Speakers Praise Balance between State Sovereignty, Human Rights in New Draft Texts as Legal Committee Begins Review of International Law Commission’s Annual Report
As the Sixth Committee (Legal) commenced its annual consideration of the International Law Commission report, the Commission’s Chair detailed two new sets of draft articles on the “expulsion of aliens” and the “protection of persons in the event of disasters”.
Kirill Gevorgian, introducing the ‘first cluster’ of topics the Committee would debate, said that at the core of the draft articles on “expulsion of aliens” was the right of a State to expel an alien from its territory. However, the exercise of that right was regulated by the draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.
As no substantive changes had been made to the draft articles previously adopted on the “protection of persons in the event of disasters”, he emphasized the three new draft articles that had been added. Among those, draft article 18 established the obligation of the affected State to take measures appropriate to the circumstances towards ensuring the protection of relief personnel, equipment and goods, while the two others defined terms used in the draft articles and addressed the relationship between the draft articles and special or other rules of international law.
Looking forward, he said that the Commission had decided to include “jus cogens” in its long-term programme of work. He also stressed the importance to the Commission’s success of sustained dialogue with the Sixth Committee and cooperation from Governments, whose information was valuable in the Commission’s functions.
Delegations uniformly expressed praise for both sets of draft articles, noting, in particular, that a balance between State sovereignty and human rights was present in those texts.
A delegate from the European Union, addressing the topic “protection of persons in the event of disasters”, said that a fine balance had been struck between the need to safeguard the national sovereignty of affected States and the need for international cooperation in protecting persons in the event of disasters. Switzerland’s representative commended the draft articles on “expulsion of aliens” as striking a balance between national sovereignty and the rights of aliens.
However, many delegations agreed with Ireland’s representative who stressed that, while the draft articles on “expulsion of aliens” in many instances provided useful guidance to States, they should not be used as the basis to elaborate a convention.
Many speakers also praised the addition of jus cogens to the Commission’s long-term programme of work, with Finland’s representative, also speaking for the Nordic countries, stating that work on the topic could help clarify the exact legal content of the principle, including the process by which international norms might qualify as peremptory norms.
Nonetheless, while many delegations acknowledged that information on State practice was of particular interest to the Commission, Portugal’s representative underscored that only a minority of the 193 Member States actually reported to the Commission. She cautioned that over-reliance on such reporting could lead the Commission to base its work on the practice of only those States with the will and resources to report.
Pointing out that a lack of resources also held delegations back from full participation in the work of the Sixth Committee, she suggested that the United Nations Programme of Assistance aid the development of national legal services to enhance broader participation in the process of codification and progressive development.
Also speaking today were representatives of Costa Rica (speaking for the Community of Latin American and Caribbean States (CELAC), Russian Federation, Austria, Canada, Peru, Romania, United Kingdom and Germany.
The Sixth Committee (Legal) will next meet at 10 a.m. Tuesday, 28 October to continue its deliberations of the first cluster of issues of the International Law Commission.
Background
The Sixth Committee (Legal) would commence today deliberations on the Report of the International Law Commission (document A/69/10) on the work of its 66th session. The report would be considered in three “clusters”.
For the first cluster of issues, the Committee had before it Chapters I-III, XIV, IV and V of that text. For the second cluster, the Committee would take up Chapters VI, VII, VIII and IX, while the third and final cluster would see debate on Chapters X, XI, XII and XIII.
Introduction of Report
KIRILL GEVORGIAN, Chair, International Law Commission, addressing the introductory chapters and the first cluster of issues to be considered by the Sixth Committee (Legal), stressed that the Commission’s success, being practice driven, depended on sustained dialogue with the Sixth Committee and cooperation from Governments, whose information was valuable in the Commission’s functions. Among highlights of the sixty-sixth session, he noted the completion of draft articles, with commentaries, on the “Expulsion of aliens”; “Protection of persons in the event of disasters”; and the adoption of the final report on “The obligation to extradite or prosecute (aut dedere aut judicare), bringing to a close consideration of that topic.
The Commission had also continued its substantive consideration of the “Immunity of State officials from foreign criminal jurisdiction”; “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”; and the “Identification of customary international law”, he said. Through its Study Group, it was also was making progress on “the Most-Favoured Nation Clause” for which it might be able to complete a final report next year. Discussion continued on the “Provisional application of treaties”. A preliminary report was considered on “Protection of the environment in relation to armed conflicts”. The “Protection of the Atmosphere”, which had been placed on the current programme of work last year, was also taken up.
Looking forward, he continued, the Commission had decided to include “Crimes against humanity” in its current programme of work, and “jus cogens” in its long-term programme of work. The Secretariat had been requested to review the illustrative general scheme of topics last developed in 1996 in the light of subsequent developments and to prepare a list of potential future topics, accompanied by brief explanatory notes.
The Commission had continued its traditional exchanges with the International Court of Justice, as well as with other bodies. He noted that the visit of the Court’s President had coincided with the fiftieth anniversary of the International Law Seminar, which had as its theme “International Law as a profession”. All speakers bore living testimony to the value of the seminar in the growth of international law as a vibrant profession, which helped to connect young professionals across cultures and civilizations in the service of humanity. He recalled that the sustainability of the Seminar depended on the generosity of States.
He went on to detail the substance of the draft articles on “Expulsion of Aliens”, a topic which had had the Commission’s attention for nearly 60 years and had been on the agenda since 2004. Structured into five parts, Part One contained “General Provisions” addressing their scope, “use of terms”, and “right of expulsion”. As the core of the draft articles, that topic recognized the right of the State to expel an alien from its territory. However, the exercise of that right was regulated by the draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights. Part One also confirmed that the exercise of that right must be based on a decision reached in accordance with law, and also address “grounds for expulsion”.
He went on to say said that the second part of the draft articles dealt with “cases of prohibited expulsion”, such as refugees, and rules relating to the expulsion of Stateless persons. As well, it addressed the prohibition of collective expulsion and disguised expulsion, among other areas. Part Three addressed the protection of the rights of aliens subject to expulsion from a general standpoint, as well as with specific regard to protection required in the expelling State, the State of destination and the transit State. Part Four addressed the specific procedural rules applicable in the expulsion of an alien, and Part Five dealt with the legal consequences of expulsion. The Commission requested the General Assembly to take note of the draft articles in a resolution, to which they would be annexed, and encouraged their widest possible dissemination. At a later stage the Assembly could consider elaborating a convention based on the draft articles.
Turning to the “Protection of persons in the event of disasters” he informed the Committee that a set of 21 draft articles on the topic, with commentaries, had been adopted and pointed out that the orientation of the entire set of articles was based on the inherent dignity of the human person, respect for the human rights of persons affected, and the need to respond in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination.
As no substantive changes had been introduced to the articles previously adopted, he focussed on the three new draft articles, namely 4, 18 and 20. Draft article 4 provided terms used for the purpose of the draft articles, defining “affected State”, “assisting State”, “other assisting actor”, “external assistance”, the personnel component of external assistance, and “equipment and goods”. Draft article 18 established the obligation for the affected State to take measures appropriate to the circumstances towards ensuring the protection of relief personnel, equipment and goods. Draft article 20 addressed the relationship between the draft articles and special or other rules of international law.
He said that the Commission recommended that the draft articles be transmitted through the Secretary-General to Governments and competent international organizations for their comments and observations, to be submitted to the Secretary-General by 1 January 2016. The Commission would also welcome observations from the United Nations.
Statements
GEORGINA GUILLÉN-GRILLO (Costa Rica), speaking for the Community of Latin American and Caribbean States (CELAC), said many States and their legal departments faced difficulties in providing information to the International Law Commission due to the asymmetries in resources among teams of international lawyers in different countries. She reiterated the Community’s call to hold half of the Commission’s sessions in New York, which would enable Sixth Committee delegates to attend the deliberations as observers, thus fostering an early engagement in the topics, even before the report’s circulation.
Furthermore, despite efforts made in recent years, she said more could be done to strengthen cooperation and dialogue between the Commission and Member States. It was regrettable that, due to budgetary constraints, not all special rapporteurs of topics under discussion could come to New York to interact with delegations. Their participation was essential to the effectiveness of “thematic debates” in the Committee given its informal nature. That should always be scheduled at a date close to the meeting of legal advisers, and should not overlap with other relevant meetings of the General Assembly that could prevent attendance.
The productivity of the Commission must be matched by adequate funding so that documents of great relevance to the progressive development and codification of international law had the necessary publicity, she said. It was unacceptable that periodic publications by the Codification Division of the Office of Legal Affairs might be in peril due to financial reasons. She supported the continuation of the legal publications prepared by the Codification Division, in particular The Work of the International Law Commission.
LUCIO GUSSETTI, Delegation of the European Union, said the elaboration of a convention addressing the expulsion of aliens was not appropriate at the current stage. The Commission’s conclusions on the topic had been inspired by the European Union’s own policy and legislation, but the final outcome on the topic did not reflect some of the concrete suggestions made by the Union in that respect. Given that a number of those suggestions had a strong human rights character, such as the inclusion of sexual orientation as a ground for non-discrimination, among others, he called on all Member States to take appropriate actions in order to guarantee those rights in those cases of expulsion.
On the topic of “protection of persons in the event of disasters”, he commended the Special Rapporteur and the Commission for having succeeded in striking a fine balance between the need to safeguard the national sovereignty of affected States and the need for international cooperation in protecting persons in the event of disasters. He was pleased that the draft articles’ focus was on persons in need, accompanied by a rights-based approach. The new instrument must effectively meet the essential needs of persons affected by disaster. He welcomed that draft Articles 4 and 8 did not only relate States in relation to the provision of external assistance, but encompassed a broader notion of “assisting actors”.
Citing several of the European Union’s disaster response activities, he said it was essential to expressly include a reference to regional integration organizations in the draft texts, or to include a clarification to that effect in the commentaries of the draft articles. In that regard, the term “competent intergovernmental organization” in the commentary to draft Article 4 (c) should also include regional international organizations.
PAIVI KAUKORANTA (Finland), speaking also for Denmark, Iceland, Norway and Sweden, said the draft articles on the “expulsion of aliens” should not undermine the important principles of international refugee law. As well, the provisions on non-discrimination should expressly include discrimination on the grounds of sexual orientation. Questioning the added value of draft articles in a field where detailed global and regional legal regimes regulated rights and obligations of States, she said that the topic did not lend itself to incorporation into a convention.
On the topic of “protection of persons in the event of disasters”, she said she agreed with the definition of "affected State” as well as with the view that a State could be qualified as an “assisting State” once the assistance was being provided or had been provided. She also agreed with the term “appropriate measures” because it allowed a degree of flexibility and discretion in matching the measures with the respective circumstances by observing due diligence.
Turning to the topic of “crimes against humanity”, she said it was important to retain the definition in article 7 of the Rome Statute as the material basis for any further work on the matter by the Commission. International efforts to eliminate those crimes could successful only if sufficient attention was also devoted to the prevention of crimes against humanity. The Commission should explore and articulate the relevant responsibilities pertaining to prevention. In addition, the Commission’s work on the topic of “jus cogens” could help clarify the exact legal content of jus cogens, including the process by which international norms might qualify as peremptory norms.
MARIA ZABOLOTSKAYA (Russian Federation) said the themes of “expulsion of aliens” and “protection of persons in the event of disasters” deserved the Committee’s very close attention as they dealt with the protection of people in situations of great vulnerability. She noted that the Commission had been able to seriously improve the draft articles on “expulsion” with comments of States, as compared with the draft articles that had been adopted at first reading in 2012. Among other things discussed, she said she was satisfied with the definition of expulsions in article 2 in that it did not predetermine the lawfulness of expulsions dependent upon which State body had taken the decision. She also welcomed the re-working of article 21 to provide for the expelling State to take the measures necessary to facilitate the voluntary departure of the individual being expelled.
On the topic of “protection of persons in the event of disasters”, she said the final product should be the guidelines, not the draft articles, noting that such a format was more appropriate because rules developed by the Commission should help States and not impose on them difficult legal obligations in already difficult situations. Addressing several draft articles, including article 5 which talked about the need to respect human dignity, she said that while she supported the idea overall, she said the enumeration of persons who should operate under that principle was not clear. Article 6 was also not completely clear, she said, questioning if any rights could be limited as a result of an emergency and, if so, which ones and under which circumstances. In regards to provision of article 7, it could be flushed out with the principle of non-interference in the affairs of States since that type of assistance must be non-political in nature. Noting that the obligation to cooperate was one of international law’s vital principles, she said the affected State must have the right to select from whom to receive assistance in line with the principle of sovereign equality of States.
AUGUST REINISCH (Austria) voiced support that the Commission study a number of issues such as the nature of jus cogens and the requirements for the identification of a norm as jus cogens, as well as establish an illustrative list of norms which had achieved the status of jus cogens and look into the consequences or effects of violations of jus cogens.
Turning to the topic of “crimes against humanity”, he said the Commission and the Special Rapporteur should place emphasis on the need for cooperation and on adequate domestic legislation rather than on the elaboration of new definitions of such crimes. New definitions that differed from the already existing ones, such as those contained in the Rome Statute could only create problems in combating impunity. As well, the Commission should take into account the joint initiative of Argentina, Belgium, the Netherlands, Senegal and Slovenia on mutual legal assistance regarding atrocity crimes.
On the topic of “expulsion of aliens”, he and shared comments on specific sections of the draft articles, noting that his country’s practice largely conformed with the draft articles. Recent events emphasized the importance of the topic of “protection of persons in the event of disasters” in international relations, in particular, the issue of the conditions under which external assistance should be accepted or might be refused. He shared comments on specific sections of the draft articles on that topic as well.
DAMARIS CARNAL (Switzerland) commended the draft articles on the “expulsion of aliens” as striking a balance between national sovereignty and the rights of aliens. Although no longer expressly stated, the scope of the articles covered aliens both lawfully and unlawfully present in an expelling State. However, while welcoming the prohibition of discrimination against aliens in draft article 14, she lamented the fact that sexual orientation had not been specifically included in that article’s list of prohibited grounds for discrimination. Furthermore, the commentary to article 15 on vulnerable persons should include some indication to the definitions, in particular the concepts of “children”, “older persons” and “persons with disabilities”. She also expressed regret that article 19 did not mention the right of an alien to appeal the legality of a detention to a court of law.
On the “protection of persons in the event of disasters”, she welcomed the inclusion of a draft article on the protection of personnel and their equipment and goods, given the risks faced by such personnel. However articles 17 and 18 failed to distinguish between emergency means with the potential to expedite the entry of relief personnel in a humanitarian crisis from development-related disaster preparedness. She also expressed concern about the definition of “relief personnel” as set out in article 4(e) as it included both military and civilian personnel. The Oslo Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief stated that military resources should only be requested as a last resort, when no comparable civilian alternative could meet a critical humanitarian need.
BILL CROSBIE (Canada), on the topic of “expulsion of aliens”, noted that certain principles such as non-refoulement were well-developed and widely accepted. However, the draft articles also contained standards drawn from a wide array of international and regional instruments, which did not enjoy universal adherence, as well as from domestic legislation and regional jurisprudence. It was important to maintain a careful balance in international law between promoting and protecting human rights, such as the right to seek asylum, and States’ sovereignty over their borders. Following a careful review by his delegation, he said that the draft articles did not maintain that balance and that no further work was warranted.
GUSTAVO MEZA-CUADRA (Peru), associating himself with CELAC, noted the three areas of interest to the Commission for commentary from States, acknowledged the adoption of the articles on “expulsion of aliens” and welcomed the draft articles on the “protection of persons in the event of disasters”. He also said that the inclusion of jus cogens in the long-term programme of work would definitely enhance international law. Pointing out that the draft articles on the “protection of persons in the event of disasters” had been adopted on first reading, he said that, when the situation warranted, a Special Rapporteur could be invited to the Sixth Committee during the draft texts’ final stages of consideration. Thus, the Rapporteur would have a last opportunity to engage with delegations so that their concerns would be adequately reflected.
FELIX ZAHARIA (Romania) said it might be better to leave the draft articles on the “expulsion of aliens” in their current form to allow State practice to develop and consolidate. He expressed appreciation for the Commission’s proposal to include “aliens subject to expulsion” in the scope of the procedural guarantees, irrespective of whether those persons were lawfully or unlawfully present in the territory of the State. Paragraph 4 of article 26 might seem problematic because it left open the question to which extent a State might not apply any guarantees in case of aliens unlawfully present in its territory for a brief duration. As well, even if the commentaries provided for some guidance, the notion “brief duration” remained subject to interpretation.
On the topic of “protection of persons in the event of disasters”, he favoured the emphasis placed on its significance, both by adopting preventive measures as well as by adopting disaster relief and assistance measures. Turning to the issue of jus cogens, he said the topic was significantly advanced and that its clarification would clearly benefit domestic and international judges, as well as States themselves in their practice.
The topic of “crimes against humanity” must be treated with great caution, he said, noting that a definition of the crimes against humanity must first be avoided as existing international law already contained sufficient guidance. The purpose of the Commission’s work must be clearly defined. Work on the topic should also carefully consider the developments towards the universality of the International Criminal Court and should be correlated within existing initiatives in the field.
RITA FADEN (Portugal) underscored that only a minority of the 193 Member States reported to the Commission on State practice. Over-reliance on such reporting could lead the Commission to base its work on the practice of only those States with the will and resources to report. The Commission, however, should embark on an exercise of progressive development of international law whenever necessary to address new trends of contemporary international social relations. Noting that a lack of resources also held delegations back from full participation in the work of the Sixth Committee, she suggested that the United Nations Programme of Assistance aid the development of national legal services to enhance broader participation in the process of codification and progressive development.
Turning to the draft articles on the “expulsion of aliens”, she said that the text provided a good framework for the protection and respect of individual rights in situations of expulsion and a balance between those rights and State sovereignty. However, at this point the draft articles should remain an overview of already existing legal norms, providing a general guide of law on the matter. The draft articles on the “protection of persons in the event of disasters” also provided a good framework on the matter, she said noting that the Commission had achieved a balance between State sovereignty and the need to protect human rights. However, regarding paragraph 3 of draft article 14, the Commission had still not explained clearly what the consequences would be for protection of persons should a State be unable to make a decision.
IAIN MACLEOD (United Kingdom), noting that there was currently no general multilateral framework governing crimes against humanity, said it might be beneficial to investigate how an extraditing or prosecuting regime in respect of such crimes would operate. On the inter-relationship between the work on the topic and the Rome Statute, which already provided for the international prosecution of crimes against humanity, he said it was important that the work of the International Criminal Court in the area not be affected. His country would not welcome the expansion of the scope of that investigation into issues such as civil jurisdiction and immunity.
On the topic of “expulsion of aliens”, he reiterated several concerns on specific sections of the draft articles, among them article 10 on the prohibition of disguised expulsion. The text was too broadly crafted and if adopted would potentially restrict legitimate alternative approaches to enforcement. In regards to the “protection of persons in the event of disasters”, he voiced support, in particular, for draft article 14(2) which provided that the consent of affected States to external humanitarian assistance should not be arbitrarily withheld. In the context of armed conflict, such a refusal could amount to a breach of international humanitarian law. The guidelines to inform good practice would be helpful to States, rather than a legally binding instrument.
OLIVER FIXON (Germany) said that the repeated clarifications in the commentary to the draft articles on “expulsion of aliens” were of great value. They demonstrated that substantive parts constituted progressive development rather than codification of existing law. However, despite progress on the subject, he said it was still too early to consider elaborating a convention based on the draft articles.
Turning to the draft articles on the “protection of persons in the event of disasters”, he stressed the pertinence of the concept of sovereignty enshrined in draft article 12. It was the duty of the affected State to ensure the protection of persons and provision of disaster relief within its jurisdiction. He also concurred that although the consent of a State should not be arbitrarily withheld, its consent was indispensable to the provision of external assistance. The new draft article on the protection of relief personnel, their equipment and goods was also welcomed. Overall the draft articles provided good recommendations supporting international practice and domestic legislation to establish effective national systems of disaster prevention, mitigation, preparedness and response.
JAMES KINGSTON (Ireland) said that while the draft articles on “expulsion of aliens” in many instances provided useful guidance to States, he did not favour using them as the basis from which to elaborate a convention. On the topic of “protection of persons in the event of disasters”, he commended the carefully calibrated approach taken in the draft articles, both with respect to balancing the sovereignty of the affected State with the need for international cooperation, as well as balancing a rights-based and a needs-based approach to the topic. There would be merit in a provision within the draft articles that dealt specifically with transit States, while the commentaries to draft article 1, in particular, would benefit from a brief explanation of the term “society” as used in the qualifier, “serious disruption of the functioning of society”.
On the topic of “crimes against humanity”, he shared the concern expressed by other delegations that there was a lacuna in the area of operational tools in relation to the prosecution of international atrocity crimes. For that reason, he expressed support for the international initiative towards the development of a multilateral treaty for mutual legal assistance and extradition in domestic prosecution of atrocity crimes. Such an instrument would provide a necessary tool to facilitate the domestic prosecution of those crimes. It was timely for the Commission to continue engaging with and promoting acceptance of jus cogens through a comprehensive examination of the concept as a topic in and of itself. While he supported the list of legal issues which had been identified, he said it would be premature at the current stage to take a view on the future outcome of the Commission’s consideration of the topic.