29 Oct 2010
STATEMENT BY MR. LIONEL YEE, DIRECTOR-GENERAL, INTERNATIONAL AFFAIRS DIVISION, ATTORNEY-GENERAL'S CHAMBERS OF SINGAPORE, ON AGENDA ITEM 79, ON CHAPTER V OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 62ND SESSION, SIXTH COMMITTEE, 29 OCTOBER 2010
Madame Chair,
1. My delegation wishes to convey our thanks to the Commission for its report on the work it has conducted in relation to the issue "Expulsion of Aliens".
2. In relation to this topic, my delegation notes that the expression "fundamental rights" in draft article 8 has been replaced by a reference to "human rights". During the debate in the previous year of this Committee on the work of the Commission, my delegation was among those who had reservations about the utility of the phrase "fundamental rights". Given the varied circumstances in which expulsion can occur, it did not seem prudent to us to employ a phrase that would be interpreted as being of limited ambit. Rather, we felt that the more inclusive expression "human rights" would better capture the full range of applicable rights in each situation. We are therefore happy to note that this suggestion has been taken up in the revision to article 8 which has emerged from the Commission's deliberations.
3. That said, we would suggest that the phrase "in particular those mentioned in the present draft articles" be amended to read "including those mentioned in the present draft articles" so that it is clear that all relevant human rights of the affected individuals should be respected regardless of whether they are or are not articulated in the draft articles. We note in pargraph 117 of the Report that this phrase is not intended to "establish a hierarchy among the human rights to be respected in the context of expulsion", and we think that our proposed amendment will be more consistent with this intent.
4. I now turn to draft article 14(2), which was previously numbered as draft article 9(2). My delegation wishes to reiterate the views we expressed last year that we are unable to agree with or accept this article 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, much less any agreement that prohibition of the death penalty is part of the right to life. The divisive nature of the discussions in the General Assembly clearly shows this.
6. While certain domestic or regional tribunals may have made certain pronouncements pertaining to treaty obligations they have been tasked to interpret, 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.
7. Lastly, I wish to comment on draft article 8 relating to extradition disguised as expulsion. In our view, the earlier version of this article had been drafted in manner that would have created substantial practical difficulty. The requirement of consent on the part of the person being expelled would have almost always resulted in non-expulsion as it is very likely that such consent would be withheld.
8. More significantly, it created in effect an almost absolute bar against expulsion to a state seeking extradition in the absence of such consent. Extradition in and of itself cannot be an absolute bar to expulsion. The real issue is whether or not the act of expulsion is such that it circumvents safeguards pertaining to extradition of the person. We are happy to note that the revised version which emerged from the Commission's deliberations does away with the element of consent, while at the same time safeguarding the rights of the person being expelled as such expulsion is now subject to the more general requirement that it be carried out only where it is "in accordance with international law". We think that the revised formulation strikes about the right balance.
9. To conclude, my delegation looks forward to the development of the Commission's work on this interesting topic at future sessions.
Thank you, Madame Chair.
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