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Mr Chairman
We thank the International Law Commission for the report on the work of its Fifty-Seventh Session and commend its President, Mr. Djamchid Momtaz, for his excellent introductory presentation. The Commission continues to fulfil an indispensable role in the codification and development of international law and New Zealand supports the Commission and through it the further development of the international rule of law.
We welcome the Commission’s positive progress on a number of topics during the current quinquennium. As the quinquennium draws to a close, we note the possibility of the Commission completing in the coming year its work on three topics in particular – Diplomatic Protection, Liability for Transboundary Harm, and Fragmentation of International Law. Given the importance of these topics, and the nature of the work already completed, we hope that the Commission can work to complete these topics in the current quinquennium.
Turning to our specific comments on the topics of Responsibility of International Organisations and Expulsion of Aliens.
Responsibility of International Organisations
Mr. Chairman
New Zealand welcomes the third report on the topic of “Responsibility of International Organizations” and thanks the Special Rapporteur, Mr. Giorgio Gaja, for his excellent work. We continue to support the approach the Commission has taken to the topic and endorse the articles following the scheme of the articles on State Responsibility unless there is a good reason for departure.
With regard to draft articles 12 to 14 relating to the responsibility of an international organisation for aiding, directing, controlling or coercing a state or another international organisation in the commission of an internationally wrongful act, we agree with the Special Rapporteur’s decision to follow the corresponding articles on State Responsibility with appropriate modifications.
We also agree that the Special Rapporteur was right to go beyond these cases and to consider the situation where an international organisation, which is bound by a particular obligation, uses its power to compel Member States which are not so bound to take actions that would circumvent the organisation’s obligation or, for the same purpose, authorises or recommends the taking of such actions. Draft article 15 addresses this difficult case. We believe it does it well by drawing an appropriate distinction between binding decisions of the organisation and decisions that only authorise or recommend the action in question. We can support the current formulation.
Mr. Chairman
We question whether draft article 8, paragraph 2, needs to be included. Paragraph 1 of the same article already covers the breach of an international obligation “regardless of its origin and character”. Therefore, paragraph 2 adds nothing of substance that is not already covered. It does not help to resolve the question whether or not the rules of a particular treaty-based international organisation are rules of international law. This is a reason we presume it might have been included.
If anything, paragraph 2 creates an uncertainty as it states that paragraph 1 “also” applies to the breach of an international obligation created by a rule of the international organisation. This implies that the broad formulation of paragraph 1 would not otherwise cover international obligations created by the rules of an international organisation. That cannot be the case. We suggest that paragraph 2 be deleted as any point that it makes could be adequately and more clearly dealt with in the commentaries alone.
Expulsion of Aliens
Mr. Chairman
New Zealand welcomes the preliminary report on the topic of “Expulsion of Aliens” and commends the Special Rapporteur, Mr. Maurice Kamto, for his efforts. The report is a very useful overview that leaves us in no doubt as to the complexity of the subject but also indicates the potential for an important contribution by the Commission.
This is a very difficult and challenging topic which requires the Commission to consider the broad legal framework of the rights of aliens. The starting point for such an inquiry must be a thorough analysis of the national laws and international obligations bearing upon the expulsion of aliens.
We consider that it would be also very useful in optimising the value of the work, and for forging agreement on the way ahead, for the Commission as a next step to identify in broad terms the problems or issues that this topic attempts to address.
Thank you
Mr Chairman
