Sixty-eighth General Assembly

Sixth Committee

25^th & 26^th Meetings (AM & PM)

As Sixth Committee Concludes Review of International Law Commission’s Report,

Delegates Urge Stronger Legal Frameworks for Disaster Preparedness

Speakers Debate Approach to Principle of ‘Obligation to Extradite or Prosecute’

Risk reduction and prevention were crucial to the “protection of persons in the event of disasters”, emphasized speakers in the Sixth Committee (Legal), as deliberations concluded on a broad range of issues from the International Law Commission’s report.

It had become clear that the majority of humanitarian needs resulting from disasters over the past few decades could have been prevented in the first place, an observer for the International Federation of Red Cross and Red Crescent Societies told delegates.  Disaster risk reduction must, then, be a priority.  However, only States could require or prohibit behaviours that made people safer. Measures, such as land use planning, watershed management and building codes were actions States could implement.  In that regard, although the Commission’s draft article 16 referred to disaster preparedness, it did not include specific measures, such as contingency planning and simulation exercises.

China’s representative pointed out that space technology, such as remote sensing, earth and meteorological observation, and satellite navigation, had been important in national efforts for disaster prevention, reduction and preparedness.  Urging the Commission to pay attention to the role of space and other new technologies, he suggested the inclusion of a provision in the draft articles that encouraged innovation and the use of space technology.

At the same time, Tonga’s delegate noted that the responsibility for mitigating disaster risk resulting from climate change must not be borne solely by those most affected.  States were obliged by international law to reduce the risk of disaster.  Both developed and developing countries must cooperate now to reduce the effects of climate change.

With several delegations addressing the “obligation to extradite or prosecute (aut dedere aut judicare)”, the representative of Thailand noted that there were existing gaps in the present regime which needed to be addressed, especially in relation to most crimes against humanity and war crimes.  He suggested the Commission develop a model set of aut dedere aut judicare provisions to close those gaps.  In addition, the link between the obligation to extradite or prosecute and the mechanisms put in place by international jurisdictions deserved particular attention.

Similarly, Mexico’s delegate, recalling the International Court of Justice judgment in Belgium v Senegal, pointed out that in the specific instance of the Convention against Torture, extradition was an option, while prosecution was an obligation.  He suggested that as a suitable topic for the Commission to study.

Expressing the view of several other delegations on the matter, the representative of the Russian Federation, noting that the Commission had been unable to move forward over a number of years, questioned whether it should continue its work on the topic.

At the close of the meeting, Bernd Niehaus, Chair of the International Law Commission, thanked all delegations for their comments, which were essential to the Commission’s work, and assured them that their views would be taken into consideration.

Also speaking today were representatives of Spain, Malaysia, Belarus, Indonesia, Cuba, Israel, Czech Republic, Netherlands, Singapore, Ireland, Belgium and Iran.

The Sixth Committee (Legal) will reconvene on Wednesday, 6 November at 3:00 p.m. to begin its deliberations on the administration of justice at the United Nations.

Background

The Sixth Committee met today to conclude its annual consideration of the report of the International Law Commission.  For background, see Press Release GA/L/3465.

Statements on Third Cluster

JOSE MARTIN Y PEREZ DE NANCLARES ( Spain) said that, in regards to the “formation and evidence of customary international law”, the Commission’s work should preserve flexibility as an inherent character of customary regulatory processes.  It was also important to analyze, in-depth, the constituent elements of international customary law, and to study the relationship of international customary law with other sources of international law.  The outcome of the work, in the form of conclusions with commentaries, should provide practical assistance in the interpretation and application of international law.

On the “provisional application of treaties”, he said it was sufficient to consider the growing frequency with which States used the mechanism of provisional implementation.  Ultimately, the consent of the contracting State was the decisive element; it should not be the task of the Commission to encourage or discourage its use.  Further, although the Special Rapporteur preferred not to deal with the provisional implementation of treaties by international organizations for the time being, it was difficult to avoid the topic because it was an issue that directly affected States.  That was evident in the provisional implementation which States and international organizations, such as the European Union, were making in so-called mixed agreements.

ALEJANDRO SOUSA ( Mexico) said that “protection of persons in the event of disasters” was needed before, during, and after disasters.  To that end, he suggested modifying article 2 to reflect the full cycle of disasters.  On the “formation and evidence of customary international law”, while he agreed that the focus should be on general practice plus opino juris, he also suggested the future inclusion of a section on the juridical value of United Nations resolutions in the context of customary international law.  Regarding the “provisional application of treaties”, he said that the final outcome of the Commission’s work should take the form of guidelines or model clauses, and that the Commission should neither encourage nor discourage provisional application.

Turning to “protection of the environment in relation to armed conflicts”, he noted that article 12 of the Vienna Convention prohibited the use of weapons that would cause lasting harm to the environment.  However, because it was clear that that measure was often flouted, protection was needed before, during and after conflict.  While he encouraged the study of State practice of the “obligation to extradite or protect (aut dedere aut judicare)”, he said that the principle was not only dependant on its customary nature.  In the context of the International Court of Justice judgment on Belgium v Senegal, he noted that in the specific instance of the Convention against Torture, extradition was an option, while prosecution was an obligation.  That might be a suitable matter for the Commission to study.  On the “most-favoured-nation clause”, he said that it was important to identify the intentions of the parties, while seeking a balance between investors’ interests and allowing States room to pursue their policies.

FARHANI AHMAD TAJUDDIN ( Malaysia), addressing the topic “protection of persons in the event of disasters”, said that prevention was better than the cure.  She supported cooperation that could lead to the circumvention of a disaster and any form of disaster risk reduction.  However, as article 5 made it mandatory for States to cooperate with the United Nations and other intergovernmental organizations, the International Federation of the Red Cross and Red Crescent Societies and the International Committee of the Red Cross (ICRC), and with relevant non-governmental organizations, such cooperation, read together, with the implementation measures stated in draft Article 16 and draft Article 5 ter, might lead to the sovereign right of States being usurped by a certain supra-international body.

On “the formation and evidence of customary international law”, she said regional customary international law could also exist and become binding upon a group of States in a particular region.  However, based on a decision of the International Court of Justice, it appeared that regional customary international law might require a different approach in terms of how a particular practice could be recognized as customary international law within a particular region.  In that regard, the Commission should carefully scrutinize the manner in which regional customary international law had gained its recognition within a particular region.

On the “provisional application of treaties”, she agreed with the Special Rapporteur that it was important not to over regulate the topic and allow for flexibility in its application.  Recognizing that the study was intended to simplify provisional treaty application processes, there were a number of States, like her own, that had established almost rigid procedures on the internalization and application of treaties.  In that regard, States should not be compelled to implement their treaty obligations when they were not ready to do so.

SERGEY LEONIDCHENKO ( Russian Federation) said the further the Commission advanced its work on “protection of persons in the event of disasters”, the more doubts his delegation had on the viability of the draft articles.  A more appropriate approach would be guidelines that would regulate the cooperation of States for prevention and mitigation of consequences of disasters.  It was important that the rules developed by the Commission focus on cooperation among States instead of formulating strict legal obligations.

On “provisional application of treaties”, he said that the Commission should follow a cautious, balanced and pragmatic approach keeping in mind article 25 of the 1969 Vienna Convention.  It was important to distinguish between provisional, transitional and intermediate treaties and treaties that were provisional applied. The Commission’s work should be based on a comprehensive study of the practice by States, including examination of provisional application of treaties that did not provide for such in their text.

Turning to the identification of customary international law, he said changing the name of the topic [“formation and evidence of customary international law”] should not mean the Commission would give up research on the formation of a norm of international customary law.  It was important to proceed from the understanding that international law was a unique common system of law and the process of its formation should not be split into separate areas.

Regarding the “obligation to extradite or prosecute (aut dedere aut judicare)”, he said that given that the Commission had not been able to move forward over a number of years, he questioned whether it should continue its work on the topic.  On “protection of the environment in relation to armed conflicts”, he said the topic was sufficiently regulated by international humanitarian law. The idea that the scope should cover the period before and after conflict raised serious doubts, as the period was considered to be peace time wherein general rules should be fully in effect.

ANDREI POPKOV ( Belarus), on the “formation and evidence of customary international law”, said that with the growth of treaties and concomitant fragmentation of legal regulation, the role of international custom was also growing.  Thus, studying the Commission’s work would enable the Committee to identify instruments that it had used over the years to successfully detect customary legal norms and analyze its formation and evolution.  It would be expedient to focus attention on various elements, in particular, the practice of States.  However, he pointed out that practice was not always easily identified because sometimes not all State practice was public in nature.

Turning to the “provisional application of treaties”, he said use of provisional application to bypass constitutional procedures could have a negative impact on the legal force of an international treaty.  The most productive and practical approach would be to study the international legal implications of the provisional application of treaties.  He stressed that a violation of a provisionally applied treaty should bear the same consequence as violation of a treaty already in force.

He went on to say that, in regards to the “obligation to extradite or prosecute (aut dedere aut judicare)”, it was highly unlikely that the result of the Committee’s work would take the form of draft articles since the topic had been sufficiently standardized in various treaties.  Perhaps commentary and guiding principles could be formulated instead.

OCTAVINO ALIMUDIN ( Indonesia) said that, with regards to the “protection of persons in the event of disasters”, he agreed with the core principles of sovereignty, non-intervention and the requirement of State consent.  In that context, he questioned the need for draft article 12 on the “right to offer assistance”.  Turning to the “formation and evidence of customary international law”, he said that formation was a dynamic process, while evidence had a static character.  Nonetheless, the two were closely related.  Therefore, both topics should be addressed comprehensively.  To determine whether a rule of customary law existed, it was necessary to consider the requirements for formation of a rule and the type of evidence that established the fulfilment of those requirements.

Recognizing the complexity of the “provisional application of treaties”, noting that some issues raised were controversial, he said that more research on State practice, judicial decisions and arbitral awards would be beneficial.  It was essential to consider the relationship between provisional application and constitutional law requirements for the entry into force of the treaty concerned.  That would help avoid conflict between international law and the constitutional law of the concerned parties.  Therefore, it was imperative that any guidelines on the matter include establishing conditions for provisional application that would minimize the potential for conflict.  He also welcomed the proposed temporal approach to “protection of the environment in relation to armed conflicts”.

ONESIS BOLANO PRADA (Cuba), endorsing the statement by the Community of Latin American and Caribbean States (CELAC), said that in regards to the Commission’s work on the “protection of persons in the event of disasters”, cooperation with affected States must always be focused on respect for sovereignty and self-determination.  It was up to each State to determine in a sovereign fashion whether it requested or accepted assistance from international organizations or other States in cases of disaster.

On the “protection of the environment in relation to armed conflict”, she said that work of rapporteurs on the topic should study the possibility of designing a regime of responsibility or accountability which included reparation for damages, reconstruction, responsibility for attacks and damages, and reparations for harm caused to the environment.

In regards to the “most favoured nation clause”, she said the Vienna Convention on the Law of Treaties should be the point of departure for analysis of international agreement principles.  She expressed concern that through the clause, an investor could attempt to demand rights not provided for in the agreement signed with the contracting State of his or her nationality. That way of proceeding undermined the letter of the agreement.

She also noted with concern how arbitral courts with the urge to take jurisdiction for cases were unduly expanding the scope of applications of investment protection agreements based on principles such as the clause.  A broad interpretation of the clause affected the balance of agreement to protect investments, and restricted sovereignty of State receiving investments when it came to establishing policy.  In that regard, what was provided in the treaty should be respected.  Therefore, provisions in the most-favoured nation clause should be expressed in a literal fashion in the text of an agreement, especially as it concerned dispute settlement.

RIVKA TOPF-MAZEH ( Israel), commenting on several third cluster topics, said in regards to the “protection of persons in the event of disasters”, that prevention was a key element in her country’s comprehensive and effective response to disasters.  However, the topic should not be considered in terms of rights and duties, but rather in terms of guiding international voluntary cooperation efforts.  The duty of States to cooperate should be understood in the context of the affected State retaining primary responsibility for such protection, and should be reflected in the draft articles proposed by the Special Rapporteur.

Turning to the “formation and evidence of customary international law”, she said the role of non-State actors therein should be extremely limited both for reasons of possible political biases, as well as to avoid institutional fragmentation.  Resolutions, reports and statements made by multilateral organizations, in particular by United Nations agencies and bodies, were not solely motivated by legal contemplation and often echoed political imbalances, selective considerations and pressures of a temporary nature.  Therefore, such reflections of “soft law” should not be considered as establishing any legal obligation.  She supported the methodology of research that emphasized States as the sole developers of international rules of customary nature.  It was important to adopt a careful and responsible approach to the analysis of “special” or “regional” customary international law.

Turning to the “obligation to extradite or prosecute (aut dedere aut judicare)”, she said the legal basis was solely derived from treaty-based obligations.  There was no sufficient basis to extend such an obligation beyond binding international treaties that explicitly contained such an obligation. The concept of universal jurisdiction should be clearly distinguished from the principle of the obligation to extradite or prosecute. With respect to the topic of the “most favoured nation clause”, she emphasized the principle of consent between parties negotiating bilateral investment treaties with regard to the scope and coverage of such clauses and the consent to exclude certain provisions.

T. SUKA MANGISI ( Tonga), focussing on the “protection of persons in the event of disasters”, welcomed the inclusion of draft articles 5 ter and 16, which recognized the duty of States to reduce the risk of disasters, as well as to respond when disasters occurred.  Prevention was particularly important in the Pacific.  Across the region, rising sea levels and more frequent and intense tropical storms were having a profound adverse impact on the people of Pacific small island developing States.  Tonga was the first country in the region to develop a Joint National Action Plan on Climate Change Adaptation and Disaster Risk Management, and was a leader in the development and implementation of a regional approach to disaster risk management.

However, he continued, responsibility for mitigating the risk of disaster resulting from climate change must not be borne solely by those most affected, but also by the international community, particularly developed countries.  Article 5 ter confirmed that duty.  States were obliged by international law to reduce the risk of disaster, including through reduction of greenhouse gas emissions.  Both developed and developing countries must cooperate now to reduce the effects of climate change.  Further, noting that the commentary to article 16 stated that the duty to reduce the risk of disasters by taking appropriate measures was based on States’ obligations to actively protect human rights and the principle of due diligence, he said that such due diligence must also apply to State action or inaction that impacted the risk of disaster in other States.

NORACHIT SINHASENI ( Thailand), addressing the “protection of persons in the event of disasters”, said that draft article 5 ter should be read together with draft articles 11 and 13 to correctly allow the affected State the right to deny offers of assistance if it deemed that the offering entity harboured an ulterior motive.  Turning to the “formation and evidence of customary international law”, he said that Thailand applied provisions of treaties when national legislation had been enacted to fulfil obligations under those treaties.  Only infrequently did Thai courts refer to well-established customary international law to settle disputes before them.  The outcome of the topic would greatly contribute to the ability of judges and lawyers to identify customary international law. Of particular interest was learning how opino juris could be proven to establish a rule of customary international law in a world with close to 200 States, where treaties seemed to be the main source of binding international obligations.

On the “obligation to extradite or prosecute (aut dedere aut judicare)”, he noted that there were existing gaps in the present conventional regime governing the principle, which needed to be closed, especially in relation to most crimes against humanity and war crimes.  The Commission should develop a model set of aut dedere aut judicare provisions to close those gaps.  He also commended the joint initiative of Argentina, Belgium, the Netherlands and Slovenia for the adoption of a new international instrument on mutual legal assistance and extradition aimed towards effective investigation and prosecution of perpetrators of all major international crimes. The Commission’s work would benefit that initiative.  He agreed that the link between the obligation to extradite or prosecute and the mechanisms put in place by international jurisdictions deserved particular attention.

PETRA BENESOVA ( Czech Republic) said although the title of the topic “formation and evidence of customary international law” had been changed into “identification of customary international law”, the proposed work of the Commission would remain focused both on the examination of the process of formation of the customary rules and the material evidence of their existence. The two elements were inherently interlinked and served as an essential means for tracing the emergence of the customary norm.  In addition, she supported the “two-elements” approach based on the recognition of the indispensability of both State practice and opinion juris for the creation of an international custom, although there was a varying balance between the two elements.  She suggested that the flexibility of the customary process should be taken into account by the Commission.

Turning to the topic “protection of the environment in relation to armed conflicts”, she said that the draft articles would be an appropriate outcome. Regarding the report of the working group on the “obligation to extradite or prosecute (aut dedere aut judicare)”, she noticed certain problematic conclusions. In particular, paragraph 28 did not adequately reflect States’ position on draft article 13 of the “expulsion of aliens” texts adopted by the Commission in the first reading in 2012.  In that context, she said she regretted that there had been no substantial progress on that topic since 2005 and for that reason, recommended the Commission not to continue its work on the topic and focus its effort on other issues on its agenda.  Despite that, she put great emphasis on the inclusion and implementation of the treaty clauses on the obligation in the relevant international law instruments, and was ready to work on that issue in the relevant international fora.

MARCEL VAN DEN BOGAARD ( Netherlands) said that the relevant section on prevention as a principle of international law should not be approached unduly broadly, in relation to all types of disaster.  As well, while the reference to environmental law might be very useful, it should be born in mind that the duty to prevent harm in environmental law operated in a different context, in relation to transboundary harm.  Turning to the proposed two new articles, he said draft article 5 ter extended the general duty to cooperate to the pre-disaster phase and the intention to merge that article into draft article 5 or 5 bis made sense.  As for draft article 16 on the duty to reduce disaster risk, the revised wording was useful as it better clarified that the duty to reduce the risk applied to each State individually, implying measures primarily to be taken at the domestic level.

Turning to the “formation and evidence of customary international law”, he supported the change to the “identification of customary law”.  Also, like the majority of the Commission members, he considered it advisable not to include the matter of ius cogens into the work on customary law.  In addition, the reference to general principles of international law in the discussions was not directly relevant.

As to the “provisional application of treaties”, he said that the main purpose of the study at present should be to elucidate the concept of provisional application.  The Commission should not aim at changing the terms of the Vienna Convention, but rather thoroughly analyze State practice in light of the Convention’s language in article 25.  Further, the Commission should look into the ways in which States might express their consent to the provisional application of a treaty and the way it was terminated.  It should also consider the legal effect of the provisional application of treaties.  Also, a study on this topic could not ignore the importance of domestic law.

RENA LEE ( Singapore) made several comments regarding the draft articles on the “protection of persons in the event of disasters“.  In regards to draft article 5 bis, she agreed with the Commission that the list was only illustrative and was not intended to create additional legal obligations for States.   On the topic of “formation and evidence of customary international law”, there had been suggestions to examine the role played by international organizations in the formation of such law.  She cautioned that there was wide variation in international organizations, and therefore actions by such actors should not be regarded as always relevant in the consideration.

Turning to the topic of "provisional application of treaties", she agreed with the Commission that the study should not be aimed at persuading States to utilize the mechanism of provisional application.  Instead, it should provide a practical guide on what the legal effects of provisional application could be. Regarding the new topic of the "protection of the environment in relation to armed conflicts", non-binding draft guidelines might be an appropriate outcome.  Taking note of the report of the working group on the "obligation to extradite or prosecute (aut dedere aut judicare)", she said it was not clear about how the Commission intended to proceed on that topic.  Regarding the work of the study group on the “most-favoured-nation clause”, it would be useful to look at the question as it related to trade in services, as well as its relationship with fair and equitable treatment and national treatment standards.

TREVOR REDMOND ( Ireland) welcomed the commentary to draft article 12 on the “protection of persons in the event of disasters”, stating that “offers of assistance which are consistent with the present draft articles cannot be regarded as interference in the affected State’s internal affairs”.  On the “formation and evidence of customary international law”, he said a suitable outcome would provide guidance to those practicing at both the international and domestic levels.  He expressed particular interest for the inclusion of an examination of the relationship between customary international law and general principles of international law.  As well, consideration of whether there was a single approach - or several approaches - to identifying customary international law, depending on the field of law at issue, was welcomed.

Turning to the “provisional application of treaties”, he looked forward to further consideration of the relationship between article 25 of the Vienna Convention and other provisions of the Convention, as well as an examination of the extent to which provisional application might apply to provisions of a treaty that created institutional mechanisms.  He also encouraged consideration of whether the rules of article 25 were applicable as rules of customary international law in cases where the Vienna Convention did not apply.  There was some merit in including the provisional application of treaties by international organizations.  In closing, he welcomed the proposed approach for addressing “protection of the environment in relation to armed conflicts”.

ANTOINE MISONNE (Belgium), addressing the “provisional application of treaties”, said that article 167 of the Belgian constitution, as revised in 1994, contained an essential principle whereby all treaties were required to be submitted for parliamentary assent or for the assent of other competent assemblies.  Nowhere in relevant Belgian jurisprudence was the provisional application of treaties considered.  Thus, while parties might agree to the provisional application of a treaty with international effect, that treaty would face limitations domestically, because of the constitutional requirement for assent.

He noted that prior to the Constitution’s revision, Belgium provisionally applied certain agreements without the assent of the competent assemblies.  In cases where parties had consented to provisional application, that application generally had the same effect as if the treaty were in force.

DJAMCHID MOMTAZ (Iran), on the topic “formation and evidence of customary international law”, said that despite the controversy surrounding jus cogens, the concept was more related to the hierarchy of international law norms.  Its formation followed a different path than that of customary international law. Nonetheless, the existing interest in imperative norms and lack of generally accepted criteria for their identification deserved to be approached by the Commission, in order to determine under what conditions an ordinary rule reached the status of a jus cogens.  Such a study could clear up the doubts and difficulties surrounding the issue.

On the “protection of the environment in relation to armed conflicts”, he said that international law should envisage provisions to encourage States to move military objectives far from ecologically fragile zones.   The Commission should focus specifically on measures that States, particularly those engaged in armed conflicts, would have to take, once the hostile activity ended, in order to rehabilitate the environment.  The Commission should also address, among other things, issues related to demining.  It was the duty of State or non-State actors that had undertaken the mining to communicate, once the active hostility ended and within the framework of ceasefire agreements, the information they posses on the position of planted mines.  Similarly, solutions should be sought to rehabilitate, where appropriate, the negative impact of refugee camps on the environment, which at times was very serious.

LI ZHENHUA (China), on the topic “protection of persons in the event of disasters”, said a distinction should be made between natural and man made disasters, stressing that no excessive responsibilities should be imposed on affected States for disasters that were hard to predict.   He noted that space technology, such as remote sensing, earth and meteorological observation, and satellite navigation, had played an important role in disaster prevention, reduction and preparedness and had greatly helped national efforts in that area. The Commission should pay attention to the role of space technology and other new technologies in relation to the topic, and consider including in the draft articles the following formulation: “encourage States to find innovative ways and leverage space technology applications in disaster prevention, preparedness and reduction”.

On the “provisional application of treaties”, he said there should be an in-depth review of the relevant international and national practice, focused on the legal effects of provisional application, particularly when it came to related rights and obligations.  As well, the Commission should study the relations between provisional application and national constitutions and legislations.  Of all the treaties that were being provisionally applied, most required such application in order to not “contravene the internal laws of the State”.  As a result, the legal effects and consequences of provisional application had been repeatedly challenged, and remained a major contentious issue since the creation of that rule.

MARWAN JILANI, International Federation of Red Cross and Red Crescent Societies (IFRC), said that over the past few decades it had become clear that the majority of humanitarian needs created by disasters could be prevented from arising in the first place.  Thus, disaster risk reduction must be a priority and promoted.  The Societies’ commitment to that goal had transformed the way it worked.  It was no surprise, he continued, that he supported the Commission’s conclusion that States had a duty to take measures to reduce disaster risks.

He noted that IFRC was currently engaged with the United Nations Development Programme (UNDP) in a comparative study on legislation and disaster risk reduction in 31 countries.  One of the preliminary findings was that despite strong international consensus on the matter, accountability gaps were a frequent barrier to greater success. A clearly affirmed international duty would be a helpful tool to redress the situation.

Further, he said while draft article 16 described some key measures, critical elements had been left out.  Reference should be made to assessing and reducing vulnerability and increasing the resilience of communities faced with natural hazards.  Only States could require or prohibit behaviours that made people safer, for example, through land use planning, watershed management and building codes.  The use of incentives and disincentives in that regard had not been adequately reflected.  Further, States could and should empower communities through information, education and engagement in disaster risk reduction activities.  In addition, while the draft article referred to disaster preparedness, it did not include specific measures, such as contingency planning and simulation exercises.

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