|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
24th & 25th Meetings (AM & PM)
Assembly’s Legal Committee Is Told of Good Rate of Compliance
with Judgments of International Court of Justice
Court President Says Implementation Is Matter for States; Security Council
Is Arbiter If Decisions Challenged; Debate on Law Commission Report Continues
As consideration of the International Law Commission’s report continued in the Sixth Committee (Legal) today, the Committee also heard an address from the President of the International Court of Justice, which was then followed by an interactive dialogue with Committee members.
The Court President, Judge Hisashi Owada, spoke about the record of compliance with the Court’s decisions. He said the problem of ensuring implementation of the decision of international courts and tribunals was a new type of compliance problem. However, despite the fact that a judgment of the International Court of Justice could be implemented only within the domestic legal order, there had been very few examples of non-compliance and none in recent times. This showed that States recognized they were under an obligation to comply, and that they intended to comply with that obligation in good faith.
In an interactive dialogue, representatives of Ghana, Austria, Trinidad and Tobago, Thailand, Belgium, Mexico and Libya sought further clarifications of the relationship between the Court, States and United Nations organs. Judge Owada discussed the distinction between national legal systems with legislated compliance mechanisms, and international legal systems, without such mechanisms. Implementation of, and compliance with, the international systems was in the hands of Member States, which made it a “political” compliance mechanism, not a “legal” one. Since the Security Council was the compliance organ of the United Nations, it had a specific obligation to take the Court’s judgment into account.
The compliance process represented a division of labour within the United Nations for the peaceful settlement of disputes. “What used to belong to the realm of domestic legislation had now come into the international sphere,” he stressed, adding that domestic courts needed to prepare their legislation to absorb international norms.
In the debate on the Law Commission’s report with regard to “treaties over time”, Austria’s delegate said that, when Austria joined the European Union in 1995, European law overrode treaty provisions it was party to with several third States or other European Union States, including the 1926 Austro-Swiss Treaty of Commerce. Since European common commercial policy no longer left room for bilateral agreements the Treaty of Commerce was declared obsolete in 2000 because of its “mutual non-application”.
Turning to the topics of the expulsion of aliens, the delegate of Singapore said he could not accept the proposition that a State which had abolished the death penalty could not expel a person to a State that had sentenced that person to death unless it was assured that the person being expelled would not be executed. Furthermore, there was no global consensus on the matter of the death penalty, as seen in the “divisive nature” of the General Assembly’s debates.
The representative of Spain said that it was appropriate to include “non-international conflict” in the scope of application of the draft articles on “effects of armed conflicts”, as that covered the largest number of armed conflicts and made the new definition of “armed conflicts” more fitting to contemporary reality.
Indonesia’s representative said he attached great importance to the discussion on “protection of persons in the event of a disaster”, especially in light of its “unprecedented tsunami” in 2004. He stressed that humanitarian assistance should be undertaken only with the consent of the affected country and within the principles of neutrality, humanity and impartiality, so that respect for sovereignty, non-intervention, territorial integrity and national unity be upheld.
The Special Rapporteur on the protection of persons in the event of disasters also spoke, assuring the Committee that their concerns and comments would be reflected in his report to the Commission.
Also speaking on that and related issues during the discussion today were the representatives of Iran, Greece, Romania, Ireland, Pakistan, United Kingdom, Ghana, Mexico, United States, Argentina, Republic of Korea, India, Japan, New Zealand, Germany and Portugal.
The observers for the European Union and the International Federation of Red Cross and Red Crescent Societies also spoke.
The representative of Austria introduced four draft resolutions on the report of United Nations Commission on International Trade Law (UNCITRAL) and the Chair of the Working Group introduced the draft resolution on the report and the resolution on the responsibility of States for internationally wrongful acts.
The Committee will meet again at 10 a.m. on Monday, 1 November, when the debate on the Law Commission report will continue.
The Sixth Committee (Legal) met today to hear a statement from the President of the International Court of Justice. It was also to continue its annual consideration of the report of the International Law Commission, completing its current review of three items: “expulsion of aliens”; “effects of armed conflicts on treaties” and “protection of persons in the event of disasters”. It was expected to begin its consideration of four further topics: “obligation to extradite or prosecute”; “treaties over time”; “the most-favoured nation clause” and “shared natural resources”. (For background on the report and themes, see Press Release GA/L/3399 of 25 October.)
Also before the Committee were five draft resolutions, one on responsibility of States for internationally wrongful acts (document A/C/6/65/L.8) and the other four on the report of the United Nations Commission on International Trade Law (UNICTRAL) (documents A/C.6.65/L.4, A/C.6.65/L.5, A/C.6.65/L.6, and A/C.6.65/L.7).
Address by President of International Court of Justice
HISASHI OWADA, President of the International Court of Justice, said he had submitted his report to the Assembly, and would now talk of a subject close to the heart of many in the Committee, the rule of law. The importance of the issue was borne out by the broad reach of the recently established Rule of Law Unit, which brought together United Nations entities in the areas of peacekeeping and political and legal affairs as well as specialized funds and agencies, in addition to the United Nations Office on Drugs and Crime (UNODC). The heavy workload of the Court had prevented him from participating in the special session on the issue that the Security Council had held in June, but he would have talked about compliance and implementation of decisions rendered by international courts and tribunals from the Court’s perspective.
As a court of law, he said, it was axiomatic that the decision of the Court in a contentious case was binding. When the issue of the binding character of the Judgment was considered in context of how compliance with the Judgment was secured, and enforced if necessary, the difference between international and national law was stark.
The international legal order was characteristically built on the Westphalian principles of sovereign State equality and voluntary submission to the legal order, he said. The United Nations Charter had established a system whereby compliance with a Court decision was not handled as an issue of legal enforcement by the Court, but as an issue of enforcement of a legal obligation with compliance left in the hands of the Security Council as a political organ. The mechanism for ensuring compliance was set in motion when the issue was brought by the other party to the Council. That differed from the League of Nations structure, where the Council acted on any Court decision the Council believed had not been fully implemented.
In the 60-year history of the United Nations, he went on, the only time a State had invoked the non-compliance article and taken the situation before the Security Council was in the case of Nicaragua and the United States. The permanent Council Member who was a party in that case had vetoed the “trigger” of a compliance mechanism. Nevertheless, despite the obvious weakness of the compliance mechanism, the overall picture was one of general compliance by parties with a final Judgment of the Court. There were few examples of non-compliance and none in recent times, which showed that States recognized they were under an obligation to comply and that they intended to comply with that obligation in good faith. Where the problem arose was at the stage of meaningfully carrying out that obligation.
He cited a case involving the United States and Mexico, as an example. He said, the situation had gone to the Supreme Court of the United States before it could be determined that the Court’s Judgement was inconsistent with national legislation involving the internal political-juridical hurdles at the level of the State courts. In a case involving Cameroon and Nigeria, on the other hand, constitutional hurdles were ultimately overcome and the Judgment was eventually implemented.
Thus, he said, the issue of compliance with the Court’s Judgment should be discussed in context of the peaceful settlement of disputes between States. Even in the few cases of non-compliance, the Court’s authoritative statement of the law had clarified the legal situation involved and the law to be applied for settling the dispute. That contributed to an easing of the political tension in a process that promoted the purposes of the United Nations.
In conclusion, he said, the record of compliance with the Court’s decision was positive. The Court had been particularly effective in settling disputes over border and maritime delimitations and in regard to State responsibility. Cases of non-compliance should be viewed in the long-range context given the complexities involved in implementation. Most importantly, the overall activities of the Court in contentious proceedings had proven that the Court was offering an effective means of resolving international conflicts and preventing their escalation. Thus, when a dispute arose between States relating to the interpretation and application of an international convention, compliance could come about only through implementation of the Judgment within the domestic legal order. That was an inevitable result of the universalization of international norms in the form of “international legislation”. “The problem of non-implementation of the judgment of international courts and tribunals was a new type of compliance problem,” he said. The international community must pay more attention to it.
After the statement by the President of the Court, the representatives of Ghana, Austria, Trinidad and Tobago, Thailand, Belgium, Mexico and Libya engaged in a dialogue with Judge Owada. Questions related primarily to requests for further clarifications of the relationship between the Court, States and United Nations organs.
Judge OWADA stressed that a distinction needed to be drawn between national legal systems with legislated compliance mechanisms, and international legal systems, without such mechanisms. Implementation of and compliance with the international systems was in the hands of Member States. It was a political compliance mechanism, not legal, and the Security Council had a specific obligation to take that aspect of the Court’s Judgment into account, since the Security Council was the compliance organ of the United Nations.
In a sense, he said, the compliance process represented a division of labour within the United Nations for the peaceful settlement of disputes. There was a lack of appreciation for that aspect of the Court’s role among States, where it was held that the lack of an enforcement mechanism was a major weakness in the operation of the Court. The current compliance system was not perfect but it was not as bad as the situation seemed.
Further, he said the legal order of international law and compliance was a new challenge to the Court and to the international community. Inter-state disputes used to be matters for national adjudication, such as a border dispute where a national judgement was rendered and the enforcement mechanism in place ensured its implementation. Today there were many legal instruments that could apply to given situations.
“What used to belong to the realm of domestic legislation had now come into the international sphere,” he continued to stress, adding that domestic courts must prepare their legislation to absorb international norms. With regard to sovereignty and sovereign rights of States, he said the Court always passed Judgments at the international level, whether it was ruling on a purported violation of obligations or on a border dispute. It was not a function of the Court to enforce and bring about compliance, and it was not an appeals court for national courts. The Court could, however, point out what needed to be done, as it had in the case of the United States and Mexico. Implementation was up to the State and if no compliance was forthcoming, the situation was handled by the Security Council.
On other matters, he said the Court always had legal jurisdiction in disputes between States and it exercised that jurisdiction unless there was a compelling reason not to do so. The Court had to render a judgment when requested to do so by the General Assembly or Security Council. The number of judges and their geographic distribution was not a matter for the Court to decide but for Member States through the General Assembly and the Security Council. Regional courts, such as the European Court of Human Rights, were quasi-national systems that could legislate and implement compliance mechanisms.
Statements: Expulsion of Aliens; Armed Conflicts and Treaties;
DJAMCHID MOMTAZ ( Iran) said that there was little doubt that a State had the right to expel aliens, if they posed a threat to its national security or its public order. However, there were two limitations - mass expulsion and expulsion in disguise. The first would only arise if during an armed conflict aliens showed hostility against the host State. This was an issue that he thought should be excluded from the draft. Expulsion in disguise, he said, covered situations where a State acquiesced in acts committed by its citizens to provoke the forced departure of aliens. This tactic was generally targeted at ethnic or religious groups, and it violated international human rights law.
Turning to the draft articles on “effects of armed conflicts on treaties”, he said it was inappropriate to include non-international armed conflicts, since the relevant article of the Vienna Convention upon which this was based referred exclusively to the effects on treaties on armed conflict between States. In terms of termination, withdrawal or suspension of the application of a treaty, the intention of the parties was “of paramount importance”.
On the issue of “protection of persons in the event of disasters”, he observed that the “rights based approach” continued to have support. This implied that people affected by natural disasters would be able to request international relief, which contravened the principles of State sovereignty and non-interference in internal affairs. States were obligated to cooperate but not obliged to accept relief, and the humanitarian assistance needed to be provided in accordance with the principles of humanity, neutrality and impartiality.
MARIA TELALIAN (Greece), on the topic of “armed conflicts on treaties”, said the draft articles should not be applicable to treaty relations between States and international organizations, since the status of an international organization would have “an overwhelming impact” on treaty relations between the State parties of that treaty. As for the term “armed conflict”, the definition provided in the first reading of the text, was based on the Geneva Conventions of 1949 and the 1977 Additional Protocols, was the most balanced; it reflected the state of law that was embodied in treaty instruments and was widely accepted. Therefore, this definition should remain in the draft articles that had been adopted in the first reading.
Turning to the relevant articles on the susceptibility of termination, withdrawal or suspension of treaties, she said the “subject matter”, as noted in the previous text of the draft article, added a necessary condition of susceptibility to termination of treaties since it provided guidance to ascertain the content of the treaties that fell under the ambit of this draft. The list of treaties that would not be susceptible to termination, and which would continue to operate during armed conflict, should be maintained as an Annex.
She said “formalism” should be avoided in regard to the notification of termination during armed conflict, as it might be too cumbersome to require from the belligerent States to engage in such procedures. The mechanism of notification in the relevant draft article reflected, in her view, progressive development of international law and to that end she urged caution.
ALINA OROSAN (Romania) said that, with respect to the “effects of armed conflicts on treaties”, there was reason also to include, within the scope of application of the draft articles, conflicts of non-international character, since most present-day armed conflicts were of that nature. Otherwise, the applicability of the draft articles would not be broad enough. Pending further consideration of “armed conflict”, he considered that a generally applicable definition would be preferable to a “purpose-specific” one.
With regard to the “protection of persons in the event of disasters”, she said the primary responsibility of the affected State implied a “secondary” responsibility on the part of the international community. This secondary responsibility, in the form of humanitarian assistance, should not undermine the sovereignty, independence and territorial integrity of the States.
She said that in considering the issue of “treaties over time”, attention should also be given to the extensive report of the International Law Commission on the related issue of the fragmentation of international law.
On the topic of “shared natural resources”, she said her delegation supported the view of the Law Commission that consideration of the transboundary oil and gas aspects should not be taken up, particularly since the managing of such resources pertained to the bilateral interests of States. At the same time, those aspects were ripe for codification, mainly because each situation was particular and raised specific issues.
JAMES KINGSTON ( Ireland) called for the Law Commission to meet earlier than planned so as to make its report available early enough for States to consider it before discussing in the Legal Committee.
On substance, he said it was disappointing that “immunity of State officials” had not been taken up, that so little time had been devoted to the “settlement of dispute clauses.”
He then turned to the articles on protection of persons in disasters, and said the scope should remain focused on natural persons rather than legal, and that they should apply to all disasters regardless of cause, whether natural, man-made or a complex emergency. They should cover activities in the arena of the disaster as well as within “assisting” and “transit” States. The definition of “disaster” set too high a threshold, and should be amended through a revised commentary or in later articles.
Finally, he recalled the four draft articles already adopted, with three relating to broad principles. He said the legal basis for the principles invoked should be identified so as to allow for a distinction between the Commission’s codification work and its work on progressive development of international law. A distinction should also be made between humanitarian principles and human dignity and rights. Finally, discussion could continue on the responsibility of affected States, including the legal rules applicable in a situation where a State lacked either the capacity or will to exercise its responsibility.
ASAD MAJEED KHAN (Pakistan) noted the progress made on the topic of “protection of persons in the event of disaster”, and commended the Commission’s focus on the core principles of humanity, neutrality and impartiality in responses to disasters and the primary responsibility of the affected State in providing and coordinating relief assistance. The relevant article addressing the principle of neutrality highlighted the apolitical nature of disaster relief and implied that any foreign actors, organizations or members of the international community should not commit any act which would interfere in the internal affairs of the affected State. This affirmed that the principle of neutrality resulted in the obligation to respect the sovereignty of States.
The relevant draft articles on the affected State in disaster relief assistance affirmed the primacy of that State and the principle of independence and territorial sovereignty, which was supported by the United Nations Charter, the jurisprudence of the International Court of Justice and General Assembly resolutions, among others. Thus, while the affected State had the primary role in facilitating such relief operations on its territory, only that State could evaluate its requirement and need for international assistance and, to that end, international relief operations required the consent of that State. Concluding, he said that the primary role of that State and the preference for national law was the essence of the draft articles, and supported by a range of international instruments.
NICK MINOGUE ( United Kingdom) said the topic of expulsion of aliens raised many complex issues which intruded directly with the domestic sphere of States. It was a problematic topic for the Commission and currently not suitable for codification or consolidation. Turning to the effects of armed conflict on treaties, he thanked the Commission for its progress in the second reading of draft articles. He agreed with the proposal that where only one contracting State party to a treaty was a party to an armed conflict, it should be clarified why and how such cases should affect the operation of the treaty. The definition of the term “armed conflict” was important for draft articles, and the United Kingdom was in favour of a shorter, simpler definition which dropped the phrase relating to “protracted armed violence between organised armed groups within a State.”
He said he recognized that it may be impractical for a State party to a bilateral or multilateral treaty, which was engaged in an armed conflict with the other parties, to have to notify those States about its intention to terminate, withdraw from or suspend the operation of the treaty.
On the protection of persons in the event of disasters, he said his delegation remained of the view that the codification or progressive development of comprehensive rules was unsuitable. The development of non-binding guidelines or a framework of principles for States and others engaged in disaster relief would be more practical and enjoy widespread support. The relevant draft articles removed international law from the scope of that work.
HASAN KLEIB (Indonesia), on the draft articles on the “expulsion of aliens”, said the Commission had taken into consideration the types of protection available, including the substantive protection against return to face grave violations of human rights, procedural safeguards during deportation and the protection with regard to the method of expulsion. The Commission had, as well, also considered the certain categories of foreigners, such as refugees and migrant workers, which could also be afforded additional protection and/ or additional procedural guarantees during expulsion.
On the topic of the “effects of armed conflicts on treaties”, he expressed the hope that comments of Member States on the first draft articles would serve as common ground for Governments to determine which kinds of cases would produce certain legal effects. Because of the concerns regarding the inclusion of non-international armed conflict or internal armed conflict under the scope of the draft articles, progress on this topic had been “rather delicate”. He said that the scope should be limited to armed conflict of an international character, since internal conflicts did not necessarily affect treaties between two Sovereign States. Each situation of internal conflict needed to be evaluated within their specific circumstances in comprehending the impact to such a treaty.
Turning to the “protection of persons in the event of disasters”, he said Indonesia attached great importance to this issue, especially in light of its “unprecedented tsunami” in 2004. He stressed that humanitarian assistance should be undertaken only with the consent of the affected country and within the principles of neutrality, humanity and impartiality so that respect for sovereignty, non-intervention, territorial integrity and national unity be upheld. The principles of neutrality, humanity and impartiality were well established in international law and must, he said, be implemented in a balanced way when engaging humanitarian assistance. He emphasized that such assistance would be accepted by natural disaster-affected countries as long as these principles were present.
EBENEZER APPREKU ( Ghana) noted the attempts to address in the draft articles Ghana’s concerns over the need to ensure procedural guarantees and due process when it came to expelling aliens. He proposed, however, that draft article C1 be strengthened by adding a paragraph requiring the expelling State to allow reasonable time and opportunity for the alien facing the prospect of expulsion to gather his personal belongings lawfully acquired while sojourning, whether lawfully or unlawfully, in territory of the expelling State. He said the general rules of international law conferred on foreigners a certain minimum national treatment and such treatment was not linked to the legal status of the alien or permit. Any attempt to distinguish between aliens legally resident and those who were not, or to consider length of residency, in the application of procedural guarantees, may result in unfair or unjustifiable discrimination. Allowing for such classification could easily be abused and it would be difficult to determine which length of stay was reasonable.
The draft articles on expulsion of aliens, he said, must aim to provide for more humane standards of treatment of aliens facing expulsion, and require that all States refrain from treating them in an inhumane, degrading and cruel manner, while respecting procedural guarantees and due legal or judicial process. Bilateral agreements that directly or indirectly took away from such procedural safeguards and guarantees, or due process, should not be permissible.
CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) expressed concern at how the draft articles had been presented, stating that it had been difficult to understand the materials. In the section on “expulsion of aliens, she said, there was repetition and overlap. A ‘template’ should be developed for draft articles, so that the work of the Commission and the Committee could be utilized and engaged in an optimum fashion.
Regarding the issue of “disguised expulsion”, she said she was concerned about examples of Spain’s practice used in the sixth report. She said these had nothing to do with a covert expulsion but a voluntary return, which was fully permitted under international human rights. As there were concerns over the vagueness on the relevant article on disguised expulsion, she urged that the Special Rapporteur and the Law Commission continue to consider this category. With regard to extradition disguised as expulsion, she emphasized that these had very different legal realities. Thus this new category should not be retained, since it contributed to the confusion.
Turning to the topic “effects of armed conflicts” she said that the new draft articles included non-international conflict in the scope of application of the draft articles. Since that covered the largest number of armed conflicts, it was appropriate to include that reference. The new definition was more fitting to contemporary reality. In terms of the categories of treaties, she said she had some reservations as to the current form and placement. It might be helpful to include an annex listing what treaties were excluded in this matter.
She said she was satisfied on how the work was evolving on the topic of the protection of persons in the event of a disaster; not only was the topic was important and timely, but it also “put on the table” contemporary standards in international law. Such protection, she continued, must respond with the focus of the protection of human rights, while still preserving principles of sovereignty of State, among others.
When the Committee met again this afternoon, JOEL HERNÁNDEZ ( Mexico) said the primary responsibility for protecting people in the event of a disaster rested with the affected State. That responsibility was to carry out its duties in line with priorities and needs within the international norms of humanity, neutrality and impartiality. The international community bore a secondary and subsidiary responsibility for cooperating on the protection of those in disasters, while respecting the principles of State sovereignty, equality and non-interference. More consideration should be given on how to balance the two mandates.
MARK SIMONOFF ( United States) said the draft articles could unduly restrain the sovereign rights of States to control admission to their territories and to enforce their immigration laws. Rather than attempting to codify new rights specific to the expulsion context and importing concepts from regional jurisprudence, the drafts should reflect well-settled principles of law contained in broadly-ratified global human rights conventions. Extradition should be excluded from their scope and be treated in the same manner as expulsion. He stressed that the articles should apply to individuals within the territory of a State who were subject to a State’s jurisdiction, since failure to limit the obligations to persons being expelled would put States in an impossible situation of anticipating conduct by third parties.
He referred to a number of concerns his delegation had with respect to specific articles. On the effects of armed conflict on treaties, he said attempts to create a new definition for the term “armed conflict” would be counterproductive; it would be better to make it clear that armed conflict referred to a set of conflicts covered by common articles 2 and 3 of the Geneva Convention.
He said one draft article failed to properly recognize the process described in the Charter for making an authoritative determination of aggression, and it did not address circumstances where a State had illicitly used force in a way that did not amount to aggression. On the protection of persons in the event of disasters, he said the Law Commission could contribute greatly to State efforts to plan and prepare through a focus on providing practical guidance. The Special Rapporteur should continue to consider the possible ways in which the humanitarian principles related to and shaped the context of disaster relief.
LIONEL YEE ( Singapore) said that he could not accept the draft article which suggested that a State that had abolished the death penalty had an automatic obligation, under general international law, not to expel a person to a State that had sentenced that person to death, unless it was assured that the person being expelled would not be executed. This implied that the “so-called obligation” was one aspect of the right to life. However, he pointed out, there was no such obligation under general international law, as noted in the Special Rapporteur’s fifth report which said that the right to life did not imply the prohibition of the death penalty. Furthermore, there was no global consensus on the matter of the death penalty, as seen in the “divisive nature” of the General Assembly’s debates.
In regard to extradition “disguised” as expulsion, he said the earlier version of the relevant article would have created substantial practical difficulty, as it required the consent of the person being expelled, which would always result in non-expulsion since consent would be withheld. Extradition in and of itself could not be an absolute bar to expulsion. The real issue, he said, was whether or not expulsion circumvented safeguards pertaining to extradition. To this end the revised version that took out the element of consent while still safeguarding the rights of the person being expelled, and that such expulsion be carried out “in accordance with international law”, was successful in striking the right balance.
HOLGER FEDERICO MARTINSEN ( Argentina) said, in regard to the expulsion of aliens, that if States were to properly train their personnel in compliance with standards of human rights principles, situations that could endanger persons being expelled could be avoided. Turning to the topic of the “effect of armed conflict on treaties”, he said a study on State practice needed to be based on consultations with Governments. However, when the topic involved two or more States, an obvious situation in the area of the law of treaties, preparation work was only useful when supported by all States concerned. The cardinal principle of treaties was that they continued to be enforced even in the case of armed conflict. Thus, the existence of an armed conflict should not be used as a trigger to terminate a treaty. He urged the Commission to continue its focus on this issue: a draft could be useful as a guide to orient the practice of States, an area which was still lacking in conformity for codification.
On the issue of the “protection of persons in the event of disasters”, he said basic principles were necessary, so that assistance could take place on a solid basis, responding to the real problems and needs of people in disasters. The fundamental principle that an affected State’s consent was needed, and also the principle of neutrality, humanity and impartiality upon which assistances was being given, were relevant to the protection of individuals and supported State sovereignty. He looked forward to the future work by the Special Rapporteur in this area, because current consideration of the subject was difficult owing to the fragmentation of international legal regimes.
SHIN BOO NAM ( Republic of Korea) stressed that even though a State had the right to expel aliens for violating domestic regulations or for damaging important national interests, it needed to respect the human rights of the aliens in question. In his country, the process was governed by the Immigration Control Act. The principle of non-expulsion of nationals, along with the rights on non-nationals was respected. He emphasized the importance of the ‘non-refoulement’ principle as well, and he proposed that the Commission consider in what way the receiving State could take measures to protect that right in draft article 14.
In regard to the protection of persons in the event of disasters, he agreed that an affected State had the primary responsibility, and that its consent should be sine qua non for efforts by others to provide protection and humanitarian assistance in its territory. He proposed, however, that the Commission develop guidelines on how affected persons might request disaster relief assistance, what entity should determine that an affected State had failed to provide such assistance and who had the secondary responsibility to provide assistance in such cases. Finally, on the effects of armed conflicts on treaties, he said that treaties that were affected by such conflicts should be distinguished from those that were not. In that regard, he supported draft article 5 and the inclusion of an indicative list of treaties unaffected by conflict in the Annex.
MEHBOOB BEG, ( India), said his country supported the Law Commission’s suggestion about the reorganization into five parts of the draft articles on protecting the human rights of persons who had been, or were being expelled. States indeed had the right to expel aliens, but that right must be exercised in accordance with the relevant rules of international law and the minimum standards for the treatment of aliens.
On the effects of armed conflicts on treaties, he said the scope should be limited to treaties concluded between States and not include treaties concluded by international organizations; the definition of “armed conflict” should be considered independently of its effects on treaties and should be limited to conflicts between States. He said there was a need to identify some general criteria for determining the type of treaties that would continue to apply during an armed conflict. Moreover, treaties relating to land and maritime boundaries must not be affected by armed conflict, as they were meant to be permanent.
On the protection of persons in the event of disaster, he said his delegation welcome the definition of “disaster” which included reference to a “calamitous event”. The reference to the principle of neutrality, however, was not relevant since there was wide agreement among States that armed conflict should not be covered by the draft articles.
He noted that the General Assembly had reaffirmed the primacy of the affected State in disaster response, including through Assembly resolution 46/182. In that regard, draft articles must recognize the affected State’s sovereignty, its right to decide whether it required international assistance and, if it accepted help, its right to direct, coordinate and control such aid within its territory.
NOBUYUKI MURAI ( Japan) spoke on the topic of the expulsion of aliens, and said the Special Rapporteur argued that a distinction should be made between aliens residing legally (or lawfully) in a State’s territory and aliens residing illegally (or unlawfully) in that territory. The Law Commission should continue to scrutinize whether that distinction was grounded in various international instruments, international jurisprudence and national legislation and jurisprudence. It should also note the practice of States and the views they had expressed in international forums. The same could be said for the enumeration of procedural rights. He said the Commission was still expected to respond to the criticism that the subject was not yet ripe for codification. He referred to the effects of the death penalty on the draft articles and said he hoped that when the Commission discussed the draft articles on that topic it would be borne in mind that the imposition of the death penalty in the national criminal system of a State was in principle a matter of policy for that particular State.
On the effects of armed conflicts on treaties, he said it should be kept in mind that the topic was an outgrowth of the Vienna Convention on the Law of Treaties of 1969, and that international organizations were playing an important role in the current international community. The United Nations Convention on the Law of the Sea (UNCLOS), for example, should not be excluded from the scope of draft articles on the topic. Further, he said it was not always possible to distinguish clearly between international and non-international armed conflicts. If non-international conflicts were excluded from the draft articles, they would be considerably less valuable.
On the protection of persons in the event of disasters, he said the role of the Commission was to codify customary international law. In fulfilling that function, the Commission should codify and elaborate rules and norms relating to disaster relief activities, so as to facilitate the flow of international assistance to those in need in the event of disasters. The primary responsibility to protect victims of disasters lay with affected States, but those States should coordinate aid offered by other States and non-State actors.
ROLAND TRICOT, Observer for the European Union, on the issue of “expulsion of aliens”, said the Special Rapporteur’s sixth report did not pay enough attention to the fundamental distinction in European Union law between standards applicable to its citizens and their families on the one hand, as to non-European Union nationals, or “aliens” on the other. Moreover, the Special Rapporteur tended to focus on outdated documents including European Union legislation that had been repealed or replaced. Persons who did not possess the nationality of a European Union member State, did not enjoy the general right to move and reside freely within the territory. He noted that in certain specific situations, they did have the right to be treated equally with European Union nationals, especially in cases where third country nationals had the right to have access to work.
He said authorities under European Union law were required to adopt an individualized approach when ending the legal stay of a third country national, including for public policy or security considerations. Those assessments, however, must take into account several variables, such as the likely danger emanating from the person concerned, the severity of any offence committed, and the length of stay in member States. He asserted that, under European law, not all third country nationals enjoyed the same type of protection against expulsion in different European Union member States. In that regard, there were well-founded reason of public policy which explained why States may choose to treat “aliens” differently, including in matters of expulsion.
He said the Law Commission had referred to the drafting committee 14 draft articles on the expulsion of aliens which seemed to correspond with the general principles set out in the European Union’s return directive. That directive offered a high level of protection to all migrants who were subject to return procedures, including their right to effective legal remedy, the enjoyment of an inalienable set of minimum rights, and the right to short and humane detention conditions.
With regard to procedural rights, he asked whether the provisions of a draft article reflected universal State practice on the subject, even if the majority of those procedural rights had been set out in some form with the European Union’s return directive. He called for more reflection on the issue of expulsion of aliens, including on proposed standards and principles which may not be supported by current State practice.
ELYSE MOSQUINI, for the International Federation of Red Cross and Red Crescent Societies, said the deferred decision on the final form of the text discussed last year, and remaining ambiguities as to its scope, presented difficulties at this stage. If the instrument was intended as a basis for an eventual treaty, it was crucial that key aspects of existing international instruments be reflected in it. Key findings of research and consultations with States by his organization had shown that the lack of clearly articulated rules for the facilitation and regulation of civil society actors had actually been a much bigger problem in international disaster operations. The Haiti earthquake operation was a case in point, he said.
With respect to scope, he said certain draft articles drew no distinctions between domestic and international disaster response. There was failure to reference national Red Cross and Red Crescent Societies. His organization was concerned with potential confusion, which could stem from the expression of humanitarian principles in certain articles. Many of them, including those on humanity and non-discrimination, were presented as separate principles. The emphasis on human rights and dignity was positive and he hoped that subsequent draft articles would provide more specific guidance as to what those notions meant in terms of the treatment of affected persons. On the role of the affected State, he said that while those States were entitled to coordinate and regulate disaster assistance from humanitarian organizations, such actions were subject to respecting the capacity of those organizations’ to abide by humanitarian principles. Those considerations should be addressed in the commentary.
EDUARDO VALENCIA OSPINA, Special Rapporteur on the topic of the “protection of persons in the event of disasters” thanked the Committee for the kind comments and said that it was neither the right time nor place to respond in detail on “this very rich debate”. As with all his reports to the Law Commission, he would prepare an extensive summary on the Committee’s debate on the work of the Commission, opinions expressed here would be reflected in that summary.
He noted that progress on the topic had been made in a short period of time. On the basis of two reports already presented, the Commission had been able to prepare nine draft articles, adopted by consensus. The drafting committee had also adopted four new articles and had formally submitted them. They would be adopted next year by the Commission and would include comments made in this particular debate. In this regard, he would keep very much in mind a goal to clarify doubts and address the questions raised, in particular, on the relationship between the principles of humanity and of dignity, and on the linkage between neutrality and impartiality. More specifically, he would also focus on the relevant articles on the consent of the affected States.
He said that in his third report, when he proposed a draft article on the responsibility of affected States, that draft covered the aspect of consent of affected States. It was discussed and forwarded to the drafting committee. Because of lack of time, that committee focused only on the first paragraph on this issue. The aspect of consent would be addressed next year, in light of proposals made in his fourth report regarding the forms of application of consent of affected States. The material before the Committee, he said, was a partial report and would be “rounded out” next year. Concluding, he said that he was pleased at the support given by the Committee on this topic, even though the topic was difficult.
New Topics: Extradition, Treaties, Favoured-Nation, And Natural Resources
The Sixth Committee then moved on to the last set of topics for its consideration 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: “obligation to extradite or prosecute”, “treaties over time”, “the most favoured-nation clause” and “shared natural resources”. The Chairperson reviewed the draft guidelines and the substantive materials within each topic.
On the topic of “obligation to extradite or prosecute”, he noted that this item had been included in the Commission’s programme since 2005. To date the Commission had received three reports from the Special Rapporteur and comments from Governments. The open-ended working group met for the first time in 2009 and established a general framework that contained seven main categories regarding the obligation, including its legal bases, material scope of the obligation, content, the relationship between the obligation and other principles, the conditions that would trigger the obligation, its implementation and the relationship between the obligation and the surrender of the alleged offender to a competent international criminal tribunal.
In its current session, he said, the group reviewed 61 multilateral instruments containing provisions combining extradition and prosecution as an alternative for the punishment of offenders. It also affirmed the continuing relevance of the general framework in considering this topic, while noting that conventional practice needed to be complemented by a detailed consideration of other aspects of State practice, such as national legislation, case law and official statements of governmental representatives.
Turning to the topic of “treaties over time”, he said the study group had begun its work with a focus on subsequent agreements and practice, based on an introductory report prepared by its Chair which focused on relevant jurisprudence of the International Court of Justice and of arbitral tribunals of ad hoc jurisdiction, as well as the preparatory work of the provisions of the 1969 Vienna convention. However, due to lack of time, consideration of the section of the introductory report relating to possible modifications of a treaty by subsequent agreements and practice had to be deferred until next year. At that time, the study group intended to complete its consideration of the introductory report and begin its examination on subsequent agreements and practice in the jurisprudence of courts or other independent bodies under special legal regimes. He noted that information provided by Governments would be particularly useful to the study group. He said he worked to bring to the Committee’s attention the relevant Chapter in the Commission’s report requesting examples of “subsequent agreements” or “subsequent practice”
On the topic of “the most favoured-nation clause”, the study group held three meetings and reviewed various papers prepared on the basis of the framework agreed upon in 2009, and serving as a road map for future work. The continued central focus of the study group was on determining how most-favoured nation clauses were being interpreted particularly in the context of investment and whether some common underlying approaches could be formulated to serve as interpretative tools or to assure some certainty and stability in the investment field.
It was the sense of the study Group, he continued, that it was premature at this stage to consider the option of preparing draft articles or a revision of the 1978 draft articles. It was also necessary to identify the normative content of the most-favoured nations clauses in investment and to analyze case law, including the role of arbitrators, and other factors that created divergences in case law. There seemed to be need for a systematic attempt to determine whether general patterns could be distilled from how determinations in case law were being made.
Finally, he addressed the subject of “shared natural resources”, based on the analysis of comments received from Governments, as well as statements made in the Committee. This had resulted in the “essential recommendation” in the working paper that transboundary oil and gas aspects not be pursued further by the Commission. A majority of States were of the view that this issue was bilateral in nature, as well as highly political or technical, involving diverse regional situations. There was doubt that the Commission could successfully develop materials that would lead to codification, including the development of universal rules. The Commission endorsed the working group’s recommendation that this matter not be taken up in future work.
HELMUT TICHY ( Austria) said the obligation to extradite or prosecute was closely linked to the all-important fight against impunity. Although no new articles were formulated during the Commission’s last session, the analysis of State practice in relation to multilateral treaties was useful. The 2009 general framework continued to be relevant.
He said the subject “treaties over time” had gained particular importance for his country when it joined the European Union in 1995, and provisions of European law had overridden provisions of treaties with third States or other European Union States. One example was the 1926 bilateral Austro-Swiss Treaty of Commerce, which was superseded by several other European treaties when Austria joined the Union. Further, European common commercial policy no longer left room for bilateral agreements. The result was that the Treaty of Commerce was declared obsolete in 2000 because of its “mutual non-application”.
Other treaties to which his country was party had also changed considerably over the years, he went on. Examples included the 1946 Paris Agreement relating to the autonomy of South Tyrol and special rights of German inhabitants; the 1955 Austrian State Treaty relating to prohibitions of war materials that had become obsolescent over time beginning with 1990; the 1930 Treaty of Commerce between Germany and Austria that had been invalidated by “desuetude” or non-use; and other treaties concluded before World War II with neighbours had been rendered inapplicable in practice by the circumstances of the “Iron Curtain”.
Finally, he said the consideration of the most-favoured-nation clause was welcome, particularly in relation to the practice of international organizations and tribunals. Guidelines should be formulated to ensure certainty and stability in international investment law. That should start with an analysis of relevant practice and case law. The question of oil and gas in the context of shared natural resources should not be taken up since the complexity of the matter made it doubtful that a generally acceptable draft could be achieved.
NATALIE RYAN ( New Zealand) said that further examination was needed on the fundamental question of whether or not an “obligation to extradite or prosecute” existed under customary international law and on the nature of any customary obligation in relation to specific crimes. She said that further clarity was also needed with regard to the duty to cooperate in the fight against impunity when there was criminality underpinning the obligation.
On the subject of “treaties over time”, she said that the practical and legal significance of “subsequent agreement” and “subsequent practice”, as a means of interpretation of a treaty, required closer analysis by the Commission. She noted that examples of such aspects had been requested, and said she also supported the effort to derive conclusions or guidelines from a representative repertory of State practice.
Turning to the subject of “most-favoured nations”, she said she supported the study group’s proposal to conduct further analysis on the sub-topics it highlighted, including investigating most-favoured nation in the context of trade in services and investment treaties, among others. She urged further consideration for the most appropriate form for the final product on this topic. Concluding, she said she agreed with the Law Commission’s view that in regards to “shared natural resources”, the topic of transboundary oil and gas should no longer be considered.
CHRISTOPH RETZLAFF ( Germany) said that “treaties over time” was of “considerable practical importance” as subsequent agreements and subsequent practices were characteristic features of international law. Subsequent practice in the application of a treaty, reflected understanding by parties of the evolving meaning of the treaty which was most important for the interpretation of a treaty as a whole. He pointed out that the majority of treaties were intended to govern the relationship between the parties over a long period of time. Therefore, it was essential to adapt the interpretation of a treaty to changing circumstances in order for the treaty to remain a “flexible instrument of international law”.
A closer look at State practice regarding the interpretation and subsequent practice was also of utmost importance. He declared as long as subsequent practice was agreed upon and did not become controversial, there was no need for courts and tribunals to be involved; in order to fulfil the parties’ need for legal certainty when executing a treaty the study group’s work was a fundamental step toward establishing manageable and predictable criteria.
MIGUEL DE SERPA SOARES ( Portugal) said the work on the obligation to extradite or prosecute should be continued with an analysis of State practice since the topic was of major importance in the fight against impunity and the ending of safe-havens for criminals. On the topic of treaties over time, he said the work reflected the view that treaties were not mere unalterable words carved in stone but dynamic international law instruments that were intended to be interpreted in a specific legal and social context. The intricate relationship between treaty and customary law should be analyzed. The aim should not be to develop international law beyond the Vienna Convention on the Law of Treaties but should lead to the clarification and guidance of States and international organizations.
On the most-favoured-nation clause, he said more debate should take place before efforts went into codification or progressive development of the law since a forced unification of practice and jurisprudence would lead to a lack of practical consequences. The work should be based on solid and coherent findings. A step-by-step approach should be adopted based on the real economic relevance of the clause.
On the subject of oil and gas within the topic of shared natural resources, he said he did not favour the view that the Commission should not deal with it. The Commission’s guidance on the matter would make a significant contribution toward the prevention of conflicts. There were similarities between oil and gas and groundwaters, on which work had already been completed. Finally, it would be a step back in the Commission’s work and the topic was extremely relevant in the modern world.
NICK MINOGUE ( United Kingdom) said his delegation would be submitting documents on practice in the area of treaties over time. There were interesting issues relating to the topic, but it was unclear whether practice could readily be generalized into a statement of principles beyond that already contained into the Vienna Convention on the Law of Treaties.
The survey of multilateral conventions relating to the obligation to extradite or prosecute was welcome, yet little more had been done on the topic. As previously stated, his position was that the obligation arose out of a treaty obligation, and the obligation could not yet be regarded as a rule or principle of customary law. Any obligation to extradite or prosecute arose under terms of international agreements which governed both the crimes involved and the question of the custodial State’s discretion as to the action to be taken. The working group should continue with the issues that may need to be addressed by the Special Rapporteur.
He said the preparation of new articles or the revising of the 1978 draft articles on the most-favoured-nation clause would be premature because of the limited jurisprudence in interpreting provisions of such clauses in World Trade Organization agreements and in free trade agreements. While the interpretation of such clauses in post-establishment investment had generated considerable case law the jurisprudence was specific to that field with very precise wording. Any attempt to draw universally applicable principles should proceed with caution, particularly in the field of investment.
Finally, on shared natural resources, he said that he had serious doubts about the usefulness of the Commission seeking to codify or develop a set of articles or guidelines on the matter. Negotiation between States was the best approach in an area where practical considerations based on technical information made each situation different. Further, with the decision to close the work on that topic, the item on shared natural resources should cease being on the agenda.
Introduction of Draft Resolutions
The Chair of the working group introduced the report and the resolution on the responsibility of States for internationally wrongful acts (document A/C.6/65/L.8). By the resolution, the Assembly would note that the responsibility of States for internationally wrongful acts was of major importance in relations between States. The Assembly would request the Secretary-General to invite Governments to submit written comments on future action and to request that States report on practice well in advance of the Commission’s next session. He would also be requested to update the compilation of decisions by international courts, tribunals and other bodies referring to the articles. Finally, the item would remain on the Assembly agenda within the framework of the Legal Committee where the question of a convention or other appropriate action on the basis of the articles would be considered.
The representative of Austria introduced four draft resolutions on the Report of the United Nations Commission on International Trade Law (UNCITRAL). The first was the annual omnibus resolution (document A/C.6/65/L.4), by which the Assembly would take note of the report and would welcome the Commission’s work. It would reaffirm the importance of the Commission’s work, particularly for developing countries being assisted with technical cooperation in the field. Activities such as the panel discussion and resulting decisions would be noted, as would the lack of sufficient funds to respond to the growing need for uniform interpretation of Commission texts.
By a draft resolution on arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) as revised in 2010 (document A/C.6/65/L.5), the Assembly would express appreciation for the adoption of the relevant text. It would recommend the Rules be used in settling disputes arising out of international commercial relations and would ask the Secretary-General to make all efforts toward making the Rules known and available.
A draft resolution on UNCITRAL’s legislative guide on secured transactions: supplement on security rights in intellectual property (document A/C.6/65/L.6) would have the Assembly express appreciation for the completed text and request the Secretary-General to disseminate it broadly, including electronically. The Assembly would also recommend its use by States to assess the economic efficiency of their intellectual property rights financing and to give favourable consideration to the text when revising relevant national legislation and to advise the Commission when they had done so. Finally, States would be encouraged to consider becoming party to the United Nations Convention on the Assignment of Receivables in International Trade and to implement recommendations of the Trade Law Commission’s Legislative Guide on Secured Transactions.
Finally, a draft resolution on the Commission’s legislative guide on insolvency law on the treatment of enterprise groups in insolvency (document A/C.6/65/L.7) would have the Assembly express appreciation for the text and would request the Secretary-General to transmit the document to Governments and interested bodies. It would recommend that States use the Guide to assess the economic efficiency of their insolvency law regimes and for revising legislation. The Assembly would recommend that States continue to implement the Model Law on cross-border insolvency and that judges, insolvency practitioners and other stakeholders give due consideration to the Guide.
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