Sixth Committee, 23rd meeting of the 81st session. Agenda items taken up: item 80, “Expulsion of aliens”; “Responsibility of international organizations - Item 87 (A/81/83, A/81/222)”. 24 speakers were heard, representing 23 delegations.
Points of disagreement
Kingdom of the Netherlands stated that at this point in time it cannot support a convention or any other form of codification on the basis of these draft articles.
Key points
Russian Federation stated that the ILC draft articles on expulsion of aliens had not entirely met expectations, remained far from a basis for a new universal convention, and were not seen as a suitable foundation for a universal treaty, though they could be retained as a useful recommendatory document.
Bangladesh stated that Draft Article 3 affirms a state's right to expel an alien but requires expulsion to respect international law; the sovereign right is exercised under law, and Draft Articles 4, 9 and 10 set requirements of lawful decision, no collective expulsion and no disguised expulsion.
European Union, on behalf of European Union and its Member States, stated that the later stage envisaged by the Commission for considering a convention on the draft articles on the responsibility of international organizations had not yet been reached, and that the draft articles already provided a useful reference together with their commentaries.
Statement by statement · 23 speakers
🇲🇾 Malaysia
Malaysia expressed concern that draft articles 3, 4, and 6 may unduly constrain the discretionary powers of states in administering the presence of foreigners, and about Draft Article 23 extending protection against expulsion, including non refoulement, to aliens generally.
Malaysia said the draft articles should not take the form of a legally binding framework such as International Convention, but should instead serve as guiding principles for states.
Malaysia reiterated that elaborating a legally binding convention based on the Articles on the Responsibility of International Organizations would be premature, and supported continued consideration of the topic within the Sixth Committee.
🇺🇸 United States
United States stated that it is unnecessary to pursue a legally binding instrument on the expulsion of aliens, citing well-settled rules in broadly ratified conventions on human rights and refugee matters, and that it will not support a convention that limits a state's ability to remove aliens.
United States proposed that the committee remove the topic of expulsion of aliens from the provisional agenda for future sessions.
United States stated that the draft articles on the responsibility of international organizations should not be transformed into a convention, and proposed that the Sixth Committee no longer regularly include this item on the agenda of future sessions.
🇮🇱 Israel
Israel stated that Israel does not support initiating work towards a convention on the basis of the draft articles, citing overlap with existing multilateral frameworks and a lack of consensus on the text.
Israel said that the draft articles may at most serve as non binding reference material or guidelines, which states may consult at their discretion in line with their domestic laws and international obligations.
🇸🇻 El Salvador
El Salvador reiterated the importance of preserving a close tie between the International Law Commission and the Sixth Committee, so that codification and progressive development of international law reflect states' perspectives and concerns.
El Salvador expressed concern that a provision in the draft articles could lead to interpretations or applications criminalizing irregular migration, which it said should be approached from an administrative rather than a criminal perspective.
🇳🇱 Kingdom of the Netherlands
Kingdom of the Netherlands regretted that the draft articles on expulsion of aliens adopted by the International Law Commission go beyond currently applicable rules of international law and are not in accordance with state practice.
Kingdom of the Netherlands stated that at this point in time it cannot support a convention or any other form of codification on the basis of these draft articles.
🇵🇭 Philippines
Philippines recognized the sovereign right of states to regulate the entry, stay, and removal of aliens within their territories, while stating that its exercise must be consistent with international law, including applicable human rights obligations and the principles of due process and human dignity.
Philippines supported a gradual, inclusive process of substantive discussions aimed at identifying areas of convergence and questions requiring further examinations, remaining open to all possible outcomes, and supported retaining the topic on the agenda of the Sixth Committee.
🇲🇽 Mexico
Mexico stated that more than a decade has elapsed since adoption of the draft articles on the Expulsion of Aliens without a substantive Sixth Committee decision, and that taking note and postponing consideration must not be the highest achievable result; this session must mark a turning point.
Mexico proposed establishing a working group with a specific mandate to examine the classification of the provisions, update relevant practice, and formulate a recommendation on the form of the draft articles, binding or not, including options such as a declaration of principles or non-binding guidelines.
Mexico proposed reviewing the term "alien" in the English version of the agenda item, calling it antiquated and potentially dehumanizing, and using an expression such as "foreigners"; these proposals would be suggested for the draft resolution once negotiations begin.
🇬🇧 United Kingdom
United Kingdom stated that expulsion of aliens was a difficult and complex subject intruding into the domestic sphere of states and national sovereignty, and that the topic was unsuitable for a convention or legally binding instrument.
🇨🇺 Cuba
Cuba said the draft articles on the expulsion of aliens were a valid contribution that might stand as a starting point for an international convention, always starting from the consent of states.
Cuba stated the protection of the human rights of aliens cannot be a limit for the exercise of states' laws, and domestic laws and the need to maintain public order must be borne in mind.
Cuba stated the ILC cannot in and of itself be considered a legislative body responsible for establishing international law norms.
🇮🇷 Islamic Republic of Iran
Islamic Republic of Iran stated that on expulsion of aliens, the draft articles should be based on lex lata, and that the Commission appeared to have gone beyond customary and treaty law into progressive development where state practice is still limited.
Islamic Republic of Iran said that a state has the right to expel aliens who threaten its national security or public order and to determine those concepts under its national laws, so an exhaustive list of grounds is unnecessary, provided expulsion respects applicable obligations under international law.
Islamic Republic of Iran underlined that rules of an international organization must not be invoked to circumvent international obligations, and drew attention to what it called NATO's acknowledgment that 5,000 sorties took off in support of aggression against its country, entailing member states' responsibility.
🇭🇹 Haiti
Haiti recognized that a state, due to its sovereignty and in accordance with international law, has the competence to regulate the entry, stay and departure of aliens on its territory, but stated that this competence should be exercised in keeping with the state's international obligations and applicable guarantees.
Haiti stressed the importance of procedural guarantees for any decision of expulsion, particular attention to persons in vulnerable situations, and respect for the principle of non refoulement where it applies.
Haiti stated that responses to expulsion cannot be separated from the root causes of migration, that responsibility should be shared between countries of origin, transit and destination, and that the Government of Haiti has focused on restoring security, holding elections and economic recovery.
🇧🇷 Brazil
Brazil stated that the right of states to regulate the presence of non nationals is well established but not unlimited, and must be exercised in accordance with international law, including human rights, refugee law, due process and the principle of nonfelement.
Brazil supported the ILC draft articles on expulsion, which it said seek to balance sovereignty and legality, and said Brazil's national practice is largely consistent with them.
Brazil stated that Brazil remains open to discussing the most appropriate form of the draft articles and in principle favours developing international instruments based on them, stressing that the absence of codification does not mean the absence of applicable law.
Brazil said that the draft articles on responsibility of international organizations are a useful contribution and a remarkable exercise in progressive development, that draft articles should not remain in that form indefinitely, and that caution is warranted in areas such as countermeasures.
🇷🇺 Russian Federation
Russian Federation stated that the ILC draft articles on expulsion of aliens had not entirely met expectations, remained far from a basis for a new universal convention, and were not seen as a suitable foundation for a universal treaty, though they could be retained as a useful recommendatory document.
Russian Federation emphasized that expulsion of aliens is the sovereign and inalienable right of states, linked to national security and public order, to be exercised in keeping with international legal norms including fundamental human rights and non-refoulement.
Russian Federation stated that the topic of responsibility of international organizations is ready for codification as an international treaty, and that the 2011 ILC draft articles could serve as its basis.
🇧🇩 Bangladesh
Bangladesh stated that Draft Article 3 affirms a state's right to expel an alien but requires expulsion to respect international law; the sovereign right is exercised under law, and Draft Articles 4, 9 and 10 set requirements of lawful decision, no collective expulsion and no disguised expulsion.
Bangladesh stated that more than 1 million Rohingya had found shelter in Bangladesh after being driven from their homes in Myanmar, and that their future lay in voluntary, safe, dignified and sustainable return to Myanmar with their rights restored.
Bangladesh stated that international organizations are bound by international law, that effective control is the right test for attributing conduct of peacekeepers under Article 7, and that the articles on the responsibility of international organizations should continue to be commended while a convention is kept under review.
🇸🇬 Singapore
Singapore stated that Singapore did not support the status of the expulsion of aliens draft articles as draft articles and that the General Assembly should simply take note of them and of the concerns and reservations expressed by delegations.
Singapore stated that Singapore did not support moving to work on a convention based on the draft articles on the responsibility of international organizations, was not convinced they embodied a consensus view, and maintained that the item need not remain on the provisional agenda of future General Assembly sessions.
European Union · on behalf of European Union and its Member States
European Union, on behalf of European Union and its Member States, stated that the later stage envisaged by the Commission for considering a convention on the draft articles on the responsibility of international organizations had not yet been reached, and that the draft articles already provided a useful reference together with their commentaries.
European Union, on behalf of European Union and its Member States, noted that the practice of states and international organizations on some draft articles remained limited or inconsistent, and that the Secretary-General's latest compilation recorded no references to them in decisions of international courts and tribunals over the past three years.
🇨🇳 China
China stated that rules on responsibility must be determined in accordance with the legal nature of international organizations, whose status and authority differ fundamentally from sovereign states, and that simply drawing analogies with the rules on state responsibility should be avoided.
🇧🇫 Burkina Faso
Burkina Faso reaffirmed its interest in retaining the item on responsibility of international organizations on the General Assembly agenda, and said the ILC's 2011 articles remain a vital reference point for relationships between international organizations and states.
Burkina Faso said state and international organization practice remains insufficiently documented to justify opening negotiations on a convention at this stage, though the articles remain entirely relevant as a reference framework.
Burkina Faso highlighted attribution of conduct to international organizations, responsibility arising from sanctions or restrictive measures against a member state, and draft Article 62 on the subsidiary responsibility of member states as points deserving clarification and greater consideration.
🇨🇴 Colombia
Colombia stated that international organizations can take on legally binding obligations and can therefore incur responsibility, which in its view must be regulated by international law.
Colombia stressed that the General Assembly must move forward, or at least seriously discuss, negotiating a convention based on the draft articles on the responsibility of international organizations, alongside one on the responsibility of states.
🇷🇸 Serbia
Serbia said the draft articles on the responsibility of international organizations adopted in 2011 deserved to be endorsed, but could serve only as a starting point for further discussion and action, preferably at a diplomatic conference that might elaborate a Convention on the Responsibility of International Organizations.
Serbia stated the issue of the responsibility of international organizations remained unfinished and the topic of settlement of disputes to which international organizations are parties was connected with it and deserved equal consideration.
Serbia called for the Sixth Committee to continue substantive consideration of the topic, proactively developing and codifying rules rather than awaiting judicial practice, with the objective of establishing a more comprehensive and coherent legal framework governing the responsibility of international organizations.
🇻🇳 Viet Nam
Viet Nam welcomed the Secretary-General's reports contained in documents AE slash 81 slash 83 and AE slash 81 slash 222, and commended the International Law Commission for its work on the articles on the responsibility of international organizations.
Viet Nam stated that careful consideration should be given to the specific legal nature of international organizations, whose mandates, structures and relationships with member states differ considerably, and that any future development of the draft articles should take these institutional differences into account.
Viet Nam said options should remain open as the Sixth Committee continues its consideration, and that a decision to draft a legally binding instrument should be made at a later stage when sufficient grounds and the necessary consensus have been established.
🇳🇦 Namibia
Namibia stated that there cannot be rights without obligations or responsibilities, and that the responsibilities or obligations of international organizations should be ascertained by virtue of codification, since the current draft articles, though possibly needing more refinement, did not mean the subject was not ripe for codification.
🇵🇹 Portugal
Portugal reiterated its suggestion that future reports include relevant dissenting opinions of judges, noting that no references to the draft articles were identified in decisions of international courts, tribunals and other bodies in the period under review.
Portugal stated that calling for a diplomatic conference to consider a convention based on the 2011 draft articles, without prior further developments on state responsibility, was not reasonable, and that the General Assembly may again take note of those draft articles.
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