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05. Statement by Legal Adviser John B. Bellinger, III, to Sixth Committee on expulsion of aliens (Oct. 31, 2007).

Statement by John B. Bellinger III, Legal Adviser, Department of State, on Agenda Item 82: Report of the International Law Commission on the Work of its 59th Session, Chapters I-III & X (Introduction and other decisions); Expulsion of Aliens (Chapter VI); Effects of Armed Conflict on Treaties (Chapter VII); Responsibility of International Organizations (Chapter VIII), to the Sixth Committee of the General Assembly, October 31, 2007

Thank you, Mr. Chairman.

The United States believes that respect for international law is essential to orderly and peaceful relations among States and commends the International Law Commission on its indelible contributions to the progressive development and codification of international law. We would like to convey our special thanks to the Chairman of the Commission, Professor Ian Brownlie for his fine stewardship. We also wish to thank the Special Rapporteurs for the topics discussed at the Commission’s past session for the manner in which they have diligently guided the Commission on important – and complex – topics.

My government welcomes the opportunity to submit a few observations on topics considered by the International Law Commission at its 59th Session, while looking forward to providing additional and more detailed comments as the Commission continues its work.

Expulsion of Aliens

Expulsion of Aliens is a complex issue that implicates other matters of national concern, including those associated with the formulation of a country’s immigration laws, national security, and respect for the rule of law. In light of this complexity, we urge the Commission to bear in mind the need to consider carefully the delicate and unique legal and political issues that this topic presents. In that regard, we note that draft Article 3 on the one hand explicitly recognizes the sovereign right of States to expel aliens and on the other limits on this right under international law.

We appreciate the Special Rapporteur’s efforts in formulating draft Articles 1 to 7 and in refining the scope of his study to define more clearly the limits of the Commission’s work on this subject. We welcome, in particular, the conclusion of the Special Rapporteur that non-admission and extradition, as well as issues concerning aliens for whom expulsion is governed by special rules, such as diplomats and members of armed forces, fall outside the scope of the topic. We also support the conclusion of the Special Rapporteur that a specific provision relating to migrant workers is not needed, as the situations and rights of migrant workers are encompassed within the general provisions.

We remain concerned, however, that the definition of “territory” suggested by the Special Rapporteur – “the domain in which the State exercises all the powers deriving from its sovereignty” – could be broadly interpreted to encompass more than the Special Rapporteur intends. Accordingly, we propose a more precise definition, such as: “a State’s land territory, internal waters, and territorial sea, and its superjacent airspace, in accordance with international law.” We also believe that the subject of expulsion of aliens in situations of armed conflict should be excluded from the draft articles.

Effects of Armed Conflicts on Treaties

The Commission has made substantial contributions to international law through its work on the law of treaties. The topic of the Effects of Armed Conflict on Treaties is no exception. The Special Rapporteur has tackled many difficult questions in this complex area, while faced with the challenges of identifying relevant State practice and addressing the many views that have been expressed regarding the proper approach to this subject. The Special Rapporteur’s third report has been helpful in drawing attention to issues that must be carefully studied before this work is concluded.

We welcome the establishment of the ad hoc Working Group and commend it for taking an approach that avoids relying either on the intent of the parties to determine whether a treaty is susceptible to termination or on a list of categories of treaties to determine whether they continue in operation. As a general matter, we support an approach to this subject that preserves the reasonable continuity of treaty obligations during armed conflict, while taking into account particular military necessities, and also provides practical guidance to States by identifying factors relevant to determining whether a treaty should remain in effect in the event of armed conflict.

We caution, however, that many questions have arisen in this complex area. For example, we believe that the effort to give more definition to the term “armed conflict” than exists under the Geneva Conventions is likely to cause confusion and be counterproductive. The wide variety of views that have already been expressed about what the definition should be is evidence of the challenges that such an exercise involves. A better approach would be to make clear in the draft articles that armed conflict refers to armed conflicts covered by common articles 2 and 3 of the Geneva Conventions (i.e., international and non-international armed conflicts). Also, if the decision is made to cover “occupation” together with “armed conflict” within the scope of the draft articles, then the two terms should be referred to separately, as they are not synonymous in the law of armed conflict. These and other issues will continue to require further study and consideration as the Commission’s work on this topic progresses.

We have one final comment on a specific textual proposal. We support the suggestion that draft article 6 bis be deleted and its subject matter reflected in the Commentaries. We are also of the view that the text should spell out clearly that international humanitarian law is the lex specialis that governs in armed conflict.

Responsibility of International Organizations

The United States appreciates the Commission’s desire to generate a common set of articles on the responsibility of international organizations. We remain concerned, however, about the methodology that underlies the Commission’s work. As noted in our previous statements on this topic, we have reservations regarding the assumption that the Commission’s articles on State Responsibility establish a good template for articles on the responsibility of international organizations. States and international organizations are fundamentally different. The fact that both have international legal personalities does not in and of itself mean they should be subject to the same basic rules under international law. Unlike States, which share a fundamental set of qualities, there is great diversity in the structure, functions, and interests of international organizations both as they relate to States and to each other. In addition, many of the interests of States that underpin the articles on State Responsibility – such as those related to sovereignty, citizenship, and territorial integrity – do not exist in the case of international organizations. Such differences make applying the Commission’s articles on State Responsibility to international organizations problematic.

The draft articles raise additional concerns, some of which I would like to bring to your attention.

We question whether the principle embedded in draft Article 35, which is drawn from the articles on State responsibility, is applicable to international organizations. Draft Article 35 would preclude an international organization from relying on its constituent instruments and other rules to justify failure to comply with its obligations, unless the rules of the organization specifically provide that it may do so for relations between the organization and its Member States. Yet those rules, unlike the internal rules of States, clearly operate as law at the international level, and thus raise additional questions about the obligations of particular international organizations across the range of situations they may face. In view of such complexities, we believe that additional analysis would be useful before drawing a firm conclusion that an international organization cannot rely on its constituent instruments and other rules to justify its conduct.

With respect to draft Article 36, we note that it may be that the obligations of an international organization may depend on considerations beyond those listed in the draft article, including for example, the character and the content of a particular organization’s constituent instruments.

With respect to draft Article 43, we question the appropriateness of including such a provision and are concerned that it may prove to be confusing. For example, we could imagine questions being raised about the meaning of the phrase “in accordance with the rules of the organization,” or the call for implementation of all “appropriate” measures. In the final analysis, the extent to which a principle on this topic applies may depend on the nature of the organization and duties at issue in a particular case.

Draft Articles 44 and 45 deal with the issue of “serious breaches of obligations under peremptory norms of general international law.” We question the decision to draw a distinction between “serious breaches” and other breaches. We do not believe that the “seriousness” of a breach is a distinction in kind in the manner suggested by this provision, and this draft article should be deleted. Also with respect to these provisions, we appreciate the explanation that these articles are not intended to vest international organizations with functions outside their competencies, but are concerned the text of the articles may not be sufficiently clear on this point.

New Topics

With respect to the issue of new topics for the Commission’s long-term agenda, we strongly support the Commission’s criteria for selecting new topics, including placing highest priority on topics that are ripe for development and hold the most promise for addressing the practical needs of States. Consistent with that view, we applaud the Commission’s decision to study the topic “Protection of Persons in the Event of Disasters” and congratulate Dr. Eduardo Valencia-Ospina on his appointment as Special Rapporteur. We believe that the Commission’s consideration of this topic has the potential to produce practical solutions to pressing problems resulting from natural and other disasters. We hope the Commission will focus its study on areas that will have the most significant practical impact on mitigating the effects of such disasters, including, for example, practical mechanisms to facilitate coordination among providers of necessary disaster assistance and the access of people and equipment to affected areas.

We note the Commission’s decision to include the topic “Immunity of State officials from foreign criminal jurisdiction” in its program of work, and applaud the selection of Mr. Roman Kolodkin as Special Rapporteur for this important topic. The criminal prosecution of foreign officials raises complex issues of domestic and international law. We look forward to contributing to the Commission’s work on this topic.

We are not convinced, however, that the topics “Most-Favored-Nation clause” and “Subsequent agreement and practice with respect to treaties” should be included in the Commission’s long-term work program. MFN provisions are principally a product of treaty formation and tend to differ considerably in their structure, scope and language. They also are dependent on other provisions in the specific agreements in which they are located and, as a result, resist easy categorization or study. In light of these observations, we question the utility of the Commission taking on this topic.

We also question the inclusion of the topic “Subsequent agreement and practice with respect to treaties” for a number of reasons. This topic has the potential to be large in scope and implicate many subject areas, which leads us to question whether it is sufficiently concrete and suitable for progressive development and codification. Moreover, we are not aware of pressing real-world issues that necessitate the Commission’s taking on this topic at this time. Subsequent agreement and practice regarding treaties will necessarily depend on the treaty or treaties at issue, and will require a case-by-case analysis of the particular circumstances.

Thank you Mr. Chairman.

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