Natural Disaster Relief Draft Articles Need Clearer Parameters, Argue Delegates as Legal Committee Continues Review of International Law Commission Report
Natural Disaster Relief Draft Articles Need Clearer Parameters, Argue Delegates as Legal Committee Continues Review of International Law Commission Report
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
19th & 20th Meeting (AM & PM)
Natural Disaster Relief Draft Articles Need Clearer Parameters, Argue Delegates
as Legal Committee Continues Review of International Law Commission Report
Debate on First Cluster Concludes;
Consideration of Third Cluster Topics Commences
In the ravaged wake of a hurricane that pummelled the United States east coast this week, the relevant issue of protecting people during disasters required fine-tuned approaches that would ensure assistance reached those who needed it, stated members of the Sixth Committee (Legal) today, as the debate on the Geneva-based International Law Commission’s annual report continued.
During the day-long meeting, more than 35 speakers voiced their views on a range of topics, from immunity of State officials to helping disaster-stricken populations, with the Commission’s Chair and the Special Rapporteur on the expulsion of aliens addressing the Committee.
Prior to the debate, the President of the International Court of Justice briefly spoke to the delegations and acknowledged the impact of Hurricane Sandy on the Committee’s work. He stressed that statements of the Committee and the International Law Commission were carefully scrutinized by the International Court of Justice and were important to the preparation of treaties.
Expressing his deepest sympathy to Hurricane Sandy’s victims, Indonesia’s representative said he could relate to the destructive impact of natural-borne disasters. His country was located in the most active volcanic plateau in the world. With that in mind, he stressed that disaster-affected States should be allowed to define the provision of assistance, which put forth the needs of its people, was reasonable and did not undermine the State’s duty to protect.
Speaking from its own experience after the 2011 tsunami and nuclear accident, Japan’s representative commended the Commission for deliberating on cooperation with disaster assistance. Since the State bore the primary responsibility to protect its population, it should be able to maintain overall control of assistance while ensuring that its domestic legislation did not impede the facilitation of external assistance.
A number of delegates pointed to areas that required further consideration and action. Australia’s representative said delivering humanitarian assistance in the absence of safety and security had a limited or even detrimental effect. The Commission should explore elaborating a model instrument in the form of a status of visiting personnel agreement, which could be annexed to the draft articles. The 1946 Convention on the Privileges and Immunities of the United Nations could be a possible model for a set of provisions that would serve as a legal framework of international disaster relief activities.
It was also important to bear in mind, said France’s representative, that humanitarian assistance could only be effective when provided and received willingly. Disaster-affected States should also have the right to refuse assistance, the United Kingdom’s representative pointed out, noting that States should also be able to place conditions on assistance. Assisting States should also have the right to withdraw and that withdrawal should not be subject to consultation. The appropriate form for the draft articles should be flexible, creating a guide for good practice rather than a convention.
The representative of the International Federation of Red Cross and Red Crescent Societies lamented that the proposed enumeration of “cooperation” was quite limited, and the present list seemed focused on relief, which might be taken to exclude disaster risk reduction, and preparedness for disasters and recovery. Also omitted were common types of cooperation, such as financial support, technology transfer, training, information sharing and others. “We had thought that the original obligation of cooperation referred not only to States providing assistance,” he said, “but also to those receiving it.”
The representative of the Russian Federation stressed the need to adopt guidelines that balanced State sovereignty with the need to assist victims. He was concerned that establishing an obligation of the affected State to request assistance would create several legal problems as to who would be authorized to determine whether the calamity actually took place, whether the affected State complied with an obligation to ask for aid, and whether the disaster was beyond the affected State’s capacity to address. The related draft article should stipulate a moral and political obligation instead of a legal one on the affected State to ask for external aid and not reject it deliberately.
A number of other speakers agreed. Saying that the development of the framework principles for States and other actors engaged in relief could have much more practical value than draft articles, Poland’s representative supported the inclusion of the duty to cooperate, humanitarian principles, respect for human dignity and human rights, and the primary responsibility of the affected States.
Turning to the subject of the expulsion of aliens, the Special Rapporteur on the subject addressed the Committee, saying while he fully understood States’ hesitation that rules of international law could regulate a subject that previously relied on national legislation, very few subjects on the Commission’s agenda in the last 30 years had had such a solid basis in international law. “In our globalized world characterized by a great flow of goods and funds, the subject of expulsions was particularly relevant,” he said. “It cannot be held outside the sphere of international law.”
However, some speakers remained divided about the final form of the 32 draft articles. The representative of Portugal said the subject was unsuitable for codification, but should become an overview of existing legal norms, including the possibility of establishing a general framework of principles. Meanwhile, South Africa’s representative said the format of the draft articles was an appropriate outcome, even though more clarity was needed to the differentiated rights and obligations of legal and illegal foreign nationals.
Presenting another view, the representative of the Congo said the international community needed an instrument to address the human rights of persons under an expulsion order. An international convention would enshrine the Commission’s codification work. Singapore’s representative suggested that “we should keep all options open”. That could include the possibility of the Commission’s work, taking the form of guiding principles, rather than draft articles.
After concluding its discussions on those topics, the Commission’s Chair opened a debate on the report’s chapters on the immunity of State officials from criminal jurisdiction, the provisional application of treaties, the formation and evidence of customary international law, the obligation to extradite or prosecute, treaties over time and the most-favoured-nation clause.
Providing an outline of those topics, he said draft articles would cover some of the highly complex issues, including discussions on the distinction and the relationship between the global responsibility of the State and that of the individual, and on their implications for immunity. He also said the Commission’s work regarding those topics was based on, among other things, reports from the Special Rapporteurs.
Speaking on the topics of expulsions of aliens and protecting persons in the event of disasters were the representatives of Chile, Canada, Mexico, Ireland, Netherlands, Thailand, El Salvador, China, Greece, Romania, Malaysia, United States, Iran, India, Iraq, Pakistan, Israel, Cuba, Hungary and Zambia.
During the subsequent debate, the representatives of Norway (on behalf of the Nordic countries), Canada, Austria and Chile delivered statements.
The Committee will meet again at 10 a.m. Monday, 5 November to continue its work.
The Sixth Committee (Legal) met today to hear a statement from the President of the International Court of Justice. It would then continue its annual consideration of the report of the International Law Commission. (For background please see Press Release GA/L/3446.)
Statement of the President of the International Court of Justice
PETER TOMKA, President of the International Court of Justice, noted that, in view of the circumstances of force majeur due to Hurricane Sandy, his remarks would be brief. However, he stressed that statements of the Sixth Committee and the International Law Commission were carefully scrutinized by the International Court of Justice and were important to the preparation of treaties.
Turning to the Court’s contribution to the substantive body of law on maritime delimitations, he said that the Court had adjudicated some fourteen maritime delimitation cases. The culmination of those deliberations was the unanimous judgment rendered in the case of Maritime Delimitation in the Black Sea in 2009, in which it established a methodology for determining such delimitations. This was a topic of long-term relevance. Concluding, he said that he would make a video presentation of his full text to be available on the website of the Codification Division of the Office of Legal Affairs.
Statements on First Cluster
HERNÁN SALINAS BURGOS (Chile), on the expulsion of aliens, said draft articles should seek a balance between the sovereign right of States to expel aliens and their obligation to comply with international human rights, humanitarian and refugee law. Further, they should be based on full, effective cooperation among the States involved. As draft articles were a point of reference in academia and for States taking legislative steps, a single text comprising all draft articles would make it easier for Governments to form observations and comments.
Among his comments, he stated his agreement that a State not resort to expulsion to avoid extradition proceedings underway. However, that could be understood that an expulsion could be made, even though extradition proceedings were underway, if the purpose of circumventing that procedure was not pursued. Such a situation could jeopardize the rights of aliens subject to expulsion. To avoid such an interpretation, the focus on “circumvention” during extradition procedures could be reduced, except on public grounds or for reasons of national security. On protecting the rights of aliens and ensuring detention was in line with international law, a judicial authority should be empowered to make decisions on the situation covered in paragraph b, namely that an alien would be permanently detained, except in special circumstances, and kept separate from persons condemned to sentences of depravation of freedom.
Turning to protection of persons in the event of disasters, he said he was pleased that the wording of the first 16 draft articles was based on that fundamental premise of respect for international law, territorial sovereignty and non-interference of affected States. Turning to the five draft articles provisionally adopted by the Drafting Committee on the duty to cooperate, he welcomed the decision to include article 5bis, after article 5, to define forms of duty of cooperation. The duty to cooperate should not imply anything other than an obligation of conduct, not of results.
He went on to say that the relevant article on the right to offer assistance was a practical manifestation of solidarity. Such offers should not be regarded as interference in the internal affairs of States as long as the aid did not affect the integrity or sovereignty of the recipient State or its central role in coordinating and controlling the aid. When an offer of assistance was accepted, the affected State must maintain control over the duration of aid, and the actors involved must leave the territory when the affected State asked them to do so. The current wording of article 15 was not adequate. It should reflect the right of the affected State to solicit “in any moment” that assistance should be terminated. Once that right had been established, that article could regulate the notification of cessation as well as the corresponding consultations with the affected State and actors providing aid.
ALAN KESSEL ( Canada), having noted the topics on which the Commission planned to proceed, said his delegation would provide comments on those subject at a later segment. However, pointing out that the Commission had not included “protection of the atmosphere” in the current work programme, he urged that the topic not be added to the long-term work programme for the present quinquennium. It was premature for the Commission to undertake efforts in that area of law, given the sensitive ongoing treaty negotiations. The topic might be better suited to be addressed in subsequent quinquenniums.
He said that the draft articles and commentaries on expulsion of aliens provided a wealth of issues that merited very careful consideration by States. His delegation would review the draft articles and commentaries over the coming months, prior to the deadline for submission of comments on 1 January 2014. He also encouraged the Commission to consider the utility of producing a variety of outcomes — such as guidelines and principles — in topics that it addressed.
Ms. LUNA ( Mexico) said, on the topics of the expulsion of aliens and of the protection of persons in the event of disasters, her country was pleased with the first reading of the draft articles. She welcomed the inclusion of articles establishing substantive norms that defined the expulsion of aliens and their rights. Those principles were key to guaranteeing the human rights of foreigners subjected to expulsion. Further, one aspect, defined in articles 2 and 3, provided a distinction between aliens and those subjected to extradition.
In regard to the protection of persons in the event of disasters, she welcomed the provisional approvals in the context of articles 5bis and 12 to 15. On article 5bis, there should be wording that would express an option for States to provide cooperation. The affected State had obligations that, among other things, protected persons in its territories. That acceptance and compliance with domestic legislation should be in keeping with international law. Referring to the future form the draft articles would take, she said it might be more relevant to see them as guidelines.
JAMES KINGSTON ( Ireland ) said that, in regard to the protection of persons in the event of disasters, he agreed with the Special Rapporteur’s assessment that the duty to cooperate should be seen as an obligation of conduct rather than of result. However, that was not a legal obligation in customary international law. Further, while recognizing that the categories of cooperation in article 5bis were not intended to be exclusive, he questioned whether a reference could usefully be made to needs assessment.
Turning to draft article 13, he welcomed the requirement that conditions must take into account identified needs and quality of assistance. Draft article 14 provided a useful indication of the concrete measures to be taken in the event of disaster to ensure that assistance could be delivered as promptly and effectively as possible. The inclusion of draft article 15 dealing with the termination of external assistance was also welcomed. However, a reference to affected persons’ needs should be included, as well as a definition of the term “assisting actors”. Concluding, he commended the work of the Commission’s Planning Group and the Commission’s consideration of the relevant General Assembly resolution on the rule of law at the national and international levels.
LIESBETH LIJNZAAD ( Netherlands), on the expulsion of aliens, said, among other things, that the draft articles should be considered in the progressive development of law rather than towards codifying State practice. Further, disguised expulsion, in which acts could or could not be attributed to a State, should be more clearly defined. She also stressed that the International Law Commission should not design a new human rights instrument. She supported the articles being reformulated into best practices or policy guidelines. A set of draft articles would not be appropriate.
On the protection of persons in disasters, she said she agreed with the current formulation of the draft article on the duty to cooperate in relation to non-State actors. Regarding conditions for provision of assistance, there was a need to strike a balance between assistance offered in response to acute needs of victims and the responsibilities of the affected State. In addition, the relevant article should emphasize the need for the affected State to remove obstacles in national law that would hamper prompt provision of assistance. Expanding the draft articles to include disaster risk reduction was not suitable for the present study. Among other matters, she expressed hope that the Commission would share its long term plans with States.
Mr. LEONINCHENKO ( Russian Federation) said that he had doubts that the legal regime contained in the draft articles on the expulsion of aliens could be applied equally to aliens in the territory of the respective State who were there both legally and illegally. As the legal nature of their stay differed, so should the corresponding expulsion regime. On draft article 12, the premise to prohibit the expulsion of aliens in order to confiscate their property was justified. However, it could be difficult in practice to assess States’ goals and intentions. The new language in draft article 21, which stated that the expelling State should take necessary steps to assist a voluntary departure of an alien subject to expulsion, was welcomed. As well, modification of the provisions and a separate mention in the comments could clarify that those provisions should not be interpreted as authorizing the expelling State to exert unjustified pressure on the aliens. That would eliminate certain ambiguity caused by the previous draft that mentioned the encouragement of voluntary departure.
On protection of persons in the event of disasters, he stressed the need to adopt guidelines that balanced State sovereignty with the need to assist victims. In that regard, establishing an obligation of the affected State to request assistance under draft article 10 would create several legal problems as to who would be authorized to determine whether the calamity actually took place, whether the affected State complied with an obligation to ask for aid, and whether the disaster was beyond the affected States’ capacity to address. The article should stipulate a moral and political obligation instead of a legal one on the affected State to ask for external aid and not reject it deliberately. He supported the Special Rapporteur’s view that existing international law, common law or practice did not envisage a legal obligation of States to provide aid at the request of affected States.
He continued, saying that draft article 13 stated that an affected State could establish conditions for aid on the basis of State sovereignty, but it did so in an abridged way. That left room for wide interpretation of such conditions and created the risk of references to international and national law norms being made in bad faith in order to prevent the provision of aid. The Commission should study the possibility of incorporating other elements in the draft articles, such as practical ways of disaster relief cooperation to give rescuers access to affected States’ territories, simplified custom formalities for imports of special equipment, freedom of movement, and privileges and immunities for rescue workers. Finally, he said that he did not support the proposal to transfer parts of the Commission’s session to New York. The existing mode of communication between the Commission and the Sixth Committee was adequate. Geneva was the ideal venue for the Commission’s analytical work, and a change to the status quo would likely have budgetary implications.
RACHANANT THANANANT ( Thailand) said that, in regard to the expulsion of aliens, his country reserved its position on draft article 6 as it was not a party to any conventions or protocols on refugees. Thailand was host to more than 140,000 displaced persons and three million legal and illegal migrants, and continued to work with the United Nations and other international organizations to provide basic human rights protection for those people. Thus, the relevant draft articles should better balance the rights of aliens in a third State and the sovereign rights of the State, and should be adopted only as guidelines.
Turning to protecting persons during disasters, he said he agreed with the Special Rapporteur and Commission that the concept of responsibility should not be extended to cover responses to natural disasters and related matters. Draft article 12 should be amended to substitute the word “duty” for “right”, in order to reflect the view of assistance as international cooperation, rather than an assertion of rights.
Regarding draft article 13, he said that the assistance of States or other assisting actors should be sensitive to the local needs of affected States, including food, culture, religion, language and gender. The new draft article 13 provided more flexibility to affected States and honoured their capacity to assess the situation and identify their needs. The draft article on terminating assistance should give affected States a certain degree of discretion to consider terminating this external assistance, especially for reasons of national security or public interest. States should also be able to terminate assistance that had become irrelevant or veered away from the original offer.
Ms. ESCOBAR ( El Salvador), referring to the draft articles on expulsion of aliens, said he appreciated the Commission’s inclusion of States’ commentaries, which had produced a truly improved text. Article 4 confirmed the legal rights of the individual regardless of migration status, ensuring that only competent authorities were permitted to make decisions on that case. However, there were several instances, including article 19, where there was a need to spell out that preventive detention was an exceptional measure. Regarding article 26, general guarantees should be geared towards all fundamental rights for all, which were the basic underpinnings of democracy and duties for all States. She urged the Commission to bear in mind international human rights that referred to the rights of individuals.
Turning to the topic of the protection of persons in the event of disasters, she said her country placed high importance on the subject, and she welcomed the fact that the new draft focused on cooperation and external assistance, which could be decisive in providing appropriate victim protection. Further, the basic foundation of the draft could be enhanced by fine-tuning some of the details. The question of privilege in article 14 should be clarified. In addition, in article 15, on external assistance, precise wording was needed.
GUO XIAOMEI ( China) said he appreciated the Commission’s progress, noting that in the selection of new topics, suitability of the topic should be taken into account alongside whether or not the final outcome of a topic was urgently needed and would be widely accepted. Among other areas, the topics of the protection of the earth, the oceans and the polar regions could be appropriate for academic research, but were not suitable for the Commission’s consideration. Some Member States had, in the last session, expressed their views on other unsuitable topics, as well.
On the expulsion of aliens, he commended the Commission’s significant progress achieved, and expressed hope that the Commission would strike a balance between the rights of aliens subjected to expulsion and the regulatory power of expelling States, as expulsion of aliens involved complex and diverse domestic legislation and State practices. For instance, on detention, States used expulsion in practice as a penalty for an alien convicted of a criminal offence. This could produce difficulties with some States, including China, he said, noting that the new draft accommodated this concern by adding a phrase “save in exceptional circumstance”. The Commission’s proposal for members to submit comments, he said in conclusion, was essential to the improvement of the draft articles.
PHANI DASCALOPOULOU-LIVADA ( Greece) said that the duty to cooperate in the event of disasters, as enunciated in draft article 5, did not oblige a State or an international organization to provide assistance when requested. Nonetheless, the use of a word such as “right” stood “a contrario” to duty and could be the source of unnecessary confusion. It was obvious that a State or an international organization could propose assistance to an affected State; hence, there was no need to couch such an offer in terms of a “right”. In addition, if a link between the “right” referred to in article 12 and the “duty to seek assistance” contained in article 10, were established, that approach would completely miss the point, as the two provisions did not complement each other in any way.
In regard to protection of persons in the event of disaster, he said that the use of mandatory language in draft article A, such as the word “shall” indicated the existence of an obligation to provide assistance, an assertion which had not been supported by State practice. The text would benefit from an indicative list, as opposed to a restrictive one which was now employed, of the types of assistance that could be provided. Further, the Special Rapporteur’s decision to focus his next report on disaster risk reduction, including the prevention and mitigation of disasters, would be beneficial.
Such protection, he continued, should not be limited to the provision of relief assistance but should also encompass measures to prevent such disasters or mitigate their effects through appropriate infrastructure, international cooperation, early warning systems and contingency plans. Lastly, he stressed the importance of the United Nations Economic Commission for Europe Model Provisions on Transboundary Flood Management, which he said were used by riparian States for the drafting of bilateral or multilateral agreements dealing with this issue.
MIGUEL DE SERPA SOARES ( Portugal), truncating his presentation in the interest of time, requested States to read the full statement that had been distributed. Turning to the work on the expulsion of aliens, he welcomed the new wording for draft articles 13, 21 and 24. Regarding their final form, he said the subject was not suitable for codification, but should become an overview of existing legal norms, possibly establishing a general framework of principles.
He said, in regard to conditions placed on the delivery of assistance for the protection of persons in the event of disaster that the needs of those persons and the quality of that assistance should be taken into consideration. The Commission should analyse situations where the affected State imposed conditions that were unreasonable or where assistance was restricted, which in turn, adversely impacted intended recipients. As well, situations where international law was violated should be studied. Moreover, the question of what could happen when there was an incorrect assessment of needs or when an affected state could not make such an assessment should also be looked into.
IAIN MACLEOD ( United Kingdom) said that in regard to the protection of persons in the event of disasters, it might be more appropriate for the eventual product on the matter to be in a flexible form, such as a guide for good practice, rather than a convention. Turning to the texts of the draft articles on the matter, he noted, among other things, that draft article A would be improved if the mandatory elements were removed. States had the right to refuse assistance, and they should have the rights to place conditions on assistance. A needs-based perspective was preferable to a rights-based one, in that respect. In that regard, assisting States had the right to withdraw and that withdrawal should not be subject to consultation.
On expulsion of aliens, he said that the topic raised issues that intruded into the domestic sphere of States and that it was not suitable to codification. While the United Kingdom’s law showed its commitment to the protection of the rights of aliens faced with expulsion, individual States should enjoy considerable discretion in that area. “[A]ny legal framework should also permit the effective enforcement of domestic immigration controls against those who never have and never claim to have any basis for human rights protection,” he said.
JANUSZ STACZYK ( Poland ) said two important topics examined by the Commission were immunity of State officials from foreign criminal jurisdiction and the obligation to extradite or prosecute, which should be approached in the context of combating impunity and restoring the rule of law. Supporting the structure of the draft articles on expulsion of aliens, he said that that expulsion and extradition were governed by separate legal regimes. Regarding article 27 regarding the effect of an appeal against an expulsion decision, he urged caution due to the fact that different national legal systems provided a variety of responses to those problems, and States’ practices should be studied carefully.
Supporting the inclusion of draft articles 31 and 32 relating to international responsibility and diplomatic protection, respectively, he said that those areas were well established in international law. In addition, there was no need to link the expulsion of aliens with the issue of readmission agreements and, although there was still work to be done, especially in the context of evaluating States’ practices, the expulsion of aliens belonged to topics on the Commission’s agenda.
Regarding the protection of persons in the event of disasters, he said that the development of the framework principles for States and other actors engaged in relief could have much more practical value than draft articles, and he supported the inclusion of the duty to cooperate, humanitarian principles, respect for human dignity and human rights and the primary responsibility of the affected States. However, in regard to article 10, which envisaged the duty to seek humanitarian assistance by affected States, a question arose as to whether a State that did not seek external assistance would, by that fact, breach international law and what form of reparation would accrue from such a violation. When dealing with that topic, the Commission should take into account similar works conducted in other international forums, he said.
KENGO OTSUKA ( Japan) said a new forward-looking dynamism of the Commission had been triggered by the work of active members in the sixty-fourth session. In the world today, the principle of the rule of law was important for the peaceful settlement of conflicts and disputes, and the recent practice of the Commission should be reconsidered, in particular the tendency to set up study groups that had only limited effects for the development of international law. He stressed that the Commission’s main function should remain the elaboration of draft articles for possible codification of general international law, adding that the Commission should be allowed a number of forms for deliberation, including a study group for specific topics. Nevertheless, he emphasized that the outcomes of study groups were limited by the nature of their work and members of the Sixth Committee should seriously consider what areas of international law would urgently require an elucidation and possibly an elaboration of concrete rules.
Turning to the protection of persons in the event of disasters, he said that given that Japan was a disaster-prone country, it had been providing assistance in the event of disasters in other States and had come to further understand the multiple aspects of providing and receiving assistance after the 2011 tsunami and nuclear accident. Since natural disasters could trigger other unexpected disasters, the Commission’s deliberation to consider forms of cooperation, as shown in article 5bis, matched reality. Since the State bore the primary responsibility to protect its population, it should be able to maintain overall control of assistance and ensure that its domestic legislation did not impede the facilitation of external assistance.
YOLANDE DWARIKA ( South Africa) said that the topic of expulsion of aliens was of crucial importance due to the ever present phenomenon of migration. An important balance needed to be struck between the protection of State sovereignty and ensuring the human rights of legal and illegal foreigners. The format of the draft articles was an appropriate outcome for the topic, but more clarity was needed to the differentiated rights and obligations of legal and illegal foreign nationals. She also expressed reservations as to the use of the word “aliens.” Even so, determination of the destination State of an alien should take the views of that alien into consideration. Thus, explicit provisions for the consent of third party States should be encouraged in that regard.
On protection of persons in the event of disasters, she said it must be clearly stated that the right of States and others to offer assistance must not interfere in the internal affairs of the affected State. The provisions for the imposition of conditions by affected States should ensure that only conditions that were reasonable and deemed necessary in the circumstances could be imposed. Further, consultation between States on the type of cooperation required could avoid ineffective or inadequate provision of assistance. Noting that internationally, States had no legal obligation to provide assistance, she said that using the format of draft articles would ensure that consistent and uniform norms would govern the protection of persons in the event of disaster.
ION GALEA ( Romania) said that, in regard to the expulsion of aliens, it was extremely difficult to find the right balance between the sovereign rights of States to determine their immigration polices and the rights of individuals subject to expulsion. Articles 6 and 7 should be drafted to reflect the relevant provisions of the 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons. However, the inclusion of draft article 6, paragraph 2, was questionable and appeared to be progressive development rather than codification.
Further, he said, the situation in which a person submitted an application for recognition of refugee status had to be taken into account, in order to avoid the implementation of an expulsion decision. Romania fully supported the inclusion of a provision on the matter of disguised expulsion, as a State’s conduct meant to provoke the departure of aliens from its territory should be qualified as expulsion, irrespective of its form.
Turning to the protection of person in the event of disasters, he said the draft articles should better reflect the importance of cooperation as well as the right balance between the sovereignty of the affected State and facilitation measures that the affected State may grant to the assisting State and its personnel during emergencies, particularly where there was a possibility of derogating from the national legislative provisions. In that regard, he said that articles 13 and 14 could receive additional details on the cooperation between affected States and assisting entities, the consultations regarding the scope and type of assistance, and the identification of the needs of persons impacted by disasters.
EDWIGE BELLIARD ( France ) said the Commission should focus on subjects already being studied and avoid dispersion through the inclusion of new subjects on its agenda, including the topic of the protection of atmosphere. Before covering other subjects, the work on the most-favoured-nation clause could be deepened. In addition, it was important to maintain the separation between works concerning universal competence and those relating to aut dedere aut judicare, she said, renewing doubts expressed last year regarding the interest of maintaining the latter subject on the agenda.
On the protection of persons in the event of disasters, she said that it was important to bear in mind that humanitarian assistance could only be effective when provided and received willingly. In that regard, she was satisfied with the assistance-related draft articles 12, 14 and 15. Turning to draft articles 5bis and 13, she said the former could refer to an indicative list of cooperation forms and could clarify ambiguities in the English and French versions of the text. On the latter, she said it was important in humanitarian assistance matters to respect both the internal law of the affected State and the applicable international law.
She said that, on the topic of the immunity of State officials, a desired approach would be to first identify and apply the rules of positive international law before determining the extent to which the International Law Commission should seek to develop law. On the topic of external aliens, attention must be paid to the progressive development of law. Regarding the definition of expulsion, she said what was formulated in draft article 2 contradicted and was incompatible with draft Articles 4 and 26, which respectively outlined rights of aliens. The wording of draft article 5 was not satisfactory, and she pointed out that unlawful presence was also an authorized ground for expulsion. Further, the overall construction of draft article 26 posed a problem as it did not allow for a difference to be made between rights of an alien in the administrative and the jurisdictional phases of expulsion. Among other observations, she said her delegation intended to propose new wordings for certain articles in order to better reflect international law relating to draft articles 14, 19, 21 and 29.
MARCUS SONG ( Singapore), referring to the draft articles on expulsion of aliens, noted that the accompanying commentaries were a “substantial” contribution to a considerably relevant and significant topic. Recalling objections in the sixty-second session’s consideration of draft article 14(2), he noted that the relevant article had been revised and renumbered as 23(2). The text had previously said that a State that had abolished the death penalty had an automatic obligation under general international law not to expel a person sentenced to death to a State where he or she would be executed, without first obtaining a guarantee that the death penalty would not be carried out, and that this “so-called obligation” was one aspect of the right to life. Unlike the former draft article, the new draft article 23 no longer suggested the right to life aspect, he said, which did not imply the prohibition of the death penalty. “There is no global consensus on the abolition or retention of the death penalty, much less any agreement that prohibition of the death penalty is part of the right to life,” he said.
He continued, saying he was unable to express enthusiasm for those substantive changes between 14(2) and 23(2), noting that the former applied only to States that had already banned the death penalty and the latter extended to States that had not yet abolished the punishment, but were merely not imposing it in practice. “It is difficult to find any legal or principled basis for imposing, on a State which continues to retain the death penalty as a lawful sanction, the obligation to interfere with the rights of other States to carry out its laws in relation to the death penalty,” he said. His country was unable to agree with or accept the provision on aliens that would be threatened with the death penalty. Referring to the views of some States that expulsion of aliens was not suitable for codification, he urged that all options stay open, including the possibility that the outcome of the Commission’s work take the form of guiding principles, standards and guidelines or guidelines or guiding principles, rather than draft articles.
NORIZAN CHE MEH ( Malaysia) said that the Banishment Act of 1959 which governed banishment and expulsion from Malaysia of persons other than citizens had been repealed effective 31 December 2011. The current legislation that regulated the removal of prohibited immigrants and persons unlawfully remaining in Malaysia was the Immigration Act 1959/63 and the Immigration Regulations 1963. Furthermore, she endorsed the Special Rapporteur’s views that it was premature at this stage to decide on the final form of the Committee’s work on this topic particularly when there were many issues that needed clarification and reconsideration. A number of the adopted drafts did not reflect Malaysia’s legal framework and current practices with regard to expulsion of aliens, or her country’s views and position provided during the last sessions.
With respect to draft article 3, she reiterated an earlier position that States should only be obliged to observe and implement domestic laws and other international rules governing the human rights of aliens arising from instrument to which States were party to. Therefore, there were deep reservations to the formulation of the draft article. In regard to draft article 6, she highlighted that “refugee” status was not recognized in her country, as it was not a party to the Convention Relating to the Status of Refugees 1951 or the Protocol on the Status of Refugees 1967. The entry and stay of foreigners in Malaysia was governed by the “Immigration Act” which made no distinction between refugee, asylum seekers, stateless person or illegal immigrations.
Turning to the topic of protection of persons in the event of disasters, she noted that the guiding principles for receiving disaster aid must always be the consent of the affected State. This was the sovereign right of every State. Draft article 12 could be amended through rephrasing certain sections, including the text “have the right to offer” being substituted with the words “may offer”. The scope of draft article 13 should be widened by including the formulation of conditions addressing the provision of external assistance to be in accordance with the national law and applicable national framework and policies of the affected States. In addition, identification of the type of assistance and subsequently the indication of the same to the external parties providing assistance was an essential step in the processes of disaster handling.
Mr. BUCHWALD ( United States) said he had several concerns regarding the draft articles on the expulsion of aliens that sought to augment broadly ratified conventions on human rights and refugees. “While any draft articles on this topic should certainly recognize protections for individuals, they should avoid unduly restraining sovereign States’ prerogative and responsibility to control admission to their territories and to enforce their immigration laws,” he stated. He noted, however, that extradition and surrender to an international criminal tribunal had now been excluded from the definition of expulsion in draft article 1, but he was still concerned about certain omissions attributable to a State.
Turning to the section on prohibitions on expulsions, he said those provisions would seek to expand international obligations beyond well-settled principles of international law. They would extend protections in situations far beyond what the United States believed it could support, including with respect to the death penalty and treatment or punishment that did not amount to torture as defined by international law. Further, States could be obliged not to discriminate against persons on various grounds under the International Covenant on Civil and Political Rights and other treaties, but there was no obligation in any of those treaties not to expel them to a place where they would be threatened on such grounds. Unlike Article 33 of the Refugee Convention, he pointed out that nothing in those proposed prohibitions on expulsion would recognize exceptions to non-refoulement protection for security reasons or on criminal grounds as a means to address dangers posed by an alien.
SUE ROBERTSON ( Australia), on the issue of the expulsion of aliens, said that Australia was committed to providing a legal system that was predictable, transparent and respectful of human rights and dignity in its treatment of aliens. The draft articles, underpinned by that objective, were, in many ways, declaratory of existing rules found in treaties and customary international law. However, they also advanced new principles which merited close attention, as in the example of draft article 23 which extended the “non-refoulement” obligation of the Convention relating to the Status of Refugees to any persons whose life or freedom was threatened on any prohibited ground, even if they were not refugees within the meaning of the Convention.
Given that the expulsion of aliens was governed by several widely-ratified treaties, she urged restraint in conflating existing principles and expanding established concepts in new directions. The Commission’s work would be most valuable assisting States in implementing their obligations; therefore, the draft articles would be most appropriate as a set of principles or guidelines, accompanied by their commentaries which canvassed State practice and jurisprudence. Turning to the protection of persons in the event of disasters, she said that the issue was both a challenge and a core responsibility for all humanitarian actors. Her country’s location in the Asia-Pacific — the most disaster-prone region in the world — provided a unique perspective.
Her country, she continued, had a longstanding commitment to the protection of affected populations, recognizing that delivering humanitarian assistance in the absence of safety and security had a limited or even detrimental effect. Thus, the Commission should explore elaborating a model instrument in the form of a status of visiting personnel agreement, which could be annexed to the draft articles. That course of action would be consistent with the Commission’s proposal on the topic, which suggested that the 1946 Convention on the Privileges and Immunities of the United Nations be a possible model for the elaboration of a set of provisions serving as a legal framework of international disaster relief activities.
HOSSEIN GHARIBI ( Iran) said that the Commission should restrict its exercise on expulsion of aliens to identification and codification of existing law rather than progressive development. Further, it should be cautious in generalizing rules stipulated under regional or subregional treaties or mechanisms as they might not be representative of general practice or opino juris of States. The Commission tended to overvalue the practice of controlling mechanisms of international treaties, such as the Human Rights Committee, in identifying certain rules, sometimes at the price of overriding the very rule the treaty in question meant to establish. He stressed the critical importance of basing codification exercise on States’ practice, manifested among other ways, through international treaties. Consequent developments should not replace such treaties.
He continued, saying that a State had the right to expel an alien from its territory and should not be obliged in every case to specify the grounds. Further, it should be clarified that a State was bound by its obligations under international law. Once decided, expulsion should be conducted with respect for the fundamental rights of deportees. Regarding prohibited expulsion, he said lawful refugees should be placed on equal footing with unlawful refugees in the relevant draft article. He questioned the advisability of developing a rule for appeals against expulsion.
On protection in the event of natural disaster, he said an affected State had a duty to protect persons living in its territory, but not a legal obligation to seek external assistance. Thus, the relevant draft articles should be revised in a non-mandatory form. In addition, he said it was not conceivable to put States and non-governmental organizations on an equal footing by extending the duty to cooperate to the latter. That would be contrary to the principle of State sovereignty. The duty to cooperate should not, as well, be understood to oblige an affected State to accept external assistance. Humanitarian assistance should be provided in accordance with the principles of humanity, neutrality and impartiality.
Regarding the draft article on an affected State’s acceptance of external assistance, he proposed language stating that “consent to external assistance shall be decided in good faith.” Affected States should not have to yield to conditions to receive assistance and were best able themselves to determine when assistance was no longer needed. Specific saving clauses should ensure that humanitarian assistance would not be abused to interfere in the internal affairs of the affected State. The Commission should also consider situations where the alleged inability of the affected State to provide effective and timely assistance to victims was due to arbitrarily imposed economic sanctions.
Mr. CHOWDHURY ( India) stated his support for the Special Rapporteur’s approach on the right of a State to expel an alien from its territory, in accordance with the applicable rules of international law, particularly human rights law. The State concerned must take into account the minimum standards of treatment of aliens. However, issues relating to the suspensive effect of an appeal against expulsion and the re-admission of aliens in the expelling State required further discussion, as there was insufficient State practice in that regard.
On protection of persons in the event of disasters, he said that the provision of assistance should respect the principle of sovereignty, territorial integrity and political independence of the affected State. Humanitarian assistance should not be arbitrarily imposed on an affected State. The draft article on offers of assistance conferred the right on States and competent international organizations to offer assistance.
He continued, emphasizing that although such offers were important, they should be seen as a part of international cooperation rather than the assertion of a right. That point needed clarification in the draft article. Further the draft article on “arbitrary withholding” of consent by an affected State needed clarification on the determination of what was “arbitrary”. Affected States should be entitled to impose conditions on provision of assistance and determine when relief operations should be terminated.
Mr. AL-ADHAMI (Iraq) offering a number of comments on the draft articles on the expulsion of aliens, said that an important issue included the situation when foreigners entered the country and remained illegal residents after having violated the expelling country’s law. He stated his support for a number of related articles, including article 11. On the topic of expelling a foreigner to the State where he or she came from, he said that there was no legal obligation upon that State to have the expelling State demand re-entry.
LINGGAWATY HAKIM ( Indonesia) said that the draft articles should cover aliens both lawfully and unlawfully present in the territory of a State. It was important that, in dealing with the issue of expulsion of aliens, close cooperation on the basis of the existing bilateral and regional agreements be taken into account. The draft articles should also reflect the balance between the right of aliens subject to illegal expulsion to return to the expelling State, and the sovereign right of a State to deny return, if the alien’s return would impair public order in that State. Further, the issue of human rights contained in the draft articles related to different international instruments and conventions not universally accepted. In future application of the draft articles, that would create another complexity, as States were not be bound by obligations provided in the treaties or agreements to which they were not party.
He underscored that the topic of the protection of persons in the event of disasters was relevant to the current situation in New York. Expressing his deepest sympathy to the victims of Hurricane Sandy, he pointed out that the destructive impact of natural-borne disasters was something the Indonesian people could truly relate to, as his country was located in the most active volcanic plateau in the world. Indonesia continued to strengthen its national capacity to manage and mitigate disaster as well as to enhance cooperation with other countries.
He went on to say that it was the duty of the State to act in its utmost capacity to provide the best protection for its people. Considering the character of a disaster that was most unpredictable, the elaboration on the forms of assistance should not be made in an exhaustive manner with a goal to keep open the possibility of other types of assistance. On the issue of compliance of provisions of assistance to national and international law, the affected States should be allowed to subject the provision of assistance to conditions deemed necessary. The conditions laid down by the affected states should put forward the needs of the people affected by disasters, should be reasonable and should not undermine the duty to protect.
ABDUL HAMEED ( Pakistan) said that, in regard to protection of persons in the event of a disaster, only the State could assess its need for international assistance. It also had the primary role in coordinating relief efforts on its territory. The assumption of several draft articles that States would not seek assistance from the international community in cases of overwhelming disaster was flawed and could undermine current practices of international cooperation in the event of a natural disaster.
A sovereign State must be free to choose among various eternal actors offering assistance, he said. In addition, an affected State should be able to place conditions on provision of assistance and must indicate the scope and type of assistance sought. He supported article 14 and agreed that once conditions of the affected State had been met, it must make its legislation and regulations available to external actors to ensure their compliance.
He continued, saying that the affected State should also have the right to review the situation in the light of changing ground reality. In regard to the relevant draft article, consultations among the affected State, the assisting State and other recognized assisting humanitarian actors before termination of external assistance would add legal certainty to the process. However, the affected State would still determine when a humanitarian mission should be completed.
NIMROD KARIN ( Israel) said that the topic of the expulsion of aliens required striking a balance between a State’s rights to exercise its sovereign prerogatives regarding admission to its territory, and the protection of fundamental human rights. That balance must be found in well-settled principles of law, reflected in widely established State practice. Many issues involved were controlled by national law or regional agreements, but had not been settled in international law, leaving doubts as to whether the basis or need for codification de lex lata or treatment de lege ferenda was suitable.
He went on to say that the draft articles contained elements which were analytically and substantively controversial, as they entailed interplay among many fields of international law. There were practical concerns relating to their interpretation and application, which would only be compounded by the topic’s delicate public policy aspects, including migration and national security. Hence, the final form of the work should be determined at a later date.
Turning to the question of the protection of persons in the event of disasters, he said that the topic should not be considered in terms of rights and duties, but in terms of guiding international voluntary cooperation efforts, and should be so reflected in the draft articles. It should be clarified that cooperation was not an obligation imposed on the assisting State, but optional measures that might be applied with discretion. It should further be clarified that the affected or assisting State should have the right to terminate assistance at any time. Finally, he said that an affected State retained the primary responsibility for protection of persons and the provision of humanitarian assistance in its territory.
Ms. DEL SOL DOMINGUEZ ( Cuba) said that, in regard to the expulsion of aliens, the self-determination and sovereignty of States needed to be addressed. The draft articles contributed to the codification of human rights, but needed to regulate respect for internal rights and the public security of States, as well. The decisions on expulsion rested with the States. However, an article should be included, committing States to report on expelling individuals to specific States. The Commission must also insist on the protection of individuals against torture and cruel and inhuman treatment in destination countries, she said, noting the Commission’s work in terms of theoretical and practical issues.
Turning to the protection of persons in the event of disasters, she said it was useful to codify the issue as it had a position in the preservation of life. Because cooperation must ensure the respect for sovereignty and self-determination, States had a right to refuse such assistance. Further, affected States must evaluate the magnitude of the disaster and assess whether it needed to request or accept help offered by other countries. The main goal in disaster situations was to protect human rights, and she urged that the Commission continue its study in this field.
TCHILOEMBA TCHITEMBO ( Congo) said discussions on the expulsions of aliens had shown deep differences between the practices of States and the challenging practice of removing foreigners. That was a complex topic which required further attention in areas, including public and private rights on national and international levels. Referring to article 2 in the relevant draft article, he said that definitions of certain terms, including the length of detention could not be unlimited. Any excessive detention period was forbidden, he stressed, noting that such provisions could prove difficult in practice.
He continued, saying that it was the first time the expulsion of aliens was part of a study that offered solutions and raised questions regarding human rights and codification. Principles and stipulations maintained a subtle balance between rights, interests and obligations, including the person under expulsion, the expelling State, the transit and destination States and the State of nationality. Expulsion was a right exercised by every State, but it needed to be monitored and the rights of the expulsed person needed be taken into account. Noting that he favoured codification, he emphasized that the international community needed an instrument to address the human rights of persons under an expulsion order. An international convention would enshrine the Commission’s codification work on the matter.
CSABA PÁKOZDI ( Hungary ) addressing various chapters of the report, said that in regard to the expulsion of aliens, his delegation would submit its detailed comments and observations on the draft articles by the requested deadline. At the present stage, he emphasized that the topic was considered to be controversial. He expressed support for the principle on draft article 21, in which voluntary compliance with expulsion decisions should be encouraged. However, the articles did not take into consideration cases where the person concerned posed a threat to public order or national security. States should not be obliged to promote voluntary compliance in those cases; instead, the provision should be reformulated to emphasize that, as far as possible, appropriate measures should be taken by States to facilitate voluntary departure.
Turning to the protection of persons in the event of disasters, he said that the Commission had made substantial progress. The fundamental difficulty involved in that issue, namely finding the right balance between the need to safeguard the national sovereignty of the affected States and the need for international cooperation in the protection of persons in the event of disasters, was evident. Such events were primarily an issue of national concern, and providing protection was primarily the obligation of the Government of the affected State. While it supported the inclusion of the duty to provide assistance when requested, the wording had to be careful.
Among other comments, he also focused on the obligation to extradite or prosecute, and emphasized that the harmonization of different multilateral treaty regimes would have been a “less than meaningful exercise”. The Commission should have pursued a systematic survey and analysis of State practice in that field to examine if a customary rule existed on a general obligation to extradite or prosecute for certain crimes. However, after the International Court of Justice rendered judgment in July of this year on the related case of Belgium and Senegal, the future of the topic needed be re-evaluated. During its upcoming session, the Commission should make a final decision and terminate its work on the topic, as it had become an area of law to which the Commission could not presently make more contributions than it had already done.
Mr. LUKWASA ( Zambia) said that in regard to the topic of the expulsion of aliens and the draft articles discussed by the Commission, a balance should be struck between the rights of aliens and the sovereignty of States. In the interest of time, he referred delegates to his circulated speech.
MARWAN JILANI, of the International Federation of Red Cross and Red Crescent Societies (IFRC) said that, in regard to the draft articles on the protection of persons in the event of disasters, the proposed enumeration of “cooperation” in article 5bis was quite limited, and that the present list seemed focused on relief. That might be taken to exclude disaster risk reduction, as well as preparedness for disasters and recovery. It also omitted such common types of cooperation as financial support, technology transfer, training, information sharing and others. Moreover, the addition of Article 5bis changed the reading of the existing article 5 in ways the IFRC found unfortunate. “We had thought that the original obligation of cooperation referred not only to States providing assistance, but also to those receiving it”, he said in that regard.
With regard to draft articles 13 and 14, he was glad that the Commission affirmed two particular conclusions, namely: that States should take steps to oversee the quality of incoming international assistance; and that States should provide legal facilities to those providing assistance so as to avoid unnecessary delays, restrictions and expense. As currently drafted, the articles set out only the very broadest parameters for the regulation and facilitation of international relief, he said, adding, “they leave nearly all the detail to be separately and differently determined by every State.”
He went on to say that the operational value of those general principles would therefore be limited. The uncertainty was aggravated by the unfortunate fact that few States had adopted clear domestic rules on those questions, leaving the issue for ad hoc approaches in the midst of a major disaster. In that regard, he made a number of suggestions for the existing text, including that States, as a preparation measure, carefully consider and design the types of requirements they would make of external aid providers before disaster struck. He also said he found it unfortunate that article 14 made no distinction between military and civilian assistance, contrary to existing international norms.
Statement by Special Rapporteur
MAURICE KAMTO, Special Rapporteur on the topic expulsion of aliens, concluded the first part of the debate, saying that the Commission’s work was being done for States, which was why it had sought commentaries and proposals from States. He had noted all the comments and, once all contributions had been received, would submit them to the Commission.
Draft articles submitted to the delegates had represented minimum standards, he said. Regarding the final form of the work, he understood the hesitation of some States that rules of international law could regulate a subject that had previously relied on national legislation.
However, he implored, when discussing the topic, an alien was the same human being who was the subject of many debates. Very few subjects on the Commission’s agenda in the last 30 years had had such a solid basis in international law. Since the end of the nineteenth century, there had been developments in the practice of expulsion by States. Codifying illicit actions and behaviour had taken place, including the “icing on the cake”, which occurred in 2010 with the International Court of Justice giving a legal basis on aspects of the issue.
While some delegations might not like a subject due to national reasons, he said, draft articles must be founded on practices and a practice could become unanimous and could be inferred from national legislation. Topics of discussions were general principles recognized by States and those topics could be recognized as general principles, or, as the Court had done, as customary law. The Commission had not hidden the fact that some articles concerned the development of international law. Nonetheless, the final word was up to States, or more exactly, up to the General Assembly.
“In our globalized world characterized by a great flow of goods and funds, the subject of expulsions was particularly relevant,” he said. “It cannot be held outside the sphere of international law.”
Introduction to Third Cluster
The Sixth Committee then moved on to a new set of topics from the report of the International Law Commission.
LUCIUS CAFLISCH (Switzerland), Chairman of the International Law Commission, introduced the third cluster of topic to be considered. They included “immunity of State officials from foreign criminal jurisdiction”, “provisional application of treaties”, “the formation and evidence of customary international law”, “obligation to extradite or prosecute (aut dedere aut judicare)”, “treaties over time” and “most-favoured-nation clause”.
On the immunity of State officials from foreign criminal jurisdiction, he said that the Commission would focus on the basis of draft articles to be presented by the Special Rapporteur on several problematic questions. They concerned the distinction between immunity ratione personae and immunity ratione materiae, as well as the basis for that distinction; the scope of immunity ratione personae and immunity ratione materiae, including possible exceptions; the distinction and the relationship between the global responsibility of the State and that of the individual, and on their implications for immunity; and on the procedural issues surrounding immunity.
The topic in question was highly complex and raised concerns that were politically sensitive for States and the international community, he said, stressing Commission members’ concern for an appropriate balance in its methodological approaches. Commission members also viewed as useful the identification of basic questions for analytical review and study, taking a step-by-step approach as identified by the Special Rapporteur. They considered it crucial to remain conscious of the interrelation between certain issues in which distinctions were made, even if it were for analytical purposes only. That was even more important if one considered that immunity ratione personae and immunity ratione materiae derived from a common legal source, namely, the immunity of the State.
He continued, saying that the new Special Rapporteur intended to build on the substantial work in his predecessor’s previous three reports, taking into account recent developments, particularly in case law. The Commission had already dealt with certain aspects of immunity in respect to diplomatic and consular relations, special missions, the prevention and punishment of crimes against diplomatic agents, the representation of States in their relations with international organizations, and jurisdictional immunity of States and their property. Commission members felt it was useful to maintain the distinction between immunity ratione personae and immunity ratione materiae, but offered differing views over who was entitled to status-based immunity ratione personae and whether there were exceptions to such immunity under general international law, and regarding conduct-based immunity ratione materiae. They deemed it crucial to define what constituted an official act, and to give attention to the question of possible exceptions to immunity ratione materiae.
Turning to the provisional application of treaties, he said the report included a summary of the oral report of the preliminary exchange of views. The basis for the Commission’s consideration of the topic should be the work it undertook when considering the law of treaties, as well as the travaux preparatoires on the relevant provisions of the 1969 Vienna Convention on the Law of Treaties. The goal should be to extract whatever was useful from the Convention for States to consider when resorting to provisional application. Delegates should focus on the four issues identified by the Special Rapporteur. They included the procedural steps needed as conditions for the provisional application and for its termination; the extent to which article 18 of the 1969 Convention was relevant to the regime of provisional application under article 25; to what extent the legal situation resulting from the provisional application of treaties was relevant for identifying rules of customary international law; and the need to obtain information on the practice of States.
On the topic of formation and evidence of customary international law, he said that since the last session, the Commission had decided to place the subject on its long-term work programme and had a Special Rapporteur. With a number of members underlining the importance of the subject and the challenges surrounding the related issues, the Commission must find an appropriate approach. Among the specific subjects to be examined were the practice of States and opinio juris and the role played by States, resolutions and treaties.
On the obligation to extradite or prosecute, he said the Working Group had, among other things, analyzed the major issues, the relationship of the topic with universal jurisdiction, its practical usefulness and the possible impact of the related International Court of Justice judgment. The Group’s Chair had been requested to prepare, by the Commission’s next section, a working paper reviewing various perspectives in relation to the topic, he said.
Regarding treaties over time, he said the Commission had made a number of important decisions, including modifying its agenda beginning next year. The Commission had studied the Study Group’s reports, which included an examination of agreements and practices of States outside judicial and quasi-judicial procedures.
Lastly, he said, the most-favoured-nation clause was the subject of a Study Group that had considered working papers on topics such as the effect of the mixed nature of investment tribunals on the application of most-favoured-nation clause to procedural provisions. Among other topics discussed, the Group noted that there were other areas of contemporary interest, such as investment agreements and human rights considerations. He also noted that the Group was mindful of the need not to broaden its scope and was cautious about exploring aspects that could divert attention from its work on areas that posed problems relating to the application of the provisions of the 1978 draft articles.
Statements on Third Cluster
ROLF EINAR FIFE (Norway), speaking for the Nordic Countries, said that the importance of distinguishing between immunity of States and immunity of State officials did not deprive States from immunity by reason of an accusation of serious violation of the international law of human rights or the international law of armed conflict. The International Court of Justice’s ruling on immunity of this year (Germany v. Italy; Greece Intervening) had not tackled the issue of immunity of State officials. Recognizing that immunity ratione personae was enjoyed by a limited number of persons and was status based, the 2002 Arrest Warrant Case was a useful guide on the issue. On immunity ratione materiae, further study was welcomed that focused on the distinction between acts and situations requiring immunity to allow States to act freely and unimpeded on the inter-State level, and those where immunity was not needed for that purpose.
He said it was not helpful to consider immunity of State officials as absolute and noted that the preliminary report raised the question of possible exceptions in immunity ratione personae and ratione materiae cases. Countering impunity effectively required that no State official could be shielded by immunity from prosecution for the most serious crimes concerning the international community. He called for examination of the scope of both categories in light of landmark treaties and international jurisprudence reaching back at least to the Nuremburg and Tokyo trials, adding that despite exclusion of international criminal tribunals from the Commission’s work, legal developments to which such tribunals had contributed could not be ignored. It was not possible for genocide to be considered an official act.
He urged that the group of State officials who could enjoy immunity beyond the “troika” could be widened in order to reflect internationalization of State activities, including, for example, the international financial crisis. Further, he maintained that there could be reasons to distinguish between a State taking responsibility and the final determination of that responsibility. The Commission was commended to have had posed the question as to whether the distinction between immunity ratione personae and ratione materiae would result in different legal consequences and what criteria would be used in identifying persons covered by immunity ratione personae.
He expressed concern over relatively slow progress made by the Commission on establishing the obligation to prosecute or extradite perpetrators of serious international crimes. The fight against impunity was a principle legal policy objective of the entire international community. The International Court of Justice judgement on the issue (Belgium v. Senegal) of July this year confirmed that the obligation to prosecute or extradite and the linked principle of universal jurisdiction of the Court were key to the enforcement of international criminal law and countering impunity. He called for codification and further clarification of applicable international law on the issue to help ensure maximum effect and compliance with existing rules, while also requesting that the Commission systematically work to identify relevant core crimes.
Commending the work of the Study Group on the most-favoured-nation clause, he reiterated that ongoing attempts to methodically promote identification of the normative content of various most-favoured-nation clauses could contribute to greater coherence of international law in that field. An important aspect of that was to ground the Study Group’s methodology in the principles reflected in the relevant articles of the Vienna Convention on the Law of Treaties. It was also important to draw on the practice and considerations emerging from international organizations such as the World Trade Organization and the United Nations Conference on Trade and Development (UNCTAD) and to consider a typology of various sources of case-law, including in particular arbitral awards.
GILES NORMAN ( Canada) called for a balance between the protection of the principle of State immunity and holding perpetrators to account for their crimes. He supported further in-depth study by the Commission of potential exceptions to State immunity, particularly with respect to serious international crimes. Canadian law did recognize the distinction between immunity ratione personae and immunity ratione materiae and, depending on context, the assertion of one form or the other could have different legal consequences. In particular, persons enjoying the more limited form of immunity would not be immune from prosecution when criminal charges were laid. The Canadian judiciary determined whether the specific act resulting in legal action occurred in any official capacity. Canadian law accepted that immunity ratione personae flowed directly from the established concept of “sovereign immunity”. As a result, in the criminal law context, Canadian courts applied customary international law, which reserved that type of immunity for high-level officials, such as Heads of States and Government, Foreign Ministers and diplomatic agents in office.
He lauded the initiative last year to add customary international law as a topic to the Commission’s work programme, and would contribute examples, as requested, of official statements and national court decisions that had weighed the criteria for recognizing the existence of customary international law, and which had discussed what evidence was necessary to prove its formation. Canada’s three examples of official statements commented on the relationship between treaties and customary international law, and made the point that the contents of a treaty were not, barring other circumstances, generally considered to be customary international law. While covering several aspects of the question, they did not address the types of evidence most appropriate in evaluating existing customary international law.
He also said that information would also be provided on three Canadian court decisions that had analysed, examined and applied the substantive criteria and evidentiary requirements necessary for determining when customary international law had been formed. Regarding the most-favoured-nation clause, the Study Group’s approach to avoid fragmentation in law and to provide guidance as to why tribunals were taking different approaches to the interpretation of most-favoured-nation provisions would be practically useful to those dealing with such clauses in the investment field as well as to policymakers. He looked forward to concrete recommendations from the Commission on that topic.
AUGUST REINISCH (Austria), stating that his full statement was available on the PaperSmart portal, said that on the immunity of State officials from foreign criminal jurisdiction, the starting point must be the identification of existing norms of international law, followed by possible progressive development in accordance with the present needs of the international community. The scope of the topic did not encompass the issue of jurisdiction and was confined as to whether States were impeded in exercising criminal jurisdiction under international law.
In addition, he said present customary international law did not extend immunity ratione personae beyond the so-called troika to other high ranking officials, who might enjoy immunity ratione materiae. A central point for discussion of the latter was the definition of officials or persons acting on behalf of a State in an official capacity. It would also be necessary to define the official acts of a State for which immunity could be invoked. The possibility of exceptions to either form of immunity was also important. In view of the procedural nature of immunities, it was also necessary to discuss procedural elements.
On the provisional application of treaties he said the Vienna Convention on the Law of Treaties did not specify whether a treaty that was applied provisionally would be applied in its entirety, including its procedural provisions, or only partly, relating only to provisions of substance. Further, provisional application raised a number of problems in relation to domestic law. There was a certain tension between provisional application and parliamentary approval procedures based on the idea of democratic legitimacy. Also, he said that the relevant articles of the Vienna Convention concerned different problems and should be kept separately, although both provisions applied simultaneously.
On the formation and evidence of customary international law, he said he supported the Special Rapporteur’s intention to limit its scope to secondary or systemic rules on the identification of customary international law, and saw no difficulty in including jus cogens in the topic, although it did not seem to be inherently linked to customary law. Judicial findings of both international and domestic tribunals should be scrutinized to analyse how customary rules have been identified.
Regarding treaties over time, he said that in interpreting treaties, subsequent practice by fewer than all parties was not sufficient. The practice must be embraced by all States parties unless an effect only for certain States was envisaged. He noted, with regard to the relation between formal treaty modification and interpretation by subsequent practice, that a proposal by which treaties could be modified by subsequent practice had been defeated at the Vienna Conference on the Law of Treaties.
Turning to the most-favoured-nation clause, he said that while he doubted whether the work of the Commission could lead to draft articles, due to the contentious interpretation of such clauses by investment tribunals, the issue was primarily one of treaty interpretation and that whether or not it included procedural and jurisdictional matters depended on the specific wording of the first line of the applicable most-favoured-nation clause.
HERNÁN SALINAS BURGOS (Chile) said that, in regards to immunity, it was important for the Commission to define the topics to be discussed and essential to have a guiding document. A systemic approach was needed to address, among other things, the key values of the international community. He underlined that immunity should always be an exception. He also supported the Commission on its scope of the implementation on the issue that excluded, among other things, personal immunity. For purposes of guiding the debate within States, the Commission and Special Rapporteur should provide key concepts and definitions.
He also said the Commission should also examine procedural issues and jurisdiction to elaborate a concept of those matters and he requested that certain elements be clarified. In addition, actions needed to be determined in analysing the extent of immunity and a binding instrument should be determined at a future time.
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