Statement by Mark Simonoff, Acting Legal Adviser, on Agenda Item 79: Report of the International Law Commission on the Work of its Sixty-Second Session (Part Two), in the Sixth Committee

Mark Simonoff, Acting Legal Adviser
New York, NY
October 29, 2010


Madame Chairperson,

Once again, I would like to thank the Chairman of the Commission, Mr. Nugroho Wisnumurti, for his introduction of the Commission’s report. I would also like to thank the Special Rapporteurs for their important contributions to the Commission’s study of these important topics. As noted in earlier remarks on the Commission’s report, the United States highly appreciates the significant contributions of the International Law Commission to the progressive development and codification of international law and commends the Commission on the quality of the report on its most recent work. I appreciate the opportunity to comment on the topics that are currently before the Committee.

Expulsion of Aliens
The United States would like to express its appreciation for the continued efforts of Special Rapporteur Kamto on the topic of Expulsion of Aliens, including his efforts to revise and restructure the draft articles. The issues addressed by the Special Rapporteur are complicated ones and we encourage the Special Rapporteur and other members of the Commission, as well as other States, to carefully review the revised draft articles concerning the human rights of aliens subject to expulsion.

As our general and specific comments today illustrate, our concerns that these draft articles could unduly restrain the sovereign rights enjoyed by States to control admission to their territories and to enforce their immigration laws remain acute.

First, we would like to underscore a previously-raised issue regarding methodology and the appropriate sources of international law. We continue to believe that, rather than attempting to codify new rights specific to the expulsion context and importing concepts from regional jurisprudence (e.g., from the European Commission and Court), for example in the case of provisions on family unity, the draft articles instead should reflect well-settled principles of law reflected in the texts of broadly ratified global human rights conventions.

Additionally, we continue to believe that extradition should be excluded from the scope of the draft articles; extradition should not be treated in the same manner as expulsion, but as the transfer of an individual – whether it is the transfer of an alien or a national – for a specific law enforcement purpose. We are concerned that many of the proposals would not be consistent with the settled practices and obligations of States under multilateral and bilateral extradition treaty regimes. In this regard, we have particular concerns regarding the new draft articles concerning disguised expulsion and extradition disguised as expulsion.

We also have concerns about the various references to language in the reports regarding the rights of persons who have been expelled. In our view, as a general matter and consistent with the framework adopted in international human rights treaties, these draft articles should apply to individuals within the territory of a State who are subject to a State’s jurisdiction. Failure to limit the obligations to persons being expelled would place States in an impossible situation of being responsible for anticipating conduct by third parties that they may not be in a sufficient position to foresee or control.

Regarding Draft Article 10, we of course recognize and appreciate the importance of including a non-discrimination principle in these draft articles. At the same time, we think it would be appropriate to make clear that this principle applies only to the process afforded to aliens in expulsion proceedings, and should not be framed in a manner that would unduly restrain the discretion enjoyed by States to control admission to their territories and to establish grounds for expulsions of aliens under their immigration laws.

Finally, we also have concerns about the incorporation of non-refoulement obligations into numerous provisions, both indirectly by, as previously noted, extending protections to “persons who have been … expelled” in the various provisions, and explicitly in Draft Articles 14 and 15. These provisions rely on non-binding opinions of the Human Rights Committee and jurisprudence of the European Court of Human Rights to interpret a non-refoulement obligation and a requirement for assurances against the death penalty into rights where none is expressly provided in the actual texts of Articles 6 and 7 of the International Covenant on Civil and Political Rights or any other United Nations convention. Moreover, we are concerned about the proposed obligation in Draft Article 14 regarding ensuring respect for “personal liberty” as this term is undefined and goes beyond existing obligations regarding non-refoulement assumed by States as parties to global conventions. The extension under Draft Article 15(2) of the non-refoulement protection to protect against risks “emanat[ing] from persons or groups of persons acting in a private capacity” goes far beyond even the express non-refoulement protection regarding torture contained in Article 3 of the United Nations Convention Against Torture.

We thank Special Rapporteur Kamto for his diligent and dedicated work on the topic of Expulsion of Aliens, which is of critical importance to both sending and receiving states, and we look forward to continued collaboration on this subject.

Effects of Armed Conflict on Treaties
Madame Chairperson, turning now to the topic of Effects of Armed Conflict on Treaties, I would like to begin by expressing our sincere gratitude for the late Sir Ian Brownlie’s scholarship and hard work over the years on this important topic. Sir Ian Brownlie’s contribution both to this topic and, more importantly, to the entire field of international law cannot be overestimated. We, along with all practitioners and scholars of international law, will be impoverished by the loss of his commentary and wisdom on so many issues. I would also like to commend Mr. Lucius Caflisch, the new Special Rapporteur, on his report and proposals developed subsequent to the first reading of these draft articles and on his decision to retain the broad outlines of the draft articles adopted on first reading. Those articles preserve the reasonable continuity of treaty obligations during armed conflict, take into account particular military necessities, and provide practical guidance to States by identifying factors relevant to determining whether a treaty should remain in effect in the event of armed conflict. We are pleased that they continue to reflect this approach.

We have, however, raised certain concerns regarding issues that remain outstanding in the draft articles. For example, we note the proposal of a new definition of “armed conflict” in Draft Article 2(b) based on a formulation by the International Criminal Tribunal for the Former Yugoslavia in the Tadic decision, but continue to feel strongly that attempting to define this term is likely to be confusing and counterproductive. The wide variety of views that have been expressed about what the definition should be is evidence of the challenges that such an exercise involves. The Tadic formulation is one example of a definition that may be a useful reference point in some circumstances, but it is a standard that has evolved, and may continue to evolve, and in any case we believe that the crystallization of this definition must in the final analysis be left in the hands of States. For purposes of the present exercise, a better approach, as we have previously advocated, would be to make clear that armed conflict refers to the set of conflicts covered by common Articles 2 and 3 of the Geneva Conventions (i.e., the universe of conflicts of an international and of a non-international character). An advantage of this approach is that it will cover the entire universe of armed conflicts in a manner that should be readily acceptable to States, given that common Articles 2 and 3 of the Geneva Conventions were developed by states and enjoy nearly universal acceptance. We have also expressed concerns that Draft Article 2(b) conflates “occupation” and “armed conflict,” when the two terms refer to distinct concepts in the law of armed conflict. Thus, we continue to believe that if occupation is covered, it should be referred to in addition to armed conflict, rather than only as a part of armed conflict.

Second, as we stated in our written comments, we have concerns with the way Article 15 incorporates the definition of aggression set forth in United Nations General Assembly Resolution 3314 (XXIX). The United States believes that the provision fails to properly recognize the process described in the United Nations Charter for making an authoritative determination of aggression, and may be unnecessarily limited in scope as it does not address circumstances where a State has illicitly used force in a way that does not amount to aggression. As a result, we urge the Commission to revisit these issues at a later time.

These and other issues will continue to require further study. We look forward to continuing our review of the draft articles on the effects of armed conflicts on treaties.

Protection of Persons In the Event of Disasters
Madame Chairperson, I would now like to address the topic of Protection of Persons in the Event of Disasters. The United States commends the Commission for its progress in this important topic, including its work on Draft Articles 6 through 8, and congratulates the Special Rapporteur, Mr. Eduardo Valencia-Ospina, for his diligent stewardship of this topic.

We believe that the current draft articles make important progress in a number of areas. In the past, we have expressed reservations regarding adopting a rights-based approach for this endeavor. We continue to believe that the Commission could contribute greatly to State efforts to plan and prepare for disaster relief efforts through a focus on providing practical guidance to countries in need of, or providing, disaster relief.

We commend the Special Rapporteur for addressing the role that core humanitarian principles of neutrality, impartiality, and independence play in the coordination and implementation of humanitarian assistance in disaster response. We would encourage the Special Rapporteur to continue to consider, in his ongoing work, the possible ways in which these principles relate to and shape the context of disaster relief in the present project.

We also appreciate the fact that the Special Rapporteur has included in Draft Article 8 language that the affected State has the primary responsibility for the protection of persons and provision of humanitarian assistance on its territory. The report indicates
debate among Commission members regarding the issue of whether, in the words of the report, primary responsibility means exclusive responsibility. Issues surrounding this debate are likely to attract a wide range of diverging views, and it may be that -- in the interests of facilitating the likelihood of the Commission being able to develop a product that is of the most practical use to the international community -- the Commission would best be served by structuring its work on this project in a way that avoids the need for a definitive pronouncement on these issues.

At the same time, the United States strongly supports international cooperation and collaboration in providing disaster relief. We appreciate the Special Rapporteur’s ongoing efforts to ensure that the duty of States to cooperate set forth in Draft Article 5 is understood in the context of the principle that the affected State has the primary responsibility for protection of persons and provision of humanitarian assistance on its territory.

Thank you, Madame Chairperson.


PRN: 2010/260