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Mr. Chairman,
I will speak today on three topics: Reservations to treaties; the Responsibility of International Organizations; and Expulsion of Aliens.
In terms of these draft guidelines, we support the approach to objections to reservations as set out in draft guideline 2.6.5. We consider it important for States and international organisations to have the ability to object to reservations when they are not yet a Party to a treaty provided they are entitled to become a Party in the future.
New Zealand also supports the adoption of draft guideline 2.6.11 and agrees that a Party should not be required to re-lodge an objection to a reservation after the reservation has been confirmed. This to be consistent with our view that the reserving State’s awareness of the objecting State’s intention regarding the reservation is the key factor to be considered.
With regard to the question of whether consent to an interpretive declaration could be inferred by silence, we would agree that due to the nature of interpretative declarations, consent should, in general, not be inferred from the silence of a State or an international organisation in response to it.
We do, however, consider that if there are circumstances where silence would constitute consent, the relevant factors should be clearly identified from State practice and set out. Currently, the second paragraph for 2.9.9 simply notes that an exception will apply in “certain specific circumstances” – and does not provide further guidance as to what those circumstances would be. This lack of clarity could cause several problems. For example, it may create an administrative burden on States to consider each interpretative declaration and provide a response in order to protect its position. The uncertainty of the effect of silence on a specific interpretive declaration could lead accordingly to the undesirable result that States increasingly lodge and object to interpretive declarations. The imprecise drafting of the guideline could also obscure the guideline’s obvious intent; which is to implement a rule whereby States would not usually have to respond to an interpretative declaration in order to avoid being bound by it. Accordingly, we believe that the wording of this draft guideline should be given greater consideration before it is adopted by the Committee.
We look forward to the Special Rapporteur and Commission’s upcoming work in this area and are pleased that the second part of the Guide to Practice may be concluded at the 61st session.
New Zealand welcomes the sixth report of the Special Rapporteur, Professor Giorgio Gaja, dealing with the implementation of the responsibility of international organisations. We would also like express thanks for the contribution to this topic of the Working Group under the chairmanship of Mr. Enrique Candioti.
We have taken careful note of the elaboration of draft articles on the use of countermeasures. Countermeasures are a difficult enough topic in relation to the responsibility of States. They are even more difficult in the context of the responsibilities of international organisations. As a matter or principle, we consider that the relationship between an international organisation and its members ought to be regulated by the organisation’s constituent instrument and we think paragraphs 4 and 5 of article 52 helpfully make that clear. We also support the thrust of the first three paragraphs of that article to the effect that the only legitimate basis for countermeasures against an international organisation is to induce it to comply with its obligations, that the measures must be limited to the non–performance of international obligations owed to the non-complying organisation and that the measures should be taken in such a way as to allow the resumption of the performance of those obligations. At the level of general principle, we also have reservations about the idea that an international organisation could take countermeasures against a State which is not a member of the organisation. However, these are preliminary observations and we may wish to make more detailed and specific comments on a future occasion. In the meantime, we wish to record our clear view that there can be no right of a State subject to mandatory measures imposed by the Security Council to take countermeasures in relation to those mandatory measures.
We look forward to the Special Rapporteur's seventh report on the outstanding issues such as the final provisions of the draft articles, and the place of the chapter concerning the responsibility of a State in connection with the act of an international organisation.
New Zealand has carefully considered the very difficult issues raised by the topic of the expulsion of aliens and thanks the Special Rapporteur, Mr Maurice Kamto, for his work in this area. This topic continues to raise issues of considerable legal complexity and political sensitivity.
New Zealand notes the sovereign right of States to expel aliens from their territory and further to exercise discretion when regulating nationality. Of course, such sovereign powers are not unlimited. The ability of States to expel aliens is subject to general limitations as well as specific substantive and procedural requirements that protect individuals against arbitrary actions by States. These limitations and requirements also safeguard the rights of individuals, such as those with respect to refugees and other protected persons, or stateless persons. In light of the difficulty of balancing these rights and obligations, New Zealand would agree with the Special Rapporteur that it would not appear appropriate at the present time to proceed with the preparation of draft articles on the issues dealt with in the Special Rapporteur's fourth report.
New Zealand considers that the broader direction of this topic needs to be more apparent before draft articles could be contemplated. In this regard, a necessary condition for drafting of definitions is identifying the key general principles that relate specifically to the expulsion of aliens and assessing how these relate to these other legal and policy considerations. We consider that this exercise should be conducted without prejudging the eventual form of the final product. We look forward to further guidance from the Commission on the future direction of this topic.
Thank you,
Mr Chairman
