Sixth Committee -- Report of the International Law Commission on the Work of its 61st Session (Agenda Item 81)

Chapter IV: Responsibility of International Organizations
Chapter V: Reservations to Treaties
Chapter VI: Expulsion of Aliens
Chapter VII: Protection of Persons in the Event of Disasters
Chapter VIII: Shared Natural Resources
Chapter IX: The Obligation to Extradite or Prosecute (aut dedere aut judicare)
Chapter X: Immunity of State Officials from Foreign Criminal Jurisdiction
Chapter XI: The Most Favored Nation Clause

At the outset, let me reiterate Israel’s appreciation to the work of the Commission and its important contribution to the progressive development and codification of international law.

I will address the topics identified in Chapters IV-X in the ILC Report, and confine my comments to the principal ones. I refer delegations to our circulated statement for a more detailed reference.

On the issue of Responsibility of International Organizations, my delegation would like to express its appreciation to the Special Rapporteur, Mr. Giorgio Gaya, for his seventh report. While this topic raises many unresolved questions which we wish to address in a later stage, I will confine my comments to the object and limits of countermeasures, as Israel remains unconvinced whether the assumption that the Commission’s articles on State Responsibility establish a proper template for articles on the responsibility of international organizations, taking into account the inherent differences between States and international organizations. Given the limited practice in this field and the controversy surrounding this aspect, we urge the Commission to proceed with caution.

On Reservations to treaties, Israel highly appreciates the determined work of the ILC and the Special Rapporteur Prof. Alain Pellet for his fourteenth report. While the title "Guide to Practice" indicates a document which can serve as a useful and practical tool, we do have, however, growing doubts concerning the final product.
The Special Rapporteur described his work in different terms, as follows:

"In response to comments by some members (of the ILC) concerning the scarcity of practice to support certain draft guidelines, the Special Rapporteur emphasized that the Guide to Practice was not necessarily based on past practice but was primarily intended to guide future practice in the matter of reservations. Moreover, the sometimes complicated nature of the Guide was explained by the fact that its purpose was to settle complex problems that had not been resolved in articles 19 to 23 of the Vienna Convention and on which practice was sometimes difficult to grasp."   (A/CN.4/L.749/Add.5, art. 80)
In Israel's view, while this kind of work is certainly valuable, it has to be reviewed on the background of the decision adopted by consensus and should ensure that there be no change in the relevant provisions in the 1969, 1978 and 1986 Vienna Conventions. (ibid, art. 53).

Given the length and complexity of the draft guidelines, it was proposed (ibid, art. 80) to elaborate a separate document that will state its main principles in order to make it more "user friendly".  Israel does not share this view. We think that the principles already exist in the provisions of the Vienna Convention. Instead, we suggest to prepare a list that will indicate which parts of the draft-guidelines are based on actual practice, and how common that practice is I wish to add a few comments to some of the draft guidelines:

Draft guideline 2.1.8 - on Procedure in case of manifestly impermissible reservations: The role of the depository described in this draft guideline, especially in the second part, does not seem to represent a general practice. Also, as mentioned by the Special Rapporteur in his report, this draft guideline received “criticism". (A/CN.4/614 art.77).  Israel is among the states which are of the view that it is the State parties – and not the depositary – that should decide whether a given statement constitutes a reservation and whether or not the reservation is permissible.

With regard to Draft Guideline 2.1.9 – on the Recommendation to indicate the reasons for the reservation:  Although such a provision can be useful and does appear in certain conventions, it does not, however, represent a general practice. It might also be difficult to define the legal effects of the reasons given.

Concerning Draft Guideline 2.8.1 – on Tacit acceptance of reservations: The main reason provided in  the commentary for this draft guideline is that: "It seems very undesirable, that a state…. , by refraining from making any comment upon a reservation, should be enabled more or less indefinitely to maintain an equivocal attitude as to the relations between itself and the reserving state…"(art. (5) in the commentary). On the other hand, in practical terms, a provision such as this places a considerable burden on member states, especially on developing states, and might have adverse effects on the international treaty regime.

As to Draft Guideline 2.4.3 bis - on Communication of interpretative declarations: The ILC might wish to reconsider this draft guideline or at least reconsider its language. While we do agree with the Special Rapporteur that it is the interest of the authors of an interpretative declaration to formulate their declaration in a form modeled after the form of a reservation (A/CN.4/614 art. 75), still, the question remains whether this should be requested from them. There is a possible danger that by doing so, we might assimilate interpretative declarations to reservations. The differences between a reservation and an interpretative declaration might not be clear to other State Parties and this might trigger a chain of lengthy and not always necessary reactions.

With regard to Draft Guideline 2.9.10 – on Reactions to conditional interpretative declaration: This draft guideline is left in brackets. Israel is in favor of its deletion. A conditional interpretative declaration is very scarce. Only one precedent is mentioned in the commentary. We are not convinced of the necessity to include a reference to such a rare practice or that such a practice is desirable.

Finally, with regard to Draft Guideline 3.2.2 - on Specification of the competence of treaty monitoring bodies to assess the validity of reservations, we propose either to delete the whole draft guideline or to replace the word "should" in the first sentence with the term "may", and to delete the last sentence. The powers of monitoring bodies are decided by the State Parties when they establish them. Usually, the decision is the outcome of a delicate balance. Adding additional powers to assess the validity of reservations might disturb this balance.

Furthermore, the human rights treaty monitoring bodies, as in any other treaties, are established by the States Parties, and have only the powers that were specifically accorded to them in these particular conventions. We join other delegations who have already emphasized that the task of determining the permissibility of a reservation and assessing its compatibility with the object and purpose of a treaty, lies first and foremost with the States Parties.

Turning to the topic of Expulsion of Aliens, Israel would like to commend the Special Rapporteur, Mr. Maurice Kamto, for his thorough and insightful work, as reflected in his fifth report.  The Expulsion of Aliens is a complex topic, involving a delicate balance between the right of States to decide upon the admission of an alien, which is inherent in State sovereignty, and the safeguarding of fundamental human rights.

This topic impinges on issues of immigration and national security, given that each State faces legal and political issues that are sensitive and unique. In addition, different States are subject to different obligations in this field, emanating from a variety of national, regional and international instruments. For these reasons, we encourage the Special Rapporteur and the Drafting Committee, as they continue their work of the draft Articles, to focus, as much as possible, on codifying customary international law, which reflects well-settled legal principles and State practice.

Israel strongly supports the principle underlying draft Articles 8-16 regarding the protection of the human rights of persons who have been or are being expelled. However, we must express some concern that several of the draft Articles feature elements constituting progressive development of the relevant law, rather than codification and consolidation, and as such may give rise to difficulties in interpretation and application. For example, the obligations of the expelling State under draft Articles 8-13  extend to the protection of the human rights of "persons who have been expelled", in the past tense. This formulation gives rise to the question whether the aforementioned obligations persist over time following the completion of the expulsion process, and, if so, for what period. Another example is the obligation, under draft Article 13 paragraph 2, for "any measure concerning a child who has been or is being expelled" to be "taken in the best interests of the child". While the intended meaning is of vital importance, the formulation is extremely wide and open to unintended interpretations.  In view of the above, we reiterate our call to the Special Rapporteur and the Drafting Committee to proceed with caution on this matter and to rely, to the extent possible, on customary international law.

On the subject of the Protection of Persons in the Event of Disasters, we welcome the second report of the Special Rapporteur, and extend our appreciation for the valuable work of Mr. Eduardo Valencia-Ospina.

Regarding the scope of the study, we welcome the Special Rapporteur's conclusion on the non-applicability of the concept of responsibility to protect, to disaster response. We also welcome the Special Rapporteur's decision to exclude "armed conflicts" from the definition of "disaster", and support the inclusion of draft article 4, dealing with the "Relationship with International Law", which states that the present draft-articles do not apply to situations in which the rules of international humanitarian law are applicable. We agree with the approach, stated by some of the members, that the most important matter is to ensure that the lex specialis of international humanitarian law continue to apply in situations of armed conflict.

Concerning the subject of a rights-or-needs-based approach to the topic, we share some of the members' concern that an instrument declaring the rights of persons affected by disasters may not provide the pragmatic response that the topic needs. Furthermore, we are concerned that the rights-based approach may imply that the affected State must always accept international aid. In this matter, we support the caution advised by the Special Rapporteur that the principle of cooperation should not be stretched to infringe upon the sovereignty of affected States. We are of the view that international assistance is a supplement to the actions of the affected State, which has the primary responsibility to provide assistance to the victims of the disaster. We support the Drafting Committee's intension to include a provision on this matter in the set of draft articles in the future.

Having said that, Israel acknowledges that the recognition of the primary responsibility of the affected State to provide assistance to the victims of disasters should not be understood as leaving the international community as a passive observer in the event of disasters.

Turning to the issue of Shared Natural Resources, we would reiterate the view that the complex issue of transboundary oil and gas reserves had already been sufficiently addressed in bilateral settings. In this regard, Israel notes the doubts raised by other delegations as to the utility of addressing this subject in the Commission's future work, and suggests to proceed with great caution.

On the topic of the Obligation to Extradite or Prosecute (aut dedere aut judicare), we reiterate our view that the legal source of the principle to extradite or prosecute is solely derived from treaty-based obligations. Existing state practice supports the view that there is no sufficient basis under current international customary law or state practice to extend an obligation to extradite or prosecute beyond binding international treaties which explicitly contain such obligations. Israel also reiterates its view that the concept of universal jurisdiction should be clearly distinguished from the principle of "aut dedere aut judicare", and we remain doubtful as to whether the issue of universal jurisdiction should be considered in this context.

Regarding the valuable work on the Most Favored Nation clause, co-chaired by Mr. Donald M. McRae and Mr. A. Rohan Perera, Israel follows with interest its ongoing work and would be pleased to contribute, in particular, to the following three topics: the catalogue of MFN provisions, in particular on the matter of investments, the work of the OECD on MFN, as well as regional economic integration agreements and free trade agreements.

Finally, on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, Israel views this important and complex topic as one which merits serious consideration by the Commission. We regret that this topic was not discussed during this session.

To conclude, Israel looks forward to continuing its engagement with the Commission.

Thank you.