26 October 2005
Right of State to Expel Aliens Must Be Reviewed in Context of Other Factors, Assembly's Legal Committee Is Told
Issues of National Security, Human Rights, Rule of Law, Immigration Policies Involved; Debate Continues on Items from Law Commission Report
NEW YORK, 25 October (UN Headquarters) -- The need to reconcile the sovereign right of a State to "expel aliens" with obligations under international law to respect human rights was stressed by several speakers this morning as the Sixth Committee (Legal) continued its discussion of topics on the agenda of the International Law Commission.
In considering how to address the issue of removal of persons from their territory, States must seek to reconcile respecting the delicate balances contained in their national immigration laws and policies, their international legal obligations, national security concerns and respect for the rule of law, the speaker for the United States said.
The Russian Federation representative said the powers of a State were broad but not unlimited and the Commission should concentrate on those limitations. It would be useful to articulate when an expulsion would constitute an internationally wrongful act. He also suggested that the topic include an examination of the situation of refugees and migrant workers, as well as situations where the status of a citizen changed because of a change in that of a territory.
Several speakers further recommended a detailed study of existing customary international law and treaty law, including a comparative study of international case law, both at the global and regional levels, as well as of national laws and practice on the issue.
Another topic focused upon was the responsibility of international organizations and the benefits and limitations of using previously drafted rules on State responsibility as a guide. The Commission's Special Rapporteur on the subject, Giorgio Gaja, responded to questions raised in the debate about the complex relationship of State responsibility and the responsibility of international organizations.
Also, speaking in the debate were the representatives of Italy, Japan, United Kingdom (for the European Union and the European Community), Netherlands, Portugal, Denmark (on behalf of the Nordic countries) Belarus, Slovak Republic, Romania, Argentina, Greece, Guatemala, New Zealand and Canada.
The Committee will meet again tomorrow, Wednesday, 26 October, at 10 a.m. to continue its discussion of the report of the International Law Commission.
The Sixth Committee (Legal) met this morning to continue its discussion of the report of the International Law Commission. (For further information, see Press Release GA/L/3282 of 24 October.)
The Committee was also expected to take action on two draft resolutions related to the United Nations Commission on International Trade Law (UNCITRAL).
By the terms of a draft resolution entitled "Report of the United Nations Commission on International Trade Law (UNCITRAL) on the work of its thirty-eighth session" (4-15 July Vienna) (document A/C.6/60/L.7), the General Assembly would take note of the report and commend the Commission for its finalization and approval, during the session, of a draft convention on the use of electronic communications in international contracts.
The Assembly would also commend the Commission for the progress made in its work on the following: a revision of its Model Law on Procurement of Goods, Construction and Services; on model legislative provisions on interim measures in international commercial arbitration; on a draft instrument on transport law; and on a draft legislative guide on secured transactions.
The draft would endorse the efforts and initiatives of the Commission, as the core legal body within the United Nations system in the field of international trade, to increase coordination and cooperation among bodies engaged in international trade law. The Assembly would appeal to those organizations to avoid duplication of efforts and to promote efficiency, consistency and coherence in the modernization and harmonization of international trade law.
By other provisions of the text, the Assembly would reaffirm the importance of the Commission's technical assistance programmes in international trade law reform and development. It would reiterate its appeal to the United Nations Development Programme (UNDP) and other bodies responsible for development assistance, such as the World Bank and regional development banks to support those programmes.
By draft resolution A/C.6/60/L.8) the Sixth Committee would have the General Assembly adopt the United Nations Convention on the Use of Electronic Communications in International Contracts, prepared by UNCITRAL.
The General Assembly would request the Secretary-General to open the Convention, the text of which is attached to the draft, for signature. The text states that the Convention would enter into force "on the first day of the month following the expiration of six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession".
The Assembly would call upon all Governments to consider becoming party to the Convention, which was finalized by UNCITRAL at its thirty-eighth session this year.
The new instrument, which has 25 articles, is intended to remove obstacles to the use of electronic communication in international contracting, including those that might arise under existing international trade law regimes. According to UNCITRAL, most of those texts were negotiated long before the development of new technology, such as e-mail, electronic data interchange and the Internet.
The convention deals, among other things, with the determination of a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communication; and the use of automated message systems for contract formation. Other provisions contain criteria establishing functional equivalence between electronic communications and paper documents -- including "original" paper documents -- as well as between electronic authentication methods and hand-written signatures.
UNCITRAL states that the new convention will assure companies and traders around the world that contracts negotiated electronically are as valid and enforceable as traditional paper-based transactions.
The draft convention complements and builds upon earlier instruments prepared by the Commission, including the UNCITRAL Model Law on Electronic Commerce and the UNCITRAL Model Law on Electronic Signatures.
IVO M. BRAGUGLIA (Italy) said that the Special Rapporteur had made a good start on the subject of expulsion of aliens. The Commission's draft could become an addition to the International Covenant on Civil and Political Rights. It would be useful for the Commission to articulate its work in a clear manner and for it to cooperate with other bodies that were engaged in the question of human rights, such as the Human Rights Committee. It would also be useful for States to have a more precise sense of the approach the Commission intended to adopt in resolving problems related to the subject. The rules were often complex and related to constitutional rules. It would be necessary to understand how State practice had developed in that area.
On the subject of responsibility of international organizations, he supported the solution proposed in article 15. It was clear that in general there was no responsibility of States that derived from the responsibility of international organizations, yet that did not rule out considering certain exceptional cases. Explicit wording for the rules would make the draft more transparent.
HIROSHI TAJIMA (Japan) said that, given the diversity that existed with regard to the legal status, structure, activities and membership of international organizations, it was difficult to lay down guiding principles that applied to every organization. He commended the Special Rapporteur for facilitating consideration of the topic and said that he believed that the general direction being taken was the right one. While it was prudent to follow the basic structure of the draft articles on State responsibility and to modify them when they did not apply to international organizations, those draft articles could serve only as a starting point.
An internationally wrongful act committed by a member State of an international organization could give rise to responsibility on both the part of the organization and the State. That was one of the differences, he continued. The draft articles and commentary were somewhat ambiguous on that point and further analysis was needed. As article 15 did not specify the responsibility of the member State or States that committed an internationally wrongful act, clarification was needed. There was a particular lack of clarity on points, such as the allocation of responsibility between international organizations and their member States.
The topic of expulsion of aliens was particularly relevant in a contemporary world in which the transboundary movement of people had intensified. There was still much to be considered on matters such as the scope and definition of the problem and what grounds there might be for legitimate expulsion. The rules to be applied were not limited to customary law. They were closely related to the human rights regimes and were interwoven with other fields of international law. Examination of the topic should take those relevant regimes into account. Stating that the problem was of concern to many countries, he said that in order to make a meaningful contribution, the Commission should be encouraged to complete its work in a timely manner.
MICHAEL WOOD (United Kingdom), speaking for the European Union and its associated and candidate countries, welcomed the progress made by the International Law Commission on the topic "Responsibility of international organizations" and congratulated its Special Rapporteur, Professor Giorgio Gaja, for his third report. He announced that the remainder of the statement would be delivered by a representative of the European Commission, who would express the view of the European Community on points directly relevant to the Community.
PIETER JAN KUIJPER (European Commission) said the European Community attached great importance to the work of the International Law Commission on the topic of responsibility of international organizations. He said he would restrict his remarks to aspects of the draft articles concerning breach of an international obligation. He said article 8 (2) on non-compliance with an "obligation under international law established by a rule of the international organization" raised some questions. The rule did not give any guidance to which sort of rules of the international organization qualified as "obligations under international law".
In the case of the European Community, he said, the important question would arise whether a violation of secondary Community law by an institution of the Community triggered the international responsibility of the European Community. The prevailing view inside the Community would be that it did not, given that the European Court of Justice had characterized the European Community as a legal order of its own. It remained an open question to the European Union whether article 8 (2) was an essential part of the draft articles.
He said the European Union noted with interest how the International Law Commission had approached the issue of "normative control" of decisions, recommendations and authorizations in draft article 15. It agreed with the Commission's drafting committee that there were no clear practical examples to assist in formulating that particular provision. It therefore suggested that the Commission should employ great care in its further discussion of the question.
It welcomed the fact that article 15 distinguished between binding decisions of an international organization (paragraph 1) and mere authorizations or recommendations (paragraph 2). Some refinement might be needed on this point.
He said his remarks and questions reflected the specific features and practice of the European Community, which continued to support the Commission's current work and followed it with great interest.
JOHAN G. LAMMERS (Netherlands), speaking first on "Responsibility of international organizations", said there was a problem related to the definition of international organizations in draft article 2, which stated that "International organizations may include as members, in addition to States, other entities". He said that definition referred to two types of members of international organizations: States and other entities. The concept of "entities" certainly included international organizations, but was also broader than that. He said there was no reason why draft article 15 should follow a more narrow approach. It would therefore be better if draft article 15 simply referred to a "member" or to a "member of the organization". Whether the member was a State or another entity -- either an international organization or something else -- was strictly seen as irrelevant, he said.
He also dealt with the issue of distinction between binding decisions and other decisions in paragraph 1 and 2 respectively; the distinction was certainly useful and necessary. He said that according to paragraph 2 of draft article 15, an international organization could not be held responsible for the mere adoption of an authorization or recommendation. The question remained whether in practice such situations might arise at all. He noted that the Special Rapporteur hardly gave an example in his third report on the topic.
He observed that in resolution 2105, adopted in 1965, the United Nations General Assembly "recognizes the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence and invites all States to provide material and moral assistance to the national liberation movements in colonial territories". If a United Nations Member State decided to provide such assistance to a particular people under colonial rule, could the colonizing State, in such a case, claim that the United Nations carried a responsibility for that resolution, apart from a possible responsibility of the Member concerned? What was the threshold for concluding that the act was committed by the Member 'in reliance on' the resolution? he asked. He suggested that the Special Rapporteur on the topic should provide more examples of instances in practice.
On the question of "expulsion of aliens", he said the Commission should first consider which rules already existed in customary international law, in treaties and in other international instruments, as well as national laws and State practice. It would then be appropriate for the Commission to determine whether those rules should be developed further and to codify them for clearer and better application. Furthermore, the Commission should address problems and questions States had or might have in practice.
TODD BUCHWALD (United States), first addressing the issue of expulsion of aliens, said the Special Rapporteur's comprehensive preliminary report acknowledged that the issues related to the topic were complex and challenging. In considering how to address the issue of removal of persons from their territory, States must seek to reconcile the delicate balances contained in their national immigration laws and policies, their international legal obligations, consideration of national security concerns and respect for the rule of law. As a general matter, the report recognized that careful attention must be paid to the long-recognized sovereign right of States to expel aliens and the limitation of that right under international and domestic law. Efforts to identify the limitations under international law should focus on those limitations derived from obligations freely assumed by States, particularly under international human rights treaties they had ratified.
He said he shared the view that the Commission should not address the refusal to deny entry to aliens at the border, and that the distinctions between aliens who were lawfully present and those who were not should be clearly observed. Issues already addressed by other bodies of law and practice, such as the transfer of aliens for law enforcement purposes or issues related to diplomatic personnel, should not be considered under the topic.
Turning to the issue of responsibility of international organizations, he said it was singularly complex, since they varied greatly in their functions and structure; their diversity made the attempt to set forth uniform rules difficult. He said it was not apparent that principles in that area should simply parallel the rules with respect to States on State responsibility. He expressed the hope that the Commission would place particular emphasis on relevant practice.
He provided details on his country's view of several of the related draft articles.
LUIS SERRADAS TAVARES (Portugal), addressing the introductory chapters of the report, said that while he appreciated the inclusion of the new topic "obligation to prosecute or extradite", a balance had to be reached between the desirability of enriching international law and a successful outcome of the work of the Commission. Further practical measures could be put into effect to enhance the interaction between the Commission and the Sixth Committee, such as a system of compilation and quotation of the statements. A verbatim record rather than having summary records could be put into practice easily.
Turning to the responsibility of international organizations, he said that as the work of the Special Rapporteur progressed, complexity rather than clarity was increasing. While on the one hand, the subject of responsibility of States for internationally wrongful acts was on hold until 2007, the Commission was progressing at full speed on the responsibility of international organizations. The two tracks must form a coherent body of law. He then detailed his view of the problems that arose from the resemblance of the articles on responsibility of international organizations to those on State responsibility. He suggested a more acceptable path would be a general reference to the applicability of the principles of State responsibility, and then articles or guidelines dealing with specific problems with the issue of responsibility of international organizations.
On the topic of expulsion of aliens, he questioned whether the issue would be suitable for codification and progressive development in an autonomous way.
He recommended an examination of several related issues if the Commission decided to pursue the topic further.
PETER TAKSOE-JENSEN (Denmark), speaking for the Nordic countries, said that since its establishment the International Law Commission had achieved remarkable results. He cited in particular the Rome Statute of the International Criminal Court and the United Nations Convention on Jurisdictional Immunities of States and Their Property. Nevertheless, he continued, the Nordic countries would like to see the Commission more focused and working even more efficiently. He believed it was time to review the broadness and appropriateness of the topics on its agenda. Removing certain topics would imply an increased focus on remaining topics, which would probably therefore be dealt with more quickly and efficiently.
Turning to specific topics, he said work on unilateral acts of States should not be aimed at producing a comprehensive set of rules, but rather the adoption of guidelines on the subject. Likewise, concerning a final instrument on the subject of international liability, the Nordic countries favoured the adoption of principles by way of a General Assembly resolution rather than conclusion of a convention. On the effects of armed conflict on treaties, he said the legality of conduct of the parties to an armed conflict, and the possible asymmetry in the relationship between an aggressor State and a victim, needed to be discussed further. As to the main rule of the continuation of treaties during an armed conflict, it was well argued and seemed justified. The topic should form a part of the law of treaties and not a part of the law relating to the use of force.
LYUDMILA KAMENKOVA (Belarus) said her delegation attached great importance to the work of the International Law Commission, and said it should codify and progressively develop the law on the responsibility of international organizations. The timely adoption of an international judicial document on responsibility of international organizations and responsibility of States for violations of international law would not only strengthen international judicial institutions, but it would also foster a new sphere of international law.
She welcomed the start of work on the topic concerning the "expulsion of aliens" by the Commission, and added that the focus should mainly be on analysis of existing international practice. The outcome of the analysis could be useful, she added. A balanced approach should be adopted based on the recognition of the sovereign rights of a State, while attention was also paid to compliance with international human rights instruments. She said the State practice of Belarus could be provided to the Commission for its analysis of domestic legislation concerning expulsion of aliens.
IGOR GREXA (Slovakia) said that on the question of expulsion of aliens his delegation concurred with the Special Rapporteur that the right of States could not be regarded as absolute or discretionary and that international law set certain limits for exercising that sovereign right. It was essential for the future study of the topic for its scope to be defined and then dealt with. Grounds for expulsion should be explicitly specified.
He said Slovak domestic legislation recognized two forms of expulsion of aliens -- administrative and judicial. The latter had more or less supplementary or complementary status. Administrative expulsion of aliens had broad scope and was applied, as such, in general administrative proceedings. The Commission's work on the topic should start with the identification of applicable rules of customary law and those rules pertaining to the progressive development of international law. There should be a study or review of State practice and relevant domestic legislation. The consideration of applicable multilateral conventions, above all human rights treaties, would also be essential.
IGOR PANIN (Russian Federation), said the results produced by the Commission over the years were truly impressive. In light of those contributions, he believed that the length of Commission sessions should not be reduced, and he also thought that it was appropriate to restore the practice of paying honoraria to its members.
Turning to the topic of responsibility of international organizations, he said his Government attached great importance to the codification of norms in that area. It was particularly important to establish rules concerning the responsibility of international organizations, as well as their relationship to the responsibility of States. The Commission had chosen the right approach to the topic. He then elaborated on his view of specific draft articles and made suggestions therein. He added that although State practice in the area of responsibility of international organizations was not very wide, he believed it would be helpful to read of any known or further information on the subject.
On the issue of expulsion of aliens, he commended the Commission's preliminary approach which the Russian Federation was prepared to support.
The related discretionary powers of a State were broad but not unlimited. The Commission should concentrate on those limitations. It would be useful to articulate when an expulsion would constitute an internationally wrongful act.
It would also be helpful to draw a distinction between aliens who were lawfully in a country and those who were there unlawfully. Among other things, he also suggested that the topic include an examination of the situation of refugees and migrant workers. Special attention should be given to those areas, since they had not yet been dealt with by international law. Also, those situations where the status of a citizen changes because the status of the territory changed should be looked at. He added that it was unjustified to include the question of expulsion during an armed conflict as that matter was already adequately settled by international humanitarian law.
VICTORIA GAVRILESCU (Romania), addressing the responsibility of international organizations, agreed with the view of the Special Rapporteur on the need to base the Commission's work on the corresponding text on responsibility of States. There was no reason to draw a distinction with regard to two types of subject. She also supported the need to take into account the specific nature of some international organizations and the intrinsic way competencies were distributed, as for example with the European Community. The specific nature of rules that were applicable should also be taken into account. She added that the issue of the responsibility of States that aid or assist an international organization in the commission of a wrongful act should be retained.
Turning to expulsion of aliens, she congratulated the Special Rapporteur for his report which would make a decisive contribution in elaborating draft articles on the subject. However, doubt remained. For example, she supported the need to reconcile the right of expulsion with the obligations under international law, in particular the protection of fundamental rights. The Commission's work should focus primarily on national legislation, as well as on all the rules that existed in customary law. The Commission should then consider whether rules needed to be further developed or whether the rules that existed were sufficient.
EUGENIO CURIA (Argentina), addressing the topic of "responsibility of international organizations and wrongful acts", pointed out that international organizations were created voluntarily by States for specific purposes. In the context of international organizations and their member States, it would be useful to clarify what was meant by that reference. He dealt with the relationship between draft article 1 (2) and draft article 4 that limited attribution of conduct to an organ or an agent of the organization. He supported basing the general principles and attribution of wrongful acts and the consequent responsibility along the same lines as the draft articles on State responsibility. He then made several suggestions concerning draft article 4 on rules of the organization.
Turning to the topic on "expulsion of aliens", he supported its inclusion in the Commission's programme of work. It would be necessary for the Commission to be precise about the scope of the topic and to formulate principles and rules that reconciled the right of States to establish conditions for admission and residency of aliens and the safeguarding of fundamental human rights. To that end, he added, the Commission should initiate close examination of customary norms and related State international and domestic practice. Information provided by States on the question would be very useful, he said.
MARIA TELALIAN (Greece) said she thought the topic of expulsion of aliens lent itself to codification, since there was a significant body of national legislation and practice, as well as of international and regional jurisprudence. The topic also raised important questions of international law, particularly of human rights law. She fully agreed that one of the most important problems was how to reconcile the right to expel, which seemed inherent in State sovereignty, with the demands of international law, particularly the fundamental rules of human rights law. When the right at stake was an absolute one, such as the right to life or the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, she believed that expulsion could not be justified on any ground.
On the interpretation of the term "expulsion", a broad approach to the topic could lead to an unnecessary enlargement of the scope of the report and of the principles that the Commission might decide to draft. Not all the forms of the removal of an alien from the territory of the host State fell within the scope of the same legal regime. She agreed that displaced persons should be left outside its scope, and likewise immigration or emigration policies. Issues related to mass population expulsions during armed conflicts that were regulated by international humanitarian law could be considered under the future study.
After elaborating on other views connected to the study of the topic, she added that there should be detailed consideration of existing customary international law and treaty law, including a comparative study of international case law both at the global and regional levels, as well as of national laws and practice.
ROBERTO LAVALLE-VALDES (Guatemala) said articles 8 and 9 in the text of responsibility of States for internationally wrongful acts should be incorporated in the draft on responsibility of international organizations.
He also said that the provisions of article 8 dealing with the existence of a breach of an international obligation should be amended, noting that an international organization incurred a breach of obligation if that was part of international law. Criteria for breaches should be established.
He said the provisions of article 13 -- "direction and control exercised over the commission of an internationally wrongful act" -- were, on balance, beyond the responsibility of international organizations. He also said the headings of articles 12 (aid or assistance in the commission of an internationally wrongful act), 13 and 14 (coercion of a State or another international organization) should be changed.
Owing to well-known circumstances, he continued the topic of "expulsions of aliens" was of particular interest to his country. Guatemala would be closely following the future examination and development of the topic in the Commission.
He recalled a proposal of the Nordic countries last year that the Commission should incorporate in its programme of work consideration of a possible legal instrument covering humanitarian disasters
GERARD VAN BOHEMEN (New Zealand), addressing the topic of responsibility of international organizations, said he supported the approach adopted. He agreed with following the corresponding articles on State responsibility, with appropriate modifications concerning the responsibility of an international organization for aiding, directing, controlling or coercing another international organization in the commission of an internationally wrongful act.
He also agreed that it was right to go beyond those cases to consider situations where an international organization, which was bound by a particular obligation, used its power to compel a member State which was not so bound to take actions that would circumvent the organization's obligation or, for the same purpose, authorizes or recommends the taking of such actions. Article 15 drew an appropriate distinction between binding decisions and decisions that only authorized or recommended the action. He questioned whether paragraph 2 of article 8 needed to be included, saying it created an uncertainty as to paragraph 1, and he suggested that it be deleted.
He welcomed the preliminary report on the expulsion of aliens describing it as a useful overview that left no doubt as to the complexity of the subject. The starting point for the Commission's inquiry must be a thorough analysis of the national laws and international obligations bearing upon the expulsion of aliens.
ALAN KESSEL (Canada) said Canada supported the general approach that had been taken by the Rapporteur on expulsion of aliens and looked forward to the compilation of relevant international and domestic law. He suggested that to facilitate its work, the Secretariat look to the important work that had been done over the past four years through the Berne Initiative and the International Organization for Migration and through the Global Commission on International Migration. A comprehensive study of that more focussed topic, including State practice, might be of assistance in clarifying the relevant rules of international law in that area.
The Commission could also take into account the duty of States of origin to accept the return of their nationals, including the return of stateless persons who had been deprived of their nationality prior to obtaining a new nationality in a manner contrary to international law. With respect to migrant workers, it should be noted that the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families imposed obligations only on States Parties.
Statement by Special Rapporteur
GIORGIO GAJA, responding to questions raised in the debate, clarified some aspects of the scope of the work of the Commission concerning the complex relationship of State responsibility and the responsibility of international organizations. He said State responsibility was dealt with only to the extent that it may incur responsibility for the internationally wrongful act of an international organization. Regarding cases in which a State aids, assists or directs and control or coerces an international organization, the question was raised by the Commission whether it was necessary to spell out those cases in which a State incurs responsibility.
The second set of rules not covered by the State responsibility articles was the issue of the responsibility of member States when an international organization was held responsible. The Commission intended to discuss the issue next year. Preliminary views expressed by Governments would provide helpful guidance.
There were further cases where State responsibility and responsibility of international organizations were connected. For example, where an international organization takes a decision that binds a member State to commit an internationally wrongful act.
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