Law Commission’s Work on `Protection of Disaster Victims’ Is Called Key Development in Codification of International Law
Law Commission’s Work on `Protection of Disaster Victims’ Is Called Key Development in Codification of International Law
|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
21st & 22nd Meetings (AM & PM)
Law Commission’s Work on `Protection of Disaster Victims’ Is Called
Key Development in Codification of International Law
Legal Committee Also Ends Discussion of `Effects of Armed Conflicts
On Treaties’, `Expulsion of Aliens’, Moves to New Topics in Commission Report
As the Sixth Committee concluded its debate on the first group of topics contained in the International Law Commission’s report and moved to its second group — “effects of armed conflicts on treaties”, “expulsion of aliens” and “protection of persons in the event of disasters” — the delegate of Colombia said the Commission’s draft articles on “protection of persons” were among the Commission’s most practical and efficient areas of work.
He said that, focused on the need to protect people during disasters, they dealt with matters that could affect everyone and contributed to the progressive development and codification of international law.
Poland’s representative also emphasized the timeliness of the Law Commission’s focus on the topic, pointing out that 950 natural disasters had occurred last year, claiming nearly 300,000 lives, affecting 208 million people and amounting to monetary losses of around $130 billion. As a result, the international community had turned its focus to transforming disaster-related assistance from a “reactive to preventive system”.
A particularly important element of the draft articles, according to Finland’s delegate who also spoke for the Nordic countries, was that when the disaster-affected State did not have the capacity to provide relief, it could then seek assistance from other States and international organizations. In her view, this was the practical manifestation of international solidarity.
Speaking more broadly about the entirety of the Commission’s work over the past year, the representative of the Philippines said the important role and function of the Commission could not be overstated. Turning specifically to work on the “effects of armed conflicts on treaties”, she welcomed the principle, stated in the draft articles, that the existence of armed conflict did not automatically lead to the termination or suspension of treaties between conflicting States.
Regarding the “expulsion of aliens”, another topic in the report’s “second cluster”, Commission Chairman Maurice Kamto said the past year’s debate had covered several salient issues, among them the extent to which the draft articles should be codified or considered in the progressive development of international law, and the need for greater cooperation among States.
Concluding consideration of the “first cluster” topics, Special Rapporteur Alain Pellet noted that after almost two decades of service on “reservations to treaties”, this would be the last time he would address the Committee as a Special Rapporteur. He felt that the work on the Guide to Practice was significant. Special Rapporteur Giorgio Gaja, speaking about the responsibility of international organizations, thanked the Committee for helping the work of the Commission to improve the draft articles. The time for negotiations “may eventually come”, he said, if the General Assembly called for an elaboration of the articles, but only after the articles on State responsibility had been settled.
Also in the Sixth Committee today, the delegate of Austria introduced three draft resolutions on the Report of UNCITRAL.
Others speaking today in the continuing debate on the report of the International Law Commission were representatives of the European Union, United States, Singapore, Italy, El Salvador, Switzerland, Mexico and Belgium.
The Committee will meet again at 10 a.m. tomorrow, 28 October, to continue its debate on the “second cluster” of items in the International Law Commission report.
Continuing its annual consideration of the report of the International Law Commission, the Sixth Committee (Legal) was today to conclude its consideration of the introductory chapters and the subjects of “responsibility of international organizations” and “reservations to treaties”. The Committee was then to move to the Law Commission’s “Second Cluster” of topics — “effects of armed conflicts on treaties”, “expulsion of aliens” and “protection of persons in the event of disasters”. (For background on the report and themes, see Press Release 3420 of 24 October.)
Also to be considered today by the Committee were three draft resolutions on the Report of the United Nations Commission on International Trade Law (UNCITRAL).
The first draft (A/C.6/66/L.10) commends the Commission for the finalization and adoption of the UNCITRAL Model Law on Public Procurement and of the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective. It welcomes, among others, the preparation of a guide to enactment of the UNCITRAL Model Law on Public Procurement. It also calls upon Member States, non-member States, observer organizations and the Secretariat to apply the Commission’s rules of procedure and methods of work.
A further draft on the UNCITRAL Model Law on Public Procurement (A/C.6/66/L.11) requests, among others, that the Secretary-General transmit the text of the UNCITRAL Model Law on Public Procurement to Governments and other interested bodies; and recommends that all States use the UNCITRAL Model Law on Public Procurement in assessing their legal regimes for public procurement and give favourable consideration to the UNCITRAL Model Law on Public Procurement when enacting or revising their laws.
A final draft, on the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective (A/C.6/66/L.12), requests the establishment of a mechanism for updating the Judicial Perspective on an ongoing basis, in the same flexible manner in which it was developed, and in doing so to ensure that it maintains a neutral tone and continues to meet its stated purpose. Further, among others, it requests the Secretary-General to publish, including electronically, the text of the Judicial Perspective, as updated or amended from time to time, and to transmit it to Governments with the request that the text be made available to relevant authorities so that it becomes widely known and available.
Remarks by Special Rapporteurs
ALAIN PELLET, Special Rapporteur on “reservations to treaties”, expressed his sadness at the recent death of Judge Antonio Cassese, whom he described as a “spark in international law” and a close friend.
Turning to the matter at hand, he said this would be the last time he would address the Committee as a Special Rapporteur. The issue of “reservations to treaties” had occupied the Commission and himself for 17 years; it was significant work and had been met sometimes with “irony and reproach”.
He also noted that, not being a full-time Special Rapporteur, there were years where he could not produce substantial material in a timely manner. However, he did not think that the work could have happened any faster than it had, as the subject turned out to be “formidable and complex” and he thanked the delegates who noted that. He also acknowledged the Working Group, and in particular its chair, Marcelo Vasquez, for their expedited pace in producing the Guide. Without their effort, the Commission could not have provided the Guide at this time.
He said that the Guide was made up of 800 pages, and technical and translation services could not keep up with the workload. Further, the annex would triple the Guide. He hoped to be present next year when the Guide was discussed in the Committee. He would not respond at this time to specific comments, although he thanked the delegates who had spoken. To the criticisms that there was no basis in practice regarding certain guidelines, he said answers would be found in the commentaries that had not yet been submitted. As for a specific guideline on territorial scope of reservations, he stressed that “a good faith reading” of the commentary would dispel concerns. This was not to start a debate but to illustrate the intrinsic link between the guidelines and the commentary.
He also said that the Commission attempted to offer complete answers by looking at doctrine, practice and text of the Vienna Convention with a hope to bring some “order to an uncertain practice”. He urged that, with regard to “reservation dialogue”, a recommendation to the General Assembly would be to call upon States and oversight bodies to undertake such a dialogue. He said the “mechanism of assistance”, which some delegates rejected without explanation and others approved after further investigation, was in no way a compulsory mechanism. Different States had different resources, and such a mechanism might be supportive to those who did not have abundant facilities to negotiate such matters. In this way, the mechanism was just an outline of an idea to be considered for several years.
He then offered comments on the work of the Law Commission and its relations to the Sixth Committee. He said the Committee kept repeating that a dialogue was desired, but delegates never opened the door to this dialogue. It was his view, he said, that the Commission was “barely tolerated” when attending and participating in such meetings. He observed that after 22 years in the service of the Commission his answer to this situation was “fairly brutal”, and added, “You are not really very concerned about the International Law Commission.”
He observed that States had requested that the Commission be more attentive to their views, but he asked how many States had formulated something positive or offered specific proposals. The Commission was receptive to suggestions by the Committee, but the Committee must formulate some suggestions and provide specific guidelines, which it had done in the past. On the criticism that the Commission produced nothing but soft law, he said that soft law was not what was found in the Guide to Practice, and that it was up to the States “to transform soft law into hard law”.
GIORGIO GAJA, Special Rapporteur on “responsibility of international organizations” then spoke, thanking the Committee for the remarks and criticisms that helped the work of the Commission to improve the draft articles on this matter. He noted that most of the praise was for the introductory commentary — an idea not his originally. However, he subscribed to the general commentary, including the often-quoted statement that “several articles based on limited practices moved the border between codification and progressive development in direction of the latter”. As observed by the United Nations Legal Counsel at the beginning of the debate, this issue had significant implications for United Nations agencies, and it was not surprising that contemporary practice had given weight to the draft articles even before final adoption.
Continuing, he said that the variety of international organizations was always considered by the Commission, and several draft articles only contained general comments, while noting that special rules may be applied. New attempts had been made to identify these special rules, as well as rules on categories, but the search had not been successful. He underscored that while international organizations stressed the importance of special rules, they gave very few examples of such rules in their comments. Further, there were some draft articles that might have little or no relevance to international organizations, such as those on self-defence and countermeasures. These were included, in the event that such a circumstance might arise. However, the presence of these draft articles which might be relevant did not harm the organizations they did not address. In those cases it was appropriate to “skip over” what was not relevant.
The Commission, he continued, considered all the various comments by States as well as those of international organizations and specialized agencies. Modification had been brought to the text, one example being article 8 where the actions of an agent may be attributed to the organization if it acted in an official capacity, as stated in the corresponding article on State responsibility.
There were other proposals that the Commission could not accept, such as the example that the principle of reparation should not apply to international organizations as it might cause excess exposure. He stressed that the Commission could not place an international organization more favourably than States.
Although all exchanges on this topic had proved useful, he said, the Commission’s draft articles could not be “a negotiated text” as certain international organizations had wished. The time for negotiations “may eventually come”, he said, depending on a decision by the General Assembly on the possible adoption of a convention. This could occur only after the articles on State responsibility had been settled.
He concluded by stating that the appropriate outcome for the draft articles on “responsibility of international organizations” could be a General Assembly resolution that took note of the draft articles and produced them in an annex, a stance supported by many delegations.
Introduction of Further Topics
MAURICE KAMTO, Chairman of the International Law Commission, then introduced the “second cluster” of topics contained in the Commission’s report. Addressing the draft articles on “Effects of armed conflicts on treaties”, which the Commission had completed this year, he said that under their new formulation they now applied to treaty relations between States, regardless of whether other subjects of international law, such as international organizations, were also parties to the treaties in question.
Concerning armed conflicts of a non-international character, only those which were likely to affect a treaty would fall within the scope of the draft articles. The draft articles also included a new definition of “armed conflict”, which did not refer to armed force between organized groups within a State. The draft articles, on second reading, were also rearranged to clarify rules governing the continuity of treaties during armed conflicts. Among other revisions, draft article 6 focused on factors extraneous to a treaty which ought to be taken into account. In that regard, factors related to armed conflicts, instead of those solely related to treaties, were added to limit the possibility that States would terminate, suspend or withdraw from a treaty on the basis of their participation in such conflicts.
Regarding the annex to the articles containing an indicative list of treaties that would apply during armed conflicts, he said the list was not presented in any particular order and did not reflect a “hierarchy” of instruments.
Regarding the topic of “Expulsion of aliens”, he said addendum 2 of the sixth report on the topic, which contained the draft articles under consideration, contained a review of deportation proceedings and the legal consequences of the expulsion, in terms of those expelled and the responsibility of the expelling State. It gave an overview of recent developments relating to the subject, referring initially to national developments, and then evaluating the relevant paragraphs of the Judgment of the International Court of Justice in the case of Ahmadou Sadio Diallo. Over the past year, the Commission’s debate covered several salient issues including the extent to which the draft articles should be codified or considered the progressive development of international law; the extent to which practice and case law relating to special circumstances, such that of the European Union, must be taken into consideration; and the need to ensure greater cooperation among concerned States. He then discussed specific draft articles, in the context of their potential affect on State practice.
Turning to “Protection of persons in the event of disasters”, he said the draft articles contained the key humanitarian principles applicable in the context of disasters: those of humanity, neutrality and impartiality. For example, draft article 7 concerned the concept of human dignity, a guiding principle for any action to be taken in the context of the provision of relief and in the ongoing evolution of laws addressing disaster response. Draft article 8, meanwhile, affirmed the entitlement of those affected by disasters to have their rights respected. Additionally, draft article 9, on the role of the affected State, was based on the principles of sovereignty and non-intervention respectively. The draft articles also conferred upon States the duty to seek assistance when their national capacity had been exceeded, while recognizing that the consent of the State was necessary for such assistance. He specifically invited Governments to comment on whether this duty to cooperate included the mandatory provision of assistance by States when it had been requested by an affected Sate.
LUCIO GUSSETTI, speaking on behalf of the European Union, speaking on the topic of “expulsion of aliens”, said the Union cautioned that in discussing European Union law and jurisprudence, insufficient attention was paid to the fundamental distinction between standards applicable to Union citizens on one hand and those applicable to non-European Union nationals — or “aliens”. He noted that the Special Rapporteur had a tendency to focus his reports on fairly dated documents, including legislation that had been repealed or replaced.
At the European Union level, the most relevant legislation was the “Return directive” adopted in December 2008. This provided clear rules concerning the return, removal, detention and re-entry which took into full account respect of human rights of the persons concerned. It required that decisions on the return or removal of illegally staying third country nationals should be fair. There was a principle for establishing a “period for voluntary departure”, for limiting coercive measures and for limiting the use of detention, among others. He said the Union was aware that the “practices and precedents derived from special regimes, such as European Union law, should be treated with caution”.
He noted that in April this year the European Court of Justice, rendering judgement on an important case, noted that the “Return directive” required the Member State which had issued a return decision against an illegally staying third country national to carry out the removal by taking all necessary measures including, where appropriate, coercive measures, with due respect for, inter alia, fundamental rights.
Regarding the issue of “protection of persons in the event of disasters”, he said the European Union strongly supported continued reinforcement of the international humanitarian system. It welcomed the efforts of the International Law Commission at clarifying the specific legal framework pertaining to access disaster situations, noting that the Commission proposed that the affected State had the duty to ensure protection of its population confronting disaster. In closing, he welcoming the work of the Commission on this topic, as it would contribute significantly to the codification of international legal protection.
PÄIVI KAUKORANTA (Finland), speaking for the Nordic countries, concurred with the Commission’s recommendation that the General Assembly take note of and annex to a resolution the draft articles on the “effects of armed conflicts” on treaties. In her view, the draft articles should also apply to the effects of an internal armed conflict on the treaty relations of the concerned State. In that regard, she welcomed draft article 1, which reflected the fact that internal armed conflicts could affect the operation of treaties as much as international armed conflicts. She said the scope of the draft articles should also be broad enough to cover cases in which only one of the State Parties to a treaty was a party to an armed conflict. Welcoming draft article 5, she said it clarified the sequence of investigating possible indications of the treaty’s susceptibility to termination, withdrawal or suspension. Referring the list of treaties found in the annex, she preferred that the list be included in draft article 7, on the continued operation of treaties.
Speaking about the “expulsion of aliens”, she said she was not convinced that the Commission’s work on that topic was likely to benefit Member States in developing and identifying relevant rules. As this was an area of law with detailed regional rules, she questioned the usefulness of trying to identify general, international rules on the matter.
On the “protection of persons in the event of disasters”, she said it was the primary duty of the affected State to ensure that people were protected and disaster relief was provided. The responsibility of the affected State, however, should not be exclusive. When the affected State did not have the capacity or will to protect and provide relief, it should seek assistance from other States and international organizations. She welcomed the international community’s interest in protecting people during disasters which exceeded national response capacity. Offering assistance was the practical manifestation of solidarity.
MIRIAM DEFENSOR SANTIAGO ( Philippines) said the important role and function of the International Law Commission could not be overstated. The Commission’s sixty-third report showed its significant workload and the progress it had made.
Regarding the Commission’s work on the “effects of armed conflicts on treaties”, she said the basis of the matter rested in the fact that States, as designated by the United Nations Charter, were committed to prevent conflict and to contribute to the peaceful resolution of disputes. Expressing the crucial importance of maintaining stability and security with respect to the obligations of States in relation to the treaties, she welcomed the general principle found in the draft articles that the existence of armed conflict did not ipso facto terminate or suspend the operation of treaties between States party to the conflict.
She pointed out that while the draft articles were devoted to the effects of armed conflict on treaties, they dealt mainly with termination, withdrawal and suspension. Situations where parties to a treaty and to the conflict might be unable to or refuse to perform treaty obligations deserved further consideration and elucidation. Also deserving of further clarification was use of the term “armed conflict”, which opened the draft articles to inclusion of the effect of treaties on “non-international armed conflicts”.
HAROLD HONGJU KOH (United States) said he welcomed the changes made in the draft articles on the “effects of armed conflict on treaties”, noting that they preserved the “reasonable continuity of treaty obligations” during armed conflict while taking into account particular military necessities and providing guidance to States in determining whether a treaty should remain in effect during such circumstances. He urged that in defining the term “armed conflict” it would be better to refer to the set of conflicts covered by articles 2 and 3 in the Geneva Convention, which was nearly universally accepted among States. He said his delegation did not support the elaboration of a convention based on those draft articles, but rather the draft articles should be utilized as guidance to individual States when determining the effect of specific armed conflicts on their treaty relations. The General Assembly should note the work and encourage States to use the articles in context-specific situations.
Turning to “expulsion of aliens”, he said that while the draft articles should recognize the protections for persons, they should also “avoid unduly restraining the sovereign rights” of States as a means to control admission to their territories and to enforce their immigration laws. Rather than crafting new rights specific to expulsion, to balance those two principles, the main focus should reflect texts of broadly-ratified global human rights conventions. Extradition should be excluded from the scope of the draft articles, since it was not the same as expulsion. Rather, he said that extradition entailed the transfer of an individual for a specific law enforcement purpose.
With regard to the “protection of persons in the event of disasters” he thanked the Special Rapporteur for recognizing the core role that humanitarian principles of humanity, neutrality, impartiality and non-discrimination played in the coordination and implementation of humanitarian assistance in disaster response. He also expressed appreciation that the ongoing efforts on this issue focused on ensuring that States cooperate, within the context of the principle of the affected State having the primary responsibility to protect its persons and provide humanitarian assistance on its territory.
He observed that the report indicated debate among Commission members as to whether or not the affected State had a duty in certain circumstances to seek external assistance and to not withhold assistance arbitrarily. As well, he noted the discussion as to what extent third-party actors, among others NGOs and international organizations, had a “right” to offer assistance or a duty to cooperate in providing assistance when requested.
Concluding, he said he commended the work on these draft articles, as they could contribute to the efforts of States to plan and prepare for disaster relief that was based less on rights and more on providing practical guidance to countries in need of disaster relief, while at the same time supporting international cooperation and collaboration in providing disaster relief.
LIONEL YEE ( Singapore) said the draft articles on “effects of armed conflicts on treaties” were a useful collection of relevant State practice and academic writings on this “difficult area” of treaty law. In particular, he expressed support for article 3 which stated that the existence of an armed conflict did not in and of itself cause the suspension or termination of a treaty, thus affirming that treaty rights and obligations could not be “lightly ignored or overridden” just because of an armed conflict.
However, he was concerned about some articles, including articles 5, 6 and 7, where the issues of termination, withdrawal or suspension of a treaty as a result of armed conflict could arise because of the interpretation of those specific articles. He said he would support the General Assembly taking note of the draft articles, and annex them to a relevant resolution; his delegation was not persuaded of the need for these draft articles to be elaborated into a convention.
Turning to the “protection of persons in the event of disasters” he commended the Commission’s efforts to attempt to navigate the tensions between the link between protection and the principle of respect for territorial sovereignty and non-interference in the internal affairs of the affected States. The focus of this concept should be on the duty of the State that received offers of assistance to give serious consideration to such offers, whether they emanated from States or such referenced organizations.
On the question raised by the Commission of whether the duty to cooperate included a duty on States to provide assistance when requested by the affected States, he referred the Commission’s attention to the 2005 agreement of the Association of Southeast Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response; the relevant article stated that the parties would “promptly respond to a request for assistance from an affected Party”. This regional agreement did not oblige State parties to provide assistance, but did require them to respond promptly to such a request.
He said his delegation supported the addition to the Law Commission’s agenda of the topic of “the fair and equitable treatment standard in international investment law”. The practical value and impact of consideration by the Commission would be important in view of the huge and growing phenomenon of cross-border movement of investors and investments.
RYSZARD SARKOWICZ ( Poland) said the scope of the Vienna Convention on the Law of Treaties of 1969 should be followed literally and interpreted with utmost caution. There must be care not to impinge on the scope of the Convention or to diminish the scope of its application. There was currently a risk of that happening. He specifically noted that the Vienna Convention included internal armed conflicts within its scope. Within this context, the contemporary practice of States with regard to the effects of armed conflicts on treaties should be thoroughly researched and the Commission’s work on the topic should reflect that practice.
Referring to the topic of “expulsion of aliens”, he noted that addendum 2 of the Law Commission Chairman’s sixth report on the matter completed the consideration of expulsion proceedings, and took into consideration the legal consequences of expulsion. He said he supported the restructured summary of draft articles on the expulsion of aliens as found in the seventh report of the Commission Chairman. The drafting committee to which the articles were referred needed more time to reorganize the draft articles based on the Chairman’s report.
Focusing on the “protection of persons in the event of disasters”, and noting the urgency of the topic, he said that 950 natural disasters had occurred last year. Those events claimed nearly 300,000 lives and affected 208 million people. Overall losses amounted to around $130 billion. This tragic and devastating trend resulted from more frequent and intense weather-related hazards and to the growing population living in exposed coastal and urban areas. The General Assembly had recognized the importance of promoting a “culture of prevention” in the area of natural disasters through mobilization of adequate resources for disaster risk reduction, among other complementary mechanisms; experience had shown $1 invested in preparedness programs saved about $7 in post-disaster reconstruction costs. He said States, international and nongovernmental organizations and academic institutions had lately turned their attention to the role of law in dealing with all stages of disasters, particularly with the aim of transforming international humanitarian assistance related to disasters from a reactive to preventive system. He said the draft articles on this topic were too narrow; they should be extended to a wider range of events and activities, including risk reduction, prevention, preparedness and mitigation.
ANTONIO BERNARDINI ( Italy) said the commentary on the draft articles on the “effects of armed conflicts on treaties” had been usefully developed, particularly by including an extensive analysis of State practice. One of the new features of the draft articles was their inclusion of a definition of “armed conflict”, which closely followed the one adopted by the International Criminal Tribunal for Former Yugoslavia in the Tadićcase. While the inclusion of the effects of internal armed conflicts in the draft articles was reasonable, he said the effects an internal conflict might have on a treaty between States did not depend on any specific rule concerning armed conflicts. The draft articles should expressly state that when a State was not party to an armed conflict, the conflict might only be indirectly relevant. He characterized the criteria applied by the draft articles in reference to factors that should be considered when determining the continuation of a treaty during an armed conflict as “rather strict”.
With respect to the Commission’s work on “expulsion of aliens”, he said often expulsion was hampered by difficulty in ascertaining the alien’s nationality. It might be useful for the Commission to explore the possible obligation of States to cooperate in assessing nationality. To have a clearer picture of the draft articles on the matter, which were in different stages of adoption and modification, the Commission during its next session should present a revised version of those that had been provisionally adopted. On the obligation under international law to provide an alien with remedies against expulsion, he said remedies were likely to be based on national legislation rather than international law.
Briefly addressing the “protection of persons in the event of disasters”, he said the assertion in the relevant draft articles of a duty for States to cooperate when requested to do so by an affected State hardly needed to be spelled out; States were generally willing to provide assistance in these instances. Defining the modalities of assistance was the key issue the Commission should tackle.
Introduction of UNCITRAL Draft Texts
The Committee then took up the three draft resolutions on the Report of UNCITRAL. They were introduced by the delegate of Austria, who thanked all co-sponsors, and then highlighted certain points of the omnibus resolution on the report of the Commission (A/C.6/66/L.10), the draft resolution on the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective (A/C.6/66/L.12), and the draft resolution on the UNCITRAL Model Law on Public Procurement (A/C.6/66/L.11).
It was stated that action on these draft resolutions would take place on Monday, 31 October.
Law Commission Report: Further Statements
MANUEL MONTECINO GIRALT ( El Salvador), discussing “effects of armed conflict on treaties”, noted article 3 which stated the existence of an armed conflict did not terminate treaties. However, there was some concern over article 7 which could affect the interpretation of the draft articles. Generally, he said, the Commission had done excellent work and he supported the recommendation for the General Assembly to include the draft articles in a resolution, which would then be considered for a convention at a later point.
On the topic of “expulsion of aliens” he called for more State participation and said his delegation would give further comments in written form to the Commission. Responded specifically to the questions on the carrying out of expulsion, he said that voluntary expulsion would respect the individual rights and would be easier on an administrative level. However, the terminology posed the question that if expulsion was a forcing of the individual to leave a State’s territory, how could expulsion be called “voluntary”?
Turning to the “protection of persons in disaster”, he said this was a current reality within the international community, with the loss of life, damaging effects on access to systems and resettlement, among others. The standards in the draft articles could play a role in responding to all the effects of this situation. He said that article 10, which regulated the duty of a State to seek assistance, guaranteed the needs of a State’s persons under its jurisdiction. The State would ask for assistance when national capacity could not address the occurring disaster. However, some confusion might arise because of the timing of the request for assistance. When the request for assistance happened only after national capacity was exhausted, it might be reasonable that this could lead to an unjustifiable delay in the provision of assistance. Concluding, he noted that many challenges still existed on this crucial issue and his country would submit their comments to the Commission.
VALENTIN ZELLWEGER ( Switzerland) spoke on two subjects of concern to his delegation, that of the “effects of armed conflicts on treaties” and the ‘expulsion of aliens”. On the “effects of armed conflicts on treaties” he said he supported the recommendation that the General Assembly take note of the draft, and consider the elaboration of a convention at a later stage. A key aspect of the regulation was knowing whether or not, in general, treaties continued to be implemented in cases of armed conflict.
On the topic of “expulsion of aliens”, he responded to some of the questions posed by the Commission to States. In the internal practices of States on the suspense effect of an appeal against an expulsion decision, he said that on a national platform recourse to legal proceedings was governed by the general provisions of federal procedures. These included, among others, the stipulation that such a decision of the competent authority could be carried out only when there was no longer any legal recourse against it. An appeal could have a suspensive effect unless otherwise stipulated. Thus, an expulsion decision would not be executed if the person concerned appealed against it and that appeal had a suspensive effect. In Switzerland, the alien subject to the expulsion order could remain on Swiss territory while awaiting a decision.
On a national level, he said his country had accepted in November of last year the initiative, “for the expulsion of foreign criminals” and in doing so amended the Swiss Constitution. This rule would become applicable when made into law by the legislature. Switzerland had thus joined those States which recognized violation of the law or a sentence of imprisonment as a suitable reason for expulsion. His country’s law practitioners had managed to successfully “juggle” the tensions which arose between the exigencies of a democratic system and those of the rule of law.
JUAN MANUEL SÁNCHEZ ( Mexico) addressed the Commission’s work on the topic of the “protection of persons in the event of disasters”. Addressing specifically the right and duty of third States to cooperate with affected States, he concurred with draft article 12 on the matter, which deemed that while the international community had the right to offer assistance, the exercise of the right was bound by limitations; for example, that right could be exercised only under the principle of non-interference in the internal affairs of the affected State.
With regard to the specific question asked by the Commission on whether there was an obligation among others in the international community to respond to requests for assistance from affected States, he said the duty to cooperate need not also require the duty to offer assistance; cooperation, rather, could only entail the obligation to consider requests for assistance made by States, excluding the duty to respond.
PAUL RIETJENS ( Belgium) said the topic of “expulsion of aliens” was of great relevance to his country, since it faced a high influx of immigration seekers. The removal of aliens was governed by national laws regarding access, settlement and removal. He described the different systems of removal of aliens: “refoulement” was an administrative removal where an alien had not yet crossed the border and was not being permitted to enter Belgium; a “ministerial return decree” authorized a stay of three months, under certain conditions; the “royal expulsion” by the King was directed against aliens who had settled in the Kingdom but had committed a serious offence and thus would not be permitted to re-enter Belgium for ten years.
In Belgium, he said the Foreign Dispute Council was the only competent body to hear appeals. A “suspensive effect” was given to an appeal of an illegal or legal alien and was not dependent on their legal status. He described the applicable procedures, and said no measure could be implemented in a forced manner until the Council took action.
He concluded by stating that his country would submit written comments to the International Law Commission.
JUAN JOSÉ QUINTANA ( Colombia) said the “protection of persons in the event of disasters” was among the most practical issues addressed by the Law Commission, because it dealt with matters of international relations that could affect all persons in the international community. The development of applicable international standards on the topic, however, faced many challenges. He endorsed the Special Rapporteur’s proposals to resolve those difficulties. The proposals, contained in the 11 draft articles on the matter, were approved on the first reading in record time.
Although the topic had been under the Commission’s consideration for only four years, the draft articles contained elements for progressive development and codification of international law. The Special Rapporteur’s proposals balanced the need to protect persons and to respect sovereignty and non-interference in the internal affairs of other States. The proposals also took into account the perspectives of States and other actors. In that context, he reminded the Committee that the responsibility to protect, under international law, was only applicable to genocide, war crimes, ethnic cleansing and crimes against humanity.
On the specific draft articles, he pronounced his support for draft article 7, which recognized the right to human dignity, a fundamental notion ignored in other international instruments. Regarding articles 9 to 11, on the duty of affected State to request assistance, the duty of third parties to offer assistance and the necessity of States consenting to assistance, it was essential to elucidate a division of work among actors involved. After all, these articles were at the very heart of the way the system would operate in cases of disaster. Like other delegations, he was of the view that the duty to cooperate did not include the duty to provide assistance. A duty to provide assistance had no basis in international law.
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