Speakers Debate Progressive Development of Law Approach on ‘Expulsion of Aliens’, as Sixth Committee Continues Reviewing International Law Commission Report
Chair Authorized to Send General Assembly Letter on Administration of Justice
With a main focus on the draft articles addressing “expulsion of aliens” and the “protection of persons in the event of disasters”, the Sixth Committee (Legal) continued deliberations today on the report of the International Law Commission.
While several delegations welcomed certain text on the “expulsion of aliens”, many voiced concern with specific provisions, and more broadly, with the progressive development of law that the International Law Commission had seemed to undertake.
The delegate of Poland pointed out that the approach to the topic attempted to codify a set of rules in an area in which States already had well developed and long-standing regulations. He cautioned that the draft articles could create confusion regarding States’ obligations resulting from international law, particularly in situations when the two regimes differed.
Netherlands’ representative also underscored that the draft articles were not merely a codification of State practice, but went beyond currently applicable rules of international law. Because of her objection to such progressive development of international law, she said she would be unable to support the Commission’s recommendations to the General Assembly.
Japan’s representative also noted that a number of draft articles were not based on sufficient State practice. The Committee and the Commission must work together to address the fundamental question on the ideal balance between codification and progressive development.
The draft articles on the “protection of persons in the event of disasters” were also featured prominently in the debate, receiving wide support from delegations. Many speakers welcomed the inclusion of a specific article on the duty to protect relief personnel, equipment and goods, with the representative of Tonga, speaking for the Pacific small island developing States, emphasizing that such a provision could bring greater accord between those providing relief and the State itself that had suffered significant injury.
Like other delegations, Slovenia’s representative noted that there was an urgent need to regulate such protection in a comprehensive manner, underscoring that the Commission had succeeded in striking the proper balance between the protection of disaster victims and their human rights, and the principles of State sovereignty.
Turning to the topic of “crimes against humanity”, Croatia’s representative said that the concept had been indirectly introduced to international law in the Hague Conventions of 1899 and 1907. However, it was the only one of the three core crimes that had no global international agreement which required States to investigate, prosecute and punish such crimes or to cooperate among themselves. Therefore, it was important to identify and define the legal notion and scope of such crimes, drawing from the foundations established by the international tribunals and the International Criminal Court, as well as customary international law.
The Committee then turned to the administration of justice at the United Nations, and took action authorizing its Chair to sign a letter, with a request that the matter be brought to the attention of the Fifth Committee and circulated as a document of the General Assembly.
Also speaking today were representatives of Czech Republic, China, Singapore, Chile, Israel, Thailand, Slovakia, Belarus, El Salvador, South Africa and United States.
The Sixth Committee will next meet at 10:00 a.m. on Wednesday, 29 October to continue its consideration of the report of the International Law Commission and engage in an interactive dialogue.
Background
The Sixth Committee (Legal) would continue deliberations today on the ‘first cluster’ of issues related to the Report of the International Law Commission on the work of its sixty-sixth session. For further background see Press Release GA/L/3487.
It would also renew consideration of the administration of justice at the United Nations. For background see Press release GA/L/3484.
Statements
MAHE’ULI’ULI SANDHURST TUPOUNIUA (Tonga) speaking for the Pacific small island developing States, said, in regards to “protection of persons in the event of disasters”, that its member States were working together to ensure that the detrimental effects of a natural disaster could be mitigated as much as possible through advanced preparation and relief assistance to affected citizens. However, that responsibility must not be borne solely by developing countries most affected. All States must work together to reduce the initial risks, and to address known factors that might contribute to increased fatalities. He welcomed the International Law Commission’s adoption of the additional obligation in article 18 to protect the personnel providing external assistance, as well as equipment and goods, noting that it could bring greater accord between those providing relief and the State itself that had suffered significant injury.
He expressed support for commentaries to article 12, in which the primary role of the affected State to protect persons under its jurisdiction was asserted. States and entities supporting disaster recovery in affected States should better coordinate disaster recovery and relief operations directly with the affected States rather than through international non-governmental organizations. However, article 4(c) which explicitly referenced intergovernmental organizations and non-governmental organizations as “other assisting actors” was problematic. It omitted a reference to other entities or individuals which might fall under other assisting actors which were not contemplated. Also, the Commission should further clarify the interaction between all actors and the affected State; what the rights and obligations were when providing assistance to an affected State; and how that should be framed within domestic law disaster-relief mechanisms.
PETR VÁLEK (Czech Republic), on the topic “expulsion of aliens”, said that at this stage, it was not necessary to elaborate a convention on the basis of the draft articles. On the “protection of persons in the event of disasters”, the Commission’s emphasis on human dignity, human rights and the principles of humanity, neutrality and impartiality as guiding principles in providing assistance to affected persons was an important contribution to stabilizing the basic rules in that field. The provision of assistance had to be guided by the interests, needs and the protection of fundamental human rights of those affected by disasters.
Noting that the Commission’s work on the topic of “crimes against humanity” should provide a key missing piece in the current international legal framework governing the prosecution of crimes under international law, he said debates on the topic would build upon the current legal framework. Also taken into account would be important efforts, such as the proposal by Argentina, Belgium, the Netherlands, Senegal and Slovenia to elaborate a multilateral treaty on mutual legal assistance and extradition in domestic prosecution of atrocity crimes.
LIESBETH LIJNZAAD (Netherlands) said that the draft articles on the “expulsion of aliens” were not merely a codification of State practice, but went beyond currently applicable rules of international law. She pointed out that her Government had consistently objected to such progressive development of international law. In that context, she was unable to support the Commission’s recommendations to the General Assembly.
Turning to “protection of persons in the event of disasters”, she voiced support for the inclusion of a specific article on the duty to protect relief personnel, equipment and goods, but pointed out that although the draft articles could be seen as an authoritative reflection of contemporary international law, or an attempt to progressively develop the law, they were not legally binding and should not pretend to be so. Turning to other matters, she expressed doubt as to the need for a study of jus cogens, noting that it was referenced in the Vienna Convention on the Law of Treaties and also appeared in the shape of customary law.
She went on to say that, while “crimes against humanity” required the constant vigilance of the international community, and no specific instrument on the matter currently existed, the issue was already addressed in the Rome Statute, in a provision reflective of existing customary law. What was needed was an international instrument on mutual legal cooperation covering all major international crimes, including but not limited to crimes against humanity. Argentina, Belgium, Senegal Slovenia and her country had proposed negotiation of a Multilateral Treaty for Mutual Legal Assistance and Extradition in Domestic Prosecution of Atrocity Crimes. Noting that many States from all regional groups supported the initiative, she expressed the hope that others would join the effort.
XU HONG (China) said that the set of draft articles on the “expulsion of aliens” remained imbalanced in some aspects. In particular, paragraph 2 of article 19 noted that the duration of an alien’s detention could only be decided by a court or, subject to judicial review, another competent authority. Authorities competent to extend detention varied from State to State. Therefore, it was up to the State to decide whether to protect the rights of expelled aliens through judicial review or other means. Similarly, rules against expelling an alien to a State where the alien had been sentenced to the death penalty or where there was a real risk that the alien would be sentenced to death did not take into consideration that there was no international consensus of the abolition of the death penalty. It should be up to each State to make decisions in that regard.
With regard to the “protection of persons in the event of disaster”, he said that the draft was short on lex lata, but long on lex ferenda. Some of the articles lacked the support of solid-based general State practice. In addition, there were many regulations on the obligations of affected States, which exceeded the scope of existing laws and State practices that might affect State sovereignty. Pointing out that a State was not obligated to seek external assistance, he said that inclusion in paragraph 1 of article 12 of a State’s “duty” to seek external assistance was unclear, as the legal connotations of the word “duty” were ambiguous. The word should not be used.
Turning to “identification of customary international law” from the ‘third cluster’, he said balance was needed between “general practice” and opino juris, as well as in the relationship between generality and specificity. Thus, identification of customary international law called for both the study of the practice of legal systems and States with important influence in international law, and the practice of States representing other major civilizations and legal systems. A balanced approach was also needed between “physical acts” and “verbal acts”. In particular, when a conflict arose between the physical acts of some States and the verbal acts of others, the two forms of practice should be studied in a holistic manner in the identification of general practice and its corresponding opino juris, rather than giving more weight to “physical” than “verbal acts”.
JANUSZ STANCZYK (Poland) said the section on “duty of non-recognition [...] created by a serious breach by a State […]”, as expressly indicated in the articles on State Responsibility adopted by the Commission in 2001 should be considered an essential legal instrument in preserving the rule of law. However, there was a need for more detailed legal guidelines with respect to its scope; influence on the application of bilateral and multilateral treaties; means of providing consular and humanitarian assistance; and the relationship between that duty and the protection of human rights of individuals concerned. For those reasons, among others, he encouraged the Commission to include it in its programme of work, noting that it could bring much more feasible and concrete guidelines for States without striking out from the Commission’s agenda the very broad and partially theoretical topic of jus cogens.
Citing specific draft articles which his country found problematic, he said the topic of “expulsion of aliens” attempted to codify a set of rules in an area wherein States already had well developed and long-standing regulations. In Europe, for instance, those detailed regulations came from regional organizations and the practice of regional courts. In that regard, the draft articles accepted by the Commission could create some confusion regarding obligations of States resulting from international law, particularly in situations when the two regimes differed. On the topic of “crimes against humanity”, he said the Commission should use the definition in article 7 of the Rome Statute to ensure coherence and unity of international law. A victims-oriented approach should be considered, particularly with regard to the most vulnerable category of victims.
NATALIE MORRIS-SHARMA (Singapore) welcomed the amendments that had been made in the “expulsion of aliens” texts, including article 3. However, there was concern regarding the progressive development that the International Law Commission had sought to undertake, as well as the lack of distinction in the draft articles between codification and progressive development. Among other examples, draft article 23 had been pitched, in part, as a codification of international law, but was not reflective of the current state of international law. Therefore, the draft articles would be better received as guiding principles.
Turning to the topic of “protection of persons in the event of disasters”, she reiterated that draft article 16 was only concerned with “offers” of assistance, not with the actual “provision” thereof. An offer of assistance did not create for the affected State a corresponding obligation to accept it. However, she said she remained doubtful over the concept being expressed as a right. The interest of the international community in the protection of persons in the event of disasters was the principle of solidarity and cooperation. One option could be to do without draft article 16.
BORUT MAHNIČ (Slovenia), associating himself with the European Union, said there was an urgent need to regulate the protection of persons in the event of disasters in a comprehensive and contemporary manner. The Commission had succeeded in striking the proper balance between the protection of disaster victims and their human rights, and the principles of State sovereignty. That approach must be preserved as the only guarantee that States, international organizations and non-governmental actors would recognize the rules on disaster response.
Turning to issues from the ‘third cluster’, he said that the two-element approach to identifying the rules of customary international law highlighted the inherent complexity of the topic, from the challenge of distinguishing manifestations of a “general practice” and opino juris to the intertwined nature of the topic with other areas of international law. Despite those challenges the eight draft conclusions were practical. However, the interplay of “general practice” and opino juris deserved additional examination.
On issues relating to the “provisional application of treaties”, also from the ‘third cluster’, he said it would be useful to examine the travaux préparatoires of the Vienna Convention, including the related practice and doctrine. Furthermore, the conclusion on the legal effects of provisional application was substantially the same as the conclusion of the Commission in 1966 in its comment to the draft article on provisional application. However the conclusion in 1966 was made with regard to the “provisional entry into force,” while the present conclusion referred to “provisional application”. Pointing out that it now seemed to be accepted that the two concepts did not differ in terms of their legal effects, he proposed analysis of the reasons that was so.
TOMOYUKI HANAMI (Japan), noting the Commission’s consideration of possibly holding part of its sessions in New York, said that such an arrangement could increase the opportunity for the Commission to interact with Member States. Turning to jus cogens, he said its legal status was well founded under the Vienna Convention on the Law of Treaties and some other instruments. However, as its substantial elements were still unclear and there was little understanding shared among Member States, the Commission must prudently deliberate on that topic.
Noting that many States had legislation that regulated immigration policies and the rights of foreign immigrants subject to expulsion, he questioned whether it was appropriate for the Commission to adopt generalized international norms like the draft articles on the “expulsion of aliens”, which could be inconsistent with existing international law on the topic. Also, some of the draft articles were not based on sufficient State practice. The Committee and the Commission must work together to address the fundamental question on the ideal balance between codification and progressive development.
On the topic of “protection of persons in the event of disasters”, he said his country highly valued the draft articles as it contributed to the progressive development of international law in that area. The draft articles upheld the humanitarian principles and the principle of respect for the sovereignty of the affected State. Stressing that relief personnel should be granted certain legal status in order to facilitate their rescue and support operations, he said he viewed “positively” article 17, which stipulated the duty of affected States to take necessary measures to facilitate external assistance.
CLAUDIO TRONCOSO REPETTO (Chile), on the topic of “expulsion of aliens”, welcomed draft articles 4 and 5 establishing the principles that an alien might be expelled “only in pursuance of a decision reached in accordance with law” and that any expulsion decision must state the ground on which it was based, respectively. Those provisions could prove important for national courts. He voiced doubts regarding draft article 8, which stated that a State could not make its national an alien, by deprivation of nationality, for the sole purpose of expulsion. He asked what the implication of that provision was, as deprivation of nationality would make the person “Stateless” rather than an “alien”, if that person did not have dual nationality. In that context, the earlier wording of that rule was preferred. Also favoured was the inclusion of a draft article prohibiting the expulsion of nationals from their own country.
He further noted that draft article 14 establishing the obligation of the expelling State to respect the rights of the alien subject to expulsion without discrimination of any kind, ended its list of prohibited grounds with the phrase “any other ground impermissible under international law”. Stressing the importance of the phrase, he said it would allow countries like Chile, which prohibited discrimination on the basis of sexual orientation, to include such discrimination as unacceptable grounds for expulsion. He expressed support for the recommendation of the Commission that the General Assembly adopt a resolution taking note of the draft articles on “expulsion of aliens”, which should be widely disseminated with the draft articles included in an annex.
SARAH WEISS MA’UDI (Israel) said that “expulsion of aliens” should be revisited. Striking a balance between a State’s exercise of sovereign prerogatives regarding admission to its territory and the protection of fundamental human rights should be achieved by focusing on well-settled principles of international law, as reflected in established State practice. She concurred with other States that had noted discrepancies between the Commission’s work in its current form and State practice. Further, the topic of aliens in transit raised concerns regarding the interpretation and application of the draft articles, which were compounded by considerations such as migration and national security. Therefore, the final form of the Commission’s work should be determined at a later stage.
On the “protection of persons in the event of disaster”, she noted that her country provided assistance in numerous disaster struck areas around the world, including in the current international effort to help West African countries respond to and contain the Ebola outbreak. The protection of relief personnel and their equipment and goods was of great importance. Due consideration should also be given to avoiding bureaucratic hurdles and undue delays in the execution of emergency relief operations. She emphasized that the topic should be addressed in terms of guiding international voluntary cooperation efforts rather than in terms of rights and duties.
She also welcomed the new agenda item, “crimes against humanity”, underscoring that the absence of a comprehensive, global treaty on crimes against humanity should be of concern to the entire international community. However, she urged caution when considering the establishment of institutional mechanisms for the enforcement of or adherence to such a treaty, as they could be abused by States and other actors to advance political goals, rather than as a means to protect the rights of victims.
KRAIRAWEE SIRIKUL (Thailand) said the draft articles on “expulsion of aliens” captured the principles of international law on the sovereign rights of States, as well as the rights of an alien subject to expulsion and the rights of the expelling State in relation to the State of destination. However, they did not entirely reflect universal practices, as State practices were still limited in some areas. Furthermore, they involved the progressive development of the rules of international law on that issue and those that related extensively to the sovereign rights of States, which could be somewhat sensitive. In particular, he pointed out that not all the draft articles were consistent with the current practice of his country as well as that of several other Asian States.
On the topic of “protection of persons in the event of disasters”, he said the term “external assistance” defined in the newly introduced draft article 4, subparagraph (d) on “used of terms” should be treated with great caution, stressing that the “other assisting actors” in the provisions should not include any domestic actors who offered disaster relief assistance or disaster risk reduction. Addressing other decisions and conclusions of the Commission, he commended its efforts to promote the rule of law and noted that his country had successfully hosted a United Nations Regional Course in International Law for the Asia-Pacific in Bangkok in November 2012.
BARBARA ILLKOVÁ (Slovakia) said that, on the topic of “expulsion of aliens”, the Commission could have taken into account the European Union’s observations with respect to the protection of human rights. Stressing that the draft articles served better as a guide in the area, she expressed doubt that there was consensus between States on the issue of adopting a convention on the topic. Turning to the “protection of persons in the event of disasters”, she said the draft articles well reflected the balance of State sovereignty and individuals affected by disasters.
She expressed appreciation for the updating of list of possible subjects for the Commission’s consideration, noting that it should adhere not only to conventional subjects, but should also identify new international subjects to make more dynamic the progressive development of international law. She welcomed the inclusion of jus cogens in its long-term programme of work, noting that the concept’s contours and legal effects remained poorly identified, raising questions with respect to its implications.
ANDREI POPKOV (Belarus) expressed the hope that the draft articles on “expulsion of aliens” could serve as the basis of a future relevant international treaty. However, certain provisions needed clarification. It seemed redundant for article 6 to refer to the status of refugees, as international law already addressed the issue, as was also the case for Stateless persons. Noting the progressive nature of the proposed prohibitions regarding collective and disguised expulsions in articles 9 and 10, he said that article 10 might also include an obligation for host States to include in national legislation prohibitions of actions by its nationals that would precipitate the departure of aliens. In addition, while the right of aliens to appeal should be unconditional, it should not preclude a streamlined appeals process, should there be a danger to State security.
Turning to the draft articles on the “protection of persons in the event of disaster”, he said that draft articles 5 and 6 could be merged, given the inextricable link between protection of human dignity and human rights. Also draft article 11 should be fine-tuned to reflect the economic limitations of some States in mitigating natural disasters. In that context, the article could include the theme of international technical assistance and other measures for State cooperation.
MARIA DEL PILAF ESCOBAR PACAS (El Salvador), associating herself with the Community of Latin American and Caribbean States (CELAC), said that, on the topic of “expulsion of aliens”, it was important to have sufficient interaction between the Commission and the Committee since a close relationship between those bodies was essential to enable progress on issues they addressed. In that regard, it was problematic that there was already a set of draft articles on the topic which had already been finalized; they had not been considered during the previous session, thus allowing States to forward comments in writing. Noting that her delegation’s written comments had not been incorporated in the text today without justification, she stressed that approving a resolution as a definite text without overcoming issues of substance or new changes introduced in latest version should be considered with more time.
Among several issues, she said language in article 19 needed improvement because it presupposed detention for individuals. Detention was not a general rule because it might pose problems for the expelling State. Furthermore, it should be a measure of last resort and its conditions must be regulated. Article 26, which regulated the procedural rights of aliens under expulsions was also problematic. It was unacceptable for an alien to not have procedural rights because he entered a State in an irregular fashion. She proposed permanent deletion of that paragraph to ensure the guarantee of procedural rights, which should not be dependent on an individual’s migratory status nor the time he had been in the territory.
Turning to the “protection of persons in the event of disasters”, she suggested, among other things, that wording in the relevant part of draft article 9 on forms of cooperation should be less subscriptive, therefore including any means of cooperation. The inclusion of jus cogens in the Commission’s long-term programme of work could be useful to clarify doubts when it came to codification in international law.
SEBASTIAN ROGAČ (Croatia), expressing satisfaction that “crimes against humanity” had been moved to the Commission’s active agenda, noted that the concept had been indirectly introduced to international law in the Hague Conventions of 1899 and 1907. However, it was the only one of the three core crimes that did not necessarily form part of national legislation and had no global international agreement requiring States to investigate, prosecute and punish such crimes or to cooperate among themselves towards that end. The most important task was to clearly identify and precisely define the legal notion and scope of crimes against humanity, drawing principally on the foundations established by the international tribunals and the International Criminal Court, as well as customary international law.
Ensuing discussions should focus on the question of jurisdiction and its ramifications, he continued. In that context, the draft articles should apply to international and internal armed conflicts. The Commission should also monitor recent developments, such as the proposed negotiations on a Multilateral Treaty for Mutual Legal Assistance and Extradition in Domestic Prosecution of Atrocity Crimes, which his country was planning to join, and the Franco-Mexican proposal on limiting the right to use the veto in the Security Council in situations of genocide, war crimes and crimes against humanity.
ANDRE STEMMET (South Africa) said that the expulsion of aliens must be done within the parameters of a proper legal framework, both in international law and within the domestic law of the State concerned. Taking note of the recurring references to progressive development in the draft articles, he said the new approach of making a strict distinction between progressive development and codification was unfortunate.
Turning to the topic of “protection of persons in the event of disasters”, he pointed out that, although the possession of a right gave the holder of that right an option to decide on whether to exercise it or not, the intention of the draft articles was to place a mandatory duty, responsibility or obligation on assisting States and other assisting actors to provide genuine assistance to the affected State when requested to do so. Voicing support for inclusion of jus cogens in the Commission’s program of work, he said the biggest value of the Commission’s study of the topic would lie in the identification of the requirements for a norm to reach the status of jus cogens and the effects of a jus cogens norm on international obligations.
However, he said that the inclusion of the topic “crimes against humanity” did not reflect the need of States in respect of the progressive development and codification of international law. The Rome Statute system sufficiently ensured that crimes against humanity were criminalized. Further, there remained sufficient legal basis for the criminalisation of crimes against humanity in national law. Future work on the topic could instead focus on creating a regime or mechanism for inter-State cooperation, mutual legal assistance and extradition for all serious crimes.
MARY MCLEOD (United States) said that the draft articles on “expulsion of aliens” did not strike the proper balance between the protections of aliens and the State’s prerogative; responsibility and ability to control admission to its territory; and enforce immigration laws. She voiced disagreement with provisions of draft articles 2 and 10, noting that “tolerance” of the actions of non-State actors did not necessarily give rise to State responsibility. Furthermore, articles 23 and 24 were problematic as they extended non-refoulement protections to situations beyond established international law. Some changes made to the draft articles did not go far enough, such as overbroad limits on States’ ability to treat groups differently with respect to expulsion where there was a rational basis to do so. As multilateral treaties already existed in the field, there was no need for a convention.
On the “protection of persons in the event of disasters”, she expressed concern that several of the draft articles appeared to be attempts to progressively develop the law without clearly being identified as such. She cited the example of draft article 11, on the “duty to reduce the risk of disasters”, stating that she did not accept the article’s assertion that States had an obligation under international law to take the necessary and appropriate measures to prevent, mitigate, and prepare for disasters, as there was no widespread State practice undertaken out of a sense of legal obligation.
Praising the addition of “crimes against humanity” to the Commission’s active agenda, she said that careful consideration of draft articles for a convention could be valuable. However, she said the time was not ripe to add the topic of jus cogens to the long-term agenda, as the Commission was currently working on two topics that addressed key sources of international law – subsequent agreements and subsequent practice in relation to the interpretation of treaties, and the identification of customary international law – which had implications for many issues of relevance to jus cogens. Having three overlapping International Law Commission projects, proceeding in parallel, risked confusion, inconsistency and, at minimum, would be inefficient.