Report of the International Law Commission on the Work of its 57th Session – Expulsion of Aliens and Responsibility of International Organizations
Mr. Chairman, I am pleased to be here today to present the views of the United States on the portions of the report of the International Law Commission dealing with expulsion of aliens and responsibility of international organizations. I would like to thank the chairman of the Commission, Professor Djamchid Momtaz, for his introduction to the report of the Commission. I would also like to thank and commend the Commission’s Special Rapporteur on the Responsibility of International Organizations, Professor Gaja, for his valuable work to date on this important subject, andMr. Maurice Kamto for his very thorough and thoughtful work on the issue of expulsion of aliens.
Turning first to the issue of expulsion of aliens, as Mr. Kamto’s comprehensive preliminary report acknowledges, the issues related to this topic are complex and challenging. In considering how to address the issue of removal of persons from their territories, States must seek to reconcile respecting the delicate balances contained in their national immigration laws and policies, their international legal obligations, consideration of national security concerns and respect for the rule of law.
Mr. Kamto’s preliminary report provides an important overview of a range of issues for consideration as the International Law Commission considers how to proceed with the study of this important topic. As a general matter, the report recognizes that careful attention must be paid to the long-recognized sovereign right of states to expel aliens, and the limitations on this right under international and domestic law. We welcome this acknowledgement and would note that efforts to identify the limitations on this right under international law should focus on those limitations derived from obligations freely assumed by States, particularly under international human rights treaties they have ratified.
The preliminary report identifies an expansive set of issues for consideration by the ILC. As the debate at the 57th Session indicated, a number of important issues must be examined with a view to further refining the scope of the study. In this regard, we share the view that the ILC should not address the refusal to deny entry or admission to aliens at the border, that the distinction between aliens who are lawfully present and those who are not should be clearly observed and that issues that are already addressed by other specialized bodies of law and practice (such as the transfer of aliens for law enforcement purposes or issues related to diplomatic personnel) should not be considered by the ILC under this topic.
We look forward to further work by Mr. Kamto and the ILC on this important issue and welcome the opportunity to review further efforts to refine the scope of this study.
With respect to the issue of responsibility of international organizations, this issue is similarly complex. As we have said in the past, international organizations – as opposed to states, which share fundamental qualities – vary greatly in their functions and structures, and this diversity makes difficult the development of any set of articles in this area that attempts to set forth uniform rules. As one example, the relationship between a government official and his country is significantly different than the relationship between an individual and the international organization that employs him. In light of such differences, we believe that it is not apparent that principles in this area should simply parallel the rules set forth with respect to states in the draft articles on State Responsibility, and we are hopeful that the Commission – as it continues its work – will place particular emphasis on relevant practice.
With respect to the Commission’s work during this past session, we would limit our comments at this juncture to a few observations.
First, under the draft articles on State Responsibility, in order for State A to incur vicarious responsibility – that is, responsibility for aiding/assisting or directing/controlling State B in doing an act – the act in question must be internationally wrongful if committed by State A itself. However, because international organizations vary greatly in what they are authorized to do, this condition may operate quite differently when we try to apply it to vicarious liability of international organizations. As an example, under Articles 12 and 13 of the provisional articles on responsible of international organizations, one could imagine an international organization that is authorized to provide assistance for states to take certain kinds of actions, but is not authorized to take such actions itself, so that the actual taking of the action by the international organization could in this sense be said to be internationally wrongful. However, it is not evident that the provision of such assistance by such an international organization should be a trigger for international responsibility. It is true that, for there to be responsibility under Articles 12 and 13, the state in question would need to be acting in breach of an international obligation. But it is not clear that this would provide a sufficient safeguard when it is the responsibility of the international organization that we are considering. There may be a variety of reasons why it is unlawful for a particular state to act in a certain way, and a state may in fact have conflicting obligations – for example, if it has an obligation under one treaty to take a certain action, and an obligation under an agreement constituting an international organization or under some other treaty not to take the action. It thus appears to us that this is an area that may merit further reflection.
Second, the provisional articles on aiding/assisting and directing/controlling an internationally wrongful act turn on whether an international organization has taken action “with knowledge” of the circumstances of an internationally wrongful act. Once again, these provisional articles are drawn from the draft articles on State Responsibility. But such a requirement operates very differently on an international organization than it does on a state. For example, when thinking about an international organization, whose “knowledge” are we actually talking about? An international organization does not take direction from its secretariat or professional staff in the way that a state takes direction from its leaders and other employees, thus making it precarious to base a test on what an international organization knows or does not know. In the case of international organizations, it is the states that constitute and direct the action of an international organization, and each state may have a very different assessment of the legality of a contemplated course of action.
Third, we are looking closely at draft Article 15, which deals with situations in which an international organization recommends, authorizes or adopts a binding decision for a state to take an action that would circumvent an obligation of the international organization. This is meant to cover cases beyond those already covered by the provisional articles on aiding/assisting, directing/controlling or coercing. In connection with what we have said above, we have questions about what it means for an international organization to be circumventing one of its obligations that are similar to our questions about what it means for an act by an international organization to have been internationally wrongful. It may thus be that it would be helpful for the Commission to make clearer the intended meaning of circumvention. But Article 15 goes farther in that it does not require, as a condition for an international organizing incurring liability, that the state to which the recommendation, authorization or decision is directed must be prohibited from undertaking the action in question. It appears to follow that, under the provisional articles, an international organization could be liable for directing – or even authorizing or recommending – that a state take action that it is in fact lawful for the state to undertake. It is not evident to us the practice or policy considerations upon which such a principle would be based.
Fourth, it is hard to see in any case how authorizations or recommendations could trigger liability, at least beyond principles governing aiding/assisting, directing/controlling or coercing. In the ordinary course of events, authorizations or recommendations can be carried out in a variety of ways, and – at least so long as we are not talking about situations in which an international organization is aiding/assisting, directing/controlling or coercing, which are issues covered by separate provisional articles in the draft – it seems illogical to hold an international organization responsible if a state implements in an unlawful manner recommendations or authorizations that it could have implemented in a lawful manner (or could simply have freely decided not to implement).
Fifth, we are assessing our views as to whether it would be beneficial for the provisional articles to account more explicitly for the fact that binding decisions, authorizations or recommendations of an international organization can substantively affect the underlying legal obligations of states to which they are addressed in a way that decisions, authorizations or recommendations of states rarely can. This is the situation for example in the context of the Charter and decisions under Chapter VII, but it may also be true with respect to other international organizations, the decisions of which can affect at least the legal rights and obligations of the member states to each other. In other words, the fact that an international organization takes an action may result in a situation in which a state is no longer prohibited from taking an otherwise prohibited action. Among other things, this suggests that the issues connected with analyzing the responsibility of an international organization toward its members differ in practice from those connected with analyzing its responsibility toward non-members.
Again, we recognize that these are very complex issues and we thank the Commission for its report. As the Commission continues with its study on this topic, we encourage it to place particular emphasis on relevant practice. We agree with the view expressed previously by a number of delegations that the Commission should proceed cautiously in this area, and should not simply work to develop analogous rules for international organizations to the draft articles State Responsibility. The draft articles on State Responsibility can, of course, be helpful, but the Commission should remain mindful of the inherent risks associated with drawing parallels between the role and the nature of States and those of international organizations.
Thank you Mr. Chairman.