As Annual Review of International Law Commission Report Begins, Delegates Urged to Contribute State Practice Information, Enable Commission’s Progress
As Annual Review of International Law Commission Report Begins, Delegates Urged to Contribute State Practice Information, Enable Commission’s Progress
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
18th Meeting (PM)
As Annual Review of International Law Commission Report Begins, Delegates Urged
to Contribute State Practice Information, Enable Commission’s Progress
Legal Committee Seeks Refinement of Draft Articles, Commentaries
On ‘Expulsion of Aliens’, ‘Protection of Persons in Event of Disasters’
The International Law Commission had made “considerable” progress in its agenda, having, among other things, adopted 32 draft articles and accompanying commentaries on the expulsion of aliens, the Sixth Committee (Legal) heard today as it began its review of the Geneva-based legal body’s annual report.
During the opening remarks, Lucius Caflisch, Chair of the International Law Commission, said that in its sixty-fourth session, delegates had also considered the protection of persons in event of disaster, carried out “good” discussions on the immunity of State officials from foreign criminal jurisdiction and, in the context of its two working groups, considered the most-favoured-nation clause and treaties over time.
The Commission hoped to make substantial progress on those topics during its new five-year period, he said. Towards that end, it would appreciate information from States on two topics: immunity of State officials from foreign criminal jurisdiction; and formation and identification of customary international rights. “Such information would be useful to the Commission and enable it to make progress,” he said.
In the following discussion, the representative of Chile, speaking for the Community of Latin American and Caribbean States, supported a proposal to hold part of the Commission’s sessions in New York to deepen its relationship with the Committee. More could also be done to enhance the cooperation and dialogue between the Commission and Member States, he said, suggesting stronger contact and consultation between State representatives and Special Rapporteurs during the Committee’s meetings.
Most speakers addressed the Commission’s work on expulsion of aliens, agreeing it was an important area of international law that had not yet been codified. However, refinements to the text of the Commission’s proposed draft articles were suggested by several delegations.
Germany’s representative said expulsion of aliens had been a sensitive and difficult topic since its inception, and the final outcome of the topic was of utmost importance to his delegation. However, there were doubts about whether a convention would be appropriate. “In our view, the ongoing work should focus on transforming the draft articles into framework principles,” he said.
Several delegations also addressed the topic of protection of persons in the event of disasters, stressing the draft articles had been inadequate and suggesting changes to enhance measures. The representative of Spain said the will of the State should be respected in such events. However, it also was the right and duty of the State to provide assistance during a disaster. Principles of humanity, impartiality and independence should be included in the draft articles.
The Republic of Korea’s representative said effective implementation of some of the draft articles might not be ensured when an extraordinary catastrophe shut down a small State’s ability to cope. To avoid this type of situation, every State should prepare domestic measures and legislation that emphasized prevention before disasters occurred.
Also speaking on the International Law Commission’s report were representatives of Denmark (for the Nordic countries), Switzerland, Austria, Peru, Belarus, Czech Republic and Slovenia. A representative of the Delegation of the European Union also spoke.
The Committee will meet again at 10 a.m. Friday, 2 November, to continue its debate on the International Law Commission report.
The Sixth Committee (Legal) commenced today its annual consideration of the work of the International Law Commission with the Commission’s report (document A/67/10) on the proceedings of its sixty-fourth session (Geneva, 7 May – 1 June and 2 July – 3 August) as well as the Commission’s previous annual report and an addendum on reservations to treaties (documents A/66/10 and A/66/10/Add.1).
The Committee was to deal with the Commission’s work in two stages. The “First Cluster” of issues to be addressed is contained in the report’s introductory chapters I-III, chapter IV on the expulsion of aliens, chapter V on the protection of persons in the event of disasters, and chapter XII, which covers additional decisions and conclusions of the Commission not discussed elsewhere in the report.
Following that, the Committee was to concentrate on the “Third Cluster” of issues, including chapter VI on the immunity of State officials from foreign criminal jurisdiction, chapter VII on the provisional application of treaties, chapter VIII on the formation and evidence of customary international law, chapter IX on the obligation to extradite or prosecute (aut dedere aut judicare), chapter X on treaties over time and chapter XI on the most-favoured-nation clause.
In light of Hurricane Sandy, which had affected the Committee’s host city and its neighbouring states in unprecedented ways, the Committee adjusted its programme and postponed its consideration of the Second Cluster, which focuses on the Guide to Practice on reservations to treaties, found in chapter IV of the addendum to the Commission’s previous annual report.
The report states that for its consideration of “expulsion of aliens”, the Commission had before it the Special Rapporteur’s eighth report, which contains the comments of States and the Delegation of the European Union on the topic, as presented during the Sixth Committee’s previous session, as well as the Rapporteur’s observations. Most of those comments were reflective of delays in updating the Committee on progress made by the Commission. The Rapporteur, therefore, had sought to dispel misunderstandings created by those delays, while taking into account relevant suggestions and proposing certain adjustments to the draft articles.
The Commission’s report notes that on 29 May of this year, the Commission adopted, on first reading, 32 draft articles on the expulsion of aliens, and, two months later, the commentaries thereto. In that regard, the Commission expressed deep appreciation for Special Rapporteur Maurice Kamto’s contributions towards conclusion of the draft articles. Those draft articles, with their commentaries, are contained in the Commission’s report.
Regarding the “protection of persons in the event of disasters”, the Commission had before it the Special Rapporteur’s fifth report, which provides States’ views on the Commission’s work thus far, a brief discussion of the Rapporteur’s position on questions contained in the Commission’s 2011 annual report, and further elaboration on the duty to cooperate. The Rapporteur’s report also contains a discussion of necessary conditions for the provision of and termination of assistance. Additionally, there are proposals in the report for draft articles on such assistance as well as the duty to cooperate. The relevant draft articles are listed in the Commission’s report.
Concerning the Commission’s additional conclusions on its programme, procedures, working methods and documentation, the report recalls that the Commission appointed a new Special Rapporteur for the topic “immunity of States officials from foreign criminal jurisdiction”. It also added two new topics to its programme of work: “provisional application of treaties” and “formation and evidence of customary international law”. The Commission established a planning group for the current session, which, in turn, established a working group on the Commission’s long-term programme of work for the present five years. The Commission’s next session, says the report, will be held from 6 May to 7 June and from 8 July to 9 August 2013. Additional conclusions are also mentioned on cooperation with other bodies, representation at the General Assembly’s current session, tribute to the Commission’s Secretary and the International Law Seminar.
The addendum to the Commission’s report from its sixty-third session contains the text of the Guide to Practice on Reservations to Treaties, adopted in 2011, as well as an annex on the reservations dialogue.
Concerning the “immunity of State officials from foreign criminal jurisdiction”, the report says that the Commission appointed Concepción Escobar Hernández as the new Special Rapporteur, and considered her preliminary report. That report analyses the Commission’s work to date, provides an overview of the previous Special Rapporteur’s work, summarizes the debate of the Commission and Sixth Committee on the topic, and addresses issues for which no consensus had been reached.
The report points out that several issues warranted further consideration during the present quinquennium, including distinctions and relationships between immunity ratione materiae and ratione personae, as well as a State’s international responsibility and an individual’s international responsibility. The report also offers a suggested work plan. In consideration of members’ comments, the Special Rapporteur confirmed that she planned to proceed based on a thorough review of State practice, doctrine and jurisprudence, and would take up the four blocks of questions identified in the proposed work plan.
Regarding the “provisional application of treaties”, the report states that the Commission appointed Juan Manuel Gomez-Robledo as Special Rapporteur. The Commission also had before it an oral report on related informal consultations, which initiated a formal dialogue with Commission members on several relevant issues. While the Special Rapporteur said that the Commission’s consideration of the topic should be based on its law of treaties work, the Commission was of the view that aspects relating to the formation and identification of customary international law should be excluded from the topic. In that regard, a representative sample of State practice relating to the provisional application of treaties would be useful. The Commission concluded that it would still be premature to decide on the outcome of its work, and discussed the possibility of elaborating draft articles, guidelines and model clauses.
Concerning the “formation and evidence of customary international law”, the report states that the Commission appointed Michael Wood as Special Rapporteur. Mr. Wood had observed that uncertainty concerning the process for formulating rules of customary international law was sometimes seen as a weakness in international law. Therefore, the Commission’s study of the topic might contribute to greater acceptance of the rule of law in international affairs and provide practical guidance to judges and lawyers called upon to apply international law. Among the Special Rapporteur’s conclusions, there was broad agreement that the ultimate outcome of the Commission’s work on the topic should be practical, with the aim of guiding those tasked with determining whether or not a rule of customary international law existed. In that regard, the outcome should result in a set of propositions or conclusions, with commentaries thereto, that were not overly prescriptive.
Considering the “obligation to extradite or prosecute”, the report says that the Commission established an open-ended working group, under the chairmanship of Kriangsak Kittichaisaree, to evaluate the Commission’s progress on the topic and to explore its future options. The Commission took note of the oral report of the working group, which had held five meetings and assessed the topic within the context of the Sixth Committee’s debate. The working group specified several possible issues for further study, including harmonization of multilateral treaty regimes; interpretation, application and implementation of the extradite-or-prosecute clauses in particular situations, and the progressive development of international law and its codification. Addressing the obligation’s relationship with universal jurisdiction, the working group recommended that the Commission delink the two. While some working group members encouraged a focus on the obligation as referenced in multilateral treaties and its practical implementation, others suggested the Commission terminate its work on the topic since it could no longer make substantial contributions.
Concerning “treaties over time”, the report says that the study group on the matter was reconstituted under the chairmanship of Georg Nolte, who presented a first oral report to the Commission on the format and modalities of the Commission’s future work. The Commission decided to change the format of its future work, effective from its sixty-fifth session, and to appoint Mr. Nolte as Special Rapporteur for the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. The study group also concluded consideration of its Chairman’s second report on jurisprudence under special regimes relating to subsequent agreements and subsequent practice. It also examined six additional conclusions proposed in the second report, including those focused on whether subsequent practice must reflect a position regarding interpretation of the treaty, the extent to which subsequent practice would need to be specific, and the significance of silence by one or more parties, among others. Those conclusions would be revisited and expanded on within the context of the new Special Rapporteur’s future reports.
In consideration of the Chair’s third report on “subsequent agreements and subsequent practice of States outside judicial and quasi-judicial proceedings”, the report states that the study group engaged in a rich debate, discussing the draft conclusions and the significance of consensus and other decision-making procedures, among others. In light of the Commission’s decision to change the future format of the work, the Chair proposed that those draft conclusions not be reformulated, but, rather, that the related discussions be taken into account by the Special Rapporteur as he prepared his first reports.
As for the “most-favoured-nation clause”, the report notes that a reconstituted study group held broad discussions based on working papers covering the interpretation of such clauses by investment tribunals and the effect of investment tribunals on the application of such clauses to procedural provisions. The study group also had before it informal working papers on model most-favoured- nation clauses post-Maffezini and on most-favoured-nation-type language in Headquarters Agreements, among others, which were still works in progress. In its discussions, the study group confirmed the possibility of developing guidelines and model clauses. It also recognized that, whether or not a most-favoured-nation provision was capable of being applied to the dispute settlement, provisions were a matter of treaty interpretation, to be answered depending on each particular treaty, which had its own specificities to be taken into account.
YURIY SERGEYEV ( Ukraine), Chairperson of the Sixth Committee, said that Hurricane Sandy had, in the past several days, affected not only the United Nation’s host city and its neighbouring states in unprecedented ways, but the Organization’s work as well. Because of those circumstances, the programme of the Committee’s debate on the report of the International Law Commission would need to be adjusted. To that end, it was decided to postpone to 2013 its consideration of the Second Cluster of the report, which deals with “reservations to treaties”.
He then welcomed the Chairperson and several members of the International Law Commission, stating that the Commission’s report on the current year’s session was rich and attested to the unique role the Commission continued to play in the process of codification and progressive development of international law. Given the amended work plan, the Committee would consider the report in two parts, and he urged delegates to follow that thematic approach.
LUCIUS CAFLISCH ( Switzerland), Chair, International Law Commission, said the sixty-fourth session marked the beginning of a new five-year period for the Commission. Despite some introductory problems, it was able to make considerable progress in its agenda and draw up a schedule for its work. In particular, it had adopted 32 draft articles and accompanying commentaries on expulsion of aliens. It had also proceeded with consideration of the topic of protection of persons in event of disaster, and had undertaken good discussions on immunity of State officials from foreign criminal jurisdiction. Also, in the context of its two working groups, the Commission had considered the most-favoured-nation clause and treaties over time.
The collective work in progressive development of international law depended, inter alia, on contributions by Special Rapporteurs, he said. The Committee had decided to change how it would take up the topic treaty over time and, thanks to Special Rapporteurs, began consideration of several other topics. As was customary at the beginning of a five-year period, it had set out a programme of work, to be found in paragraph 273 of the report.
He went on to say that the Commission hoped to make substantial progress on those topics during the new period. Towards that end, it would appreciate information from States on two topics: immunity of State officials from foreign criminal jurisdiction, and formation and identification of customary international rights. “Such information would be useful to the Commission and enable it to make progress,” he said.
He pointed out that promoting the rule of law was the role of the Commission, and that the General Assembly’s high-level talks on the state of rights at national and international levels had been most welcome. The mission of the Commission and its activities were oriented towards the promotion of the principle, cooperating with the International Court of Justice and other organs, and making an important contribution to the promotion of comprehensive international rights.
OCTAVIO ERRÁZURIZ (Chile), speaking for the Community of Latin American and Caribbean States, said a fluid interaction between the Commission and Member States was critical to the success of the Commission’s endeavours. That interaction flowed in two main tracks: first, through the Commission’s request of information and comments from Member States, in particular through questionnaires elaborated by the Special Rapporteurs; and second, through direct discussions during the Sixth Committee Plenary and thematic dialogue session.
Turning to the first track, he said that questionnaires should focus on the main aspects of the topic under consideration and should be drafted in a way that allowed more States to reply and provide some input in a timely manner. The difficulties that many States and their legal departments faced in providing that kind of technical information must be kept in mind. Also, the proposal of holding part of the Commission’s sessions in New York should be considered in order to facilitate and deepen the relationship between the Commission and the Committee.
He said that more could be done to enhance the cooperation and dialogue between the Commission and Member States. One way would be to strengthen contacts and consultations between State representatives and Special Rapporteurs during the Committee’s meetings. Stressing the importance of the thematic dialogue as a setting for a more informal exchange of views, he said that the dialogue should always be scheduled near the time of the meeting of Legal Advisers and should avoid overlaps with other relevant meetings of the General Assembly that could jeopardize their presence during such times. Regarding the dialogue’s form and content, there should be a short list of topics announced well in advance in order to allow for better preparation.
THOMAS WINKLER ( Denmark ) speaking for the Nordic countries, said the Nordic countries would submit written comments on the issue of expulsion of aliens before the deadline of 1 January 2014. Recalling their comments on the topic in recent years, he said the Nordic countries were not convinced that the Commission’s work on that topic was likely to be of much benefit to Member States in developing and identifying relevant rules. That was an area of law with significant and detailed regional rules. In that regard, he questioned the usefulness of the Commission’s further work on identifying general rules of international law on expulsion of aliens.
Concerning the protection of persons in the event of disasters, he said it was the primary duty of the affected State to ensure the protection of persons and provision of disaster relief. The State, on the territory of which the disaster had taken place, had the primary role in initiating, organizing, coordinating and implementing humanitarian assistance within its territory. In a situation where the affected State did not have the capacity or the will to protect and provide assistance to persons affected by the disaster, there was a risk that the population within its territory would remain without assistance. In that kind of situation, it was fundamental that the affected State not withhold external assistance.
He expressed strong support for the topic of protection of the environment in relation to armed conflicts, noting that the environment usually suffered extensive destruction and degradation during armed conflicts and in their aftermath. Stressing the need to clarify obligations in that area, he urged the Commission to move forward with that important topic.
LUCIO GUSSETTI, speaking for the delegation of the European Union, said the Commission’s draft articles and detailed commentaries on expulsion of aliens served to underline an objective that was also pursued by European Union law: any person who was subject to expulsion measures should be treated with respect for that person’s human dignity and in accordance with agreed minimum standards based on the rule of law. The European Union could accept most of the text of the proposed articles, subject to some refinement, and would submit for the Commission’s reflection the need for addressing the issues of promotion of voluntary departure, and humane and dignified detention conditions.
Among the Union’s suggested changes, he said draft article 21 should be modified in order to promote clearly voluntary departure, which was widely recognized as bringing advantages to both for the returnee and the expelling State and which posed fewer risks to human rights, over forced return. He also shared the Union’s proposed changes concerning readmission by State of destination and procedural rights of aliens subject to expulsion, among others.
Ongoing work on the draft articles, he continued, should focus on transforming them into framework principles, reiterating that progressive development in the area would not be beneficial. Concerning protection of persons in the event of disasters, he proposed several changes to draft articles 5, 13, and 15 concerning forms of cooperation, conditions on the provision of external assistance, and termination of assistance, respectively. He underscored that the work of the Commission on the topic, in general, should focus on framework principles.
NIKOLAS STURCHLER ( Switzerland) said that the expulsion of aliens was an important area of international law that had not yet been codified, and therefore fully merited the Commission’s attention in recent years. Among other comments, he noted that he did not foresee any exceptions to the prohibition on collective expulsion in draft article 10, but he was not certain it was necessary to include an express “without prejudice” clause that referred to the rules of international law applicable in the event of an armed conflict. Regarding draft article 26, all aliens should enjoy the same procedural rights, irrespective of whether their presence in the expelling State was lawful or not, which, in conjunction with more detailed rules on the suspensive effect of appeals, would lead to a more balanced solution taking into account the interests both of aliens and States.
He commended the care that the Special Rapporteur on protection of persons in the event of disasters had shown in seeking balanced solutions to often “thorny questions”. However, there could be problems with the acceptance by Member States of draft article 14 since it appeared not to make any distinction between military and civilian aid. His country had concluded agreements on mutual assistance in the event of disaster or serious accidents with its five neighboring States. He encouraged other States to conclude such agreements, as well.
In conclusion, he said that protection for people who fled natural disasters was inadequate, in particular in the case of cross-border population displacements, as there was no international legislation specifically designed to protect them. Switzerland and Norway, in cooperation with other States, had launched the Nansen Initiative in 2012 to fill that gap, and invited all interested States to join. Over the next three years, the Initiative would promote international dialogue that would culminate in the formulation of a protection agenda.
HELMUT TICHY ( Austria) said, in regards to consular assistance to aliens subject to expulsion, that the relevant draft article should be read in the light of the provision, as interpreted by the International Court of Justice relating to the Vienna Convention on Consular Relations. The Court’s clarification obliging the State to inform the competent consular post upon request by the detainee and to inform the detainee of his or her right, in that respect, was only reflected in the commentary’s paragraph on that issue, but not in the draft article itself.
On draft article 27, he noted that the suspensive effect of an appeal against an expulsion decision was law in Austria, if it related to a legal alien. However, that effect could be denied if the alien represented a threat to public order or safety. Further, draft articles 31 on responsibility and 32 on diplomatic protection seemed redundant.
Turning to the draft articles on protection of persons in the event of disasters, he said that draft article 13 on conditions for the provision of assistance should reflect the rules on cooperation, as outlined in draft article 5. Draft article 14 on facilitation of external assistance required the affected State to take legislative measures, but more measures were required than mentioned. That article required further elaboration. Draft article 15 on the termination of external assistance left open when the duty of consultation regarding the termination arises. Draft article A, on the duty to cooperate, went too far in its present phrasing, implying an international obligation, which did not exist and should not be established.
GONZALO BONIFAZ ( Peru) said that the subject of expulsion of aliens had a negative connotation and regulation seemed to take place outside the main actor, namely the human being. Among his suggested amendments, articles 6 and 7 needed to include asylum seekers, and, likewise, a safeguard needed to be applied for stateless persons who found themselves in unlawful status. Meanwhile, draft article 6.3 was not in line with the Inter-American Convention on Human Rights and draft article 19.2 did not establish a period of detention. “My delegation believes we should look into the possibility of establishing a maximum period of detention,” he said.
He went on to say that draft article 22 did not refer to the party that would assume the cost of the expulsion of aliens. Place of destination should be first established by the alien, and then the expelling State. However, the draft article gave the impression of the opposite. Among his other comments, he said draft article 23 was not sufficiently worded to guarantee the safety of an alien who could be victim to the death penalty, while article 26.3 said that the alien had the right to seek consular assistance. However, the article needed to incorporate States’ obligations to the Vienna Convention, which would have the alien informed of that right.
MARTIN NEY ( Germany) said expulsion of aliens had been a sensitive and difficult topic since its inception, and the final outcome of the topic was of utmost importance to his delegation. However, there were doubts about whether it would lend itself to be incorporated into a convention. “In our view, the ongoing work should focus on transforming the draft articles into framework principles. It has to be reiterated that progressive development in any other direction would not be beneficial,” he said. Furthermore, article 1 was too broad; rights accorded to those who were legally and those who were illegally present in a State’s territory differed too much to be included in the general scope of the draft articles.
Regarding article 10 paragraph 2 containing prohibition of collective expulsion of aliens, he proposed that no mention be made of migrant workers, while draft article 11 left room for overly broad interpretation and he proposed amending the wording. In addition, wording in the commentary in draft article 19 should be changed, as the term “separate section” could be difficult to apply in practice.
Finally, in regards to draft article 27 dealing with the suspensive effect of an appeal against an expulsion decision, he noted that Germany had provided the Commission a description of its norms and principles. “While we support the general concept of a suspensive effect of appeals launched against expulsion decisions, we do not see a need to further develop existing laws,” he said, proposing the draft article instead be amended to include certain exceptions.
ANDREI POPKOV ( Belarus) said the basic approach to the draft articles on the expulsion of aliens was a balanced one and that the overall drafts reflected norms of the sovereign right of States to expel aliens while at the same time ensuring that States must comply with obligations in dealing with foreigners and with universal human rights treaties. He expressed confidence that the provisions in those draft articles would become an effective tool to prevent undue haste, arbitration or abuse when decisions were implemented by State authorities. Although it was recognized that foreigners did not have an unlimited right to stay in a State, in view of international law, there should be sufficient grounds for expulsion.
He continued, saying that grounds for expulsion in draft articles under international law depended to a large degree on a State’s domestic legislation. Draft article 5 did not offer enough guidelines in terms of how much information should be given on grounds of expelling and be included in the decision. Getting more detail on the grounds for expulsion was not an infringement on the right of an expelling State, but would help a State that was taking in the expelled alien to be sure about the assessment in light of international rules and human rights treaties. In a way, he noted, that would minimize unverified international claims about violation of rights of foreigners and would curb abuse by an expelling State of its right to expel aliens.
JOSÉ MARTÍN Y PÉREZ DE NANCLARES ( Spain) said he was pleased with the progress by the Commission on expulsion of aliens. However, some specific matters could be subject to further discussion. It was necessary to achieve a balance in rights and guarantees for those subjects relating to the needs of States. With respect to suspense of effect of appeal of an expulsion, for example, doubts could be raised as to whether there was sufficient legal basis for draft article 27. In those particular cases, legislation in Spain left such decisions in the hands of a judge.
Turning to substantive or material matters, he drew attention to the obligation in article 24 to not expel an alien to a State where there was a risk of torture or degrading treatment. A distinction could be drawn whether there was a risk from authorities of the State or an individual threat. On the form of the final outcome of the Commission, he said that perhaps a realistic vision would be along the lines of guidelines, rather than draft articles.
Turning to the protection of persons in the event of disasters, he said that the will of the State should be respected. However, at the same time, it was the right and duty of the State to provide assistance during a disaster. For the sake of greater clarity, Spain agreed with the proposal that reference to principles of humanity, impartiality and independence should be included.
SUL KYUNG-HOON (Republic of Korea) commending the Commission on its achievements over the past 64 years, said that, in regards to the expulsion of aliens, limiting the scope of the application of article 29 to “an alien lawfully present in the territory of a State” was a proper modification, and reflected previous concerns of Member States. Regarding the protection of assets of aliens, further efforts to elaborate on related articles, such as articles 11, 12, 30 and 32, would be helpful to protect the property of expelled aliens. Stating concerns about article 23, he said that the extended concept to States which had abolished the death penalty in practice, while retaining capital punishment, could unnecessarily restrict the State’s rights of expulsion.
Turning to the protection of persons in the event of disasters, he said the effective implementation of articles 13 and 14 could not be ensured when a small State was victimized by an extraordinary catastrophe and its system to cope with natural disasters was shut down. To avoid this type of situation, every State should prepare domestic measures and legislation that emphasized prevention before disasters occurred. He said, in conclusion, that he was looking forward to the publication of the sixth report of the Special Rapporteur on disaster risk reduction.
PETR VÁLEK ( Czech Republic) expressed concerns with proposed article 13 on the expulsion of aliens, pertaining to the prohibition of expulsion to circumvent an extradition procedure. “Although the Czech Republic does not employ such practices, it is our position, supported by the standing decisions of the European Court of Human Rights, that where the person subject to extradition proceedings is also an illegal immigrant, it should be the State’s internal affair to decide the means employed in resolving the issue of illegal immigration,” he said.
Furthermore, it was unclear which phases of extradition procedure were comprised under the term “outgoing”. Among several concerns, he questioned whether the procedure began with the moment of taking an alien into custody or with the moment of delivery of the extradition request. “Due to variances across the existing legal systems of the world, the uncertainty remains,” he said, proposing that article 13 either be deleted or limited to cases of legal immigrants.
ROBERT KOJC ( Slovenia) welcomed the Commission’s decision to include “provisional applications of treaties” and “formation and evidence of customary international law” as topics in its programme of work. Turning to chapter V, he noted that the issue of protection of persons in the event of disasters deserved immediate attention. The efficiency and quality of humanitarian assistance and victim protection could be improved through legal certainty at the universal level. Draft articles 1 to 12 – when taken as a whole and interdependently –struck a balance between the necessary protection of disaster victims, on the one hand, and the international principles of State sovereignty and non-interference on the other.
In addition, he said, retaining that balance was crucial for the Commission to complete its work on that issue. Any reopening of contentious issues that had been agreed upon would be contrary to that aim. Further, draft article 5 should not be interpreted as an implicit expression of the duty to provide assistance by assisting States. In regards to the right of the affected State to set conditions on the provisional provision of external assistance, he said conditions must not contravene such principles as humanity, neutrality and impartiality. The affected State should carry out a needs assessment with relevant humanitarian agencies.
He continued, stating that he fully supported draft article 14. As well, draft article 15 – on the termination of external assistance – was fully in line with the duty of cooperation between all parties concerned. In cases where the parties were not successful, the primary role of the affected State to direct and control assistance should be respected. The principle of “not arbitrarily withholding consent” by the affected State also should apply. In sum, the Commission should set principles and rules underpinning international disaster relief based on the recognition of rights and obligations of the States involved. In such work, it should study the consequences of States’ failure to carry out duties set out in the respective draft articles.
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