28 Oct 2009
STATEMENT BY MR LIONEL YEE, HEAD OF INTERNATIONAL AFFAIRS DIVISION, ATTORNEY-GENERAL'S CHAMBERS OF SINGAPORE ON AGENDA ITEM 81, ON CHAPTERS V AND VI OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 61ST SESSION, SIXTH COMMITTEE, 28 OCTOBER 2009
Mr Chairman,
1. My delegation thanks the Commission for the report on its work in relation to Reservations to Treaties and Expulsion of Aliens.
2. With regard to Reservations to Treaties, my delegation thanks the Commission and the Special Rapporteur, Mr Alain Pellet, for continuing work in this important area of international law. We acknowledge the difficult and theoretically-challenging nature of the work. It is a function of the character of the legal regime of reservations and interpretative declarations. The complexity of this topic also has much to do with the basic juridical structure of international law, which may be likened to a flat system, as in a matrix. In such a system, it is rare to find that a single actor or body has the ultimate authority to pronounce on the permissibility of a reservation or an interpretative declaration, which are, after all, essentially qualifications of expressions of State consent. We will study the draft guidelines and their commentaries in detail and share our views on them at the appropriate time.
3. With regard to Expulsion of Aliens, my delegation notes that the specific nature of the draft articles under consideration, as well as the need to strike the right balance between a State's sovereign right to expel aliens and the need to respect human rights, made the work of the Commission particularly challenging at this session. The Special Rapporteur has, we note, now revised draft articles 8 to 14 in the light of the plenary debate at the 61st session of the Commission. We look forward to the Commission's continued work on this topic at its next session. In the meantime, however, my delegation would like to offer the following comments on draft articles 8 and 9.
4. Turning first to draft article 9, my delegation is unable to agree with or accept its second sentence as drafted. It suggests that a State that has abolished the death penalty has an automatic and positive obligation under general international law not to expel a person who has been sentenced to death to a State in which that person may be executed without first obtaining a guarantee that the death penalty will not be carried out. It also suggests that this so-called obligation is one aspect of the right to life.
5. There is no such obligation under general international law. As the Special Rapporteur himself observed when introducing his fifth report, the right to life does not imply the prohibition of the death penalty. There is no global consensus on the abolition or retention of the death penalty. The divisive nature of the discussions in the General Assembly clearly shows this. There is also no customary international law obligation to the effect that a State that has abolished the death penalty is then ipso facto bound to prohibit the transfer of a person to another State where the death penalty may be imposed without seeking the relevant guarantee. Whether it chooses to bind itself to do so by undertaking specific treaty obligations is a different matter, one that is distinct from a decision not to apply the death penalty domestically. My delegation therefore cannot accept draft article 9, paragraph 2.
6. Moving on to draft article 8, the text states that a person who has been or is being expelled is entitled to respect of his "fundamental rights" and to all other rights that are required to be implemented by his specific circumstances. It is not clear to my delegation what the utility of making a qualitative distinction among different sets of human rights may be. The potentially divisive nature of such an approach is reflected in the diversity of views recorded in paragraphs 102 to 108 of the Report of the Commission. My delegation aligns itself with those members of the Commission who expressed reservations to the approach currently proposed in the Report. Attempting to finalize a list of applicable rights, or even the mere use of the term "fundamental rights" in the text of the draft article, would only prompt a long and, we think, ultimately unproductive discussion about what those rights are. Where a State takes a decision to expel a person, it has to respect all the human rights which apply to that person and the rights applicable in such a situation are necessarily contextual, and may, over time, evolve with the development of general norms of international law. We would therefore support a practical approach, and with that, text that makes a general reference to the broader and more inclusive term "human rights".
7. To conclude, my delegation looks forward to receiving further reports from the Commission on these two important topics. We stand ready to give our full support for the Commission's work. Thank you, Mr Chairman.