International Law Commission

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International Law Commission in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Second, we also agree with the General Commentary that there exists great diversity among international organizations, which of course operate at the global, regional, sub-regional, and even bilateral levels, with important structural differences, and an extraordinary range of functions, powers, and capabilities. Given these differences, the principles described in some of the draft articles likely do not apply to international organizations in the same way that they apply to States, for example those articles addressing countermeasures and self-defense. Indeed, for all of the draft articles, the principle underlying the lex specialis rule set forth in Article 64 is of extraordinary importance. In connection with this principle, it may be necessary to give further thought to the differences in the way principles of responsibility may operate as among an international organization and its members, as opposed to how those principles operate in other settings.

Third, we support the recommendation of the Commission that any discussion of whether the draft articles should be transformed into a Convention should be deferred. Doing so would allow time for the development of further practice of international organizations relevant to the draft Articles.

We appreciate the significant work that the Commission has undertaken on this topic.

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State Department Legal Adviser Harold Hongju Koh delivered the second part of the U.S. comments on the ILC’s work on October 27, 2011. His remarks follow and are available at (internet link) usun.state.gov/briefing/statements/2011/176935.htm.

Mr. Chairman, once again, I would like to thank the Chairman of the Commission, Mr. Maurice Kamto, for his introduction of the Commission’s report. I appreciate the opportunity to comment on the topics that are currently before the Committee.

Developments

Effects of Armed Conflicts on Treaties First of all, I would like to begin by congratulating the Commission on approving the draft articles and commentaries on the effects of armed conflict on treaties. We are pleased with the Commission’s effort this past year to improve the draft articles. I would also like to commend Mr. Lucius Caflisch on his efforts to steer this project to a successful conclusion. In the U.S. view, the draft articles preserve the reasonable continuity of treaty obligations during armed conflict, takes into account particular military necessities, and provides practical guidance to States by identifying factors relevant to determining whether a treaty should remain in effect in the event of armed conflict. We are pleased that they continue to reflect this approach.

We have raised certain concerns in the past about the definition of “armed conflict” in draft article 2(b). Defining the term “armed conflict” is likely to be confusing and counterproductive, given the wide variety of views about the definition. The better approach is to make clear that armed conflict refers to the set of conflicts covered by common articles 2 and 3 of the Geneva Conventions (i.e., international and non-international armed conflicts). Unlike the Tadic formulation, which is a useful reference point but not appropriate in all contexts, common articles 2 and 3 of the Geneva Conventions enjoy nearly universal acceptance among states. Further, with regard to draft Article 15, we do not believe it should be interpreted to suggest that illegal uses of force that fall short of aggression would necessarily be exempt from this provision.

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With regard to the Commission’s recommendation that the General Assembly consider, at a later stage, the elaboration of a convention on the basis of these draft articles, we believe that the draft articles are best used as guidance for individual States when determining the effect of specific armed conflicts on their treaty relations. Further, in light of the U.S. views regarding Articles 2 and 15, we do not support efforts to elaborate a convention on this topic. The United States believes that the General Assembly should take note of the work on this topic and encourage States to use the articles in context-specific situations.

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Expulsion of Aliens The United States appreciates the continued efforts of Special Rapporteur Kamto on the topic of Expulsion of Aliens. The issues addressed by the Special Rapporteur are complicated ones and we encourage the Special Rapporteur and other members of the Commission, as well as other States, to review carefully the revised draft articles.

The draft articles should recognize protections for persons, but should also avoid unduly restraining the sovereign rights enjoyed by States to control admission to their territories and to enforce their immigration laws. In balancing these two values, the methodology used by the Commission is extremely important. The principal focus should be on the well-settled principles of law reflected in the texts of broadly-ratified global human rights conventions, rather than crafting new rights specific to the expulsion context or importing concepts from regional jurisprudence (e.g., from the European Commission and Court) in which all States are not participating. In particular, we have concerns about both the incorporation of non-refoulement obligations into numerous provisions of the draft articles and the expansion of non-refoulement obligations far beyond situations prescribed under well-settled principles of international law. By way of example, under draft article E1, non-refoulement would extend to a situation where “the alien subject to expulsion is at risk of …inhuman and degrading treatment in [the receiving] State.” This provision would go beyond the express non-refoulement protection regarding torture contained in Article 3 of the CAT and beyond the non-refoulement protection regarding a well-founded fear of persecution contained in the Refugee Convention and Protocol.

We also believe that extradition should be excluded from the scope of the draft articles; extradition is not the same thing as expulsion, for it entails the transfer of an individual—whether it is the transfer of an alien or a national—for a specific law enforcement purpose. Many of the proposals in these draft articles are not consistent with the settled practices and obligations of States under multilateral and bilateral extradition treaty regimes, including the new draft articles on disguised expulsion and extradition disguised as expulsion.

We also have concerns about the various references to language in the reports regarding the rights of persons after they have been expelled. In the U.S. view, as a general matter and consistent with the framework adopted in international human rights treaties, these draft articles should apply to individuals within the territory of a State who are subject to a State’s jurisdiction. Failure to limit the obligations to treatment of persons prior to their being expelled would place States in an impossible situation of being responsible for conduct by third parties.

We thank Special Rapporteur Kamto for his diligent and dedicated work on the topic of Expulsion of Aliens, which is of critical importance to both sending and receiving states, and we look forward to continued collaboration on this subject. Protection of Persons in the Event of Disasters The United States commends the Commission for its progress in this important topic, including its work on draft articles 6 through 11, and congratulates the special rapporteur, Mr. Eduardo Valencia-Ospina, for his diligent stewardship of this topic.

We commend the Special Rapporteur for recognizing the core role that humanitarian principles of humanity, neutrality, impartiality, and non-discrimination play in the coordination and implementation of humanitarian assistance in disaster response. We would encourage the Special Rapporteur to continue to consider, in his ongoing work, the possible ways in which these principles relate to and shape the context of disaster relief in the present project.

We appreciate the Special Rapporteur’s ongoing efforts to ensure that the duty of States to cooperate set forth in draft article 5 is understood in the context of the principle that the affected State has the primary responsibility for protection of persons and provision of humanitarian assistance on its territory. We also appreciate the fact that the Special Rapporteur has included in draft article 9 language that the affected State has the primary responsibility for the protection of persons and provision of humanitarian assistance on its territory. The report indicates debate among Commission members regarding whether the affected State has a duty in certain circumstances to seek external assistance and not to withhold assistance arbitrarily. Also under continuing consideration under Draft Article 12 is the extent to which third actors such as states, international organizations and NGOs have a “right” to offer assistance or a duty to cooperate in providing assistance when requested. Issues surrounding this debate are likely to attract a wide range of diverging views, and it may be that — in the interests of facilitating the development a product that is of the most practical use to the international community — the Commission should structure its work in a way that avoids the need for a definitive pronouncement on these issues.

In general, we believe that the current draft articles make important progress in a number of areas. We continue to believe that the Commission could contribute greatly to State efforts to plan and prepare for disaster relief efforts through a focus less on rights and more on providing practical guidance to countries in need of, or providing, disaster relief. At the same time, the United States strongly supports international cooperation and collaboration in providing disaster relief.

International Law Commission in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In October 2011, the United Nations General Assembly’s Sixth Committee reviewed the Report of the International Law Commission on the work of its 63rd session. Mark Simonoff, Counselor for the United States Mission to the United Nations, delivered remarks in the Sixth Committee on the ILC’s work on October 26, 2011. Mr. Simonoff’s remarks appear below and are available at (internet link) usun.state.gov/briefing/statements/2011/176835.htm.

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Thank you, Mr. Chairman. My government appreciates your efforts in guiding the work of this Committee and welcomes the opportunity to submit a few observations on topics considered by the International Law Commission at its 63rd Session.

The United States recognizes that universal respect for international law is essential to orderly and peaceful relations among States and commends the International Law Commission on its contributions to the progressive development and codification of international law. We would like to convey the U.S. special thanks to the Chairman of the Commission, Mr. Maurice Kamto for his fine stewardship. We would also like to congratulate Ms. Concepcion Escobar Hernandez and Mr. Mohammad Bello Adoke on their election to the Commission. We wish to thank the Special Rapporteurs for the topics discussed at the Commission’s past session for the manner in which they have diligently guided the Commission on important—and complex—topics. We also would like to thank all of the Commissioners who have served during this past quinquennium for their outstanding work—over the last five years, the Commission has completed a number of longstanding projects and begun work on several important new topics. We thank all of the Commissioners for their outstanding service and the United States looks forward to continuing to work closely and constructively with the new Commission that will be elected next month.

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We are also pleased to recall that the Commission recognized its sixtieth anniversary during this past quinquennium in 2008. As noted by several ILC Commissioners and government representatives during the ILC’s sixtieth anniversary commemorative conference, the work of the Commission benefits from a strong interactive relationship with states and international organizations. In that regard, we are pleased that the Commission has in this world Encylopedia of Law III of its report requested views from governments on several of the ongoing topics on issues of particular interest, we plan to provide thoughts on these issues during this Sixth Committee session, and hope to be able to provide additional material in the months ahead and as consideration of these topics continues.

Mr. Chairman, I will comment today on some of the issues connected with the first cluster of items on the Committee’s agenda.

New Topic Proposals We appreciate the Commission’s request for state views on the new topics that the Commission has added to its long term program.

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First, with respect to the topic “Formation and Evidence of Customary International Law,” the United States extends its compliments to Sir Michael Wood for his excellent paper on the topic and we are supportive of adding this topic to the Commission’s long-term program. The paper sets forth an excellent road map for how the Commission might tackle this issue and also demonstrates that there are still many unsettled questions in this area that would benefit from the attention of states and the Commission. In the U.S. view, the paper insightfully touches on a number of important issues that merit additional thinking, such as the sorts of acts that count as state practice, the relationship between state practice and opinio juris, and the role that treaties play in the formation of customary law. We also think it would be particularly useful to collect and study the approaches of national courts or other municipal organs to customary law formation questions. Finally, we echo the paper’s conclusion that flexibility remains an essential feature in the formation of customary law and therefore it is critically important that the results of the Commission’s work not be overly prescriptive.

As suggested in the proposal, we think an appropriate outcome could be a series of propositions or practice pointers, with commentaries.

International Law Commission in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): With respect to the topic “Protection of the Atmosphere,” we thank Commissioner Murase for his work in preparing the proposal. The United States supports strong international protection of the atmosphere. The United States is a party to many treaties governing air pollution, and one of this Administration’s first actions in the international environmental arena was to push for a global treaty on mercury. Additionally, there are a number of treaties, regional and global, that address specific issues related to air pollution and the effects of human emissions. Given that the current structure of law in this area is treaty-based, focused, and relatively effective, and given the existence of ongoing negotiations by States that seek to address evolving and very complex circumstances, we think it best not to attempt to codify rules in this area at this time.

With respect to the topic “Provisional Application of Treaties,” the United States compliments Professor Gaja on his proposal to examine this topic. Professor Gaja has highlighted an interesting divergence of views on the question of whether provisional application should be understood as imposing an international legal obligation. He notes that recent arbitral panels have supported the view that provisional application is a matter of legal obligation, not merely a signal of a State’s non-legally-binding intent to comply with certain provisionally applied portions of a treaty. The United States looks forward to studying the material developed by Professor Gaja’s work. With regard to the issue of whether States should give notice prior to terminating provisional application, the United States urges caution in putting forward any proposed rule that could create tension with the clear language in Article 25 of the Vienna Convention on the Law of Treaties regarding a State’s ability to terminate provisional application of a treaty. Finally, we think a decision on the final form that this project should take is best left to a later date.

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As regards the proposed new topic, the “Fair and Equitable Treatment Standard in International Investment Law,” we thank Commissioner Vasciannie for his work on the proposal thus far. The Commission has identified an interesting topic that could benefit from further study and that could lead to the identification and inventory of different formulations of this standard in numerous investment treaties. We note that other international organizations, including the Organization for Economic Co-operation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD), have previously looked into this question in depth and their work may prove to be a useful point of departure and reference for any work the Commission pursues on this topic.

We caution that, in light of the different formulations that the standard embodies in the various investment treaties, we think it will be important for the Commission to avoid efforts to restate or interpret the intentions of the treaty parties that have adopted these standards and to instead concentrate its efforts on describing the different formulations that treaty parties select when referring to this standard. Toward this end, we recommend that as the Commission carries out its inquiry into this standard, it not necessarily limit itself to the issues currently identified. Moreover, as the Commission notes, much like Most Favored Nation clauses, the fair and equitable treatment standards embodied in treaties tend to differ considerably in their structure, scope and language and thus resist a uniform approach. As such, we welcome the Commission’s acknowledgement that the mere inclusion of this standard in over three thousand investment treaties does not, in and of itself, demonstrate that the fair and equitable treatment standard is a part of customary international law. Finally, given the nature of these provisions, the Commission likely will not be able to develop uniform rules or a definitive statement on the meaning of the standard. That said, we believe it is useful for the Commission to survey and describe current state practice and jurisprudence, which can serve as a useful resource for governments and practitioners who have an interest in this area.

Developments

We also thank Commissioner Jacobsson for her work in preparing a proposal on the topic “Protection of the Environment in Relation to Armed Conflicts.” We appreciate the work of Commissioner Jacobsson and support the Commission’s efforts to identify ways to strengthen international humanitarian law. At the same time, the proposed topic implicates many subject areas, including—as the Commission’s report highlights—international humanitarian law, international criminal law, international environmental law and human rights law. Given that the topic is very broad in scope, there are questions as to whether the topic is sufficiently focused so as to benefit from the expertise of the Commission. We also note that the Commission’s proposal identifies a previous lack of state support for pursuing this topic—a conclusion the International Committee of the Red Cross also reached earlier this year when it found that a number of States did not consider further work in this area to be a priority at this time.

Reservations to Treaties The United States congratulates the Commission on its work to conclude the Guide to Practice. Professor Pellet has devoted countless hours of his time to this project and he should be commended for bringing this work to a conclusion after so many years. the U.S. understanding is that the Guide to Practice will not be up for formal consideration until next year. Nevertheless, we think it is important to emphasize that state practice on the consequences of an invalid reservation remains quite varied and, as a result, section 4.5.3—one of the more controversial elements of the Guide—should not be understood to reflect the consistent practice on the part of States. Indeed, the United States continues to find the approach articulated in that section difficult to reconcile with the fundamental principle of treaty law that a state should only be bound to the extent it voluntarily undertakes a treaty obligation. We are still in the process of examining the final provisions of the Guide as well as its extensive commentary and look forward to addressing it more comprehensively when the Sixth Committee formally considers it next year.

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The United States also notes the Commission’s recommendations that the General Assembly consider establishing an “observatory” on treaty reservations within the Sixth Committee, as well as a “reservations assistance mechanism.” The observatory presumably would be similar to that established within the Council of Europe’s Committee of Legal Advisers on Public International Law. The United States has participated actively as an observer in that process and believes that it has been quite valuable. Based on that experience, we think additional focus on such issues in the Sixth Committee and in other regional or subregional settings can be useful. Coordination would of course be desirable to the extent possible to avoid unnecessary overlap in the work of such observatories.

With regard to the “reservations assistance mechanism,” the United States is interested to learn more about this proposal, including the status of the proposals emerging from the mechanism. In general, we question whether an independent mechanism, consisting of a limited number of experts that would meet to consider problems related to reservations, is appropriate to inject into a process that fundamentally is to take place between and among states. Further, we are concerned about any implication that the proposals resulting from the mechanism could in any way be seen as compulsory on the states requesting assistance.

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Responsibility of International Organizations I now turn to the newly adopted draft articles on the Responsibility of International Organizations. The United States wishes to thank Professor Gaja, the Special Rapporteur on this topic, for his work in undertaking and overseeing this topic and bringing it to completion. Without doubt, the draft Articles are a significant contribution to international legal thinking. We also wish to express the U.S. gratitude for the valuable views—many of which we shared—provided by the United Nations Secretariat and other international organizations, such as the International Monetary Fund and the World Bank, which have contributed and will continue to contribute to thinking on this topic.

We would like at this point to limit ourselves to making three general comments.

First, we are pleased that the Commission has included a General Commentary introducing the draft Articles, which indicates the scarcity of practice in this area and reflects that much contained in these draft articles falls into the category of progressive development rather than codification of the law. Disagreements do exist about whether many of these articles currently state the law in this area. Hence, we agree with the Commission’s assessment that the provisions of the present draft articles do not have the same authority as the corresponding provisions on State responsibility. That assessment must be kept in mind when considering the cross-references from these draft articles to the articles and commentary on State responsibility, and whether the draft articles sufficiently reflect the differences between international organizations and States.

International Law Commission in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): See information on International Organizations in this legal Encyclopedia.C.

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International Law Commission in 2011

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