issue Is Among Topics from Law Commission Report; Delegates

Also Discuss Expulsion of Aliens, Responsibility of International Bodies

The Sixth Committee (Legal) today continued its consideration of the report of the International Law Commission report by taking up two new topics, on reservations to treaties and expulsion of aliens, while also hearing the introduction of a draft resolution on criminal accountability of United Nations officials and experts on mission.

The Chairman of the Law Commission introduced the new topics by summarizing the Commission’s consideration of the items during its session earlier this year.

In the debate on the guidelines on reservations to treaties, Singapore’s representative noted that the work was difficult and theoretically challenging.  He said its complexity had much to do with the basic juridical character of international law, since it was rare for a single actor to have the ultimate authority to pronounce on the permissibility of a reservation or interpretative declaration.

Portugal’s representative said there was insufficient State practice in the area and the Commission’s work on the matter was premature.  Further, “reservations” and “interpretative declarations” were two different legal concepts and the Commission’s suggestion to qualify reservations as valid or invalid was both premature and too broad.

Hungary’s delegation, however, pointed out that the draft guidelines would clear up unsolved issues between contracting States.  Their purpose was to identify a set of rules on the most significant matters to make State practices more uniform.  To this end, a balance needed to be developed between the comprehensiveness of the guidelines and the time frame in which to work them out.

On the question of expulsion of aliens, Germany’s representative recalled that migration was a historical fact but modern travel and communication produced an unprecedented number of aliens, including refugees, asylum-seekers, stateless persons and migrant workers.  The right to expulsion needed reconsideration.  The Commission should address the distinction between the right to expel, or oblige an alien to leave the country, versus the right to deport, or enforcing the obligation to leave the country.

Iran’s representative affirmed a State’s inherent right to expel and said such acts needed to be grounded in the principles of general international law.  Thus, an alien being expelled should be provided protective measures based on the international human rights laws which were relevant, applicable and non-derogable.

Warning against creating a hierarchy of rights to be protected, Greece’s representative said a possible reference to restrictions of rights could be considered.  Any work on that should be complemented with the enumerations of conditions under which limitations were permissible. 

Also speaking primarily on those topics were the representatives of Norway (for the Nordic countries), Austria, Belarus, Chile, United Kingdom, France, Poland, Czech Republic, China, Ukraine, Egypt, Mexico, Italy and Romania.

The Special Rapporteur on responsibility of international organizations addressed the Committee as the main part of the debate on that topic was concluded.

Also speaking on that issue were the representatives of Brazil, Ghana, Cuba and Libya.

A representative of the European Commission Legal Service spoke on both clusters of topics considered today.

In addition today, the Law Commission Chairman introduced a further two topics for the Committee’s consideration, those on protection of persons in the event of disasters and on shared natural resources.

Greece’s representative, as coordinator on the draft resolution regarding criminal accountability of United Nations officials and experts on mission, introduced a draft resolution on the matter.

The Committee will next meet at 3:00 p.m. tomorrow, Thursday, 29 October, when consideration of the Commission’s report is expected to resume.

Background

The Sixth Committee (Legal) met today to continue its annual consideration of the work of the International Law Commission, completing its review of an item on “responsibility of organizations” and other matters, and beginning its discussion on “reservations to treaties” and “expulsion of aliens”.  (For background see Press Release GA/L/3374 of 26 October.)

Also before the Committee was a draft resolution on criminal accountability of United Nations officials and experts on mission (document A/C.6/64/L.8).  The draft urged States to take all appropriate measures to ensure that crimes by United Nations officials and experts on mission not go unpunished.  It urged them to establish jurisdiction in their existing domestic criminal law, particularly over crimes of a serious nature committed by their nationals while serving as United Nations personnel, in order to provide, under their domestic law, effective protection for victims of, witnesses to and others who provide information regarding such crimes.  It requests the Secretary-General to report on the issue to the next Assembly session and to include in the report information on the number and types of credible allegations and actions taken by the United Nations and Member States with regard to such crimes, among others

Statements

GUILHERME PATRIOTA ( Brazil) said interaction between members of the International Law Commission and Member States needed to be strengthened.  A larger group of States should be in a position to effectively contribute to the debates, expressing their views and concerns, and being involved directly in the production of international law.

Speaking on the topic of the responsibility of international organizations, he said some of the draft articles may still need further consideration.  The task was to try to fill the gaps, and to anticipate future situations.  On “countermeasures”, he said he supported the more restrictive approach but he was concerned about “a slightly general reference to self-defence”.  In the context of United Nations peacekeeping operations, he added, a reference to self-defence would be necessary in the draft articles on the responsibility of international organizations; however, he would like further clarification to avoid any possible violations of the United Nations Charter. 

He said he sought further clarification also on what seemed to be vague or imprecise terms in the draft articles, such as “serious breach” and “gross or systematic failure”.  The varied nature and evolution of international organizations should be taken into account, since these draft articles needed to be applicable not only to the United Nations, but to a wide range of international organizations as well.

EBENEZER APPREKU ( Ghana) said the Commission should consider the topic of “immunity of State officials” in its next session and try a consolidated approach by thematically grouping topics for consideration.  The lack of responses from Governments on various individual topics may mean the topic was not ripe for codification or progressive development.  The Commission may also wish to develop collaborative relations with the newly-established African Union Commission on International Law, to ensure that regional perspectives of Africa were brought to bear on the Commission’s work.

He said the General Assembly should restore the payment of honorariums to the special rapporteurs, especially to those from developing countries.  Finally, on the Commission’s working methods, he suggested that funding be increased for the work of both the Commission and the Legal Affairs Office, preferably from the regular budget since voluntary contributions were not always dependable.

On the substantive articles he said he would provide written comments later.  For now, he would suggest that the article on “scope” should be clarified, to remove any ambiguities about acts that were internationally wrongful.  The legal status of States and international organizations differed qualitatively and the articles must be cautious in drawing parallels.  The article on “conduct” should clarify the limits of responsibility.  Both the article and the commentary should be reconsidered, in case they were too ambitious.  He said many issues raised in the articles as questions of law could turn out to be questions of fact, or mixed fact and law, this to be determined by tribunals.  That could also be true in relation to consent, situations relating to the precedence of the Charter and questions related to self-defence.

MANUEL DE JESÚS PIREZ (Cuba), underscoring the contributions of the Commission towards the production of international law, said the issue of the responsibility of international organizations was complex.  The relevant draft articles were very general in nature, and required further discussion as to their scope and application. 

On the attribution of particular conduct to an international organization, he said the input of States was required in order to ensure a constructive legal instrument.  International organizations were under the same obligations as States to address and respond to a serious violation committed within the legal framework of their constituent instruments.  He stressed the need to strengthen the interaction between the Commission and States, so that the development of draft articles reflected concerns and interests of States.  In that regard, he pointed out that States should respond to the questionnaires on those topics.

ABDELRAZAG E. GOUIDER (Libya), thanking the Special Rapporteur, said he valued the adoption of the first reading of the 66 draft articles and stressed the need for their practical application still to be relevant to the drafts.  Comments of committee members, and subsequent proposals and comments, would help the Law Commission achieve its aims.

He took note of the work on the draft articles relating to expulsions of aliens and the protection of persons in the event of natural disasters, and also the continuing improvement of the website.  He said he hoped this would continue to be of importance, and of interest to people within the academic and legal fields.

Applauding the international law seminar, he drew attention to the statement in the report about such a seminar for developing countries; and he called for the Commission to take into account the needs of such developing countries in that regard.

He said States should contribute more in order to adopt reservations to treaties and advance the work on the subjects of shared natural resources, in particular gas and oil.  This was of practical significance to several oil States such as Libya.  The actions would have an effect, in particular between his country and other States, especially if there were a discovery of transnational oil.

He expressed hope for the presence of the principles of international law, based on equality, sovereignty, and peaceful settlement of disputes, to be present in these discussions.  He also noted that the subject of immunity of State officials had not been placed on the agenda and he hoped that it would be considered in the next year.  The practical importance of this question internationally, regionally and nationally made it essential to have this discussion and he asked that it be given special priority in the Commission.

PATRICK HETSCH, Director of the European Commission Legal Service, said his organization had a special interest in the subject of responsibility of international organizations.  The draft articles should allow sufficient room for the specificities of a regional integration organization that was internally in an advanced stage of transfer of competences from Member States, and externally was a participant in a large number of international treaties alongside States.  There had to be special rules of attribution and responsibility for situations in which member States were only implementing a binding rule of the organization.  Welcome steps with regard to the current articles included the re-examination of issues in light of earlier comments, and their reflection of jurisprudential developments.

He said he noted improvements in articles relating to the competence and compliance of organizations.  With regard to intention, he said it should be clarified that some basic or general level of intent on the part of the State was required.  Given the diverse nature of international organizations, the Commission had done well to include article 63 on special rules.  In the first place, such a provision was included in the articles on State responsibility and therefore should be covered in relation to international organizations.  Secondly, the rule was necessary because the articles were intended to be of a general character.  And finally, the rule was necessary because the articles were based on limited practice and authority and they should not stunt further development of rules on the matter.

Statement on Responsibility

GIORGIO GAJA, Special Rapporteur on the topic of “responsibility of international organizations”, said he looked forward to receiving views of States on the articles by 1 January 2011, and to a second reading of the articles by the end of the subsequent five years.  Some draft articles may seem theoretical or limited, and the suggestion had been made that they should not be elaborated on issues where there was too little relevant practice.  However, that approach would lead to gaps, and perception of gaps, in the legal framework; for example, article 4 dealing with distress had limited applicability at present, but its applicability in future situations could be broad.

Moreover, he added, the vagueness of some articles was due in part to the nature of law in such an early stage of development, as well as to the lack of international practice.  Ultimately, abstract articles could become more concrete when applied in practice.  While the subject was important enough for the articles to eventually be formulated as an international convention, for the time being the scope of articles on such a complex matter should remain less ambitious.

Introduction: Reservations to Treaties, Expulsion of Aliens

ERNEST PETRIČ (Slovenia), Chairman of the International Law Commission, introduced the second part of the Commission’s report to be considered by the Committee, on the topics “reservations to treaties” and “expulsions of aliens”, respectively.

He said the subject of “reservations to treaties” had been included in the Commission’s programme since 1993.  In the current session, the fourteenth report of the Special Rapporteur addressed the examination of the procedure for the formulation of interpretative declarations, as well as the question of the permissibility of reactions to reservations, of interpretative declarations and of reactions to interpretative declarations.  Seven draft guidelines on issues relating to permissibility were referred to the drafting committee.  By the close of its session this year, the Law Commission had provisionally adopted 32 draft guidelines together with commentaries. 

The Chairman then reviewed the draft guidelines of this topic and described the substantive material within.

On the topic of “expulsion of aliens”, the fifth report of the Special Rapporteur addressed the question of the human rights limitations on the right of expulsion.  Seven draft articles were proposed.  Emphasizing the general obligation of States to respect human rights, the Special Rapporteur suggested a pragmatic approach that focused on the “fundamental” human rights and on the human rights which were required under the specific circumstances of persons being expelled. 

Further, the Special Rapporteur analyzed a number of rights which were considered “inviolable” or “non-derogable”, to be granted to any person subject to expulsion.  The relevant draft articles dealt with the obligation to protect the right to life of persons being expelled; the obligation to protect such persons from torture and cruel, inhuman or degrading treatment; and the specific use of the protection of children being expelled, among others. 

However, the Chairman continued, during the Commission’s debate in the plenary, doubts were expressed regarding the approach taken by the Special Rapporteur.  Several members stated that persons being expelled were entitled to full respect of all their human rights, subject only to those limitations that were allowed under international law.  Others said that the Commission should deal only with those human rights obligations of the expelling State that were closely related to expulsion, such as the conditions and duration of detention prior to expulsion and the legal remedies to be made available.  Still, others said that the draft articles should distinguish more clearly between the conditions to be respected by the expelling State regardless of the situation in the State of destination. 

The Chairman also noted that in response to suggestions that the draft articles be expanded to include procedural rights and the rights to basic medical care, to name a few, there were also views expressed as to the need to have draft articles on specific human rights.  He then reviewed the substantive material within specific draft articles and the comments made on these draft articles.

He noted that in response to some of the concerns raised by members during plenary, on the draft articles dealing with expulsion, the Special Rapporteur presented a revised and restructured version of the draft articles, as well as a new draft work plan on restructuring the draft articles.  The Commission decided to consider the revised draft articles in next year’s session.

Concluding his remarks, he urged Governments to provide information and observations to the Commission on this topic, specifically addressing the conditions and duration of custody or detention of persons who were being expelled, in areas set up for that purpose, and the nature of the relations established between the expelling State and the transit State in cases where the person expelled must pass though a transit.

Statements

BØRGE ALSVIK (Norway), speaking for the Nordic Countries on all topics, thanked the Commission for a comprehensive report, but expressed regret for the financial constraints that did not allow special rapporteurs to be present when relevant parts of the report were being deliberated.

On the topic of reservations to treaties, he called for the finalization of work on this issue and hoped that in the next year the guidelines could be considered as a whole.  He asked that the format of the final document be as user-friendly as possible, and to mitigate the challenge of access to practice.  The aim, he said, was to provide a Guide to Practice to its primary target group, officers in legal departments of foreign ministries.

Turning to the issue of expulsion of aliens, he said that while recognizing its importance, he was not convinced that drawing up a list of rights was the most appropriate approach since all human rights had to be respected, including variations at regional levels.  To that end, he stated it would not be productive to attempt to describe all the applicable requirements in this field.

He said he was pleased with the relevant draft on transboundary aquifers in the item as shared natural resources.  However, the management challenges related to oil and gas reserves were quite different, specifically in the case of transboundary hydrocarbon deposits.  The complex issue of transboundary oil and gas reserves had been successfully addressed in bilateral relations for a number of years and did not seem to be “causing insurmountable problems in practice”.  It might be more productive for the Commission to note the existence of such practice rather than attempt a process of codification or further exploration of these complicated issues.  In fact, it might inadvertently lead to “more complexity and confusion” in an area where through successfully engaged bilateral relationships, transboundary oil and gas reserves were being managed. 

On the issue of the obligation to extradite or prosecute, he said that States and other actors of international law were frequently faced with determining the scope and application of the relevant conventions.  The issue, however, was related to the principle of universal jurisdiction, which ensured there were “no safe havens for those responsible for the most serious crimes.”   He called for further progress on this issue next year based on the input from the Special Rapporteur and the Working Group.

FERDINAND TRAUTTMANSDORFF ( Austria) addressed the issue of reservations to treaties with a review of the guidelines, including those related to written declarations, permissible and impermissible reservations and parties to treaties.  With regard to the guidelines on the legal effect of reservations, before entry into effect of an instrument, he said his country had proposed an approach as early as the 1968 Vienna Conference on the Law of Treaties and preferred it to the current formulation.  In essence, the effect of a reservation should remain undetermined until the relevant organ of an organization was able to express its acceptance.  The guidelines on interpretative declarations should be clarified with regard to terms referring to parties, the inference to be drawn from silence and permissibility.  The guideline on risk of divergent evaluations, for example, should be strengthened on how to deal with disagreements over assessments of permissibility of reservations.

With regard to the 12-month rule time limit while a dispute settlement body could conduct its assessment at any time, he said the requirement for a time limit was necessitated by the need for stable treaty relations.  However, did the time limit imply that a party to the treaty was precluded from invoking impermissibility after that time?  The time limit could be circumvented by bringing the matter before a dispute settlement body at any time, although also at a higher cost.  Further, the competence of treaty monitoring bodies to assess permissibility of reservations had been considered beginning in 1997.  The current approach of separating preliminary conclusions from guidelines was useful since they pursued different objectives.  The guidelines attempted to overcome gaps and clarify regulations.  The preliminary conclusions expressed recommendations on management of reservations, particularly through treaty bodies.

The forthcoming Part IV of the guidelines would undoubtedly be the most important, he said.  It would set out the legal effect of permissible and impermissible reservations, interpretative declarations and objections to reservations.  It should cover not only the validity but also the legal effect of those acts and should be presented next year.

On the subject of expulsion, he said the question of applying human rights in the context of expulsion should be further considered.  The current wording that called for specific human rights to be respected “in particular” raised questions about whether some human rights should be protected over others.  The need to include those draft articles was doubtful, but provisions on concrete procedural rights of persons affected by expulsion should be elaborated.

ANDREI POPKOV ( Belarus) said that guidelines on the reservations to treaties, while contributing to ensuring maximum clarity, also needed to work in practice.  The memorandum on reservations to treaties, in the context of succession of States, as well as the topic of treaties over time, through further practice and application, could facilitate the expansion on reservations.   He also noted that the aim of the draft guidelines was not that they be crafted to be universally binding rules of States, but to establish principles so that international treaties could work more effectively.

He noted that because interpretative declarations were close to reservations, he proposed to expand “the legal regime of reservations upon conditional interpretive declarations”.  In that regard conditional interpretive declarations could be excluded from the draft guidelines.  He commented on the role of depositaries, monitoring and judiciary bodies, saying that although they played an important but supplementary role on the topic, States and international organizations were the central “key actors” in the dialogue on reservations and interpretative declarations.  Furthermore, participation of treaty-monitoring and dispute-settlement bodies could not supersede the sovereignty of States.

CLAUDIO TRONCOSO ( Chile) noted the Law Commission’s activities, as set out in the report, and said the International Law Seminar was a highlight in getting the Commission’s work known.  On the responsibility of international organizations, he said the Commission should clarify, in its second reading of the articles, whether countermeasures may be taken by a member State of an organization, or by an international organization, in situations where the organization’s rules did not expressly or implicitly settle the issue.

Further, he added, the fate of the draft articles in the General Assembly was of concern; ten years had passed since the Assembly had merely taken note of the articles on State responsibility for internationally wrongful acts, and there had been no further progress on that crucial topic.  The draft on the responsibility of international organizations should not suffer the same fate.

He said a speedy decision should be made on the convening of an international conference on State responsibility with a view to adopting a convention on that matter.  The outcome would determine the fate of the articles on the responsibility of international organizations.

On the guideline on reservations to treaties, he said they should be adopted as a Guide to Practice without affecting or modifying the 1969 and 1986 Vienna Conventions on the Law of Treaties.  The guidelines on interpretative declarations should be very specific so as to preclude the making of reservations, disguised as declarations, on instruments that did not allow reservations.  Once the work on the effects of reservations, interpretative declarations and reactions to them was completed, the structure of the guideline should be simplified, shortened and made more approachable.

SUSANNE WASUM-RAINER ( Germany) said that at issue was the role of State practice -- whether or not, and how, to respond to a State’s action on the common responsibility for international law and its development.  The consideration of the effects of reservations, a core issue, had not been completed, and clarification was needed in this regards.  Noting the relevant articles, she said she shared the Commission’s position that it was not clear what the legal effects of an impermissible reservation were.  In her view, in the case of an impermissible reservation, it could not be assumed that the respective State was fully bound by the treaty; furthermore, it was clear to her that the State did not want to be fully bound by the treaty.  By ignoring reservations in practice, the universality of treaties would be jeopardized and it might diminish the readiness of States to even to accede to major treaties.

Because the legal effect of an impermissible reservation had not been clearly regulated in the Vienna Convention, the solution might be found in State practices which followed a procedural approach based on the relevant articles of the Vienna Convention, she continued.  If all contracting parties accepted the reservation, the treaty would come into existence with the amendment effected by the reservation.

If all contracting parties did not accept the reservation, she added, the impermissible reservation had legal effects only for those States which accepted it.  Regarding objections, she said that the rules of the legal effects of reservations and objections applied, and drawing attention to the relevant article of the Vienna Convention on consensus, which provided that an objection by another contracting State to a reservation, did not preclude the entry into force of the treaty between it and the reserving State unless a contrary intention was expressed by the objecting State. 

Turning to the expulsion of aliens, she noted that migration was a historical fact.  However, because of modern changes in travel and communication, there has been an unprecedented rise in the numbers of aliens worldwide, including refugees, asylum-seekers, stateless persons and migrant workers.  Thus, the right to expulsion in the context of State sovereignty required some investigation.  In Germany there was a distinction between the right to expel -– to oblige an alien to leave the country -- and the right to deport -- the enforcement of this obligation to leave the country.  Accordingly, an alien could stay in her country for an indefinite period of time as long as there were legal obstacles such as danger to life or health.  It was in this regard she believed the Commission needed to address the distinction between the right to expel and the right to deport, especially because a State’s discretionary power was limited when the human rights of the person being deported was at stake.

Another aspect of this issue was the need for a common definition of “aliens” as it remained unclear whether the term included people trying to enter a country, being refused admission at the border and then being sent back to their country of origin.  In that regard, the new elements in the Commission’s report regarding human rights were appreciated as States willing to expel an alien would be bound by all international human rights instruments to which they were a party.  Because of the self-sufficiency of these instruments, she urged a more general reference to the inclusion of human rights in the draft articles.  This would, in her view, avoid initiating a discussion on first- and second-class human rights and the false conclusion that a state expelling an alien was not bound by the human rights not explicitly mentioned.

JESSE CLARKE ( United Kingdom) said he was concerned at the use of the word “permissibility” in relation to reservations to treaties.  There were different possible interpretations.  It could be seen as referring to the procedure for formulating reservations, or to the substantive requirements for the reservations or objections to be valid.  It could also be seen as referring to the legal effects produced by reservations or interpretative declarations, together with the reactions to them, such as opposition, approval or “re-characterization”.  The Commission should provide greater clarification.

On competence to assess validity of reservations, he said the wisdom of trying to create a high-level permissive framework was questionable when the matter was best left to the negotiating States to decide on the powers to be assigned to any monitoring team on a case-by-case basis.  Similarly, the legal effects of a monitoring body’s assessment of the validity of reservations should be determined by reference to the functions deriving to the monitoring body under the treaty articles.  The absence of a specific reference to assessment powers of a monitoring body should not be interpreted as permitting a legally-binding role.  A dispute settlement body could adopt legally-binding decisions.

Finally, he said there should be no binding conditions or requirements for States to provide reasons for making interpretative declarations, and those declarations should not be restricted to a time scale.  There should be no predetermined conditions for validity of such statements, beyond not frustrating the object of the treaty.  Similarly, there should be no binding conditions or requirements on a State exercising the right to react to interpretative declarations beyond those not to frustrate the treaty’s intent.

EDWIGE BELLIARD ( France) said that the issues being addressed did not have direct answers.  The questions on the effects of reservations and interpretative declarations, and the reactions they might evoke, needed to be addressed in the Commission’s Guide.  Regarding the responses to reservations, she said, the Special Rapporteur distinguished between the case of objections and that of acceptance. These reactions, she said, could be assessed independently of the validity of the reservations to which they were related, and sometimes the acceptance of an invalid reservation could itself be invalid.

Furthermore, she continued, the modification of the treaty needed to be closely related to the provisions being targeted by that reservation.  On the topic of the expulsion of aliens, she commented that although the proposals seemed too general, she had no doubt that the Commission would address these concerns in the future.

When the Committee met again this afternoon, WŁADYSŁAW CZAPLIŃSKI ( Poland), speaking on the topic of reservations to treaties, said the growing number of guidelines could decrease their practical usefulness, and he called for a balance between comprehensive guidelines and the need to complete the work.  The relevant draft guidelines concerning substantial validity of the objection to reservations was of concern because it authorized objections with an “intermediate effect,” if they fulfilled the requirement of validity.  This seemed to him premature if the specific legal effects of objections had not been analyzed by the Commission.

He agreed with the wording of the relevant proposed draft guideline on conditions of validity applicable to interpretative declarations re-characterized as reservations.  However, this concept of re-characterization of interpretative declarations needed further study, insofar as their legal effects were concerned.  The re-characterization meant a unilateral statement whereby a State treated the declaration formulated by another State as a reservation, he said, and gave the impression that an individual State determined on its own whether the declaration of another State was only an interpretation, or a reservation.  This must be clearly ascertained if such unilateral statements could produce such a legal effect. 

On the issue of expulsion of aliens, he said the concept “fundamental rights” did not have a legal definition; depending on the human rights instrument, it did have a very wide meaning.  Other instruments identified special categories of non-derogable rights without labelling them “fundamental rights.”  Because of its use in national and international instruments, the meaning significantly differed in relation to content and concept.  Further, the concept of “non-discrimination”, and how it should be treated vis-à-vis the “right of expulsion”, was in contradiction with the “rights and freedoms provided for in international human rights law”.  He commended the Special Rapporteur’s decision to restructure the original draft and to reformulate the draft articles.

LIONEL YEE (Singapore) spoke of the difficult and theoretically-challenging nature of the work on reservations to treaties.  Its complexity had much to do with the basic juridical character of international law.  It was rare for a single actor to have the ultimate authority to pronounce on the permissibility of a reservation or interpretative declaration.  Those, in essence, were expressions of State consent.  His delegation would study the guidelines and share its views at the appropriate time.

On the expulsion of aliens, he said progress had been made and should continue.  However, draft article 9 relating to the obligation to protect the right to life suggested that a State that had abolished the death penalty had an automatic obligation to not expel a person subject to a death sentence in a State in which the person could be executed, without first obtaining a guarantee that the death penalty would not be carried out.  There was no such obligation under general international law, he said, and the right to life did not imply prohibition of the death penalty.

He said the text should make a broader and more inclusive term of “human rights” rather than referring to “fundamental rights”.  Attempting to finalize a list of applicable rights would only prompt a long and unproductive discussion about what those rights were.

MATEUS KOWALSKI (Portugal), speaking for MIGUEL DE SERPA SOARES, said that, quality of work notwithstanding, the results of the study on reservations to treaties were far-fetched, bearing in mind that there was insufficient State practice and taking into account the Vienna Conventions on the Law of Treaties.  It was important to note that “reservations” and “interpretative declarations” were two different legal concepts.  “Reservations” had a direct legal effect and “interpretative declaration” related mostly to the question of interpretation, in spite of the associated legal consequences; thus, the Law Commission’s suggestion to qualify reservations as valid or invalid was, in his view, premature and possibly too broad.  He questioned if it was suitable to approach the question of “reservations to treaties” in the context of “succession of states” in the Guide to Practice, and he asserted that the Commission had no mandate to enter into the progress of international law while developing the Guide.

Turning to the topic of expulsion of aliens, he said the study on this should be comprehensive in nature and not limited to a list of specific rights.  Further, on the issue of the death penalty and torture or degrading treatment, he could not find in the report answers to the hypothetical situations of having adequate assurances that the death penalty would not be carried out by the receiving State.  The Commission should provide answers as to whether or not a State could or could not expel an alien under such conditions.  He said it was not clear if the report was addressing expulsion or extradition, and he requested the Commission to offer a clarification on the establishment of these two legal concepts.

MILAN DUFEK ( Czech Republic) said the Law Commission should focus on the effects of reactions to reservations.  The guidelines on permissibility of an explicit acceptance of an impermissible reservation presented problems.  The need for two separate regimes -- one for explicit and another for tacit acceptance -- was unclear.  The Vienna Conventions did not make the distinction.  One way to approach the issue was to not address permissibility of reactions to reservations regardless of whether the reservation was or was not permissible.  Another approach was to consider acceptances of reservations and objections to reservations as applicable only to permissible reservations, or ones that had passed the preliminary objective test of permissibility as set out in the Vienna Conventions.

Similarly, he said he had doubts concerning the guidelines on permissibility of objections with “intermediate-effect” or “extensive” effects.  The use of such objections was scarce, and limited to highly specific contexts.  The creation of special rules for such objections was questionable.  The central issue concerned the effects of objections to reservations; permissibility of objections to reservations should not necessarily be covered by guidelines.  An objection could only exclude application of one or more treaty provisions, or the application of the treaty as a whole in bilateral relations between the authors of the objection and reservation.  Those “de-conventionalized” relations were governed by general international law.

Finally, he said, the topic of the expulsion of aliens should be considered in the context of the broader range of legal literature concerning migration and human rights.  Also to be taken into account would be in-depth studies of case law of international bodies competent to review the observance of human rights by States in the expulsion process.  In that respect, greater use might be made of bodies such as the Human Rights Committee.

LIU ZHENMIN (China) said that although the relevant draft guidelines on interpretative declarations were more harmonized, there were still gaps, specifically a lack of clarity regarding the exceptional cases in which the approval of an interpretative declaration or an opposition thereto may be inferred, and the provisions failing to clarify to what extent silence could be considered relevant in determining tacit acceptance. 

In regard to the assessment of permissibility of reservations, he said the draft guidelines should be clearer on the situation where a reservation was assessed to be impermissible, and that the author of the reservation should be given the option to withdraw the reservation or reject the treaty.  While he encouraged the finalization of the draft, he was concerned that the value of the guidelines, in the absence of State practice as its basis, would be compromised; its texts were too long and its contents were too detailed.  The Commission should take the appropriate actions in addressing these points.

Turning to the topic of expulsion of aliens, he said a balance needed to be found between the right of States to expel aliens and their obligation to respect the human rights of the persons expelled.  Further, regarding the relevant draft article on a fair balance between the interests of the State and those of the person in question, he said it was difficult in practice to measure whether a balance had been achieved, and he expressed doubts on whether or not this draft article was operable.

HOSSEIN PANAHI AZAR (Iran), speaking on reservations to treaties, said the draft guidelines should not go beyond the original goal which was to focus on the reservations and to develop practical guides for applying the relevant provisions of the 1969 Vienna Convention.  He observed that States used interpretative declarations as a way to circumvent certain formal limitations inherent in reservations, which facilitated States’ membership to international treaties.  Introducing detailed guidelines could not only affect the role of interpretative declarations but might also create problems in their practical applicability and the usefulness in providing practical guides when applying relevant provisions of the Vienna Convention.  Further, it was not viable to confuse the distinct legal definitions of “interpretative declaration” and “reservations.”  He stressed that the Commission’s draft guidelines on reservations should not change the regime adopted by the Vienna Convention.

On the topic of expulsion of aliens, he said the right to expel was inherent in State sovereignty.  However, such acts needed also to be grounded in the principles of general international law.  Thus, an alien being expelled should be provided protective measures based on the international human rights laws which were relevant, applicable and non-derogable.  This approach would benefit such persons more than other approaches, such as “fundamental rights”, the content of which were vague and controversial.  However, this protection should not be based on all human rights instruments, as it would make the situation “more confusing.”  Rather, it should be done in the spirit of codification rather than progressive development of international law, so that it be more accessible to Member States.

MARIA TELALIAN ( Greece) said she agreed with the proposal to include guidelines on the form and communication of interpretative declarations in the form of a recommendation.  States should also be required to give their reasons for interpretative declarations.  In relation to the question of permissibility, acceptance of reservations or objections to them did not produce legal effects.  Likewise, the absence of an objection to an impermissible reservation did not imply acceptance, since the relevant article related only to permissible reservations.  The conditions set out on permissible objections with “intermediate effect” were useful in clarifying the issues.

Concerning the criteria for permissibility of an interpretative declaration, she said such declarations were binding only on author States and did not produce any legally binding effects on other States.  The revised guideline on permissibility was acceptable, as there were only a few cases where an interpretative declaration was expressly prohibited by a treaty.  However, it would be useful to have some examples of such treaties.

On the issue of expulsion, she said the establishment of a hierarchy of rights to be protected should be avoided.  A possible reference to restrictions of rights could be considered, and should be complemented with the enumerations of conditions under which limitations were permissible.  Respect for dignity should be included in the preamble.  The principle of non-discrimination did not exclude any differentiation among aliens, provided the latter was based on legitimate grounds.  The example of the European Union was pertinent in that regard, and illustrated the varieties of treatment afforded nationals of member States of the Union.

She said the right to private life should be excluded from the scope of family life since it raised complex issues.  The word “derogate” with regard to rights should be replaced with “limit” or “restrict”.  The most important condition to be fulfilled in regard to permissibility of restriction on the right to family life was the need to strike a fair balance between the interests of expelling States and persons undergoing expulsion.

OLEKSIY SHAPOVAL (Ukraine) said that regulation of the expulsion of aliens needed to comply with international law.  States needed to achieve a “delicate” balance between their national immigration laws and policies, international obligations, concerns of national security and respect for human rights.  When elaborating draft articles he urged the Commission to keep in mind the importance of a State’s respect for the rights of the person being expelled.

It was also important that the national legal regime of expulsion distinguish between legal and illegal, he said.  Persons holding dual or multiple nationalities could not be treated differently from other nationals, and the principle of non-expulsion of nationals should also be applied.  He underscored the sovereignty of the State to expel aliens if such persons committed a crime or an administrative offence, among other acts.  In its future work on this issue, the Commission should clarify and solidify procedural regimes that already existed. 

On the issue of reservations to treaties, he said the Vienna Conventions compromised the core of the contemporary system of the law of treaties, and had laid the foundation for the rules governing reservations.  Regarding the validity of a reservation, he agreed with the relevant draft guideline that dispute-settlement bodies and treaty-implementation monitoring bodies would also rule on the validity of a reservation.  However, he continued, careful consideration should be given to the effects of an inadmissible reservation, in case of its withdrawal or modification by the State; a State should not be permitted to accede to an international treaty and nullify central provisions of the treaty by making reservations.  In his view, reservations were inadmissible and should not influence the legal effect of the treaty.

NAMIRA NABIL NEGM ( Egypt) said that, in regard to expulsion, the sovereign right of an expelling State must be balanced with the human rights of the individual being expelled.  The views of the receiving country must also be taken into consideration.  The Commission’s task was to balance those rights and to help protect them without reinterpreting them.  The Commission must also make sure a political dimension did not enter into its work.  The rights of the expelled individual should be stipulated in the articles, including the right to redress and to legal counsel.  Compensation for unlawful expulsion must also be set out in articles.

She said the articles relating to the right to life, and the obligation of countries that had abolished the death penalty to not expel individuals to countries that still held the penalty as legal, were questionable.  The Commission should act with caution on those articles.  As stated at present, the requirement on States was contrary to the principles of international law.  State practice on questions involving the death penalty should be based on the principle of reciprocity.

ISTVÁN HORVÁTH ( Hungary) said the relevant draft guidelines on the permissibility of reservations to treaties would clear up certain unsolved issues between contracting States.  The purpose of the guidelines was to identify a set of rules on the most significant matters, which would make State practices more uniform.  To this end, a balance needed to be developed between the comprehensiveness of the guidelines and the time frame in which it should work out.

On expulsion of aliens, he said that expelling States should respect all human rights of the person being expelled.  Making a distinction between fundamental rights and human rights, however, seemed controversial and he called for a thorough investigation of the issue.  Turning to the topic of protection of persons in the event of disaster, he said he agreed with regulating the scope and purpose, through the dividing of the relevant articles.  He also supported the exclusion of armed conflict from the concept of disasters, as was suggested by many other delegates.

On the issue of shared natural resources, he said that in 2008 his country had submitted its answers to the questionnaire on oil and gas resources circulated to Governments in 2007.  He did not see any urgent need to put this issue on the agenda. 

Speaking on the obligation of States to extradite or prosecute, he stated his country’s commitment to a holistic approach to crimes on the national and international level.  To this end, Hungary had ratified several international treaties and concluded bilateral agreements.  However, he noted a vagueness in the report regarding the purpose and the scope regarding this issue, and although the Special Rapporteur included input of Member States on their existing obligations and relevant laws, a substantial part of the report was a compilation of national regulations without drawing any conclusions.  He urged that there be a focus on pragmatic issues, such as the different understanding of “being under jurisdiction” and the rights of the “territorial state.”

JOEL HERNANDEZ GARCIA (Mexico), stating that the Law Commission report reflected the accomplishment of the Commission and the Special Rapporteur, turned to the topic of reservations to treaties.  He referred to the re-characterization of an interpretative declaration as a “reservation”, and noted that the legal effect of such a re-characterization was to modify the legal regime of a unilateral declaration between the State declaring and the State receiving the reclassification.

He observed that the Special Rapporteur had indicated that where the interpretative declaration sought to weaken the legal effectiveness of a treaty, then in reality it was not an interpretative declaration but a reservation and it should be addressed as such.  This stance posed practical problems.  Moreover, the re-characterization of an interpretative declaration as a reservation would need to be done by a competent organization.  Unless a contracting State was willing to seek a determination of the validity of its re-characterization, it appeared that it would not have any effect on the validity of the interpretative declaration actually being a reservation.  In addition, after converting an interpretative declaration into a reservation, that reservation might go unnoticed as there was no requirement to communicate the re-characterization to the contracting States.

PAOLO GUIDO SPINELLI ( Italy) said there should be consistency in the guidelines on the legal consequences of making a reservation prohibited by the Vienna Convention on the Law of Treaties because it was considered inconsistent with the object and purpose of the treaty.  The point should be clarified that such a reservation was invalid and could not be validated by the absence of reaction from other contracting parties.  It should be understood that silence in response to an invalid reservation could not be taken as an assumption that the invalid reservation was accepted.  The point should be clear in a future guideline.

He said the Law Commission need not have addressed interpretative declarations in the framework of the current work on reservations to treaties.  Those guidelines were somewhat out of place.  By definition, those declarations could not be considered reservations; their legal effects raised difficult questions on the interpretation of treaties that should be examined in a different context.  It would have been better for the Commission simply to state that interpretative declarations could not be regarded as reservations rather than calling them “conditional interpretative declarations”.

On the matter of expulsions, he said the Commission appeared to have held a lively discussion without reaching a provisional conclusion.  The scope should be restricted to an examination of the rights specifically relevant to the rights of the alien being subjected to expulsion.  The articles should specify which State was responsible for protecting the rights.  In relation to the risk that rights would be infringed by the destination State, it would be useful for the Commission to examine the role played by assurances of the destination State.

COSMIN DINESCU (Romania) said the subject of reactions to treaty reservations was of particular interest.  He thought the structure of the guidelines should eventually be simplified.  With respect to the form and communication of interpretative declarations and reactions to them, the parties involved should be encouraged to submit views in writing.  The question of silence should not be treated too restrictively; rather, it should be made clear that the issue must be determined according to the relevant circumstances of each particular case.

On the expulsion of aliens, he said the report had caused a great deal of discussion, which showed both the controversial nature of the subject and its importance to States.  A distinction should not be made between fundamental rights and other rights.   The emphasis should be on the call for States to respect all rights and for them to carry out all their international obligations.  The treatment of the subject at present could lead to the undesirable effect of creating an hierarchy among human rights instruments.  The twin aims of protecting the sovereign right of States and the individual rights of person must be the simultaneous objection.  The conditions for imposing restriction must be addressed.

PATRICK HETSCH, European Community, said it was clear from the debate that the opinions of Committee members remained legally and politically divergent.  It was not easy to understand the general purpose of the work of the International Law Commission on the subject of expulsion of aliens, and he found the fifth report of the Special Rapporteur problematic.  He doubted if an absolute prohibition on discrimination based on nationality could be part of international law.

He said the European Court of Human Rights recognized the right of State members to grant preferential treatment to nationals of other States.  The Court also recognized these States belonged, in effect, to their own special legal order.  States applied different rules to aliens in their practice of international treaties, such as association and partnership agreements.  In the situation where States were not parties to such agreements there were readmission agreements and/or the implementation of legislations based on European Community treaty rules on visas, asylum, immigration and other policies affecting aliens.  At this stage, therefore, more study and investigation was required, especially regarding the standards and proposed principles, notably the ones that might not reflect State practices in this area.

Introduction: Protection of Persons and Shared Natural Resources

Mr. PETRIC, Chairman of the International Law Commission, introduced two more topics from the Commission’s report:  “protection of persons in the event of disasters” and “shared natural resources”.

He said the Commission had considered the report of the Special Rapporteur on the protection of persons and had taken note of the draft articles articulated by the drafting committee.  Draft article 1 on scope reflected the balance between “rights” and “needs” of those to be protected as “two sides of the same coin”.  The rights and obligations of States with regard to each other had been considered.  The rights and obligations of affected persons would be considered at a later stage.  While support in the Commission had been expressed for a human-rights-based approach, it had been agreed that the concept of a “responsibility to protect” did not extend to protection of persons in context of disasters as it was currently understood.  Also, it was agreed that a strict distinction between natural and man-made disasters did not need to be drawn.

Draft article 2 proposed a definition of disaster, he continued.  Preference in the Commission had been expressed for a traditional view that considered “disaster” to refer to the event itself, rather than in its broader context.  On the proposal to exclude armed conflict from the definition, he said the proposal had been offered to deal with the matter in the context of its scope or a separate “without prejudice” clause.

He said the basic legal duty of States to cooperate with one another had been reaffirmed in draft article 3 as a cornerstone of activities in the area.  The view had also been expressed that international assistance should supplement rather than substitute for the actions of affected States.  The scope of the obligation to cooperate would be further considered, along with re-statement of further principles involved.

On the subject of shared natural resources, he said the Commission had considered the report of the working group on the issue of transboundary oil and gas resources.  Among the aspects considered were the existence of a practical need for work on the matter, the sensitivity of the issues to be addressed, the relationship between that question and those dealing with boundary delimitations, including maritime boundaries, and the difficulty in collecting information relating to practice.  The 2007 questionnaire that had been circulated on the matter was to be re-circulated.  Comments were particularly welcome with regard to whether the Commission should address the topic.

Introduction of the Draft on Criminal Accountability

The representative of Greece introduced the draft resolution on criminal accountability of United Nations officials and experts on mission (document A/C.6/64/L.8).

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For information media • not an official record
For information media. Not an official record.