4 November 2008
StatementByH. E. Mr. Hossein Panahi-AzarDirector-General
for International Legal AffairsMinistry of Foreign AffairsOf the Islamic Republic of Iran
Before the 6th CommitteeOn Agenda item 75Report of the International Law Commission
On the work of its Sixtieth Session
Chapter VI: Reservations to treaties
Chapter VII: Responsibility of international organizations
Chapter VIII: Expulsion of aliensChapter IX: Protection of persons in the event of disasters
Chapter X: Immunity of States officials
Chapter XI: Obligation to extradite or prosecute
New York, 4 November 2008
In the name of God, the Compassionate, the Merciful
The delegation of the Islamic Republic of Iran would like, once again, to thank the Chairman of the International Law Commission, Mr. Edmundo Vargas Carreñ o, for his presentation of the report of the Commission on the work of its 60th session. My delegation wishes to take this opportunity to commend Ms. Mahnoush Arsanjani, the Director of Codification Division, for his praiseworthy contributions and invaluable support to the work of the Commission for years. My statement will be on Chapters 6, 7, 8, 9, 10 and 11 of the report of the International Law Commission.
Chapter VI: Reservations to treatiesMr. Chairman,
As regards Chapter 6 of the report, my delegation expresses its appreciation to the Commission and to Special Rapporteur Allen Pellet for the valuable endeavor to develop practical guidelines on reservations to treaties. The thirteenth report of the Special Rapporteur (A/CN.4/600) addresses reactions to interpretative declarations and conditional interpretative declarations. However, it seems that the proposed draft guidelines go beyond the original rationale of the exercise, which was to mainly focus on reservations to treaties and to develop practical guides for applying the relevant provisions of the 1969 Vienna Convention on the Law of Treaties. For one thing, interpretative declarations are very often used by States as a means to circumvent certain formal limitations connected with reservations. In other words, interpretative declarations facilitate States’ membership to international treaties. Introducing detailed guidelines on interpretative declarations may not only affect the role of interpretative declarations but also create problems as of their practical applicability by related States and their usefulness in providing practical guides to apply relevant provisions of the 1969 Vienna Convention on the Law of Treaties.
Now I will make a few comments on Chapter 7 of the report.
Chapter VII: Responsibility of International Organizations
My delegation would like to begin by expressing its appreciation to Mr. Giorgio Gaja, the Special Rapporteur on the “Responsibility of international organization”, for his sixth report (A/CN.4/597) on the topic. At its 60th session, the Commission addressed the implementation of responsibility of international organizations and the issue of countermeasures against international organizations, and adopted draft articles 46-60.
The Commission continues to replicate the general pattern of the articles on Responsibility of States for internationally wrongful acts, in the topic at hand. However, as we have stated before, it is necessary to distinguish, in general, between States’ responsibility and that of the international organization. As regards the issue of countermeasures by or against international organizations, my delegation maintains that this requires further examinations and precise considerations, given the fact that it is still in its preliminary phase. Due to the limited and insufficient practice and, consequently, the uncertainty surrounding the legal regime governing countermeasures by or against international organizations, it is imperative to proceed with extreme caution and care on this topic. Taking into account the different nature of the responsibility of the States and those of international organizations, we believe a word for word reproduction of corresponding draft articles on the ‘Responsibility of States for internationally wrongful acts” in the current draft articles on the “Responsibility of international organization” will not be appropriate.
In case of plurality of injured entities, where several entities are injured by the same internationally wrongful act of an international organization, the question arises as to which one of the injured entities, the State or the international organization, is entitled to have priority to take legal action against the responsible organization. This issue has not been addressed in the present draft articles. In other words, as the International Court of Justice stated, in its advisory opinion of 11 April 1949 on the “Reparation for injuries suffered in the service of the United Nations”, “when the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organization. In such an event, competition between the State’s right of diplomatic protection and the Organization’s right of functional protection might arise, and this is the only case with which the Court is invited to deal. In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim”.
My delegation believes that in cases where an international organization authorizes its member States to take a certain measure should be distinguished from those where the organization requests them to take the very similar conduct. By authorizing a Member State to take an action, the organization confers a right to it to get engaged in a situation, for isntance to enforce a decision of that organization. In such cases, the Member State has the right, not the obligation, to take action. The authorized Member State is exercising its right and, consequently, its conduct should be considered as of its own rather than that of the Organization. We also deem it advisable for the Commission to consider the issue of illegal or ultra vires measure of an organization or its constituent organs adopted under the influence of limited number of member States. While in these cases the responsible organization, as a legal person, bears the responsibility to compensate for the injurious consequences of its act or omission, those member States which, due to their role in policy-making mechanism of the organization or their position in overall structure of the organization, have contributed to injurious act, should bear the brunt of responsibility.
I will now turn to the topic “Expulsion of aliens”.
Chapter VIII: Expulsion of aliens
My delegation wishes to thank Special Rapporteur Mr. Maurice Kamto, for his fourth report on the topic “Expulsion of aliens” (A/CN.4/594). I would like to reiterate my country’s view that while making decision to expel aliens is a sovereign right of a State, this right should be exercised in conformity with the established principles of international law, in particular the fundamental principles of human rights. We are of the view that expulsion should be based on legitimate grounds, as defined in internal law, such as public order and national security, of the expelling State.
We hold that collective expulsion, being contrary to international human rights law and the principle of non-discrimination, should be avoided. My delegation believes that while a State has discretionary power to decide for granting nationality to non-nationals, both denationalization and expulsion by the State of its own nationals is absolutely prohibited under international law. It is noteworthy that according to Article 41 of the Constitution of the Islamic Republic of Iran, “Iranian nationality is the unquestioned right of all Iranians. The Government may not deprive any Iranian of his nationality, except at their own request, or if they take up nationality of another State”.
My delegation observes that the notion of dominant or effective nationality has no role to play in the context of the expulsion of persons having dual or multiple nationalities, and, therefore, we respectfully disagree with the observation of the Special Rapporteur in paragraph 21 of his report; nationals having double or multiple nationalities should not be regarded as aliens, and, consequently, the State could not use the criterion of dominant or effective nationality as a justification for their expulsion. We fully endorse the view of the Commission that the prohibition of expulsion of nationals extends to persons with dual or multiple nationalities.
Finally, Mr. Chairman, my delegation, like the Special Rapporteur, is not convinced of the necessity or even of the practical utility of proposing one or more draft articles on the issues dealt with in the said report. We concur with the argument that granting nationality, establishing conditions in domestic legislation for the loss of nationality of nationals and denationalization of nationals are not, strictly speaking, connected to the issue of expulsion of aliens. We share the view of the Special Rapporteur that these rules pertain more to the laws governing nationality than to the laws governing the expulsion of aliens.
May I now make a few comments on Chapter IX: Protection of persons in the event of disasters.
Chapter IX: Protection of persons in the event of disasters
Let me begin by thanking on behalf of the Islamic Republic of Iran, Mr. Eduardo Valencia-Ospina for his preliminary report on the topic “Protection of persons in the event of disasters” (A/CN.4/598). My delegation would like to make a few comments on the report and on the related deliberations of the International Law Commission.
It is now clear, Mr. Chairman, that there exists a set of norms and standards used in international humanitarian law, international human rights law and international law on refugees and displaced persons, which are applicable in disasters with a natural origin. To date, no systematic attempt has been undertaken to consolidate, in a single unified body,these scattered norms and standards. This is a task which has been entrusted to the International Law Commission by the General Assembly.
This body of law, described already as “international law of interventions during disasters” includes all rules and norms governing human activities and material supports relating to the provision of goods and services of purely humanitarian nature to victims of such disasters in order to satisfy their basic needs. Such assistance is essential for their survival and well-being. More specifically, the international law of interventions is aimed at preventing disasters and reducing the human suffering resulting from such situations.
The obligation is, of course, for the State affected by the disaster, to provide care to the victims, and organize and coordinate the delivery and distribution of humanitarian assistance among them. In fact other States as well as international organizations and non-governmental humanitarian organizations are entitled to offer their assistance to the affected State, as recent practice demonstrates. Hence, one may hear more and more of the existence of a “right to assistance.” In the view of my delegation, the right to humanitarian assistance is an exception to the principle of exclusive territorial jurisdiction of the State affected by the disaster, and should be exercised, in all cases, subject to the consent of the sovereign territorial State.
It is observed that a State affected by a disaster has an obligation not to refuse, in an arbitrary and unjustified manner, an offer for assistance made in good faith. To justify such an obligation, it refers to the concept of “responsibility to protect”. However, the concept of “Responsibility to protect” has been developed with a view to protecting civilian populations against the most serious crimes such as genocide, war crimes and crimes against humanity, while the topic in question is substantially different from the former. Moreover, the question arises as to “what extent would the responsibility create rights for third parties? And what would the contents of those rights be?”, to quote the exact wording of the Special Rapporteur. The Special Rapporteur has followed the same approach taken by the United Nations Secretariat in its study on the subject; an approach that does not tackle the question of responsibility to act in response. In our view, there is no doubt that the right to humanitarian assistance does not authorize other States to impose assistance on the affected State against its wishes or when it does not need such assistance. Any rule to this effect would undoubtedly contradict the principles of sovereignty of States and of non-intervention. We would submit that the Commission should define the concept of protection, as a priority. Such definition would facilitate the work of the Commission in identifying the rights and obligations of different actors in an emergency situation.
All disaster relief operations must respect the principles of humanity, neutrality and impartiality as conceptualized by the 20th International Conference of the Red Cross and Red Crescent and approved by the International Court of Justice in its judgment of 27 June 1986 concerningMilitary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). According to the first principle, any such operation must be aimed at preventing and alleviating the human suffering. The second principle requires that this operation should be carried out to help all persons to relieve their suffering, and to provide assistance in situations of grave emergency.
“The Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance”, adopted unanimously by the 30th International Conference of the Red Cross and Red Crescent on 30 November 2007, are worth to be examined further, in light of the recent practice. The Guidelines have clarified the responsibility of foreign assisting actors to provide assistance without any adverse distinction (such as, in regards to nationality, race, ethnicity, religious beliefs, class, gender and political opinions) to all persons in need, without seeking to further a particular political or religious standpoint or to obtain commercial gain from humanitarian assistance. Similarly, the relief should not be used as a means to gather sensitive information of a political, economic or military nature that is irrelevant to disaster relief or initial recovery operations.
In terms of legal facilities available to the assisting actors and personnel participating in disaster relief operations, there is no doubt that they should be subject to the interests in national security, public order and public morals of the affected State.
These facilities are designed to improve the quality and effectiveness of international disaster relief operations and assistance, and can be granted only to organizations that the affected State considers fit to observe minimum standards of quality and accountability.
It is noteworthy that Iran has concluded several bilateral disaster relief agreements for cooperation and assistance in the events of natural disasters. We believe such agreements ensure the effective and timely mutual aid in emergency situations.
Now I will turn to the topic “Immunity of States’ officials from foreign criminal jurisdiction”.
Chapter X: Immunity of States officials from foreign criminal jurisdiction
I would like to commend Proffesor Roman A. Kolodkin, the Special Rapporteur,for his detailed and excellent report on the topic “Immunity of States officials from foreign criminal jurisdiction”(A/CN.4/596) which was considered by the Commission in its 60th session and also appreciate the Secretariat for the preparation of the Memorandum on the topic (A/CN.4/596).
I wish to begin my comments on this topic by underlining the critical role and importance of the principle of immunity in the stability of inter-State relations. Therefore, in is imperative to proceed with utmost care and caution on the question of possible exceptions to immunity.
The Islamic Republic of Iran believes that the obligation of States to respect the contractual obligations through adopting domestic law, should not in any way lead up to derogation from their obligations emanating from customary international law on the immunity of States’ officials from foreign criminal jurisdiction.
My delegation is of the view that assertions by national courts of principle of universal jurisdiction may lead to misunderstanding and escalation of inter-State tensions and give rise to perception of abuse and misuse on political or other grounds. As the Assembly of the African Union in Eleventh ordinary Session on 30 June- 1 July 2008 rightly mentioned, “the abuse of the principle of universal jurisdiction could endanger international law, order and security and is a clear violation of the sovereignty and territorial integrity of States”.
We share the view of the Special Rapporteur that all State officials should be covered by the topic, given that they enjoy immunity ratione materiae, and encourage him to consider further the status of former State officials, notably in the light of the Pinoche case and of the judgment of the International Court of Justice in the Arrest Warrant Case.
My delegation believes that the Special Rapporteur could include certain senior officials, in addition to those mentioned by him, such as vice-presidents and cabinet ministers, as they are also entitled to have personal immunity. My delegation endorses the approach of the Special Rapporteur to develop criteria based on “representative” and “functional necessityt” theories, for identification of those officials, taking into account the judgment of the International Court of Justice in the Arrest Warrant case, and Djibouti v. France case of 4 June 2008.
We support the distinction drawn by the Special Rapporteur between the international and national jurisdiction. As rightly mentioned by the Special Rapporteur, “the principle of State immunity derives from the equality of States therefore has no relevance to the criminal tribunals which are not organs of a State but derive from mandate from international community.”We also share the view expressed by the Special Rapporteur that the Commission could examine the possible effects of non-recognition of an entity as a State on whether immunity is granted to its officials.I will conclude my statement by making a few comments on Chapter XI:
Obligation to extradite or prosecute.
Chapter XI: Obligation to extradite or prosecute
My delegation would first like to thank the Commission and the Special Rapporteur,Proffesor Zdzislaw Galicki, for their work on the topic “Obligation to extradite or prosecute” (aut detere aut judicare). At its 60th session, the Commission considered the third report (A/CN.4/603) of the Special Rapporteur.
Generally, we hold the view that making decision whether to extradite an alleged offender or to prosecute him/her in national courts is a matter of sovereign right of the territorial State. We share the view that the obligation to extradite or prosecute is a treaty obligation and the territorial State has the ultimate jurisdiction and authority to decide on the appropriate course of action to discharge this obligation. The State in whose territory an alleged offender is found has the obligation, in accordance with the relevant bilateral or multilateral treaty, either to surrender the alleged offender to its own competent authorities for investigation and prosecution or to extradite him/her to a requesting State party which has jurisdiction, under the terms of the treaty, to prosecute that person. An important question which still remains to be answered is whether States are bound either to extradite or prosecute even in cases where the related agreements do not prescribe such obligation or where even there is no international agreement to that effect.My delegation does not see any direct relationship between the universal jurisdiction and the obligation to extradite or prosecute. We share view with the Special Rapporteur in the paragraph 48 of his third report that “main current or further consideration should remain connected with the obligation to extradite or prosecute and should not be dominated in any case by the question of universal jurisdiction.”
We believe that the obligation to extradite or prosecute under customary international law applies only to piracy, and may not even extend to the crimes which are reflecting customary international law. The views of the majority of judges of the International Court of Justice in the Arrest warrant case reaffirm this observation. I would also like to refer to the judgement of 26 February 2007 of the International Court of Justice (ICJ) on Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). The Court specified that “[t]he obligation to prosecute imposed by Article VI [of the 1948 Genocide Convention] is … subject to an express territorial limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the territory of which the act was committed, or by an international penal tribunal with jurisdiction”.
As far as Iranian legal system is concerned, the Extradition Act of 1960 provides that cooperation for extradition of alleged offenders and/or convicts should be conducted on the basis of bilateral extradition treaties or, when there is no such treaty, on the basis of reciprocity. A similar provision is inserted in almost all bilateral agreements on mutual legal assistance and extradition. Iran is a party to a number of international instruments against drug-trafficking and crime as well as some counter-terrorism Conventions and Protocols most of which contain the obligationaut detere aut judicare.
I thank you, Mr. Chairman.