Legal Committee Delegates Suggest Flaws in International Law Commission Proposals, Suggest Possible Adjustments
Legal Committee Delegates Suggest Flaws in International Law Commission Proposals, Suggest Possible Adjustments
|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
23rd & 24th Meetings (AM & PM)
Legal Committee Delegates Suggest Flaws in International
Law Commission Proposals, Suggest Possible Adjustments
Draft Articles, Though Generally Sound, Said to Be Amenable to Improvement
As the Sixth Committee continued its debate on the second part of the annual consideration of the International Law Commission report, delegates, in the service of strengthening international law, sought to clarify and improve the several sets of draft articles being discussed.
The draft articles on the “protection of persons in disasters” had overlooked persons with disabilities, observed the representative of Greece. She urged that if this category could not be included in the relevant article, it should be mentioned in the commentaries.
Speaking, as he said, from experience, the delegate of Niger stated that events on the ground during disasters presented different challenges. The problem of identifying who was vulnerable and needed assistance had arisen in his country during aid delivery. He also emphasized that although State consent from a legal perspective was necessary, it could delay access and delivery of aid during a crisis.
Focusing on the “effects of armed conflicts on treaties”, the representative of the Netherlands said the Commission’s effort to elaborate draft articles was unnecessary and “belaboured”. Recent armed conflicts had not led to great problems regarding the law of treaties. The Commission should spend its time on more substantive contributions to international law.
Both the delegates of Malaysia and Cuba stressed that the definition of “armed conflict” needed to be broader and include other types of conflict that had the same effect as armed conflict, with Cuba pointing out a trade and financial embargo had an impact similar to that of armed conflict.
The representative of China questioned the narrow basis of study on these draft articles, observing that they were primarily based on the practice of the United States and the United Kingdom. This limited perspective undermined their universal applicability.
Responding to the concerns of delegates, Lucius Caflisch, Special Rapporteur on the “effects of armed conflicts on treaties”, emphasized that the Commission had made a “considerable effort” to consider State practice in its study. On the “delicate and contested” issue of scope of application, he observed that the definition of armed conflict had been separately criticized for being too narrow or for being too broad.
The Sixth Committee also met with Hisashi Owada, President of the International Court of Justice, who said that in the Court’s 65-year history, 151 cases of a contentious and advisory nature had been brought before it. The Court had also been engaged in less well-known “incidental proceedings”. This “sometimes neglected,” area of law was evolving, he said, and was particularly important to those Sixth Committee delegates involved in international legal proceedings in their countries.
Also speaking today were representatives of the Czech Republic, Austria, Germany, Israel, France, United Kingdom, Spain, Belarus, Chile, Russian Federation, Iran, Hungary, Portugal, Indonesia, Slovakia, Canada, South Africa, Republic of Korea and Thailand.
The Committee will meet again at 10 a.m. Monday, 31 October, to conclude its debate on the “second cluster” of items in the International Law Commission report, whereupon it would begin the “third cluster”.
The Sixth Committee (Legal) met today to continue its annual consideration of the report of the International Law Commission, dealing with the `Second Cluster’ of topics in the report — “effects of armed conflicts on treaties”, “expulsion of aliens” and “protection of persons in the event of disaster”. (For background on the report and themes, see Press Release 3420 of 24 October.)
Remarks by Committee Chairman
HERNAN SALINAS BURGOS, the Sixth Committee Chairman, introduced Judge Hisashi Owada, President of the International Court of Justice, noting that a visit from the President was now an established tradition in the Sixth Committee. The activities of the Court, as the principal judicial organ of the United Nations, were of obvious interest and importance to the Sixth Committee.
President of International Court of Justice
HISASHI OWADA, President of the International Court of Justice, said his visit to the Sixth Committee was like “coming back home”, as he once sat in the Committee himself. In his third time before the Committee as Court President, he welcomed the great opportunity to strengthen the Court’s legal ties with the General Assembly. Over the course of the Court’s 65-year history, he said, 151 cases had been brought before it, including those both of a contentious and advisory nature. Although they were not as well-known, the Court had also taken several other kinds of decisions, known as incidental proceedings. The incidental proceedings, which he would focus on today, were provisional measures, preliminary objections, counter-claims and intervention.
First, addressing provisional measures, he said these measures allowed the Court to order one or both parties to observe “the status quo” until it had rendered a final decision. A party requesting that the Court indicate provisional measures must show that the case met the following criteria: first, that the Court had prima facie jurisdiction in the case; second, that there was a link between the claimed right to be protected and the measures requested; and third, the established urgent risk of irreparable harm. Provisional measures, he said, required the Court to discern a relationship between each of these criteria at the merit stage of the proceedings. He emphasized in this regard that, while the Court’s determination of the plausibility of the right to be protected had a relationship to the merits of the case, it was not determinative of its merits.
Turning to the Court’s consideration of preliminary objections, he said the Court could look at the merits of the case only after it had made the decision whether to accept or reject the preliminary objection being requested. In some cases, however, the Court did not reject or uphold the preliminary objection, but instead decided that the objection did not possess an “exclusively preliminary character”; this was a new formula intended to cover a complicated situation. Unless one explored the merits of the case, this latter decision could not be made. Therefore, in these types of decisions, a practice had evolved under a “reformed Court of Justice”, which joined preliminary objections, considered to bear on the merits of the cases, with the very merits of the case.
Focusing on the counterclaims, he said this third type of incidental procedure was “an autonomous legal act, the object of which is to submit a new claim of the Court”. This counterclaim, he said, had to be linked to the principle claim. In that regard, the Court could only “entertain” the claim if it was within its jurisdiction and was directly connected with subject-matter of the other party’s claim. Moreover, a counterclaim had to come within the Court’s jurisdiction by its own standing and not based on the original claim. When determining the counterclaim’s direct connection with the subject-matter of the main claim, the Court exercised its “sole discretion”, taking into account the particular aspects of each case.
Requests for intervention, he noted, had been resorted to on many occasions. While the right to intervene was in some cases automatic, in other cases it was conditional. When a case involved the construction of a convention, all State parties had the right to intervene in proceedings. On the other hand, if a State considered that it had an “interest of legal nature” which might be affected by the decision of a case, the Court could decide if the State had the right to request intervention. Proving this “interest of a legal nature” was, however, difficult. He recalled that in the history of the Court, permission to intervene had only been granted in three cases: Nicaragua was permitted intervention in Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras); Equatorial Guinea in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria); and Greece in Jurisdictional Immunities of the State (Germany v. Italy).
In closing, he emphasized that although incidental procedures might not be a central part of the court’s work, the Court’s jurisdiction in each of those areas was continuing to evolve. As more of these cases came before the Court in recent years, more interesting questions arose, contributing to development of this area of case law. He said this was “sometimes neglected,” but important area of procedural law should be of particular importance to those delegates in the room involved in international legal proceedings in their countries.
MILAN DUFEK (Czech Republic) said he appreciated the progress that had been made by the Commission on the subject of the effects of armed conflicts on treaties; the fact that the draft articles did not deal with treaties between international organizations and the expansion of the criteria which applied to the termination or suspension of a treaty were both positive. Although he recognized the need for the legal certainty and predictability of international law governing armed conflicts, he said a careful and cautious approach was needed in culminating work on the topic.
On the one hand, the draft articles contained rules consistent with international law and State practice, but on the other hand, they also ventured into new areas not well covered under the international legal regime, particularly with regard to their reference to internal conflicts. It would therefore be premature to convene a diplomatic conference to negotiate an international convention. The draft article should, for now, be adopted in a non-binding form. After it was clear that they were widely accepted through State practice, an international conference could take place.
Turning to the draft articles on the expulsion of aliens, he said they contained some provisions which exceeded the international legal framework and their wider acceptance could therefore be problematic; for example, the scope of procedural rights granted to aliens illegally residing in a host State. In that regard, it was important to ensure not only strong protection for affected persons, but also wide acceptance of such rules by the international community.
In closing, he welcomed the three newly proposed draft articles on the protection of persons in the event of disasters, with respect to the responsibility of affected States and the role of States and other entities offering assistance.
CATHERINE GUIDENUS ( Austria) said the inclusion of “non-international armed conflicts” in the draft articles covering the effects of armed conflicts on treaties would be “detrimental to the stability and predictability of international relations.” Even if these types of conflicts were covered under the articles, the other State party to a treaty might not be aware of a conflict occurring within a State. Additionally, the articles should better distinguish between State parties to a treaty that were simultaneously parties to a conflict and those that were uninvolved. She was of the view that practice in this area should be further monitored to obtain a clearer picture as to States’ acceptability of the articles.
Turning to the topic of expulsion of aliens, she said Austrian law designated that appeals against all expulsion decisions had a “suspensive effect” on those decisions, whether the alien was lawfully or unlawfully present in the country. In Austria, this suspensive effect was also largely granted to appeals with regard to asylum seekers. These laws were in alignment with the European Convention on Human Rights. The case law of the European Court on Human Rights stressed the importance of granting suspensive effect for appeals against expulsion decisions, particularly in light of the right to an effective remedy.
Discussing the protection of persons in the event of disasters, she said disaster relief in Austria largely fell within the realm of each of the provinces. The provinces had enacted their own disaster relief acts, which provided for the establishment of provincial disaster relief authorities. Federal authorities coordinated and informed these provincial bodies. As for the provision in the draft articles to the effect that it was the duty of a State to provide assistance when requested to do so by an affected State, she said she was against its inclusion. Similarly, the provision that provided for the duty of the affected State to seek assistance “did not strike the right balance between State sovereignty and the protection of individuals”. When national capacity to respond to a disaster was exceeded, the State affected should seek assistance, but had no duty to do so. She said she supported the requirement that States consent to assistance before it is given and that they not withhold consent arbitrarily. Even if consent were denied arbitrarily, she said that under existing international law other States would not be subvert to the judgment of the affected State without its consent. Assistance provided by any entity, she said, must be given in a spirit of cooperation, which excluded unilateral imposition.
GUIDO HILDNER ( Germany) said the general use of the term contained “expulsion of aliens” in the Commission’s report could lead to misunderstandings. A State’s right to expel, or oblige an alien to leave the country, needed to be distinguished from a State’s right to deport or force an alien to leave a country. In the case of deportation, a State’s discretionary power was far more limited. Further on this matter, he echoed doubts expressed by other delegations as to the possibility of the draft articles being elaborated into a convention.
This issue, he noted, was governed by a large number of national rules and regulations. Human rights instruments also addressed the subject and contained relevant guarantees for the protection of the individual in case of expulsion. In that regard, he saw no need for codification, and instead proposed that guidelines or principles of best practices be developed. In basing analysis on State practice, he also urged that contemporary practice be the focus since pre-World War II practice in Germany was no longer relevant. He also affirmed his agreement with the Special Rapporteur that no general rule of international law required the expelling State to provide a right of appeal against an expulsion decision with suspensive effect.
On the topic of “protection of persons in the event of disasters”, in response to a question posed by the Law Commission on whether a duty to cooperate included a duty on States to provide assistance when requested by the affected State, he said there was no such legal obligation on third States or international organizations to provide the affected State with assistance, the Special Rapporteur’s analysis showed there were no cases or relevant practice affirming such a “duty”. He said his country was a major humanitarian donor through the past years, and was committed to effective and internationally co-ordinated humanitarian aid that was based on humanitarian principles. Yet this international cooperation, he pointed out, was not about entitlements vis-à-vis those providing assistance; the only legal obligations that existed were those of a State to its citizens. Creating a “duty to provide assistance” would create legal and practical problems, raising questions as to who could determine whether the duty to provide assistance had been violated, and how such a rule operated for States with limited capacities to provide such assistance.
ADY SCHONMANN ( Israel) said the reliance of the draft articles on the topic of “responsibility of international organization” on the articles on State responsibility did not take into account the inherent differences between States and international organizations. This might lead to “undesirable consequences”. Because of the variety and diversity of international organizations, applying such rules in a uniform fashion was questionable. Some international organizations were established as discussion forums while others, such as peacekeeping operations, had a specific performance function. Furthermore, she said, the draft articles also glossed over the difference between the responsibility of an organization to its member States as against the responsibility of an organization to third-party, non-member States.
She turned to the topic of “effect of armed conflict on treaties”, noting her concern with the proposed definition of “armed conflict” that was based on the Tadic decision in International Criminal Tribunal for the Former Yugoslavia. This definition remained “innovative and overly broad”, and lent itself to risks of legal controversy and confusion. The more universally accepted definition of armed conflict of the Geneva Convention would provide the greatest legal clarity and certainty for States.
She noted that the issue of “expulsion of aliens” was a complex topic requiring considerable care in balancing States’ rights and sovereign prerogatives on one hand and fundamental rights and interests of individuals on the other. She stressed that a State’s right to expel aliens must be exercised in accordance with established rules of international law, notably in the protection of human rights and dignity in the treatment of aliens. The topic also raised concerns regarding migration and national security. Different States were subjected to different obligations based on diverse national, regional and international instruments. Because of this, she urged the Special Rapporteur and the Drafting Committee to focus “strictly” on established legal principles and State practice.
On the topic of the “protection of persons in the event of disasters”, she noted the increasing frequency and magnitude of natural disasters. Because of the primacy of an affected State to best determine the gravity of an emergency situation and response policies, she sought clarification regarding that State’s responsibility to seek assistance where its needs exceeded its national capacity to respond. The scope and content of such assistance, as well as what it would entail in practice, required further consideration by the Commission. She reiterated her country’s support for international cooperation and collaboration in providing disaster relief, and thanked the Special Rapporteur’s ongoing efforts to ensure that a State maintained primary responsibility for the protection of persons and provisions of humanitarian assistance in its territory.
EDWIGE BELLIARD ( France) called for further editing of the draft articles on the topic “effects of armed conflicts on treaties”. She then expressed appreciation for some of them, which clarified a point raised by her delegation in the past session. However, she expressed continued doubt as to the relevance, in draft Article 7, of an annex listing categories of treaties, even if only for “indicative purposes”. The uncertain nature of several of the listed categories, “multilateral law-making treaties”, for example, might potentially lead to the inclusion of all existing treaties. In that regard, she said, the list offered more disadvantages than advantages.
On the subject of “expulsions of aliens”, she expressed concern about the Special Rapporteur’s discussion on French law where references were made to French practice and legislation. Her delegation had difficulties with his analysis of French draft legislation on immigration, integration and nationality, which came into law in June of this year. The questions of nationality, she averred, bore no relation to the topic being examined by the Commission. The provisions which had been cited on nationality had been removed from the bill during its consideration before parliament.
She also said there were extremely important circumstances that needed to be envisaged where public order or national security grounds justified immediate deportation.
Turning to the topic of “protection of persons in the event of disasters”, she said that the chosen approach on draft Article 9 on the “role of the affected State” was highly relevant; the choice of terms, “duty” and “role” helped avoid confusion with the concept “responsibility”. However, she said, she had doubts about the character of the draft article on “duty of the affected State to seek assistance”. In international law there appeared to be no consensus as to the existence of an obligation of the affected State to ask for help.
HUANG HUIKANG ( China), noting that the draft articles on “effects of armed conflicts on treaties” reflected and incorporated his country’s and other State comments in its current format, said that there was still “room for improvement”. Treaties concluded between international organizations and States should be included in the scope of the draft articles; currently they applied to the effects of an armed conflict on treaties between States. Because of the increasing activities of international organizations, it was becoming more common for those organizations to conclude treaties with States, which might be affected by armed conflict.
Commenting that the relevant articles had been primarily based on work and practice of two States, namely, the United States and the United Kingdom, he said this was an “insufficient and imbalanced” reference to State practice, and undermined the universal applicability of the relevant draft articles. He urged the Commission to conduct its continued studies on a wider range of State practice.
On the subject of “protection of persons in the event of disasters”, he said when international cooperation respected national sovereignty, both were reinforced. Affected States bore the primary responsibility when responding to natural disasters. This not only facilitated more effective international cooperation but motivated affected States to assume responsibilities on their own initiative, and to be more committed to building disaster-relief capacities. Further, disaster relief should never be politicized and become an excuse for interfering in the internal affairs of a State, as that would be a violation of the principles of humanity, neutrality and impartiality, contradicting the “spirit of relief” and compromising relief activities. It was difficult to imagine that a State, when faced with a disaster that it could not adequately handle by itself, would not fully capitalize the assistance from the international community, unless it suspected such assistance had “ulterior motives”.
SHEHZAD CHARANIA (United Kingdom) said the draft article on the “effects of armed conflict on treaties” had been changed to put forth a simple statement of principle and then described situations where treaties were assumed to continue; that was in welcome contrast to adopting a presumption in favour of continuity and then trying to list treaties or categories of treaties which did not continue. He reviewed other adjustments, mostly improvements, in the draft articles which, he said, on the whole, seemed “clear and helpful”. He supported the General Assembly adopting them, as now presented.
Turning to the “protection of persons in the event of disasters”, he said the codification or progressive development of a comprehensive set of rules would not be suitable for this topic, as earlier stated by his delegation. The development of non-binding guidelines or a framework of principles for States and other engaged in disaster relief would be more practical, and would enjoy widespread support and acceptance. Draft Article 10, spelling out the duty of, and rationale for, an affected State seeking assistance when it exceeded its national capacity, was in his delegation’s view “questionable”. It was on the level of a recommendation or good practice, “but no more”. With regard to the “expulsion of aliens”, he said his delegation had previously stated that the topic raised difficult and complex issues which intruded “directly into the domestic sphere of States”. It was thus not suitable for codification at the present time.
LIESBETH LIJNZAAD ( Netherlands) said she was not convinced of the Law Commission’s need to address the topic of “the effects of armed conflicts on treaties”; recent armed conflicts had not led to great problems regarding the law of treaties. The Commission had belaboured the obvious with regard to this subject and certain draft articles had been formulated without the benefit of State practice. She said she opposed the potential elaboration of a convention on the matter, and recommended that the Commission and Member States focus on other topics which would “entail a more substantive contribution to international law.”
She said she was also concerned about the draft articles on “expulsion of aliens,” particularly about the scope of protection they offered, since some of the text was left open to interpretation. Because the draft articles did not take into account existing instruments of international law, they made it unclear as to the international legal regime applicable in specific situations. The draft articles could be reformulated into guidelines or principles enunciating best practices, but might not be viable as an instrument of international law.
As to the new draft articles on the “protection of persons in the event of disasters”, she said draft article 10, in particular, did not address the situation in which the affected State was unwilling to protect persons in its territory. Regarding the sequence of the draft articles, she said the right of third States and other entities to offer assistance should appear before the duty of the affected State not to arbitrarily withhold consent to such assistance. Broadly speaking, the suggested duty to provide assistance should not be included within the general duty to cooperate.
CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) welcomed the adoption of the draft articles on the “effect of armed conflict on treaties”, saying that the text maintained the principle of the continuation of treaties during armed conflict. As for the topic of “expulsion of aliens”, she said her delegation generally agreed with the approach taken regarding the fundamental rights of aliens. She also noted the manner in which the issue of the protection of property of the expelled person was addressed, specifically in reference to the view of expulsion in order to confiscate such property. The specific aspects of expulsion, specifically determining to which State a person wished to be expelled, and the right of that State to receive said person, required further review.
She noted that, on a national level, in keeping with Spanish law, the expelled alien could appeal either administratively before the governmental authority that had ordered such expulsion, or in a judicial manner. In the case of an asylum seeker requesting a suspensive effect, such a request was granted and expulsion procedure suspended until a decision on the request of asylum could be made.
On the “protection of persons in disasters” she said the will of the affected State should be respected, but due account needed to be taken of the fact that the State had the duty to provide persons within its territory disaster relief. This was key in deciding the scope of the right of affected States with regard to offers by third parties. As for the scope of obligation of third parties, when asked for assistance, she said there was no legal norm, nor sufficient practice, from which to draw any conclusion about this obligation. However, she stressed that the obligation should be considered in “good faith” while taking into account the principles of humanity, neutrality and impartiality.
ANDREI POPKOV ( Belarus) said the draft articles concerning the “effects of armed conflict on treaties” complemented gaps in international treaty law. World events had underscored that maintaining legal clarity in relationships between States was a pillar of international law, particular in the context of conflict. The drafting of a convention based on the articles, however, was not necessary. The 1969 Vienna Convention on the Law of the Treaties had already codified this area of law. Elements of the draft articles could, instead, be integrated into the Vienna Convention, possibly taking the form of an optional protocol.
He said modern-day conflicts could lead to serious disorganization in the functioning of States. The draft articles should further clarify, in that regard, terms for concluding treaties during armed conflict, particularly with regard to an established timeframe, and also the terms that indicated the loss of the right to terminate or withdraw from a treaty or to suspend its operation. These clarifications would foster more predictability and consistency in treaty relations.
GARBA ABDOU ISSAKA ( Niger) said the topic of “expulsion of aliens” was most important to his country, since it experienced the movement of people for immigration or migration reasons, or because such persons were fleeing from harm. In this regard, he underscored that the alien was a vulnerable person who needed protection. In Niger, such a person would receive a three-month residency visa that carried some of the rights of a citizen of Niger. There were exceptions, among them the right to vote and the right to serve in the military.
He said he shared the conclusion of the Commission in the case of Ahmadou Sadio Diallo (the subject of an International Court of Justice Ruling last year) and he hoped the Commission would give priority to the humanity of the individual in its efforts on the draft articles. He supported the conclusion of the draft articles because of the universal acceptance of human rights.
On the topic of the “protection of persons in disasters” he said the draft articles were an illustration of progressive development that should be supported. However, he had concerns about the difficulty of “calibrating” the events on the ground during disasters, and taking into account which parties were vulnerable. ”Who would assess the needs of vulnerable people and who are these vulnerable people?” he asked. In his country, during the provision of aid, there was difficulty in identifying who they were. While it was necessary, from a legal point of view, for the affected States to give consent to receipt of assistance, such a process could, in his view, slow down the access to aid and its delivery.
When the Committee met again this afternoon, ALEJANDRA QUEZADA ( Chile) said the draft articles on the “effects of armed conflict on treaties” dealt with a topic not covered in the Vienna Convention and fit smoothly with other international rules related to armed conflicts. She agreed with the scope of armed conflict as defined in these articles, which clearly established important principles, including the need for their stability and the fact that an armed conflict does not ispo facto cause a treaty’s termination or suspension. The articles further underlined the importance of the parties’ intentions in determining whether a treaty remained in force, and outlined the relevant rules should a treaty have no provisions regulating its operation during an armed conflict.
Turning to the draft articles on the “expulsion of aliens”, she said they must strike a balance between the State’s right to expel aliens and the duty to respect international human rights law. The obligation to respect international law must be established in every expulsion process. A general safeguard that an alien could not be expelled to a country where his or her life or personal freedom was endangered was needed. She said Chile supported the idea of a legal framework providing safeguards during the transit of expelled aliens, and agreed with the provisions on protecting the property of aliens facing expulsion. Grounds for readmission to an expelling State must be carefully defined.
She said the legal regulation of “protection of persons in the event of disasters” must be based on respect for territorial sovereignty and non-interference in the internal affairs of affected States. Victims’ rights were fundamental human rights and their effective enjoyment must be ensured. The provision of strictly humanitarian aid to persons or forces of other countries could not be considered unlawful interventions. Chile agreed that the duty to seek assistance derived from the obligation of the affected State, and the verb “seek” was fully compatible with the phrase “as appropriate”. Further noting the inclusion of the modern concept of sovereignty as entailing both rights and obligations in draft article 11, she said the wording of that article was appropriate, and was the right to offer assistance as specified in draft article 12.
MARIA TELALIAN (Greece), commending the Special Rapporteur, said the draft articles on the “effects of armed conflicts on treaties” were a balanced set of rules that did not deviate in principle from the Vienna Convention on the Law of Treaties. Despite the difficulty of, among others, researching State practice which dated back to the World Wars or earlier, and were contradictory or scarce, the draft articles still offered a major contribution to the codification of international law. She also noted the practical solutions adopted, notably in the commentary of draft article 2, regarding territories under occupation even in the absence of armed actions between the parties and when the occupied territory does not meet an armed resistance.
The practical significance was also reflected in its scope of application, not just in cases of international armed conflict but in protracted non-international armed conflicts. This was, in her view, a breakthrough in treaty law since it enabled State parties of a given treaty to seek and envisage practical solutions necessary to the operation of that treaty whenever one of the parties in that treaty was under prolonged civil strife.
However, she pointed out two areas that might offer difficulties, the first connected to the date of notification by a State informing other parties to a treaty of its intention to withdraw or suspend a treaty. She said that it might be preferable for States to have at their disposal a clear set of rules during a non-international and protracted armed conflict. The other concern she had was with regard draft article 13 which provided the resumption of a suspended treaty by a unilateral act since it was “no longer a matter of agreement between States”. In this situation, she had difficulty with the term “unilateral”, as the resumption of a treaty was an operation solely carried out through the agreement of the parties. She stated her support for the Commission’s view that these draft articles take the form of an international convention, as it would complement the provisions of the law of treaties “with an instrument of equal normative effects” as the Vienna Convention.
She observed that the draft articles on the “expulsion of aliens” were close to a draft international convention, but the elaboration should contain a more focused text of well-established fundamental guiding principles, standard and guidelines. Addressing specific articles and language, she noted, among others, that the inclusion of a provision on voluntary return or voluntary departure of an alien, under expulsion, would permit greater respect for human dignity and more manageable administration. However, in this case the term “encourage” seemed to lack legal precision.
On the topic of “protection of persons in the event of disasters”, she said the commentaries were particularly useful, providing factual and legal background in the articles. However, there was one category of persons who had been overlooked by the text of the articles and in the commentary, that of persons with disabilities. If it were not possible to include them in the relevant article, then they should be mentioned in the commentaries.
Further, she noted that the right to fresh water should be included with the right to fresh food. Her country suffered earthquakes, and access to fresh water was often immediately affected as wells became blocked.
JORGE LUIS CEPERO AGUILAR ( Cuba), on the “protection of persons in the events of disasters”, said he supported codification on the subject because of its effect on preserving human lives, especially in developing countries. He reiterated his delegation’s comments regarding draft articles 5 and 10, which could be seen as ambiguous and removed from the principles enshrined in international law and customary law regarding humanitarian assistance. The Assembly’s resolution 46/182 on strengthening coordination of humanitarian assistance should be reflected in the draft articles. He reaffirmed the sovereign rights of States to accept or reject assistance, and emphasized that the draft article should not place an obligation on the affected State to accept intervention, since only the affected State could determine when its situation exceeded national capacity.
Turning to the “effects of armed conflicts on treaties”, he stated the draft articles were impaired by imperfect definitions of armed conflict. The relevant draft article should allow for the inclusion of other types of conflicts, characterized by direct aggression against a State. Their effects on treaties were similar to those generated in typical cases of armed conflict, as in the specific case of the unilateral imposition of an economic blockade against trade and finance from a given State. Further he said that for greater clarity, a definition in article 18 of “grave violation” and “change of circumstances” should not contradict the regime of the Vienna convention.
On the topic of “expulsion of aliens”, he said the draft articles were a useful contribution to the human rights of expelled persons, while not violating the sovereignty of States. The draft articles must respect domestic law and national security, while rejecting the use of expulsion as a discriminatory practice.
SERGEY LEONIDCHENKO (Russian Federation) said, in regard to the “expulsion of aliens”, that it was important to include a rule in the relevant draft article that the expelling State should encourage voluntary compliance with a decision on expulsion, and he urged for clearer content on “such an encouragement”. It was unnecessary, he said, to refer in the draft article to air travel, since transportation of persons subjected to expulsion could be facilitated in modes of transportation other than air. As for the obligation to protect the property of the expelled persons, he said that while he appreciated that the expulsion should not be used as a means of confiscating property, in practice, assessing the goals and intentions of states may not be an easy task. He said he did not think certain situations, where both expulsion and confiscation were “independent sanctions” against that person, could be excluded. The non-application of confiscation provisions only on the grounds that that person was also subject to expulsion might place that person in a more privileged situation as compared to citizens of a State where such confiscation would apply for the same type of actions.
Turning to the topic of “protection of persons in the event of disasters”, he questioned the draft articles about a strict legal obligation of the affected State to request assistance, and not reject such offers without substantial justification. In his view, these draft articles were to stipulate a “moral and political duty” of the affected State rather than a legal obligation that would entail international legal consequences in the event of non-compliance.
As for the “effects of the armed conflicts on treaties”, he said that non-international armed conflicts should remain outside the scope of application of the draft articles, since those conflicts did not have the properties that affected the status of relations between a State implicated in that conflict and other States.
ALIREZA JAHANGIRI ( Iran), said that implementation of the draft articles, on “responsibility of international organizations” might pose practical difficulties. One example was the possibility of an international organization invoking self-defence, noting that the term had a different meaning when applied to United Nations peacekeeping operations. The question present in this matter was whether self-defence could be applied when the attack was by a non-State entity.
According to the Special Rapporteur’s assertions, self-defence included the defence of safety zones established by the United Nations against attacks usually carried out by non-State actors. The behaviour of military forces of States could not be attributed to the organization when the Security Council had authorized Member States to take appropriate action outside a chain of command. Member States of an international organization, as in the case of the United Nations, faced great difficulty when dealing with responsibility. He stated his belief that the “brunt of responsibility” should be borne by the members of the organization because of their role in the organization’s decision making, or because of their contribution to the wrongful act of the organization.
Turning to the “effects of armed conflicts on treaties” he said that despite a “clear preference” by many delegations, including his, that the topic be confined to international armed conflicts, draft article 2 included a direct reference to “non-international armed conflicts.” The possible effects of this category of conflicts might have on treaties were governed by the provisions of draft articles on International Responsibility of States under circumstances precluding wrongfulness. Nonetheless, he continued, the inclusion by the drafting committee of only those internal armed conflicts with outside involvement might come under the draft articles was encouraging, since such conflicts could become international in both “nature” and “extent”.
On the “expulsion of aliens”, he said a State’s right to expel aliens living on its territory, if they threatened national security, could not be contradicted. The emphasis must be on conducting the expulsion in a manner that respected fundamental human rights of the deportees. He expressed doubts whether it was advisable to formulate any provisions on appeals against expulsion decisions, and agreed with the Special Rapporteur that there was no need for additional draft articles on this question, since there was no obvious evidence in State practice. The final form of the draft articles into a convention was also doubtful in his view, but rather the article should be guidelines for States to refer to when engaged in their own practice.
On the topic of “protection of persons in the event of disasters”, he said the dual nature of a State’s sovereignty, which entailed both rights and obligations to take all measures to provide assistance to its nationals and other persons living in its territory, could not be “disproportionately broadened” to a legal obligation to seek external assistance. The obligation to cooperate when receiving aid did not oblige the State to accept relief, as such humanitarian aid remained subject to the consent of the affected State. The affected State had the right, in accordance to its domestic law to direct, control, supervise and coordinate the assistance provided in its territory.
ISTVÁN HORVÁTH ( Hungary) said the issue of “expulsion of aliens” remained controversial. He expressed concern about the need to strike a balance between repetition of State practice and the introduction of new international human rights standards. In response to questions related to the “suspensive effect” of appeals, he urged the Special Rapporteur to give careful consideration to special regimes, such as the European Union, and to make future reports reflective of relevant developments. In Hungary, for example, appeals against expulsion decisions did not distinguish between lawful and unlawful aliens. As most of the matters dealt with by the draft articles on expulsion of aliens fell within national competence, it might be sufficient to refer to general human rights guarantees instead of the approach outlined in the draft articles.
Speaking more specifically about the draft articles on expulsion of aliens, he said he supported the provision which encouraged voluntary compliance with expulsion decisions. The Rapporteur, however, did not take into consideration cases when the person concerned posed a threat to public order or national security. States should not be obliged to encourage voluntary compliance in these cases. Revisions to the current set of draft articles should include reaffirmation of the right of States to use “coercive measures in cases of forceful implementation”, while abiding by international human rights obligations.
With regard to protecting people during disasters, he said it might be wise to formulate the duty to provide assistance when requested by affected States as a strong recommendation, or example to follow, rather than an obligation. There were other mechanisms, such as the Official Development Assistance, in which States already transferred a pre-assigned percentage of their national incomes to assist those in need.
MIGUEL DE SERPA SOARES ( Portugal) speaking of “the effects of armed conflicts on treaties”, said parties to treaties were supposed to conclude those treaties in good faith and with intention of compliance. It had, however, proven difficult to establish the parties’ intention at the time of conclusion. He asked, with respect to conclusion, how a balance could be struck between trust among the parties and the need for legal certainty. Despite doubts voiced during Sixth Committee debates, he believed the relevant draft articles were suitable for an international convention. Controversial issues, such as the inclusion of internal armed conflicts and the position of third States, would not be concluded in the short-term. The convention should therefore be considered at a later stage, possibly through the early establishment of a working group that would allow delegations to discuss in detail their different perspectives.
The draft articles on the “expulsion of aliens”, meanwhile, should make clear that an expelling State should adopt necessary measures to promote the voluntary return of an alien. Furthermore, the Law Commission should establish assurances that an alien would not be expelled to a State where he or she might be subject to torture or other cruel, inhuman or degrading treatment. As States had domestic mechanisms enabling aliens subject to expulsion to appeal a wrongful or unlawful expulsion decision, and to hold the State responsible, it was only when these systems broke down or a State did not provide access to them that issues of international responsibility and diplomatic protection came into play. Finally, in these matters, a fine line between provisions relating to expulsion and extradition should be drawn.
Turning to the “protection of persons in the event of disasters”, he noted that the Commission, at Portugal’s recommendation, had studied scenarios where an affected State could not, or would not, protect persons during disasters. These studies had resulted in a provision within the relevant draft articles on the duty of the affected State to protect the people within its territory. The Commission should continue to examine situations when States failed to seek assistance when the duty to do so arose. When examining the issue of State consent, the Commission should also look at the relationship between international cooperation and principles such as that of sovereignty and non-intervention.
LINGGAWATY HAKIM ( Indonesia) briefly addressed two issues found in the `first cluster’ of the Commission’s report — “reservations to treaties” and the “responsibility of international organizations”. She said she welcomed adoption of the Guide to Practice on reservations and the establishment of a flexible mechanism of assistance for dispute settlements. The draft articles on the responsibility of international organizations required more input from States, before they could be elaborated into a convention. National legal systems should be taken into account and could be invoked against the wrongful acts of an international organization. Additionally, international organizations had the right to “self-defence” when they were the subjects of controversies.
Turning to the “effects of armed conflicts on treaties”, she said the corresponding draft articles should only be applicable to international armed conflict, not to internal conflicts, which were in many cases triggered by separatist movements. Regarding the immunity of State officials from foreign criminal jurisdiction, she said such immunity should be limited to Heads of Government, Heads of State and Ministers of Foreign Affairs. Only a State could legally invoke the immunity of its officials.
In relation to the “protection of persons in the event of disasters”, she expressed the core principles of sovereignty, non-intervention, State consent, and the need to ensure balance between those principles and the duty of protection. Some of the draft articles on the topic, she said, did not accurately reflect this balance. Indonesia’s legislation reflected her view that assistance should be carried out based on national legislation, political independence, sovereignty and territorial integrity.
IGOR BARTHO (Slovakia) supported the recommendation of the International Law Commission to the General Assembly to take note of the draft articles on the “effects of armed conflicts on treaties” in a resolution, and to annex them to the resolution, as well as to consider at a later stage the elaboration of a convention on the basis of the draft articles. The adopted articles had established a serious expert basis for further considerations. His country was fully prepared to contribute to those considerations.
He said that there were at least two major fields of international law in which the effects of armed conflicts on treaties deserved further consideration, namely international law norms regulating international responsibility of States and international organizations, and international law norms regulating succession of States with respect to treaties and succession of States with respect to State property, debts and archives.
With regard to the list of enforceable treaties included in the draft articles, he said the question arose as to what extent a territorial State or a democratic insurgency movement, which aimed to become a new government in the territorial State, would be in a position uninterruptedly to comply with their obligations under those treaties. In particular, when was a territorial State or movement not in a position to fulfil international commitments? A formal enforceability of such treaties would be counterproductive. Further expert analysis should examine whether the draft articles fully embraced all new developments and challenges emerging from the latest democratic revolution movements and reforms.
ALAN KESSEL ( Canada), acknowledging the complexity of the topic “expulsion of aliens”, said it was important to continue to seek the view of States. He questioned whether the draft articles should contain a provision on the “suspensive effect” of an appeal. He agreed with the Special Rapporteur that State practice did not appear to warrant the formulation in the draft articles of a provision on this suspensive effect. He also wondered if the draft articles should attempt to address the issues of extradition, stating that his delegation was of the view it should not. Extradition was both legally and conceptually different from the issue of expulsion of aliens, where one State surrendered, at the request of another State or entity, an individual accused of an offence. Expulsion of aliens was the unilateral removal by one State of a foreign national from its territory.
He noted that in many countries both aliens and citizens could be extradited, but only aliens could be expelled. Further, the purpose of extradition was to ensure that criminals did not escape prosecution simply by fleeing from the territory of one State, which would not be relevant in many instances of the expulsion of aliens. He also stated that draft article 8 — dealing with expulsion in connection with extradition — did not have sufficient evidence of State practice to support its conclusion. In light of the differences of these two principles, he felt it premature to retain the draft article and called for its deletion. Concluding, he said he shared the view of some of the Commission’s members who thought draft guidelines or principles describing best practice would be a practical outcome for this topic.
THEMBILE JOYINI (South Africa), on the topic of the “effects of armed conflicts on treaties”, commended the Law Commission for including “treaties on international criminal justice” which supported the survival and continued operation of treaties such as the Rome Statutes of the International Criminal Court, but also could encompass other general, regional and even bilateral agreements establishing mechanisms for trying persons suspected of having perpetrated international crimes. This concerned the international community, he stressed, and was a reason in itself to advocate for the survival of treaties belonging to this category. “The inclusion of war crimes renders essential the survival of the treaties considered here,” he stated.
Continuing, he said treaties relating to diplomatic relations and to consular relations should be placed in the class of agreements which would not be necessarily terminated or suspended in case of an armed conflict, as even in armed conflict, consular relations could continue. Likewise, he supported the Law Commission’s position that treaties declaring, creating or regulating a permanent regime or status, or related permanent rights, were not suspended or terminated in case of an armed conflict.
JAE-SEOP KIM ( Republic of Korea), on the topic of “effects of armed conflicts on treaties”, stressed the importance of the topic, because such conflict made it difficult or impossible at times for treaty parties to fulfil their obligations. This in turn impaired the stability of treaties and the relations between parties. His delegation was of the view that it was necessary to distinguish between treaties whose operation was not affected during armed conflict and those which were.
Turning to the subject of the “expulsion of aliens”, he said that, while acknowledging the rights of States to expel aliens for violating domestic regulations or damaging national interests based in sovereignty, it was also necessary to keep a balance between State sovereignty and the human rights of the expelled aliens. Any appeal against an expulsion decision must be possible for basic human rights. On a national level, his country ensured that a “suspensive” effect be given to appeals against an expulsion decision. On an international level, he emphasized the “non-refoulement principle” by which, as a contracting party to the Convention on the Status of Refugees, the Korean Government would not “expel” refugees in any manner whatsoever to States where their lives or freedoms would be threatened on account of their race, religion, nationality, membership of a particular group or political opinion.
As for the “protection of persons in the event of disasters”, such protection was not considered by his delegation as a duty but a right of the aid donor. Thus, he stated, international organizations such as the United Nations should be active in requesting assistance for the affected States. He said the texts of the draft articles could have been “less obscure”. By the wording of draft article 10 it was not clear when a disaster exceeded the national response capacity of the affected State or not.
KRIANGSAK KITTICHAISAREE ( Thailand) said that with respect to the “expulsion of aliens”, appeals against an expulsion decision were only available to aliens lawfully in the territory of the expelling State. He then addressed several specific concerns he had with the draft articles on the topic, including the protection of the property of an alien facing expulsion. Exceptions should be made for cases where the court had found that property had been acquired illegally. Also of concern was the text on the right of return to the expelling State; the term “return”, he said, should be replaced with “readmission”. He was of the view that addressing the relationship between extradition and expulsion of aliens might be out of place within the text. In addition, these draft articles should not cover aliens whose status was regulated by special norms, such as international refugee law. The draft articles, in his opinion, should instead take the form of draft guidelines or guiding principles.
Turning to the draft articles on “protection during disasters”, he agreed with the Commission that the concept of responsibility to protect must not be extended to cover response to natural disasters and related matters. Commentary to the draft articles, he said, should further clarify which human rights were to be protected in those instances. Among other proposed amendments which would give the articles more clarity, he proposed that in draft article 12, the word “right” in the phrase “right to offer assistance”, be substituted with the word “duty”. This was because offers of assistance from the international community were part of international cooperation, as opposed to assertion of rights.
Remarks of Special Rapporteur
LUCIUS CAFLISCH, Special Rapporteur on the “effects of armed conflicts on treaties” expressed his regret that some of the delegates found the draft articles not useful and not founded on sufficient practice. He stressed that the Law Commission had made a “considerable effort” to consider practice, specifically in regards to domestic courts. As for other proactive practices of States, international platforms and organizations, he said that the Secretary-General had prepared an extensive memorandum on this, based on the work of two Special Rapporteurs.
Addressing the scope of application of the draft articles, he said it was a “delicate and contested” area. As for the definition of armed conflict, it had been criticized as being too narrow or too broad. On the point of the exclusion of treaties to which international organizations were party, and the degree to which that could create problems, he said the question was whether this should be dealt with in separately later; this work might prove difficult with the absence of relevant practice.
Another point of discussion was the annex, another “touchy” point of the draft. He observed that some delegates did not want it, others wanted it short and still others wanted lists that were even more extensive.
SARAH KHALILAH ABDUL RAHMAN ( Malaysia) said the draft articles on the effects of armed conflicts on treaties were a useful guide for the further development of State practice. While she welcomed the Commission’s decision to exclude from the draft articles treaties between international organizations or between international organizations and States, this decision should not be construed to exclude multilateral treaties to which international or regional organizations were party.
Expressing appreciation for the Commission’s efforts to address the coverage of international armed conflicts and non-international armed conflicts through a “modernized definition”, she said it might be necessary to expressly include two additional situations within the draft articles: a territory which had been occupied without armed resistance and blockades where neither party took armed action. Concerning the indicative list of treaties contained in an annex to the draft articles, she said she was uncertain whether the categories “multilateral lawmaking treaties” and “treaties of friendship, commerce and navigation and agreements concerning private rights” should be included. These issues, among others, made it premature to recommend consideration of the draft articles for elaboration into a convention.
On the protection of persons in the event of disasters, she said further elaboration of the relevant draft articles should respect the principles of sovereignty, territorial integrity and non-interference. The duty of the affected State to seek assistance arose only when the disaster exceeded national response capacity. As States might have the capacity to deal with some situations, but not others, the draft articles rightly recognized that States had the right to decide when and which areas called for external assistance. The Commission should further examine the imposition of an obligation on States to seek assistance; international law made the provision of assistance voluntary. The draft articles also recognized the State’s right to decide which entity was in the best position to aid the affected State. In that regard, external assistance should not be imposed upon a State, and State consent should never be implied. Regarding a State arbitrarily withholding consent, there should be further examination of when a situation merited assistance and whether consent was being withheld arbitrarily.
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