TREATIES COMPRISE BULK OF INTERNATIONAL LAW, SO STATES NEED GUIDELINES ON EXPRESSING RESERVATIONS, ASSEMBLY’S LEGAL COMMITTEE TOLD

Sixty-third General Assembly

Sixth Committee

20^th Meeting (PM)

TREATIES COMPRISE BULK OF INTERNATIONAL LAW, SO STATES NEED GUIDELINES

ON EXPRESSING RESERVATIONS, ASSEMBLY’S LEGAL COMMITTEE TOLD

Debate Continues on Further Topics in Commission Report; Aspects

Of Responsibility of Organizations, Expulsion of Aliens Also Discussed

Treaties comprised the largest source of international law and a comprehensive set of guidelines on reservations to treaties would provide States with a very useful tool for ascertaining their international rights and obligations, the Sixth Committee (Legal) was told today, as the report of the International Law Commission was taken up again with a continued focus mainly on reservations to treaties, the responsibility of international organizations and expulsion of aliens. 

Making those points, the representative of Hungary said a rigorous application of the guidelines would discourage States from forming invalid reservations, which was of particular significance for human rights treaties.  Work on the issue should proceed by striking a balance between comprehensiveness and a time frame for completing the work.

On the responsibility of international organizations, Viet Nam’s representative said the proposed articles for the issue should remain general so as to cover the full range of international organizations -- varying in nature, structure, membership, size and capacity.  A working group should be established and State views should guide the work on countermeasures.

Agreeing that international organizations had increased in number and that their activities affected both international relations and daily life, the representative of the Netherlands said it was unrealistic to assume that international organizations were by definition “good doers”.  They were capable of internationally wrongful acts.  A system and a set of rules on responsibility needed to be established even without extensive practice. 

Speaking on countermeasures, France’s representative said the theme did not fit into “secondary” rules on the responsibility of international organizations but was more aptly classed with fulfilment of international obligations and linked to rules on peaceful settlement of international disputes.  She also said the work on should be undertaken cautiously so as to avoid prompting institutionalized abuse. 

On the expulsion of aliens, Portugal’s representative recalled the affirmation in the Universal Declaration of Human Rights that everyone had the right to a nationality and nobody had the right to arbitrarily deprive them of it, meaning nationality was a right inherent to the individual and not a power of the State.  He said the prohibition of the expulsion of nationals extended to situations of dual or multiple nationalities, and “denationalization” could not be used to contort the prohibition. 

Concurring that the right to nationality was a human right, Mexico’s delegate said creating conditions for the loss of nationality should be taken up by individual States.  There was no need for draft articles on the matter.  The Convention on Stateless Persons established that States should not expel a person except for cases where national security and public order would be compromised. 

Denmark’s representative said a set of general principles would be preferable to the development of draft articles on the question.  Canada’s representative agreed, saying draft articles on the matter were unnecessary.

In addition to today’s debate between Committee members and the Law Commission Special Rapporteur, the annual interactive dialogue took place with a focus on immunity of State officials, responsibility of international organizations and the Most Favoured Nation clause within international trade and economic law.

The Sixth Committee will meet again at 10 a.m. Friday, 31 October, to resume its review of the International Law Commission’s report with a continued focus on the same issues.

Introduction

The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission with a focus on reservations to treaties, responsibility of international organizations and expulsion of aliens.  (For background on the report, see Press Release GA/L/3351 of 27 October.)

Statements

THOMAS WINKLER ( Denmark), for the group of Nordic countries, said the group agreed with draft articles 46 to 60 of the Commission’s report on the responsibility of international organizations.  Concerning the admissibility of claims against international organizations, which was accurately addressed by the Commission, he said the concept of exhausting local remedies should also be applied in this context of claims.  However, it should be applied with the proviso that local remedies of international organizations should “only be required exhausted where they were could be said to be available and effective”.  In this regard, the modalities of exhaustion would obviously be different from exhaustion in national jurisdictions, and would include various internal tribunals and bodies of international organizations with competence over the relevant issues over the organization in question.

On countermeasures, he said he concurred with the approach of the drafting committee, emphasizing that the rules of the concerned organization should take precedence over general international law when a conflict occurred between an organization and one of its member States.

On the topic of expulsion of aliens, he said although it was an issue of some importance, he was not convinced it needed to be included in the current discussion.  Moreover, deliberations on nationality and citizenship tended to shift focus away from the issue at hand, namely the right of States to expel aliens.  A set of general principles on the matter was preferable to the development of draft articles on the matter purporting to codify customary law.  Draft articles tended to lead to an unfortunate convergence of different areas of law, some of which were “ripe” for international codification, whereas others pertained to areas such as labour migration, where no apparent need existed.  The right of a State to expel aliens was inherent to State sovereignty.  This right corresponded directly to States’ obligations to readmit their own nationals, because there was already a substantial amount of international law on the issue, it was not clear what the work of the Commission in that regard could hope to contribute.

JOEL HERNANDEZ ( Mexico), addressing the topic of reservations to treaties, noted the painstaking analysis needed to tackle such a difficult issue.  He said there were clear differences between interpretative declarations and reservations, especially concerning the legal effects of the two.  As far as unilateral declarations that were submitted as interpretative declarations were concerned, the effects of “reclassification” changed the legal regime of a unilateral declaration.  Moreover, according to the guidelines, once the deadline had passed for reclassifying an objection, that objection lost its ability to have interpretative effects.

Taking up draft guidelines 2.9.8 and 2.9.9, he said that in their current form, as far as reclassification and the acceptance of unilateral declarations as interpretative were concerned, an important burden was put on other State parties to the instrument.  They would see their capacity to reclassify what was originally classified by the author as an interpretative declaration.  Thus, this interpretative declaration might be seen as a “disguised reservation”.  In that regard, he believed the 12-month deadline established in the draft guidelines for making an objection should be extended to 24 months, allowing States additional time to consider the objection, instead of identifying it as a “reservation in disguise”.

On the subject of expulsion of aliens, he said codification of the legal regime applicable to procedures for such expulsion was of special importance.  These rules could ensure respect for human rights.  Situations of dual or multiple nationalities posed specific legal problems the Commission would have to tackle.  The establishment of conditions for loss of nationality was an important consideration, which should be taken up by individual States.  Recalling the Convention on Stateless Persons, he said it established that contracting States should not expel a person except for cases that would compromise national security and public order; unless there were compelling national security reasons, stateless persons could present evidence before a competent authority against their expulsion.  There was no need for draft articles to express this.

LIESBETH LIJNZAAD ( Netherlands) said the concept of the so-called “conditional interpretative declaration” was questionable; as a third category in the law of reservations, it served no purpose.  When the consequences of conditional declarations were similar to those of reservations, they ought to be called reservations.  The question of silence was both a philosophical question and a complicated issue in international law.  As to the consequences of silence as a response to an interpretative declaration, particularly where a State made both a reservation and interpretative declaration, “silence just means silence”.  No conclusions could be drawn and no acquiescence could follow.  To think otherwise would draw on an inappropriate analogy with reservations and objections.  It would ignore the choice made by the author State of not properly labelling its unilateral statement as a reservation.

Moving on to the responsibility of international organizations, she said the number of international organizations had increased, their activities had multiplied and they had affected both international relations and the daily life of individuals.  It was not realistic to assume that international organizations were by definition “good doers”; they had the capacity to commit internationally wrongful acts.  A system and a set of rules on their responsibility had to be developed even in the absence of extensive practice.  Courts would benefit from general rules.  A meeting should be organized between the Commission and legal advisers of international organizations.

On the subject of the prohibition against expulsion of nationals, she said it applied to persons with dual nationality.  The notion of dominant or effective nationality applied only in cases of conflict of nationalities arising from multiple nationalities, as in the case of diplomatic protection.  Those situations were different from the expulsion of aliens.  The criterion could not justify a State treating its “multiple-nationality nationals” as aliens for the purpose of expulsion.  With regard to the loss of nationality, “denationalization” and expulsion, a State could provide for the loss of nationality in its legislation in some cases.  In her country, for example, nationals could lose their nationality if they voluntarily accepted the nationality of another country.  Denationalization, however, must be allowed only in exceptional cases and it must not lead to Statelessness.    

LUÍS SERRADAS TAVARES ( Portugal), first taking up the topic of reservations to treaties, noted the difference between reservations, as opposed to interpretative declarations.  A reservation was intended to modify or exclude the legal effects of certain treaty provisions, while an interpretative declaration specified or clarified the meaning or scope attributed by the declarant to a treaty or certain provisions.  Since they were two different legal concepts, they should be treated separately unless they were interrelated.  He noted that the Commission should proceed with caution when taking up the matter of interpretative declarations.

He said that in guideline 2.9.1, the term “approval” of such a declaration was too strong and should be changed to “consent”.  In guideline 2.9.2 the term “excluding or limiting its effect” could be misleading when trying to make the aforementioned distinction.  He said he also had doubts about the draft guideline on “reclassification”, pointing out that because a “disguised reservation” was indeed still a reservation, the Commission should reflect further on whether this guideline was the proper place for the provision.  He was also concerned, in guideline 2.9.4, that an interpretative declaration could be made at any time. 

Furthermore, he continued, there was no doubt, regarding draft guidelines 2.9.8 and 2.9.9, that approval or opposition to a reservation could be assumed.  It was a principle of law that silence could not be considered as declaratory.  As for the next guideline, “conditional reservations” could not be regarded as “simple interpretative declarations”; however, they also could not be considered reservations.  The unclear legal position of these declarations could bring uncertainty to the treatment of the subject, and harm the reservations dialogue.

On the responsibility of international organizations, he was certain the principles of State responsibility were applicable to the responsibility of international organizations.  Nevertheless, the draft articles on the topic followed the principles of State responsibility too closely, in a way that deviated from the specific topic at hand.  This kind of approach could give rise to incoherent solutions and was unnecessary, repetitive and even counterproductive.  In that regard, the analysis of the matter should reflect the existing differences between States and international organizations as well as between organizations themselves.  On countermeasures, he said that if this issue were already controversial as it applied to States, it was even more problematic to include international organizations in its scope.  The concerns included the conditions under which international organizations might be the target of, or resort to, countermeasures.  Furthermore, the recurrent use of examples based on the experience of the European community and the World Trade Organization was an unsuitable test; it only indicated the lack of existing practice on the matter.  Thus, one should be careful when distinguishing between countermeasures and similar measures.  For instance, Security Council sanctions could not be regarded as countermeasures, nor could measures taken by an international organization against one of its members in accordance with its internal rules.

Concluding with the topic of expulsion of aliens, he recalled that the Universal Declaration of Human Rights stated that everyone had the right to a nationality and that no one should be arbitrarily deprived of that nationality or the right to change it.  Therefore, nationality must be seen as a right inherent to the individual and not the power of the State.  Prohibiting the expulsion of nationals, therefore, extended to situations of dual or multiple nationalities; denationalization could not be used as a means to contort this prohibition.  The notion of “dominant” or “effective” nationality had no relevance to the matter. 

ISTVAN HORVATH ( Hungary), noting that treaties comprised the largest source of international law, said drawing up and accepting comprehensive guidelines on reservations to treaties would provide States a very useful tool for ascertaining their international rights and obligations.  Rigorously applying these guidelines would discourage States from forming invalid reservations.  This would be especially significant for human rights treaties, including those that protected women and children.  He noted that progress during the last year concerning reservations to treaties had been modest.  Work on this issue, therefore, needed to be balanced between the comprehensiveness of the guidelines and the time frame for them to be worked out.

Commenting on the draft articles concerning the responsibility of international organizations, he said he was not convinced that having special articles on the admissibility of claims or the nationality of claims was necessary.  Although these draft articles should contain general rules and principles on the matter, they need not cover “every single, often irrelevant or unrealistic possibility or detail”.  Regarding paragraph 2 of article 48, the use of the term “local remedies” was not appropriate since it referred to territory which organizations did not have.  He said further examination of article 51, paragraph 1, was warranted as it dealt not only with the responsibility of international organizations, but also the responsibility of States.  Regarding the attachment of responsibility to these organizations when an obligation to the international community as a whole had been breached, he said such a responsibility should not have to be listed explicitly in the constituent instrument of the international organization.  He also supported, in article 58, extending the scope of exceptions to situations in which a dispute was pending before a body other than a court or tribunal.

On the section of the Commission’s report dealing with expulsion of aliens, he said the issues of expulsion of persons with dual or multiple nationalities and questions related to the loss of nationality or denationalization did not fall under this topic.  The Hungarian Constitution expressly prohibited the expulsion of Hungarian citizens regardless of their dual or multiple nationalities. 

Turning to the section of the report on the protection of persons in natural disasters, he suggested developing the document on the matter as a set of non-binding guidelines.  He also agreed with a rights-based approach to the topic that, in particular, focused on the rights of victims to humanitarian assistance; sovereignty and non-intervention were no excuse for an affected State to deny such assistance. 

On the immunity of State officials from foreign criminal jurisdiction, he said it was important to note that national courts had reached divergent conclusions in cases involving questions of the immunity of State officials.  In that regard, it would be useful to have a compilation of international law, including relevant treaties, rules of customary international law and International Court of Justice decisions, to better interpret the principles of international law and to, perhaps, serve as the basis for a new international instrument. 

Referring to the Commission’s work on the obligation of States to extradite and prosecute, he said criminal activity had become international, thus, efforts to fight these crimes must follow in that same vein; it was in the common interest of all States to ensure perpetrators of serious crimes did not go unpunished.  Cooperation among States in fighting serious crimes was a precondition for the rule of law on the national and international levels.

ALISON MITCHELL (Canada), speaking on loss of nationality, denationalization and expulsion, said she agreed that it was up to each sovereign State to establish the conditions for loss of nationality through its national legislation, and that such rules were separate from those governing expulsion of aliens.  Draft articles on the matter were unnecessary.  A similarly nuanced and prudent approach should guide further work on the topic.

NOOR EMILIA ALIAS (Malaysia) noted that articles 46 to 53, dealing with the invocation of the responsibility of an international organization, were intended to form a chapter in the third part of the articles dealing with implementation of the responsibility.  The structure followed the model of articles on the responsibility of States for internationally wrongful acts.  Consideration of the right to invoke the responsibility should take into account the fact that the principles relating to States were also applicable to international organizations.  As for countermeasures against such organizations, similar restrictions could be imposed on the countermeasures as those applied with States.  However, the special character of international organizations as opposed to States should be taken into consideration.

LE DUC HANH ( Viet Nam) said international organizations were proliferating and the consideration of their responsibility was timely and important.  Having followed the activities of the working group and of the Special Rapporteur’s six reports, her country had taken note of the first 53 articles adopted by the drafting committee.  It recommended that, since international organizations varied in nature, structure, membership, size and capacity, the articles should be general so as to cover the full range of issues related to the matter.

She said countermeasures were of particular interest with regard to the responsibility of international organizations.  The Commission should continue its consideration of the issue.  However, the approach should be a cautious one, given the limited practice and the risk of abuse in using countermeasures and perhaps jeopardizing the functioning and even existence of an organization.  A working group should be established and the views of States should serve as the basis for consideration, since international law stemmed from State practices and policies.  Likewise, utmost caution must be exercised in deliberations about the sanctions regime under the Charter in relation to countermeasures by or against organizations.  The two issues were different in scope and objective.

EDWIGE BELLIARD (France), discussing article 48 on the responsibility of international organizations in the Commission’s report, recalled that when the rule of the “exhaustion of local remedies” was applicable, any available and effective remedy provided by that organization had to be exhausted before invoking the responsibility of the organization.  This matter could have corresponding points with the draft on diplomatic protection, in particular when individuals could have local remedies against a State before jurisdictions which were not national. 

On the issue of countermeasures, she said she did not consider that the theme fit into the “secondary” rules on the responsibility of international organizations.  Such measures were more aptly classed under the fulfilment of international obligations, and must be closely linked to the rules relating to the peaceful settlement of international disputes.  As for countermeasures that could be used against international organizations, the practice in this regard was limited.  Thus, work on the matter should be undertaken cautiously, so as not to prompt institutionalized abuse.  Reviewing countermeasures in this context, she said, meant paying particular attention to the legal relation between States and international organizations in which they were participating, as well as to the functions and rules under which their activities operated.  Countermeasures taken by an international organization against one of its members, or by the member State against the organization, were not the same, and should be treated distinctly. 

Therefore, she added, measures regarding one member of an international organization which were adopted by that organization while performing its functions should never be described as countermeasures.  As for draft article 55 on the matter, countermeasures were to be regarded as a measure of last resort, which conformed to the uniqueness that should be characteristic of all countermeasures.

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