28 October 2010

Statement by Professor Djamchid Momtaz

Legal Adviser of the Ministry of Foreign Affairs of the Islamic Republic of Iran

before the Sixth Committee on Agenda item 79:  

Report of the International Law Commission on the work of its sixty-second session

V. Expulsion of aliens

VI. Effect of armed conflicts on treaties

VII. Protection of persons in the event of disasters

(New York, 28 October 2010)

In the name of God, the Compassionate, the Merciful

Madam Chairperson,

I would like to thank, on behalf of the Islamic Republic of Iran, Mr. Nugroho Wisnumurti, President of the International Law Commission, for the excellent presentation of the work of the Commission at its sixty-second session. I would also like to commend the effort of the members of the Commission for their contributions to the codification and progressive development of international law.

 

Madam Chairperson,

My delegation would like to make some comments on Chapters V, VI and VII of the report, devoted respectively to the “Expulsion of aliens”, “Effect of armed conflicts on treaties” and “Protection of persons in the event of disasters”.

 

 

 

 

V. Expulsion of aliens

Madam Chairperson,

I would like to congratulate Mr. Maurice Kampto, Special Rapporteur on the topic for his sixth report. The report reflects a careful study of national legislations on the subject of expulsion of aliens as well as the jurisprudence of both domestic and international law. This study has enabled the Special Rapporteur to identify the common denominators as a basis for the legislation by States to deport aliens who are within their territory and the rights of those expelled.

Regarding the first point, there is little doubt that every State has the right to expel aliens living on its territory if they pose a threat to its national security or public order. Each State has the right to judge and determine, according to its national laws and the circumstances prevailing within its territory at the time, the components of these two concepts. It would, therefore, be pointless to try to list the grounds that could be invoked by a State to justify the expulsion of aliens.

 

Nonetheless, two limitations exist on the sovereign right of the State to proceed with the expulsion of aliens: 1) mass expulsion; and 2) expulsion in disguise. Regarding the first scenario, the only possible exception is during an armed conflict when aliens have shown hostility against the host State, an issue that we feel should be excluded from the draft.

 

Expulsion in disguise, to be distinguished from expulsion made by means of incentives and which is tolerated by international law, covers situations where a State abets or acquiesces acts committed by its citizens to provoke the forced departure of aliens. These acts are generally targeted at persons belonging to ethnic or religious minorities and are characterized by discrimination against them. Such conduct is contrary to the obligations of the host State and violates the international human rights law, since they lead in fact to mass expulsion of aliens.

 

Once decided, expulsion shall be conducted in a manner that the fundamental human rights would be fully respected. In our view, this deserves the full attention of the International Law Commission and the Special Rapporteur on the topic. The Commission should base its work on the provisions of relevant international human rights instruments which are universally accepted, to identify the general principles applicable in that matter, without prejudice to the concepts and solutions admitted at the regional levels and which continue to be respected by the States concerned. That being said, the International Covenant on Civil and Political Rights is of utmost relevance to this issue since the States Parties undertake to respect towards all individuals within their territories, including foreigners residing legally therein, the rights granted by this document. The expulsion must be made with due respect for fundamental human rights of the deportees. They must be protected against any inhuman and degrading treatment. This applies even during the detention of aliens awaiting deportation. In all cases, the property rights of deportees should, as well, be respected and guaranteed by the authorities of the host State.

 

VI. Effect of armed conflicts on treaties

Madam Chairperson,

            My delegation wishes to express its gratitude to Mr. Lucius Caflisch, Special Rapporteur, for his first report on the topic. We welcome his intention not to focus too much on doctrinal considerations, so that the project maintains its practical value and utility. We also appreciate his taking into account the comments made by Member States, including those made during the Sixth Committee debate, with regard to this topic as well as the written comments submitted to the ILC. The Islamic Republic of Iran has already submitted its written comments to the Commission. It is reflected in documentA/CN.4/627/Add.1.

 

That said, my delegation wishes to make a few comments after it examined the “draft articles on effects of armed conflicts on treaties”, produced by the commission in its second reading and the conclusions which the Commission arrived at in its last session.

 

For one thing, we continue to deem it inappropriate to include within the scope of the present topic the subject of non-international armed conflicts. The Special Rapporteur had himself acknowledged that this could create problems. The possible effects that this category of conflicts might have on the treaties are indeed governed by the provisions of the draft articles on “International Responsibility of States”, under the circumstances precluding wrongfulness. We must also remember that Article 73 of the Vienna Convention on the Law of Treaties, which is the basis of the Commission’s work on the subject, refers exclusively to the effects on treaties of armed conflict between States.

 

Similarly, the Special Rapporteur considered it necessary to avoid a fragmentation of international law, by revising the definition of armed conflict adopted at first reading. We regret that the Commission did not follow the wording of Article 2 common to the Geneva Conventions of 1949, and, consequently, missed the advantage of applying the same definition of “armed conflict” in the field of international humanitarian law and that of Law of Treaties.

 

Secondly, among the evidence sufficient to conclude the possibility of termination, withdrawal or suspension of the application of a treaty, the intention of the parties is of paramount importance. It is not the same as regards the reference to the nature and extent of armed conflict, which should be deleted from the text. Indeed, introducing “nature” and “extent” of armed conflict as a criteria for determining the status of a treaty could contradict and negate the effect of the intention of the parties, and undermine the principle of stability of treaty relations.

 

One can only rejoice to see that the draft articles has included in the list of treaties that remain applicable during armed conflict those which establish or change land borders and maritime limits, the category of treaties which include, in our view, river boundaries, as well. However, the applicability of this category of treaties could be undermined by the provision of the draft dealing with notification of termination of the treaty or its suspension. In other words, such a provision appears to be applicable to all treaties, including treaties establishing borders. It can be interpreted, in our opinion, as a kind of invitation to the State engaged in an armed conflict that is willing to change its borders to invoke the facility that provision offers. Wouldn’t be more appropriate to restrict the scope of this provision so that it would not apply during hostilities?

 

 

VII. Protection of persons in the event of disasters

Madam Chairperson,

I congratulate at the outset Mr. Eduardo Valencia-Ospina, Special Rapporteur, for his third report on the topic. We thank him for reminding the general agreement reached by the Commission concerning certain aspects of the scope and content of the project. More specifically, the Special Rapporteur’s right conclusion regarding the irrelevance of the new notion of “responsibility to protect” to the work on the “Protection of persons in the event of disasters” is welcome. This conclusion was endorsed by members of the Commission as well.

 

However, the discussions that took place during the sixty-second session of the Commission seem to have deviated from that conclusion. It appears, indeed, that the “rights based approach” continues to have adherents among members of the Commission. Such an approach implies that people affected by natural disasters are able to request international relief, which contravene the principles of State sovereignty and non-interference in internal affairs. In our opinion, the Commission should focus only on the rights and obligations of States. We do not share the sentiment that the refusal of a State to accept international aid could be characterized an “internationally wrongful act” if such refusal jeopardized the rights of victims of the disaster. It is for the affected State to determine whether receiving external assistance is appropriate or not, without his refusal triggering its international responsibility. Any suggestion to penalize the affected State would not only be expressly contrary to international law but also constitute an unprecedented misstep which could have adverse consequences for international relations and justify interventionist appetite.

 

Certainly, there is little doubt that the State affected by natural disasters is required to cooperate with other States and relevant intergovernmental organizations under international law. Such an obligation to cooperate is, however, limited only to the subjects of international law, excluding non-governmental organizations.

 

The obligation to cooperate does not oblige the State affected by the natural disaster to accept relief; the provision of humanitarian aid by other States and international organizations remains subject to the consent of the latter. Once granted, the affected State shall retain, in accordance with its domestic law, the right to direct, control, supervise and coordinate the assistance provided in its territory. Moreover, the humanitarian assistance should be provided in accordance with the principles of humanity, neutrality and impartiality. All practice and principles identified by the Red Cross and Red Crescent Movement and which have in turn been referred to by the International Court of Justice and by the relevant resolutions of the UN General Assembly, could be applicable.
Thank you, Madam Chair, for your attention.

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