Sixty-second General Assembly

Sixth Committee

19^th Meeting (AM)

Civil, political rights covenant should govern approach to issue

Of ‘expulsion of aliens’, assembly’s legal committee told

 

As Review of International Law Commission Report Continues,

Distinction between Legal, Undocumented Immigrants Said to Be Factor

The International Covenant on Civil and Political Rights should serve as the main foundation for dealing with the “sensitive” question of expulsion of aliens, the representative of Guatemala told the Sixth Committee (Legal) this morning as debate continued on the report of the International Law Commission on the work of its fifty-ninth session with a focus on three topics -- expulsions; effects of armed conflicts on treaties; and responsibility of international organizations.

Guatemala’s representative said her country was a society that served as a point of transit, origin and destination for migrants.  The issues involved in human movement in today’s globalized world were complex in the need to reconcile respect for the human rights of expelled aliens with the inherent, sovereign right of States to expel them.  At the very minimum, she said, in its work of elaborating articles on the multidimensional question, the Law Commission should ensure that the rights of all persons were guaranteed in the State seeking to expel them regardless of their situation as documented or undocumented.

Malaysia’s representative, however, said the legal regime governing expulsion must take account of the distinction between legal and illegal aliens.  His country’s legal framework made no distinction between refugees, asylum seekers and illegal immigrants, since the concept of refugee did not exist in its legal framework.

Several speakers referred to the need for balancing the sovereign right of States with the international norms on human rights.  Colombia’s representative called for the codification of an instrument on expulsion of aliens, because of the profound impact that derived from States exercising their right to do so.  The representative of Sri Lanka agreed, calling on the Commission to consider the problems that might arise on expulsion of persons with multiple nationalities.  Speaking also for the other Nordic countries ( Denmark, Finland, Iceland and Norway), Sweden’s representative said that avoidance of statelessness was another matter the International Law Commission should take up.

Japan said the delicate balance between a State’s right to grant and withhold admission was tied into the question, a right that was inherent in the principle of State sovereignty in addition to being a fundamental human right.  He called for a study of accumulated State practice through the collection of data on relevant domestic laws.

Finally, Portugal’s representative said the Commission’s treatment of refugees, asylum-seekers and stateless persons must not overlook all the legal frameworks already protecting them in specific situations.  The Commission’s work should aim to clarify and solidify existing regimes, while ensuring that States could not use the possible deprivation of nationality to contort the prohibition against the expulsion of its own nationals.

Also speaking this morning on topics in the Law Commission report were the representatives of Mexico, Greece, Germany, Italy, United Kingdom, El Salvador, Canada and India.

The Committee will meet again at 10 a.m. Wednesday, 31 October, when debate on the report will continue.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on the work of its fifty-ninth session.  (For background, see Press Release GA/L/3329 of 29 October.)

Statements

JOEL HERNANDEZ ( Mexico) said the question of the expulsion of aliens was very relevant to the sphere of international law.  He had taken note of the development that articles 1 to 7 had been forwarded to the Commission.  A catalogue of standards should be compiled with the limits of ratione materiae and ratione personae analyzed and established with regard to the very sensitive issue that involved the motives of those who would be covered under the question of expulsion.  The revised draft of article 1, dealing with the scope of the articles, the loss of nationality as related to statelessness versus status as an alien, needed more study.  International law must ensure that the expulsion was not arbitrary, which was why the limits of the two rationae must be established.

He said the term “territory” was more accurate than “border” and should be retained.  With regard to terrorism, the concept of national security already embraced expulsion due to terrorism, thus specific acts should be listed rather than making explicit mention of the crime.

PHANI DASCALOPOULOU-LIVADA ( Greece) said her delegation agreed with a chapter of the International Law Commission report which dealt with serious breaches of obligation under peremptory norms of general international law.  Most prevalent among such acts, as provided in Article 2 paragraph 4 of the United Nations Charter, was the threat or use of force, the prohibition of which was the clearest illustration of norms with a jus cogens character.  Her delegation therefore agreed with Commission’s commentary referring to a duty of non-recognition of any entity resulting from aggression.

She said a significant contribution on the question of attribution of responsibility of international organizations was made by the decision of the European Court of Human Rights in the Behrami Case of 2 May 2007, concerning the presence of forces of the North Atlantic Treaty Organization (NATO) under the Kosovo multinational security force (KFOR) in Kosovo, and in particular the responsibility arising out of acts and omissions of such forces.  She said the Court gave an indication of the content of “effective” control, dealt with by the Commission in draft article 5 of the text on the responsibility of international organizations.  She quoted the Court as stating that effective control existed whenever the “ultimate authority” lay with the organization itself and its organs, irrespective of operational control.

ANA CRISTINA RODRIGUEZ PINEDA ( Guatemala), speaking on the topic of “expulsion of aliens”, said it was a most sensitive matter for her country.  Guatemala was a society of transit, origin and destination of migrants.  In today’s globalized world, human movement was more intense than before, and its complexity should not be forgotten.  The most fundamental aspect was reconciliation of the respect for human rights of expelled aliens with the inherent, sovereign right of the State to expel an alien.

She said her delegation supported the notion that article 13 of the International Covenant on Civil and Political Rights constituted one of the appropriate bases when dealing with the matter, but not the only one.  It was a multidimensional question requiring a minimum protection of guarantees for all persons, regardless of their situation as documented, or undocumented, in the State that sought to expel them.

She said article 1, an important provision, should not be merged with draft article 2, as suggested by some delegations.  In addition, her delegation saw merit in keeping the categories that had been proposed by the special rapporteur.

With regard to the topic “responsibility of international organizations”, her delegation supported the general structure of the draft articles, but it needed time to assess them.

GEORG WITSCHEL ( Germany) said the subject of reservations to treaties involved questions that were highly complex, taking into account a wide range of State practice.  The “compromise solution” favoured by the special rapporteur should apply with regard to invalid reservations and their legal effects.  Furthermore, factors beyond the type of treaty should be taken into consideration with regard to the validity of reservations, particularly with regard to human rights treaties.  For example, since last year, a number of States had made objections to invalid reservations to Conventions, and had expressed the view that “the reserving State” was fully bound by the convention. 

That new aspect of reservations should be monitored and expounded in greater detail, he said; for example, in written statements in response to the Commission’s questions.  As a rule, however, a State should not assume its objection could fully bind a reserving State to a universal treaty, and a systematic classification that disregarded individual cases was not expedient.

He said the Commission should include in its long-term agenda the question of what constituted “subsequent agreement” and “subsequent practice” in the adaptation of international treaties to changing circumstances, and in what way those factors affected the implementation and interpretation of treaties.  The interest in clarifying the legal significance of those questions concerned the fact that an “evolutive” interpretation of treaties could lead beyond the actual consent of the parties, and that domestic courts referred to those interpretations as a means of determining the impact of a given treaty on the domestic legal order.

On the responsibility of international organizations, he said he was satisfied with the definition of the legal consequences of internationally wrongful acts of international organizations as set out in articles 31-45.  Article 35, for example, correctly took into account the possible peculiarities of international organizations compared to States.  Article 43, on reparations, examined the issue at the level of primary and secondary obligations, the former of which should cover the question of the intentional misuse of an international organization by a State to circumvent its international obligations.

VALERIO ASTRALDI ( Italy) on the topic “expulsion of aliens”, said persons with dual Italian nationality enjoyed the same protection from expulsion as all other Italian nationals.  He said the inclusion in the draft articles on the topic of nationals or former nationals suggested that the title of the text and the definition of its scope should be widened to cover expulsion in general.  On Stateless persons and refugees, he said the best way to address their status was to encourage a wider ratification of relevant existing instruments.

His delegation welcomed the progress made by the Commission on the subject of the effects of armed conflicts on treaties, but further discussion of the topic raised a significant concern.  The Commission appeared to be heading towards producing draft articles on the topic without thoroughly analyzing consistent practice relating to the subject, especially the diplomatic practice and judicial decisions of many States.  His delegation also congratulated the Commission and its special rapporteur for the considerable progress made on the topic “responsibility of international organizations”.

In response to questions posed by the Commission, his delegation felt that while, in principle, international organizations might resort to countermeasures, in practice an organization mainly refrained from complying with an obligation under a treaty towards a party that had breached an obligation under the same treaty.  He said the Commission might consider envisaging whether resort to countermeasures should be accordingly limited. 

DANIEL BETHLEHEM ( United Kingdom) said the Commission’s work on the codification and progressive development of international law was no less important now than it was when the Commission was first created.  It was important that all States engage with the Commission, and assist it with its work.  The conduct of States was the pivot around which the Commission’s work operated.  It was important that the Commission proceeded in step with the community to which it was speaking.  Its working methods would also stand as an exemplar for the practice of other bodies engaged in similar endeavours, even in different areas, such as the International Committee of the Red Cross.  The United Kingdom would look for opportunities to engage more fully with the Commission and with its planning group.

Speaking on effects of armed conflicts on treaties, he said that expanding the scope of its draft articles to include treaties entered into by international organizations would not take into account the differences between States and international organizations, and also the widely disparate functions of international organizations.

On the responsibility of international organizations, he said the United Kingdom encouraged the Commission to explore their practice, and gave further thought to the issues raised by extending the principles of State responsibility to international organizations.  On the subject of the expulsion of aliens, he said his country was grappling with the problem that many countries were facing on a daily basis.  The United Kingdom did not believe that the law on the topic -- in its present form –- could be consolidated or codified, given the numerous political and legal sensitivities and difficulties which surrounded those issues.

ANA ELIZABETH VILLALTA VIZCARRA ( El Salvador) said the draft articles on the expulsion of aliens served as the solid basis for further consideration of the complex, sensitive question.  The scope should apply solely to natural persons; denial of entry should not be included in the question since it mixed up two issues and it was impossible to expel a person who had not entered a State’s territory.  Migrant workers and their families should be covered by the articles, especially in regard to the illegality of mass expulsions of migrant workers.  The Inter-American Court of Rights had ruled in 2003 that equality of rights before the law could not be made subservient to other considerations.

CARL HENRIK EHRENKRONA (Sweden), speaking also for the other Nordic countries (Denmark, Finland, Iceland and Norway), said it was regrettable that the core topic of the expulsion of aliens from a State had been allowed to expand into areas of law where the only common denominator was the crossing of an international border by an individual.  That “expansion of scope” reduced the odds of the ultimate instrument on the matter having its potentially constructive impact.

Affirming that the right of States to expel aliens was inherent in the sovereignty of States, provided that the right was exercised in accordance with international law, he said the Commission should also look at the related matter of the obligation of States to facilitate the return of their nationals, and the problems that arose when States did not live up to that obligation.  Other useful areas to be examined were situations of dual nationality and the avoidance of statelessness.  In conclusion, he said the work done on the question thus far had produced considerable clarity regarding principles applicable to situations where aliens were expelled.  The Commission should deal with those principles in the future rather than draft additional articles on which agreement would be difficult to reach. 

ELIZABETH WILLIAMS ( Canada) said she appreciated the work on clarifying key issues and resolving problematic areas related to the effects of armed conflicts on treaties, and agreed that inclusion of international organizations was best avoided for this topic.  Further comments on the matter would come once the results of further deliberations in the Working Group had emerged.

On the responsibility of international organizations, she said she had difficulty with the vast array of organizations involved, and the specificity of their “constitutive” arrangements.  While there was merit in developing a set of generally applicable principles, the solution in more problematic areas could depend on the specific rules of each organization.  That pragmatic approach could not detract from the utility of the Commission’s work in tracking the 2001 articles on State responsibility, and in the continued examination of the articles in terms of their relevance, including in relation to questions of attribution and consequence.

A.L. ABDUL AZEEZ (Sri Lanka) said his delegation agreed with the general approach underlying the draft articles on “expulsion of aliens”, which could be characterized as striking a balance between the right of expulsion by States on one hand, and reconciling that right with the relevant rules of international law.  He said problems that might arise on the expulsion of persons with multiple nationalities was worthy of further exploration by the Commission.  In response to specific questions on the topic posed by the Commission, he said that Sri Lanka had no provision in its immigration law relating to expulsion of nationals or persons with dual nationalities.

On the possible inclusion of terrorism among the exceptions to the rule regarding non-expulsion of refugees or stateless persons, his delegation supported the view of the special rapporteur that it would be desirable to specify in the commentary that terrorism could constitute justification for expulsion on grounds of “national security” or of “public order”.  On the effect of armed conflict on treaties, he said his delegation agreed that its expansion to cover treaties involving international organizations should be set aside for the present, until a later stage of the Commission’s work.  Regarding the topic “responsibility of international organizations”, he said he shared the view that there was no obligation under international law for members of such organizations to take certain measures to provide their organization with the means to fulfil obligations to make reparation.

UMAR SAIFUDDIN JAAFAR ( Malaysia) said he supported the view that the legal regime governing expulsion must take account of the distinction between legal and illegal aliens.  Malaysia’s legal framework made no distinction between refugees, asylum seekers and illegal immigrants.  Non-citizens who entered the country without compliance with immigration laws were regarded as illegal immigrants and punished accordingly.  They were also subject to deportation.  Draft articles 5 and 6 of the draft text on expulsion of aliens were unacceptable to his country, as the concept of refugee did not exist in its legal framework.  On the topic of effects of armed conflicts on treaties, he noted with appreciation that many of his delegation’s concerns expressed previously had been addressed in the revised draft articles on the subject. 

On “responsibility of international organizations”, he expressed appreciation to the Commission for adopting draft articles 31 to 45, which corresponded to Part Two of the articles on responsibility of States for internationally wrongful acts.  Regarding draft article 34 on reparation, he highlighted the concerns shared by most delegations on the duty imposed on those member States of an international organization that did not incur such responsibility; member States should not be held responsible or obliged to pay reparation.

He expressed support for the possible inclusion of the topic “most favoured nation” clause in the Commission’s long-term programme of work, and welcomed the inclusion of “immunity of State officials from foreign criminal jurisdiction” in the Commission’s work programme.

LUIS SERRADAS TAVARES ( Portugal) said he welcomed the new topic on the Commission’s agenda -- the immunity of State officials from foreign criminal jurisdiction -- but the appropriateness of including the topics on protection of persons in the event of disasters and on the most-favoured-nation clause was questionable.  He said other topics would seem more suited to the Commission’s work in the progressive development and codification towards the consolidation of international law.

Continuing, he said the Commission’s work would benefit from a further improved interaction with the Legal Committee, especially in relation to hearing the observations made by States during the General Assembly.  Preparations for the sixtieth anniversary of the Commission were welcome, including the proposed meeting with legal advisers; that should be a stock-taking exercise and an opportunity to discuss the Commission’s work, since most opportunities for codification and progressive development of international law had been exhausted.  Moreover, he added, the Commission’s report should be made more user-friendly, and the backlog in the Commission’s Yearbook was of concern, given the need to enhance the availability of the Commission’s work to Governments.

On the question of the expulsion of aliens, he reviewed the draft articles and said the treatment of refugees, asylum-seekers and stateless persons must not overlook all existing legal frameworks to protect specific situations.  The work should aim at clarifying and solidifying already existing procedural regimes; migrant workers should be dealt with as “regular” aliens and not “special ones”.  The possibility of a State using the deprivation of nationality to contort the prohibition against the expulsion of its own nationals should be prohibited.  Given the predominance of domestic and human rights law, and the lack of practice, the appropriateness of giving the issue autonomous treatment under international law was questionable.  The topic was more suited to political negotiation than to the governing of law.

Finally, reviewing the articles on the effects of armed conflicts on treaties, he said progress on the matter had been rapid, but important matters needed to be settled before it was possible to move towards a more mature work.  The approach to the articles on the responsibility of international organizations continued to be of concern, following too closely to those on State responsibility.

TOSHIKATSU AOYAMA ( Japan) said the delicate balance between a State’s right to grant admission and to withhold it should be taken into account in considering the question of the expulsion of aliens.  That right was inherent in the principle of State sovereignty, and it was a fundamental human right.  Accumulated State practices should be studied in that regard by collecting data on relevant domestic laws.

On the subject of the effects of armed conflicts on treaties, he said he supported the main elements recommended by the Working Group, but the new provision in draft article 6 bis was of concern in relation to questions concerning standard-setting treaties.  He said the question of the relation between the law applicable in armed conflict and other treaties was complex but important enough that discussion should continue next year.  And finally, on responsibility of international organizations, it seemed that draft article 43 on reparations was an attempt to reintroduce the idea of States’ responsibility in the new context of reparation when the carefully-crafted text of article 29 had already set forth the condition that States, in principle, were not responsible for the internationally wrongful act of an international organization. 

A. KRISHNASWAMY ( India) speaking on the subject of expulsion of aliens, said it was essential that a State’s right to take such action accorded with the relevant rules of international law, including human rights protection.  Indian law did not provide for deprivation of nationality, or for expulsion of nationals.  Indian law now recognized dual citizenship.  On the topic “effects of armed conflicts on treaties”, he reiterated India’s view that its scope should be limited to treaties concluded between States, and not those by international organizations.  The definition of “armed conflicts” should be considered independently of its effects on treaties.  The scope of an “armed conflict” should be limited to conflicts between States and those that were internal.

On the responsibility of international organizations, he said it was inappropriate to include draft article 43 in the text.  He noted that draft article 43 related to an obligation of members of a responsible international organization to take appropriate measures to provide the organization with the means for effectively fulfilling its obligation to make reparation.  He said he welcomed the Commission’s decision to include two new topics in its programme of work, namely “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction”.  He also welcomed the possible inclusion of the topic “most favoured-nation clause” in the Commission’s long-term programme.

CLAUDIA BLUM ( Colombia) said there was justification for codifying an instrument on “expulsion of aliens” because of the special significance and the profound impact that derived from the exercise of States of their right to do so, and also the need to balance that right with the observance of customary norms and principles of international law.  She stressed that any regulation on the topic must accord with international law and the instruments in force.  There was merit in preserving article 1 on the scope of application of the draft articles, and she said she supported the second opinion of the norm proposed by the special rapporteur in the revised version of the text.  The definition of “alien” should be explicitly limited to the natural person to clearly state that the articles did not allude to legal entities.

She said her delegation could not accept the principle of the expulsion of its nationals because it was contrary to international human rights law.  For that reason, she said paragraphs 2 and 3 of article 4 should be eliminated, and replaced by a provision prohibiting the expulsion of nationals by a State.  She agreed with a provision of article 7 which proposed the prohibition of collective expulsion, because it was contrary to international law -- particularly international human rights law.  However, she added, she had some doubts about a proposed provision which contemplated the possibility of collective expulsion in cases of armed conflicts; such a provision could be applied arbitrarily.

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