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Mr Chairman,
We thank the International Law Commission for the report on the work of its fifty-ninth session and thank its Chairman, Mr Ian Brownlie, for the first of his introductory presentations of the work of the Commission. His comprehensive introduction on the working methods of the Commission and the emphasis on the Commission’s wish to receive the considered opinions of Governments were both instructive and welcome. It also presents an interesting challenge to States to make the most of the opportunity that this week’s debate presents.
As others have noted, it is very pleasing that that the new Commission has made a positive start. It bodes well for the rest of the quinquennium, which, by any standard, is going to be a challenging one in terms of the agenda and work programme on which the Commission has embarked.
New Zealand continues to support very strongly the work of the Commission. It is important to recognize that the Commission and its members are working on behalf of all of us to advance the codification, progressive development and dissemination of international law. We think it is also important to acknowledge those roles and responsibilities in the arrangements that we make for the Commission
It is undeniable that much of the work of the Commission depends upon the efforts of the Special Rapporteurs, who make themselves available without financial assistance, to carry forward work on the various topics on the Commission’s agenda. Without their personal commitment and dedication, the Commission would not be able to fulfill its mandate. There is no doubt, however, that the work of the Special Rapporteurs impinges considerably on their other duties and activities. For this reason, we support the Commission’s suggestion that honoraria be restored to Special Rapporteurs in order to assist them with their research.
We continue to support the idea of more interaction and dialogue between the Commission and the Sixth Committee, and welcome the steps already taken to achieve this goal.
I will address briefly the three topics that have been discussed in this initial section of the debate – expulsion of aliens, effects of armed conflicts on treaties, and responsibility of international organisations.
New Zealand has read very carefully the second and third reports of the Special Rapporteur, and thanks the Special Rapporteur, Mr Maurice Kamto, for his work on this topic. As other have noted, it is very difficult subject that raises issues of considerable political sensitivity and legal complexity.
From a legal perspective, the subject butts up against both against the long held and jealously protected right of states to expel aliens from their territory and the existing international instruments and rules of customary international law that qualify the exercise of that right, such as with respect to refugees, stateless persons and obligations regarding the return of people to risk of torture or cruel, inhuman or degrading treatment or punishment. Whether there is room in this legal and policy space for an instrument that can amplify and codify the law on the expulsion of aliens without compromising or calling into question these other fundamental rights and obligations is to our mind an open question, particularly when one factors in the potential impact of this topic on issues such as labour migration and international efforts to curb terrorism.
However, we do not think it right to give up on this topic. Rather, we think that the focus should be on identifying the principles that relate specifically to the core subject matter of the topic and how these relate to these other legal and policy issues. We also think that this should be done without prejudging the eventual form of the output. While we can understand the perspective of those, including the Special Rapporteur, that the topic lends itself to a traditional codification exercise, we think the Commission needs to keep its options open at this still early stage of the topic’s elaboration. .It would not be a satisfactory result to have a convention on such an important topic that either failed to enter into force because of a lack of sufficient ratifications or, if it did come into force, had a very limited membership.
New Zealand welcomes the third report of the Special Rapporteur, Mr Ian Brownlie, and is grateful for the work undertaken by him and the Working Group established at his proposal to consider key issues in the draft articles. We consider that this method of developing a more collective view within the Commission on those issues has been valuable. We think it has helped clarify and advance some of the more challenging questions raised in the earlier reports.
With regard to definitions, we remain of the view that if this codification exercise is to be useful it should be relevant to the kinds of conflict that occur today. Accordingly, we support the policy behind the guidance of the Working Group that the definition of “armed conflict” should cover internal armed conflict and with notion that there needs to be some qualification on the ability of States to invoke the existence of an internal armed conflict in order to suspend or terminate a treaty.
With respect to draft Article 4, we very much agree with the suggestion of the Working Group to shift the focus away from an effort to ascertain the intentions of the Parties. As has been observed by others, the task of ascertaining the original intention of the Parties with respect to continuity of treaty relations in the event of a possible future armed conflict is highly problematic. And we remain doubtful of reliance on “surrounding circumstances”, notwithstanding the domestic jurisprudence on that issue with respect to the law of contract.
We have taken note of the Special Rapporteur’s preference to retain, in one from or another, the illustrative list a treaties which should be presumed to continue in operation in the event of armed conflict, and note his comment that this is one way of capturing State practice. That said, we think that it may be helpful if the Commission were to elaborate a list of relevant factors or general criteria, which could be taken into account when ascertaining whether a treaty’s object and purpose implied that it continued in operation during an armed conflict. There is a great range and diversify of treaties in modern international law, which contain themselves a diversity and range of provisions. Faced with this complexity, we consider the most that can be said with confidence is that some treaties and some provisions within some treaties are more likely to remain applicable during armed conflict than others.
We look forward to the results of the Drafting Committee’s consideration of the draft articles on the basis of the Working Group’s guidance.
New Zealand welcomes the fifth report of the Special Rapporteur, dealing with the 14 draft articles outlining the content of the international responsibility of international organisations and we congratulate the Special Rapporteur, Professor Giorgio Gaja, for his work in taking this project forward
Since most of the draft articles on the responsibility of international organisations have already been considered, we are now dealing with the legal consequences of internationally wrongful acts of international organisations. Draft articles 31 to 45 have been drawn from the articles on State responsibility. We are pleased that the Special Rapporteur has considered potential differences between State responsibility and the responsibility of international organisations, and justified departures from State responsibility where appropriate.
Ensuring financial reparation for harm caused by international organizations is an important element of this topic. As other speakers have already noted, it is important to try to ensure that the victims of the intentionally wrongful act of an international organisation are not left uncompensated.
On the face of it, draft article 43 appears to ensure reparations when they are justified. Draft article 43 obliges members of an organisation “to take, in accordance with rules of the organization, all appropriate measures in order to provide the organization with the means for effectively fulfilling its obligation to make reparation”. The important question that calls for elucidation is the interpretation of the requirement that measures are “in accordance with the rules of the organization”. We do not interpret this requirement as justifying inaction by the members of an organisation if they do not have particular rules specifically addressing these kinds of issues.
We look forward to the Special Rapporteur’s sixth report on the implementation of the responsibility of international organisations.
Thank you,
Mr Chairman
