Remarks by The Honorable Harold H. Koh, Legal Adviser, U.S. Department of State, at a General Assembly Sixth Committee (Legal) Session on October 27, 2011: Report of the International Law Commission on the Work of its 63rd Session (Part II).

Harold Hongju Koh
Legal Advisor U.S. Department of State 

New York, NY

October 27, 2011

FOR IMMEDIATE RELEASE

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.

Before I begin, I would like to pay tribute to the memory of Judge Antonio Cassese, a towering figure in international law and a dear friend of so many of us. Our condolences go out to Nino’s family and loved ones.

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 our 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.

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 our 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.

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 our 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.

Thank you, Mr. Chairman.

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