|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
25th Meeting (AM)
Expulsion of Aliens, Protection of Disaster Victims among Central Issues
in Statements of Law Commission Officials to Legal Committee
Assembly President Tells Delegates Slowness of Work Result of Complexity of Issues
The Sixth Committee (Legal) today turned its focus from the second group of topics within the International Law Commission report to the third group, and heard from Special Rapporteurs on the “expulsion of aliens” and the “protection of persons in the event of disasters” that the development of international legal instruments on these matters was both timely and relevant.
The subject of “expulsion of aliens” had been taken up internationally since the nineteenth century and was appropriate for codification, said Maurice Kamto, Chairman of the International Law Commission and a presiding Rapporteur. He added that the issue had given rise to much international case law precedent, including judgments on international wrongful acts and diplomatic protection related to expulsion of aliens.
The representative of India spoke in support of the approach taken by Mr. Kamto, which dealt with the right of a State to expel, and the rights and remedies available to the person being expelled.
New developments in international law and pressing concerns of the international community were also reflected in the topic of the “protection of persons during disasters”, said Special Rapporteur Eduardo Valencia-Ospina. He added that the pace of work must be maintained to enable the timely adoption of a legal instrument. Pakistan’s delegate was of the opinion that the Special Rapporteur had rightly drawn two conclusions about the primacy of affected States during disaster relief: that the affected State was primarily responsible for overseeing relief operations and that relief operations required the consent of that State.
Both topics — expulsion of aliens and protection of persons during disasters — deserved the Commission’s attention, said the representative of Japan. He urged the Commission to further study State practice, international instruments and jurisprudence when looking at the expulsion of aliens, and he expected the Commission to elaborate rules that would facilitate “the flow of international assistance to those in need” during disasters.
Recalling the earthquake and tsunami that had struck Japan in March this year, he expressed thanks for the heart-warming encouragement and support Japan had received.
The Sixth Committee also heard a statement today from the President of the General Assembly, Nassir Abdulaziz Al-Nasser ( Qatar), who called the “spectrum of items” addressed by the Committee “wide, deep, traditional and innovative”. He added that because many of the issues before the Committee were complex it was, however, difficult to move at the speed “the majority of us would want to”. Balancing the importance of matters that evoked divergent views required a “forward-looking” approach, which he said had guided the Committee and tested its ability to overcome challenges.
The Committee took up the three draft resolutions on the United Nations Commission on International Trade Law (UNICTRAL), and all three were approved without a vote. Two draft resolutions on the administration of justice at the United Nations were also introduced.
Mr. Kamto, in his capacity as Chairman of the International Law Commission, then addressed the Committee again, introducing the “third cluster” of topics contained in the Commission’s report — “immunity of State officials from foreign criminal jurisdiction”, “obligation to extradite or prosecute”, “treaties over time” and “most favoured nation clause”.
Also speaking today were the representatives Argentina, Romania, Ireland, Congo, Algeria, and Egypt.
The Permanent Observer of the International Federation of Red Cross and Red Crescent Societies also spoke.
The Committee will meet again at 10 a.m. tomorrow, 1 November, to continue its debate on the “third cluster” of items in the International Law Commission report, and to take action on two draft resolutions on the administration of justice at the United Nations.
The Sixth Committee (Legal) met today to complete its annual consideration of the report of the International Law Commission, dealing with the Commission’s “second cluster” of topics ---“effects of armed conflicts on treaties”, ---“expulsion of aliens”, “protection of persons in the event of disaster” --- and moving to its "third cluster”, including “immunity of State officials from foreign criminal jurisdiction”, “obligation to extradite or prosecute”, “treaties over time” and “most favoured nation clause”. (For background on the report and themes, see Press Release 3420 of 24 October.)
Also, the Committee was expected to act on three draft resolutions related to the activity of the United Nations Commission on International Trade Law (UNCITRAL). They were: the UNCITRAL Model Law on Public Procurement and the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective (A/C.6/66/L.10); the UNCITRAL Model Law on Public Procurement (A/C.6/66/L.11), and the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective (A/C.6/66/L.12). (For background on the report and themes, see Press Release 3423 of 27 October.)
Two new draft resolutions on the administration of justice at the United Nations were also before the Committee today. The first, Code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.13) would have the General Assembly approve the code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, as set out in the annex to the present resolution, which establishes a code of conduct based on independence, impartiality, integrity, propriety, transparency, fairness in the conduct of proceedings, and competence and diligence.
The second draft resolution, on the Amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14) would have the General Assembly approve the amendments to the rules of procedure of the United Nations Appeals Tribunal, as set out in the annex to the draft, that would prescribe the manner in which panels, answers, cross-appeals and answers to cross-appeals, case management, and adoption and issuance of judgements would be held.
SHAIR BAHADUR KHAN ( Pakistan) speaking on the “protection of persons during disasters”, said the independence and territorial sovereignty of States was enshrined in international law. The primary responsibility of the State affected by a disaster flowed from its obligation to its citizens. Only the affected State could assess its need for international assistance. The Special Rapporteur on the topic had therefore rightly drawn two conclusions about the primacy of affected States during disaster relief: that the State was primarily responsible for overseeing relief operations, and that relief operations required State consent.
Continuing, he said a range of international instruments had emphasized the primary role of the affected State in terms of providing aid and protection in various contexts. Any legal right to provide assistance should therefore be avoided. Draft articles 10 and 11 on the topic, in that regard, were based on the assumption that States which did not seek international assistance would undermine the practice of international cooperation during disasters. He recommended that the Commission consider whether States, the United Nations, other intergovernmental organizations and nongovernmental organizations, as referenced in article 12, should be treated as if they were on the same juridical footing.
FERNANDA MILLICAY (Argentina), speaking on the “effects of armed conflicts on treaties”, said the examination of the effect of armed conflicts on the termination or suspension of certain treaties should be kept separate from the continuation of the full effect of the legal situations that the parties to a treaty, “made at the time of its celebration”, the nature and content which would not be susceptible to the effects of armed conflict. She expressed her “satisfaction” that the approach by the Commission on this issue, which addressed the law of treaties in light of the prohibition of the threat and use of force as provided for in the Charter. She said she supported the proposal to ask the General Assembly to take note of the draft articles, while taking into account the lack of State practice needed to complete a codifying exercise.
Turning to the “protection of persons in the event of disasters”, she said the general approach should focus on the need to fully respect the principle of State sovereignty, including the concept of the duty of the State to provide for relief and assistance of persons in its territory. However, she questioned whether it was appropriate to refer to non-governmental organizations on an equal footing with States. In working towards an adequate legal framework for assistance activities, the Commission would be contributing to progressive development and codification of international law. It would be preparing a sound legal foundation on this matter, while recognizing that a pragmatic approached was necessary when addressing the problems and needs of persons facing disaster situations.
VISHNU DUTT SHARMA ( India), speaking on the draft articles on “the effect of armed conflicts on treaties”, said he agreed that the existence of an armed conflict did not automatically terminate or suspend a treaty. The decision to bring an end to a treaty would be made in accordance with the law on treaties and would be based on all relevant factors. On the “indicative list” of treaties contained in an annex to the draft articles, he said all of the treaties mentioned could be considered together. Those treaties were different in nature and scope; while some were permanent, others depended upon the parties’ intention. In his view, the topic should be limited to treaties between States and, likewise, the definition of “armed conflict” should reflect only conflicts between States. The draft articles should be annexed to a General Assembly resolution, with the elaboration of a convention considered at a later stage.
Turning to the “protection of persons in the event of disasters”, he noted the provision in the draft articles recognizing the duty of the affected State to seek assistance from third parties. These articles also indicated the duty of the State to protect and provide relief to its citizens and the responsibility of the State to oversee aid relief and assistance. Emphasizing the importance of State sovereignty, he said assistance could be provided only with the consent of the affected State.
Focusing next on the “expulsion of aliens”, he spoke in support of the approach taken by the Special Rapporteur on the topic, which dealt with the right of a State to expel, and the rights and remedies available to the person being expelled. Laws governing expulsion and extradition were, however, he said, different and one could not be used as an alternative for the other.
ANCA CRISTINA MEZDREA ( Romania) said the draft articles on the “effects of armed conflicts on treaties” were testimony to the fact that the maintenance of treaty relations was essential to the cohesion of the international community. While she was pleased that many of Romania’s perspectives had been reflected in the draft articles, she said inclusion of conflicts of a non-international nature within their breadth deserved the Commission’s further analysis. It would be useful to include a reference to the essential document regulating armed conflicts, such as the Geneva Conventions and the relevant protocols.
With respect to the “expulsion of aliens”, she endorsed comments made on behalf of the European Union and suggested that in paragraph 2 of draft article 1D the expression “as far as possible” be deleted. Such wording might create the impression that in certain cases there was no need to abide by international law.
NUALA Nĺ MHUIRCHEARTAIGH (Ireland), on the “protection of persons in the event of disasters”, said the issues of human dignity and human rights might better be reflected in a preambular section rather than in the draft articles themselves, which should focus on more operational and practical elements. Although Ireland was supportive of international cooperation and assistance, there was no legal duty to such assistance. The affected State was primarily responsible for the direction, control, coordination and provision of disaster relief and assistance. As for the duty of States to seek assistance, she reiterated that the responsibility should be to “seek” rather than a more direct duty to “request” assistance.
She said she agreed that States needed to consent before external assistance was given, but was uncertain about how the language in the relevant draft articles requiring States not to withhold consent arbitrarily would translate into practice. In that regard, she said she concurred with opinions in the commentary to the draft articles about the need to carry out assessments to discern arbitrariness. It was not clear, however, who would make the assessments and what would happen if it was determined that consent had been arbitrarily withheld. The Law Commission might elaborate on this matter further, particularly by identifying treaties or practice relevant to consent and arbitrary refusal of assistance.
Addressing the “protection of persons in the event of disasters”, she said that when faced with forces beyond human control the only solution was to cooperate. International cooperation had been the strength of communities throughout the ages, which should be reflected in State-to-State relations. Regarding the duty of the State to protect the people in its territory, she said the international community might also have a duty to protect those affected, since the effects of disasters transcended State borders. Even the most affluent States, she said, could not alone respond to severe disasters. Thus, even if an affected State was capable of and willing to provide assistance, international support would in many cases ensure a more effective response. The consent of the affected State was the best guarantee of non-interference in the State’s internal affairs. Article 12, concerning the right to offer assistance to the affected State, was therefore a practical manifestation of solidarity and an important principle of cooperation.
MASAHIRO MIKAMI (Japan), briefly addressing the “expulsion of aliens”, said the Law Commission should study further State practice and international instruments and jurisprudence in this area, particularly with regard to criticisms by some that the topic was not yet ripe for codification. Turning next to the “protection of persons in the event of disasters”, he recalled the massive earthquake and tsunami that had struck Japan in March. Since that time, the people of Japan had received heart-warming encouragement and support from around the world. For that, he expressed his sincere thanks to all United Nations Member States.
He said it was his expectation that the Commission would codify and elaborate rules and norms to facilitate “the flow of international assistance to those in need”. In that context, the primary responsibility to protect victims of a disaster lay with the affected State. The Commission, however, should deepen its discussion as to whether it was justifiable to characterize seeking assistance as a “duty” of the affected State, while offering assistance was considered the “right” of other States. He also highlighted the importance of and need for international solidarity during disasters.
In closing, he said the relevant draft articles o should not be confused with the concept of “responsibility to protect”, which applied only to genocide, crimes against humanity, ethnic cleansing and war crimes.
ERNEST TCHILOEMBA TCHITEMBO ( Congo), speaking on the draft articles on “the expulsion of aliens”, said there were many praiseworthy aspects of the draft articles; as they judicially balanced the sovereign right of States, the human rights of aliens facing expulsion and the obligations of expelling State, transitory States and the State of destination. However, it would have been advantageous if the Commission had clarified certain terminology used in the articles, particularly with regard to the legal impact on aliens facing expulsion. He also noted that there had not been consensus as to whether the appeal of an alien facing expulsion had “suspensive” effect. Some responses to this question were based on national laws, while others were based in international law.
Continuing, he said the “expulsion of aliens” was an important, relevant and complex issue of a transversal nature, which had been around since the nineteenth century. Divergences in opinion on the suspensive effect of an appeal, he said, arose from the existence of different national laws governing the matter. Drawing on those national laws would provide a basis for the Commission’s efforts toward codification. Once a conclusive body of draft articles had been produced, the utility of the document could be assessed.
FARID DAHMANE ( Algeria), addressing the “effects of armed conflicts on treaties”, said that treaties concluded between states and international organizations should be included in the scope of the draft articles; excluding them would be an artificial restriction and would “deprive us of a comprehensive approach to this issue”. Including the draft articles on non-international armed conflict posed the problem of arriving at a universal definition for this category. The difference in nature between international and non-international armed conflicts and the different obligations which arose from each, favoured splitting them into different categories within the draft articles.
Turning to the “protection of persons in the event of disasters”, he said the affected State had the duty to ensure protection of, and provision of assistance for, the people within its territory. Within the draft articles, there was a split between the concept of human rights and human dignity. In that same sense, article 7 declared that States, nongovernmental and intergovernmental organizations must protect human dignity, whereas when it came to human rights, draft article 8 was vague. The duty to seek assistance, included in article 10, raised the issue of how “national capacity” for providing protection and assistance would be assessed. Also needing further clarification was the concept of “arbitrary non-consent” as exercised by a State when considering the offer of external assistance. This article should be further developed, particularly with regard to a reasonable timeline for determining if consent was being withheld arbitrarily.
IBRAHIM SALEM (Egypt), speaking on “reservations to treaties”, welcomed the Guide to Practice as a “huge legal project”. However, he asked if it would be better for the Commission to formulate an abbreviated copy, in order to enhance the benefits that would come from the use of the Guide.
Turning to the “protection of persons in events of disaster”, he said that while it was a State’s responsibility to request help when its national capacity was overwhelmed, it was equally important to respect the sovereignty of States when discussing this important topic and to ensure that any rules and regulations not infringe on the rights of States.
On the topic of the “expulsion of aliens”, he stressed how important it was to abide by basic human rights as inscribed in international law. With such expulsions increasing, and concern over suspected terrorists, there should not be “en masse” expulsions of illegal immigrants because of race, religion, or ethnicity. He noted that his country was a party to the United Nations Refugee Agreement of 1951 on this matter.
As for the “responsibility of international organizations”, he highlighted the difference between State responsibility and that of international organizations, and said he supported the Law Commission’s “cautionary” approach on this issue. Further, it was important that the responsibility of member States of an international organization should not be confused with the responsibility of the organization itself. Concluding, he urged that the Commission enhance its working methods and “speed up” its review of draft articles, and also to consider more contemporary issues, such as technology, among others, since the increasing importance of such topics required laws for their expanding area of practice.
KATHRYN COOPER, International Federation of Red Cross and Red Crescent Societies (IFRC), said she agreed with the Commission’s conclusion in draft article 10 on the duty of affected States to seek international support for meeting humanitarian needs following a disaster, taking account of the universal right to life and adequate living standards. However, she did not believe States were required by general human rights law to seek that assistance from any specific actor. That point that was not clear in the current text.
She said she raised the issue because of the results of research over the last ten years, which suggested there had been significant problems in some major disaster operations with the involvement of foreign actors lacking the necessary skills to contribute to a well coordinated response. States could and should be selective about the foreign assistance they sought; that point was directly addressed by the Guidelines for the domestic facilitation of international disaster relief and initial recovery assistance.
On the question of the consent of the affected State to external assistance, she said she supported the Law Commission’s conclusion that international help could be provided only with consent of the affected State. While she favoured the conditionality on the power to withhold consent provided in draft article 11, subsection 2, she was still concerned that the language did not clearly indicate that affected states may be selective about the external assistance they accepted.
Increasingly, she continued, States and humanitarian actors were attaching importance on strong domestic laws for managing international disaster response. This was the key conclusion of a meeting held recently in Geneva; next month’s International Conference of the Red Cross and Red Crescent would devote substantial attention to developments in disaster law, and be used as an opportunity to open debate on two often neglected issues related to disaster law: how domestic laws could sustain disaster risk reduction activities at the local level, and how States and humanitarian actors could cooperate to find practical solutions to the regulatory barriers that often impeded the speedy provision of shelter after a natural disaster.
Remarks by General Assembly President
NASSIR ABDULAZIZ AL-NASSER, President of the General Assembly, said he followed the work of all six main committees, based on his personal conviction of the importance of their work. He expressed his appreciation for the professional quality of the Sixth Committee’s work. He called the spectrum of items addressed by the Committee “wide”, “deep”, “traditional” and “innovative”. Because many of the issues were complex, it was difficult to move at the speed “the majority of us would want to”. Working within this context had required the Committee’s continuous efforts in a “positive spirit of cooperation”. He said a forward-looking approach, balancing the importance of the matters at hand with the different views that naturally accompanied them, had guided the Committee’s work and had tested its ability to understand and solve challenges.
Focusing on specific topics of the Committee’s agenda, he said there was a growing need to make tangible progress toward narrowing the gap of some elements of the draft comprehensive convention on terrorism. Much of the Committee’s energy went into building a fair and due process of administration of justice within the United Nations, reflecting the needs of “this twenty-first century institution”. Universal jurisdiction had also been debated, with all parties committed to fighting impunity. Establishment of the rule of law, he said, was essential for building a prosperous and stable society. He spoke with appreciation for the Committee’s assistance with preparing for a high-level General Assembly meeting on the rule of law and said that he also would do his part to support that meeting.
Statements of Special Rapporteurs
MAURICE KAMTO, Law Commission Chairman and Special Rapporteur on the “expulsion of aliens”, said that the subject was complicated because the draft articles were preliminary. The Commission had reviewed the texts in plenary before distributing to the Drafting Committee, which then worked in a thorough manner to find wording while incorporating comments of Governments and comments made in the Sixth Committee. Thus, many of the draft articles presented did not correspond to the Commission’s version.
He said he had followed the substantive debate, and had heard the legitimate concerns of States and assessed their legitimate expectations on this subject. The first of three major concerns that emerged was first whether it was advisable to take up the subject. The second was on the methodology, and the third on what form the outcome of the work should take.
He said the topic of expulsion had been taken up internationally since the nineteenth century. The issue had given rise to much international case law precedent, including judgements on international wrongful acts by States and diplomatic protection on expulsion of aliens. International customary law followed along the lines of international law, such as in the case of asylum seekers.
The jurisdiction of international legal bodies, among others of International Court Justice, backed the rules put forward for the rare rules of progressive development. Two decisions rendered by that Court, in the case of Diallo in 2008 and 2010, were in accordance with international human rights, with regard to the obligation of informing the alien and the obligation of providing motive for such expulsion.
He said that if codification of this topic was not approved then what sort of topic then should be considered to be codified? The Commission had decided this rule had come forward as customary international law. Taking into account the preferences of States, he urged that in this case, facts indicated that this topic should be codified.
As for the concerns about methodology, and the sources utilized, comments had been made that the Commission had cited obsolete sources and that modern practices should be utilized. However, he underscored that historic perspective was important when addressing this topic and should be integrated into work on the topic. When a former practice was proven obsolete, he said, it was left behind, thus showing it was no longer pertinent.
He noted the European Union system of expulsion of aliens and European nationals, which had been taken up in addressing the topic. The dilemma in this was that the Union had particular concerns and another delegation had other concerns. He could not leave aside the European Union practice. The Commission would take into account any practice that enriched or improved the outcome document to be presented next year.
Turning to the form which the concluded work should take, he noted that some States wanted a drawing up of guidelines and directives instead of articles. The Commission would discuss this, especially in light of previous sessions, since it could not make an arbitrary decision at this time. He remained convinced that when the Committee had the body of the texts and commentaries with integrated views of debates, the options of the Commission would be widely shared and supported.
EDUARDO VALENCIA-OSPINA, Special Rapporteur on the “protection of persons in the event of disasters”, said the views expressed by the different delegations were the most accurate guide for the development of an acceptable and useful legal instrument for States. When working on the topic, he had always attempted to bring his conduct in line with serving the highest interest of States. He thanked the European Union for bringing to the Law Commission’s attention the legal and policy framework governing the Union’s relevant practice in this area, and also States for highlighting their relevant constitutional regimes.
On specific issues raised by delegations, he said the opinion had been expressed that the proposed scope of the draft articles relating to the events to be covered by the text was too narrow; that it should be extended to a wider range of activities, covering the pre-disaster phase relating to risk reduction, prevention, preparedness and mitigation. The Commission had endorsed that conclusion by deciding to first undertake work on response to disasters, followed by work on the pre-disaster response.
There was disagreement in draft article 12 as to whether the focus should be on the duty of the State to give serious consideration to offers of assistance. Other delegations were uncertain about whether States, the United Nations and intergovernmental and nongovernmental organizations should be treated on the same juridical footing. Meanwhile, many delegations welcomed inclusion of draft articles 10 and 11 in their current form, while others called for amending the text. This text, he noted, said that States “shall” seek external assistance and that consent to external assistance “shall” not be withheld arbitrarily. “Shall”, he explained, meant that it was the legal obligation for affected States to accept outside assistance, but accepting this assistance was at most a moral obligation and not a legal duty. Rather than an infringement, draft articles 10 through 12 reaffirmed the fundamental international legal principles of sovereignty and non-intervention.
He referred to criticisms by some delegations of the Commission’s engagement in the progressive development of law on a topic, which they said did not enjoy sufficient State practice. In response, he emphasized that the main mission of the Law Commission, as enshrined in the United Nations Charter and by its own Statute, was not just to codify international law but to promote its progressive development on subjects insufficiently developed by State practice, and on those unregulated by international law. The Commission undertook the topic as one that “reflected new developments in international law and pressing concerns of the international community”. This was a truly novel topic which found inspiration in three legal sources: international humanitarian law, human rights law and law on refugees and internally displaced persons.
Action on Draft Resolutions
The Committee took up the three draft resolutions on United Nations Commission on International Trade Law (UNCITRAL). The delegate of Austria then announced additional co-sponsors, before action was taken on the draft resolutions.
The omnibus resolution on the report of the Commission (A/C.6/66/L.10) was approved without a vote, as also were the drafts on the UNCITRAL Model Law on Public Procurement (A/C.6/66/L.11) and on the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective (A/C.6/66/L.12).
Introduction of New Draft Resolution Texts
The Committee then took up the two draft resolutions on the administration of justice at the United Nations.
The drafts were introduced by the representative of Saudi Arabia — the first on the code of conduct for the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.13) and the second on the amendments to the rules of procedure of the United Nations Appeals Tribunal (draft resolution A/C.6/66/L.14).
It was stated that Committee action on these draft resolutions would take place tomorrow, Tuesday, 1 November.
Further Law Commission Topics
MAURICE KAMTO, the Law Commission Chairman, then introduced the “third cluster” of topics contained in the Commission’s report. Addressing Chapter VII, the topic on “immunity of State officials from foreign criminal jurisdiction”, he noted that this topic had not been considered in 2009 and 2010. The Commission now had the second and third reports of the Special Rapporteur, Roman Kolodkin, whose second report addressed the aspects of immunity of State officials from criminal jurisdiction. The third report investigated procedural aspects, focusing on questions of timing of consideration of immunity, as well as its invocation and waiver.
He noted that the Commission was confronted with two concerns, the first being the general orientation of the topic and the second on whether or not there were exceptions to immunity, in particular with regard to grave crimes under international law. Perspectives of the sovereignty of State were an important component in the debate on the general orientation of the topic. It was essential to proceed with caution in order to ensure stability in international relations and the need to avoid impunity. Discussions were held on the scope of immunity as well, to investigate and review its various the doctrinal distinctions. He said it would be useful to receive detailed comments in the Sixth Committee on the debate that had taken place within the Commission, as well as to receive information on State practice. Further, the Commission would also benefit from receiving comments on the question of exceptions to immunity.
He then thanked Mr. Kolodkin, who would not be in the Commission next year, for his work on the topic.
Concerning “obligation to extradite or prosecute” (aut deder aut judicare), Mr. Kamto noted that this topic had been on the Commission’s programme of work since 2005. Mr. Zdzislaw Galicki, Special Rapporteur, had submitted his fourth report. The Commission’s debate focused on methodology and the general approach taken on the variety of issues. The report of the Special Rapporteur focused on treaties and custom as sources of the obligation.
Concerns were raised about the proposed draft articles, as the methodology treated the main sources — treaties and customary law — separately. He said there was no need for a draft article to demonstrate that there was a rule in a treaty or under custom. The topic was inextricably linked to universal jurisdiction. Further work could not be done without addressing universal jurisdiction and the types of crimes affected by it. In future work, the Special Rapporteur could consider more fully the relationship between aut dedere aut judicare and universal jurisdiction, in order to assess whether this relationship had any bearing on draft articles.
Turning to the topic of “treaties over time”, he noted that the Study Group had been re-established in 2010 and 2011. The Group studied parts of the report on agreements and ulterior practice as a means of modifying treaties. The future work envisioned on this matter would be a completion of consideration of the Chairman’s report in 2012. The Study Group would then look at State practice, without a link to jurisdiction procedures or quasi-jurisdiction procedures. This should be completed within five years, and lead to conclusions. Finally, it was believed that additional information from States would be useful, including practice not subjected to jurisdiction or quasi-jurisdiction handed down by an international body.
On the topic of “most favoured nations clause”, he noted that the Study Group had been reconstituted, and that the topic was “still a work in progress”. The Group focused its efforts on identifying “the normative content” of the `most-favoured nations’ clauses in the field of investment, and would undertake further analysis of case law, including the role of arbitrators and steps taken by States in response to case law, among others.
In terms of future work, the Study Group reaffirmed the need to study further the question of the clause in relation to trade in services and investment agreements, as well as the relationship between the clause, fair and equitable treatment and national treatment standards. It was envisaged that the work would be concluded in 2013.
He noted that the Commission had reviewed its working methods and had adopted concrete recommendations. In endorsing five new topics, the Commission was guided by criteria agreed upon, taking into account new developments in international law and the pressing concerns of the international community as a whole. In this regard, the Commission welcomed views of States on these new topics, as well as any proposals that States wished to make concerning possible topics for inclusion in its long-term programme of work.
He recalled that, two years ago, the Commission had decided to devote discussion to the question of “peaceful settlement of disputes”. This year the Commission had a working paper which contained tentative suggestions for possible topics relating to this matter. He reviewed efforts by the Commission in its teaching and wider dissemination of international law, and heralded the “scientific value” of the Yearbook of the International Law Commission which had been described in a General Assembly resolution, as “one of the most effective means furthering the development of international law”.
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