Law Commission Official Responds to Legal Committee Comments on Issue of ‘Treaty Reservations’, Defending Time to Complete Draft Articles

27 October 2010
GA/L/3401

Law Commission Official Responds to Legal Committee Comments on Issue of ‘Treaty Reservations’, Defending Time to Complete Draft Articles

27 October 2010
General Assembly
GA/L/3401
Department of Public Information • News and Media Division • New York

Sixty-fifth General Assembly

Sixth Committee

21st & 22nd Meetings (AM & PM)


Law Commission Official Responds to Legal Committee Comments on Issue

 

Of ‘Treaty Reservations’, Defending Time to Complete Draft Articles

 


Special Rapporteur, Noting Benefit of ‘Perspective’ over 16-Year Period,

Tells Delegates of Final Year Ahead, Working on ‘Horrible but Complex’ Topic


As the Sixth Committee (Legal) continued its consideration of the report of the International Law Commission today, the Special Rapporteur responded to comments by delegates on the draft articles and the Guide to Practice on the question of “reservations to treaties”.  The Committee then took up further items from the Law Commission report.


At the end of the Committee’s discussion on reservations to treaties, Alain Pellet, Special Rapporteur, said that while he appreciated many useful comments, he was disappointed by the formal nature of the debate.  The focus should have been on principles with the aim of achieving the best solution or the least bad solution.


To a delegate who had noted the length of time taken to complete the draft article, he took full responsibility for the 16 years of drafting the articles and Guide.  However, he stressed that the work could not have been accomplished in a few years; an unexpected benefit to such a long process had been the opportunity to develop perspective, and to take consultations with experts and human rights bodies when seeking solutions to difficult problems.  This, he believed, contributed to a balance in doctrine, ideological and political stances.


His comments addressed concerns by representatives of Greece, Nigeria, and Norway, among other Member States, that the Guide was not “user-friendly” enough.  The Special Rapporteur pointed out that the subject was incredibly complicated, and that presentation and design could facilitate the utilization of the Guide.  The draft was an instruction to “guide practice, not to impose practice”, he said, and it was not obligatory or binding.  He assured delegates he would do his best to reflect all their comments, written and oral, in his next year’s report, which was his final year of working on what he called “this horrible but complex” issue.


In the general discussion, the representative of Hungary, speaking on all issues of the Commission’s report, said it was regrettable that no progress had been made on “immunity of State officials” or on the “obligation to extradite or prosecute”.  He also urged that work on “treaties over time” enter the second phase of consideration; rapid technological development and changes in national law could serve as examples of how treaties were impacted over time.


On the question of gas and oil transboundary issues, the delegate of Libya said it was of great importance to his country, and he urged the Law Commission to address it, so that applicable guidelines could be developed.


Also speaking on these issues were the representatives of Poland, Cuba, South Africa, Spain, Malaysia, Singapore, Viet Nam and Argentina.


The Committee then took up a new set of topics from the International Law Commission report — expulsion of aliens, effects of armed conflicts on treaties, and the protection of persons in the event of disasters.  The Chairperson of the International Law Commission, Nugroho Wisnumurti ( Indonesia), introduced the new items.


Finland’s delegate, speaking for the Nordic Group, said a State’s inherent right to expel aliens needed to be exercised in accordance with international law.  She also said the scope of the draft articles on the effects of armed conflicts on treaties should apply to the effects of internal armed conflict, but not to situations involving international organizations since they could not become party to armed conflicts.


Addressing the topic of the expulsion of aliens, the representative of Mexico called for further consideration on the distinction between legal resident aliens and those with irregular status to avoid “falling into discriminatory situations”.  He also stated that the mention of terrorism and any other international crime was not necessary or pertinent, as the right of expulsion should not be interpreted as a defence of the obligation of States to prosecute or extradite.


Also speaking on these subjects were the representatives of Switzerland, Greece and China.


The Chair noted that several members of the International Law Commission were present.  She urged delegations to take advantage of their presence and undertake bilateral discussions.


Also today the sudden passing of Néstor Kirchner, former President of Argentina, was marked by a moment of silence at the request of the delegate of Chile for the Rio Group, which was acknowledged by the representative of Argentina.


Further, the Chair offered condolences to the Chairperson of the Commission for the recent tsunami and volcanic eruptions in his country.


The Committee will next meet at 3 p.m. tomorrow (Thursday, 28 October) to resume consideration of items in the Law Commission’s report.


Background


The Sixth Committee (Legal) met today to continue its annual consideration of work of the International Law Commission, completing its review of the “First Cluster” of issues, including introductory chapters I-III, chapter IV on “reservations to treaties” and chapter XIII on “other decisions of the Commission”, and beginning its consideration of the “Second Cluster” of issues, including chapter V on “expulsion of aliens”, chapter VI on “effects of armed conflicts on treaties” and chapter VII on “protection of persons in the event of disasters”.  (For background on the report and themes, see Press Release GA/L/3399 of 25 October.)


Statements on Reservations to Treaties


RYSZARD SARKOWICZ ( Poland) commended the Law Commission for the significant progress it made in this year’s session, noting that there was a good chance to complete work on many topics on its agenda, and to develop others in a productive way.  He applauded the second reading of the draft articles on the “effects of armed conflicts on treaties” and the progress on “protection of persons in the event of disasters”.  He commended the activities of numerous working groups and drafting committees, and said the study groups on “treaties over time” and “most-favoured-nation clause” seemed to be useful and effective.


On “reservations to treaties”, he said the invalidity of a reservation did not depend on the reactions of the other contracting parties.  As for the possibility of permitting an impermissible reservation, by the acceptance of the other contracting State or contracting organization, he said he supported the position of the Commission and the Special Rapporteur that the relevant guidelines should be included in the Guide to Practice because it was “a question of identifying not the effect of acceptance of an impermissible reservation, but rather the effect of acceptance on the permissibility of the reservation itself”.  That an impermissible reservation could become permissible by reason of the unanimous absence of objection by contracting States or organizations, should be formulated more precisely.


LESTER DELGADO SÁNCHEZ ( Cuba) said the Commission provided an invaluable contribution to the development of international law and all its work was important, including its research work.  The report reflected the wide range of topics, and the listing of specific questions on which more information was requested was helpful to States in strengthening their relationships with the Commission.  The guidelines on objections to treaties were a significant accomplishment in the complex area of States entering treaties.  The guidelines also contained novel elements on the effects and application of treaties in the case of State succession.  It should be noted, however, that rules on reservations to treaties should in no way infringe on fundamental principles such as that of State sovereignty.  Further, the guidelines must not change the substance of the Vienna Convention regime.


THEMBILE JOYINI ( South Africa) welcomed the provisional adoption of the complete guide to practice on reservations to treaties.  The draft guidelines were mostly faithful to the provisions and spirit of the Vienna Convention on the Law of Treaties, and South Africa agreed with the Law Commission that a reservation “established” within the draft guideline produced all the effects purported by its author.  But modifying or excluding the legal effect of one or more provisions of the treaty was not the only result of the establishment of the reservation; it also made the author of the reservation a contracting party to the treaty.  A reservation formulated in spite of a prohibition arising from provisions of the treaty, or in spite of its incompatibility with the object and purpose of the treaty, was null and void.  There was no need to distinguish between the consequences of the grounds for invalidity.


He said the question therefore was as follows:  Did a ratification made with the null and void reservation still stand, or did the entire treaty apply to the State concerned?  South Africa’s view was the treaty should apply in its entirety, including the provisions for which the State made the invalid reservation.  Furthermore, there must be distinction between the invalid reservation made by the State, and the conduct of the State relying on this invalid reservation.  He said States should be careful when drafting and making reservations to treaties, and provide clarity of their intentions and the legal obligations that bound them.


ESCARLATA BAZA (Spain), speaking for ESCOBAR HERNANDEZ, Minister of Foreign Affairs and Cooperation, commended the significant progress of the Commission, in particular with the provisional adoption of the Guide to Practice, and also on the topics of “effects of armed conflicts on treaties” and “protection of persons in the event of disasters”.  However, she expressed concern on the slow pace of work regarding “immunity of State officials”, especially during a time when this issue had been manifested in practice.  Progress on this, as well as on the topic of “obligation to prosecute or extradite”, should be among the central objectives in future Commission work.  This would strengthen the rule of law on an international platform.  She also welcomed the structured approach on the topic “peaceful settlement of disputes” and looked forward to the Commission’s work during its next session.


Turning to the topic of “reservations to treaties”, she thanked the Special Rapporteur for his reports and his work, noting that the issue had been considered for more than 15 years.  She said the draft Guide to Practice gave rise to some questions, and referred to the relevant articles on an established reservation and the consequences of an invalid reservation.  She expressed concern about the term “established reservation” which had been changed from “reservation that is effective”; the use of the word “established” was not necessary and was controversial, since it was based on a literal interpretation in English and French, and was not equivalent in legal language, Spanish or common language.  She urged the Commission to continue its consideration regarding terminology, stating that the change altered the meaning, and resulted in the article not abiding by the Vienna Convention of 1969.


HELINA SULAIMAN ( Malaysia) said the “crystallizing” draft articles already showed promise as a useful guide to States in the formulation of reservations to treaties.  On the issue of permissibility of reactions to reservations, permissibility of an interpretative declaration and permissibility of reactions to interpretative declarations, she said the relevant guidelines needed to be taken together, as they seemed intended to give legal effect to reservations through the test of permissibility of an acceptance or an objection.  She was concerned that if that was the intention, the sovereign rights of States in expressing their opinion would be curtailed, and she called for further clarification.


She also stated that reactions to interpretative declarations should not be subjected to conditions for permissibility, since States should be able to maintain their freedom to express their views.  Interpretative declarations should be viewed as agreements between States exclusively in their relation to each other, regardless of whether or not interpretative declarations were prohibited.  She also called for the entire draft guidelines, which were interrelated, to be read in their entirety to ensure that all concerns had been addressed as a whole.  To that end, she said her country reserved the right to make further statements once the draft guidelines had been formulated and completed.  A universally acceptable set of draft guidelines could be developed by the International Law Commission only if States provided comments and practical examples of the effects of the draft guidelines to State practice.


DAREN TANG (Singapore) said his delegation had concerns about the draft guideline on the status of the author of an invalid reservation in relation to a treaty, the Commission’s proposed solution to what must be one of the most controversial issues in that area.  Stating that in many ways this draft guideline represented the culmination of the “Commission’s sixteen-year enterprise”, he said the guideline and its commentary must be carefully studied.  It provided for a “positive presumption” on the “severability” of an invalid reservation; the author of the invalid reservation was presumed to be bound by the treaty without the benefit of the reservation unless the author’s contrary intention could be identified.  He said Singapore had taken some time to study the Commission’s reasons for using “positive presumption”, but did not think its solution was the right one.


He said he agreed with the Commission that the key to the problem was “the will of the author of the reservation”.  Various competing considerations were to be weighed, but the inclusion of a reservation and its terms were an inextricable part of any Government’s decision to participate and, unless there was any indication otherwise, was part and parcel its expressed consent to be bound.  Singapore’s delegation was therefore of the view that the right approach was to use “negative presumption” in the draft guideline.  It was better that the consequence of an invalid reservation was that its author was not bound by the treaty.


SAMIR GOUIDER ( Libya) said he valued the progress made by the Commission with the tentative adoption of the draft articles on reservations to treaties and the Guide to Practice.  The important observations being made on this would enrich the Commission’s work, and his delegation would be examining the materials and submitting their comments in writing by the deadline next year.  He also commended the re-establishment of study groups on certain topics such as the “obligation to extradite or prosecute” and “treaties over time”, among others. 


He said he hoped the Commission’s website would be improved and that more workshops would be held, and he regretted that the Commission had not dealt with the topic of “immunity of State officials from foreign criminal jurisdiction”.  This was of great importance and had immediate significance in the area of international criminal jurisdiction. 


On the topic of gas and oil transboundary issues, he said this should have been considered further, as proposed by the African Union last year.  This issue was of great importance to his country, as it pertained to its location and development.  The Law Commission should address this so that from the existing and accumulative concerns applicable guidelines could be developed.


ISTVÁN HORVÁTH ( Hungary) said the provisional adoption of the draft guidelines was welcome, but it was regrettable that no progress had been made on the important issues of the “immunity of State officials” or on the “obligation to extradite or prosecute”.  Codification work on gas and oil under the umbrella of “shared natural resources” should not be proceeded with.  Also, issues that have been on the agenda for too long should be finalized, so that new topics could be taken up.


He said he fully supported the Commission’s work on the important matter of objections to treaties, which would help harmonize the law in the area.  However, the voluminous length of the text presented the concern that States would find it difficult to use.  The Commission should make a serious effort to streamline the text.  The guidelines on effects of an established reservation and on consequences of an invalid reservation need some strengthening of the language.  This section of the guide used many examples of courts established by regional treaties.  His delegation was of the view that referring to international tribunals dealing with human rights issues could be misleading since human rights formed a unique part of the international legal system and their specifics did not necessarily apply to other types of international treaties.


On other chapters of the report, he said the Commission should note recent events in Europe in its consideration of “expulsion of aliens”, keeping in mind that the issue was topical but also sensitive, and some elements of it fell predominantly under domestic legislation.  The political nature of the question also raised doubts about whether work on the matter should continue.  Nevertheless, in the drafting process, it must be taken into consideration that some specific issues had already been regulated by human rights conventions or already existing customary law.


He said the referral to the drafting committee of the articles and annexes on the “effects of armed conflicts on treaties” was a welcome development.  The scope of covering non-international armed conflicts was appropriate; the expression “organized armed groups” was too broad since even armed criminal groups could be considered as included.  The articles on “protection of persons in disasters” should explicitly mention non-discrimination and perhaps avoid the principle of “dignity” having additional meaning beyond human rights.


Finally, he said work on “treaties over time” should enter the second phase through an analysis of relevant jurisprudence.  The “Gabčíkovo-Nagymaros” case involving his country was relevant to the concept of “subsequent agreements” or “subsequent practice”.  Rapid technological development and changes in national law for the purpose of clarification could serve as examples of how treaties were impacted over time.


MARIA TELALIAN ( Greece) said the guidelines with commentaries constituted the Guide to Practice on reservations to treaties, and they would be of great practical value for States, practitioners and the body of international jurisprudence.  The text of the draft guidelines on the legal effects and consequences of impermissible reservations on treaty relations was a commendable effort towards the clarification of core issues on the matter.  They also filled gaps in the 1969 Vienna Convention on International Treaties.


She reviewed the guidelines, point by point, beginning with the section on the effects of an established reservation and made the point, among others, that the requirements for the establishment of a reservation should be explicitly stated.  The guidelines also clarified aspects of the principle of reciprocal application of a reservation as between the reserving State and those accepting the reservation.  The reference was of particular practical relevance in situations where reciprocal application was not possible because of the content of the reservation, in which case by the current text the reserving State would be in a more advantageous position than the other contracting States.


On the question of the consequences of invalid reservations, she said the lack of clarity in the Vienna Conventions had led to divergent State practice and the emergence of opposing doctrines.  The draft was balanced and was supported by recent State practice and regional jurisprudence, particularly in relation to treaties of a non-reciprocal nature, such as human rights or environmental law treaties.  The practice of keeping the treaty operative for the reserving State was aimed mainly at preserving the integrity of the treaty to benefit the persons under the reserving State’s jurisdiction.


ABDULLAHI AHMED YOLA (Nigeria) said that while it was regrettable that the Law Commission had not considered the issue of the “immunity of State officials”, the compilation of relevant conventions related to the “obligation to extradite or prosecute” was welcome as a useful referral tool that would assist States in strengthening the rule of law while also promoting a rules-based international order.  More work should be undertaken on the item.  Special Rapporteurs on all matters needed to receive more assistance than currently provided.


On “reservations to treaties”, he said he welcomed the guidelines but recommended a review of their “user-friendliness”.  Terms should be clearly defined to promote consistency and clear distinctions should be established between terms such as an “impermissible” and an “invalid” reservation.  It should be kept in mind that reservations allowed States to enter into treaties that had provisions that were incompatible with national legislation.  To infer that a reserving State was bound by a treaty but without the benefit of the reservation was a violation of the fundamental principle of State consent to treaty obligations.  


PHAN DUY HAO ( Viet Nam) said the Commission’s report showed progress on a wide range of topics.  To increase its effectiveness, the Commission should focus on topics that urgently needed its attention and priority.


On “reservations to treaties”, he said he would provide further commentary later; for now, two points merited mention.  First, the intention of the Guide was to serve as a guideline for State practice.  The guidelines were not intended to modify currently accepted rules or create new norms on treaty law, particularly the 1969 Vienna Convention.  Second, the consent to be bound by a treaty was the most important requirement by which a treaty created legal rights and obligations.  The guideline related to the status of the author of an invalid reservation needed further discussion.


ROLF EINAR FIFE ( Norway) said his views had been expressed in the context of the statement by the Nordic Group of countries, but he had been prompted to speak again because of the criticisms that had been expressed on the guidelines, amid the more numerous expressions of appreciation.  The criticism had focused on one question:  Would the guidelines prove useful to States and international organizations?


“The answer was a clear yes,” he said.  There were gaps in the regime of the Vienna Conventions and the guidelines clearly filled those gaps.  At the same time, they stayed true to the spirit of the Vienna Conventions and offered guidance in line with their provisions.  As noted by Spain and others, the result was clarifying and could help States in formulating and entering objections to treaties.  As Greece had said, the guidelines would be of practical use to States. 


HOLGER FEDERICO MARTINSEN ( Argentina) commended the Commission for taking up issues that were in the interest of the codification of international law.  He was glad to see work being done on the dispute clause and on immunity of State officials and he welcomed the continuation of the international law seminars which made it possible for young practitioners and those from developing countries to follow the Commission’s work.  He supported the appeal made to Member States for voluntary contributions so that seminars could have the “broadest participation”.  Commending the work done on the Guide and draft articles which helped clarify the legal regime in the area of reservations to treaties, he said this was a milestone in the “systematizing” of State practice, in particular with regard to the objection to reservations, the subject of reservations, the purpose of reservations, and the succession of States in regard to reservations.


In his country’s submission for the completion of guidelines, the issue of the invalidity of a reservation would be addressed.  He noted that this could be settled only with the creation of a judicial or monitoring body.  As this was only on an exceptional basis, it was important to evaluate the legal situation while validity was being disputed.  He also supported comments that the final version of the Guide needed to be a user-friendly document.  In conclusion, he thanked the Special Rapporteur for his efforts and urged the Commission to conclude this topic, taking into account the comments already made or that the Commission would be receiving from Member States. 


He then expressed appreciation for the condolences offered to his country on the untimely death of former Argentine President Néstor Kirchner.


ALAIN PELLET, Special Rapporteur, said that he had mixed feelings about the discussion on “reservations to treaties”.  While he appreciated many comments made that were useful to the topic, he was disappointed and struck by the formal nature of the debate on the Commission’s report.  Rather than getting matters “sorted out”, he noted that matters had instead worsened.  He commented that the meeting had been “too busy and with too much on the agenda”.


He stated interesting points had been made about reservations to treaties, but they would have been more useful in writing.  The Special Rapporteurs took feedback from States very seriously.  Furthermore, he went on, the focus should be on principles with the aim of achieving the best solution or the least bad solution.


On the point that it took 16 years to compose the comprehensive version, he said he recognized it was far too long but he had not initially measured the task or the complexity of the subject.  However, he continued, this work could not have been done in a few years.  The work being stretched over time had enabled perspective to occur, and for consultations with experts and human rights bodies to be taken, in order to find solutions to difficult problems.  This contributed to finding a good balance in doctrine and in ideological and political stances.


He spoke of the reference to the Guide to Practice as a purely academic study, ill-informed on State practice.  He asked that he be provided with information on this, because he had to collate the practice of all Member States into his drafts.  States that had experienced “succession” had not made such criticism; instead they offered approval and made proposals that were useful.  Other criticism had pointed to the Guide being too complicated, asking that the final product be easier to read and more user-friendly.  He said he did not agree; the subject was incredibly complicated and the Commission and he tried to address every issue in a coherent way.  He said the presentation could facilitate the ease of using the Guide, with the design of the index, summaries and font size that would distinguish commentary.  The Guide had progressive development provisions and it contained recommendations.  The goal had been to “disperse ambiguity”.  The guidelines had been broadly welcomed.


He told the Committee he would review and take into consideration all comments, including those made on the divergence from the Vienna Conventions.  He said that in his view, the concerns on non-valid reservations seemed to be more of an issue to English speakers than French speakers.  He would make some proposals in that regard.


On the issue of “positive presumption” which had been raised, he said there were no customary rules in this area.  State practice existed but was not limited to the ruling of the European Union Court on Human Rights.


He was well aware that the Commission was asking a great deal of States to agree upon a final draft, but he emphasized this was not a draft convention.  It was just an instruction to “guide practice, not to impose practice”.  The draft was not obligatory or binding.  He assured the delegates that the comments sent by Member States by the 2011 deadline would be considered, noting that it would be difficult for comments received after that date to be taken into account.  However, he had made notes on this meeting and other meetings and he would do his best to reflect all comments, either general or detailed, so that all would be reflected in his next year’s report, which was his last year of working on “this horrible but complex” issue. 


New Topics:  Expulsion of Aliens, Armed Conflicts, Disaster Protection


The Sixth Committee moved on to a new set of topics from the report of the International Law Commission.  They were introduced by NUGROHO WISNUMURTI ( Indonesia), Chairperson of the Commission, and contained in the second part of the Commission’s report to be considered by the Committee.  The topics are as follows:  “expulsion of aliens”, “effects of armed conflicts on treaties” and “protection of persons in the event of disasters”.  He reviewed the draft guidelines and the substantive materials within each topic.


On the topic of “expulsion of aliens”, he said the Commission had reviewed a set of draft articles on the protection of the human rights of persons who had been or were being expelled, which had been revised and restructured by the Special Rapporteur.  Also considered by the Commission was a new draft workplan presented by the Special Rapporteur with a view to structuring the whole set of draft articles on the subject, as well as the Special Rapporteur’s sixth report.


He said the revised draft articles had been restructured into four sections.  During the Commission’s debate, although several members supported the revised draft articles, a “call for caution” was made regarding the level of protection in the draft articles; the Commission’s task was to set forth principles of general international law.  The Commission then referred the revised draft articles to the drafting committee.


The Commission, he said, then reviewed the sixth report of the Special Rapporteur, and revisited briefly the issue of collective expulsions in situations of armed conflicts.  The sixth report also addressed questions of extradition disguised as expulsion, and the grounds for expulsion.  All the draft articles on expulsion of aliens that the Commission had referred to the drafting committee remained for the time being with that Committee.  


On the topic of “effects of armed conflicts on treaties”, he informed the Committee that a second reading had begun this year.  Also before the Commission was the first report of the Special Rapporteur on the topic, as well as a compilation of written comments and observations received from Governments on the first reading.  The comments, he said, had been taken into account in the Special Rapporteur’s first report. 


Continuing, he said the Special Rapporteur expressed his preference for retaining the broad outlines of the first reading draft articles, while focusing on the suggestions of Member States for improvement.  To that end, the Special Rapporteur’s report included an analysis of Member States’ comments and observations, as well as proposals for a complete set of draft articles to be considered by the Commission on second reading.  The drafting committee had been able to make progress on this topic this year and he anticipated that a second reading would be concluded at next year’s session. 


On the third topic of the new group taken up today — “protection of persons in the event of disasters” — he noted that during this year’s session of the Commission, the work had been undertaken in two separate phases.  In the first, the Commission had adopted draft articles 1 to 5, along with commentaries.  Although these draft articles had been adopted by the drafting committee last year, the Commission, because of lack of time, was able only to take note of them.  Also considered by the Commission was the third report of the Special Rapporteur.  The ensuing three draft articles were referred to the drafting committee, which he noted had made great progress on almost all the issues raised therein and which had submitted to the Commission a report containing several draft articles.  The Commission, again due to time constraints, just took note of the report.  He anticipated that the Commission would work towards adopting this report in next year’s session.


Statements:  New Topics


As the Sixth Committee moved on to a new set of topics from the Law Commission report, PÄIVI KAUKORANTA (Finland), speaking for the Nordic Group, said the inherent right of a State to expel aliens needed to be exercised in accordance with international law.  The balance between the right to expel and other international legal norms must take into account the current challenges to the international order.  While the text on “the right to expel” accomplished that aim, the Special Rapporteur should clarify the intent of the work on the matter and the Commission should convey the views of the Legal Committee members as to which elements needed codification and which did not.


On the “effects of armed conflicts on treaties”, she said the scope of the articles should apply to the effects of internal armed conflict, but not to situations involving international organizations since they, as such, could not become party to armed conflicts.  Moreover, the term “armed conflict” should take into account modern developments to have a broader use.  An article should be included as a statement of principle on the level to which treaty provisions remained in effect in situations of armed conflicts.  While the usefulness of a list of treaty categories based on subjects was questionable, such a list belonged at the end of the article dealing with the operation of treaties based on their subject matter.


She said the articles on “protection of persons in the event of disasters” needed to clarify that affected States bore primary responsibility for ensuring the protection of those involved.  However, that responsibility was not “exclusive”.  The right balance must be struck between State sovereignty on the one hand and the duty to cooperate on the other, when the affected State did not have the will or capacity to protect and provide relief for its people. 


JÜRG LINDENMANN ( Switzerland) regretted that the Law Commission lacked the time during its session to address the subject of “immunity of State officials from foreign criminal jurisdiction”.  His delegation would address the expulsion of aliens, the effects of armed conflicts on treaties and the protection of persons in the event of disasters.  On the first of these, he asked whether a distinction based on the duration of the alien’s presence in the territory of the expelling State was really wise.


On the effects of armed conflicts on treaties, he said he supported broadening the scope of draft article 15 to include any threat or use of force in violation of the prohibition set out in paragraph 4 of Article 2 of the United Nations Charter.  Turning to the protection of persons in the event of disasters, he noted his delegation’s reservation on the criterion of a serious disruption of the functioning of society.  He said related comments could be misunderstood to mean that such an event would not entail the central Government’s obligation to protect.  He said the quality of assistance received should not depend on the economic capacity of the affected State; rather, if an affected State lacked economic resources, that State had to appeal to the international community.


JOEL HERNÁNDEZ ( Mexico), commenting on the expulsion of aliens, said he supported the rearranging of the draft articles, to avoid contradictory interpretations.  The human rights of the individual subjected to expulsion, in particular the right to due process, needed to be ensured when seeking a balance between the right of a State to expel an alien and the correlative obligation of the State of origin to receive its national.  Efforts should be made to avoid any wording that suggested international norms of migratory control, or any draft that might modify or alter current international instruments regarding asylum, refugees, or transnational organized crime, among others. 


He said the principles of legality and due process that were fundamental in guaranteeing the human rights of persons being expelled were reflected in the draft articles.  He called for further analysis regarding the distinction between legal resident aliens and those with irregular status, especially in regard to procedural rights.  To avoid “falling into discriminatory situations”, he said that minimal procedural safeguards needed to be recognized to all foreigners alike.  Further, expulsion and extradition were legal concepts of “different natures” and that their treatment should be kept separate.  He referred to the relevant articles on terrorism as the reason for expulsion of refugees and stateless persons and said the mention of “terrorism” and any other international crime was not necessary or pertinent; the right of expulsion should not be interpreted as a defence of the obligation of States to prosecute or extradite.


PHANI DASCALOPOULOU-LIVADA ( Greece), on the topic of expulsion of aliens, said the purpose of the text was ambiguous.  It should include general principles, not detailed provisions, since many of the matters at hand were not conclusive in international law.  Concerning revised draft article 9, she expressed concern that the dignity of the person to which the text referred was, in fact, not a right but an overarching principle, and therefore belonged in a different area of the text.  Recommending the restructuring of another draft article for clarity, she said the term “disguised expulsion” should be revised.  On the procedural rights of aliens facing expulsion, the text should formulate general principles enshrined in international law and not engage in the task of elaborating a detailed human rights instrument.


On the topic of protection of persons in the event of disasters, she said the principle of humanity was not measurable and, therefore, did not belong in the part of the text as impartiality and non-discrimination.  She still had doubts about the usefulness of article 8 concerning human rights; there was no reason to consider that persons affected by disasters would ever be deprived of their human rights.  Article 9, which deals with the question of sovereignty of the affected State, failed to convey clarity regarding the degree to which external intervention of humanitarian assistance may reach.  She said the text confirmed that consent was required for an affected State to receive humanitarian assistance.


DUAN JIELONG ( China) said the revised draft articles on protection of persons who had been or were being expelled were meant to establish international legal principles, rather than create specific standards on the expulsion of aliens.  Nothing in the articles should give rise to unilateral evaluation by expelling States on the rights situation in receiving States, since it could easily be abused and result in unnecessary disagreements between States. 


He said the definition of domestic armed conflicts in the current draft article, the same used by the International Tribunal for the Former Yugoslavia, described them as “protracted” armed conflicts between Government authorities and organized armed groups.  That definition was not conducive to the stability of treaty relations, because it may result in inclusion of all use of armed force.  He said China preferred the definition in the Geneva Conventions of 1949 and the 1977 Additional Protocol II.


He extended heartfelt thanks for the international community’s generous assistance during the powerful earthquake and torrential flooding that hit China this year, and endorsed the view that disaster response should accord with principles of humanity, neutrality and impartiality, with no “non-appropriate strings” attached.  He also noted that international legal instruments permitted temporary mitigation of some human rights during major disasters, if it ensured efficient rescue activities, and suggested that the relevant wording in draft articles be improved to build in a degree of flexibility where appropriate.  China also maintained that State sovereignty should not only be reflected in its duties and obligations in natural disasters, but also its right to decide whether to accept assistance.  Also, under international law, assistance required consent of affected States, and China hoped the Special Rapporteur would affirm that point with clarity in his next report.


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