Legal Committee Is Told Judges from Different Fields Reach Common Understanding on Increasingly Complex Global Issues
Legal Committee Is Told Judges from Different Fields Reach Common Understanding on Increasingly Complex Global Issues
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
20th & 21st Meetings* (AM & PM)
Legal Committee Is Told Judges from Different Fields Reach Common
Understanding on Increasingly Complex Global Issues
President of International Court of Justice Says Its Work
Indicates Emerging Notion of World as ‘Community of Human Individuals’
As consideration of the International Law Commission’s report continued in the Sixth Committee (Legal) today, the Committee also heard an address from the President of the International Court of Justice, which was followed by an interactive dialogue with Committee members.
In his statement, President Hisashi Owada said that, although the Court’s members were drawn from different jurisdictions, it was his impression that the judges were examining each other’s decisions and coming to a largely common understanding of the law in various fields.
He said the proliferation of multilateral legislation in areas such as international human rights law and criminal jurisdiction, together with changes in the international environment, had made the Court’s work more complex, including in such fields as delimitation of land and maritime boundaries, matters of sovereign immunity, international responsibility and diplomatic protection.
Moreover, he said States were turning to the Court for judicial settlement in areas previously not submitted for adjudication, as a notion emerged about “the world” as a “community of human individuals”. Some 300 bilateral or multilateral treaties currently provided for the Court’s jurisdiction and more cases came on the basis of “compromissory clauses” found in multilateral conventions.
He spoke of the Court’s increasing workload and said its work in its unique capacity as a principal judicial organ of the United Nations merited strengthening. He offered suggestions to this end.
Taking part in the dialogue were the representatives of Austria, Pakistan and China.
In the debate on the Law Commission’s report with regard to the “protection of persons”, Thailand’s representative called for a rights-based approach, which he said was not at odds with a needs-based approach. It meant the individual was at the centre of efforts and the particular factual situation of victims was taken into account. A 2005 agreement on disaster management by the Association of South-East Asian Nations (ASEAN) was expected to enter force by year’s end. It could be a case study for the Commission’s work.
Saying the text now represented an elegant compromise between the so-called rights-based approach and the needs-based approach, the delegate of the Russian Federation said the recent increase in tragic events all over the world demonstrated the urgency of the issue. Other good decisions in the text included the focus on all rights, rather than on specific rights or groups of rights, and the avoidance of a distinction between natural and man-made disasters.
On the topic of shared natural resources and the sub-item concerning oil and gas, particularly with a view to whether the Commission should consider the item, Viet Nam’s representative said the Commission should take up the issue and should make a distinction between areas of shared natural resources still in dispute and those that crossed already established State boundaries.
The representative of the United Kingdom, on the other hand, said the usefulness of the Commission codifying or developing a set of draft articles or guidelines on oil and gas was doubtful, based on his experience and the views expressed by others. He would answer the Commission’s questionnaire, but the Commission would be better off directing its attention to projects more likely to yield real utility to States.
A number of representatives said the Commission’s 2009 regulations relating to aquifers were not directly applicable to oil and gas. Regulations regarding the conservation and protection of cross-border resources essential to the survival of humanity could not automatically apply to gas and oil.
Also speaking on those and related issues were the representatives of Finland, Austria, Saudi Arabia, China, Chile, Germany, Czech Republic, Spain, Myanmar, Cuba, France, Canada, Malaysia, Venezuela, Greece, Sri Lanka, Slovenia, Poland, South Africa, Portugal, Netherlands, United States and Australia.
Finally today, the Special Rapporteur on “reservations to treaties” told the Committee that interpretative declarations and reservations presented very different legal issues and were governed by different rules. Instead of disseminating the guidelines, perhaps the texts could be regrouped into a special section of the Guide to Practice. The issue of permissible and impermissible interpretative declarations would be revisited next year. If reviewed by the Commission during its next session, the Guide to Practice would be concluded in its first reading.
The Committee will meet again at 10 a.m. on Monday, 2 November, when consideration of the Law Commission’s report is expected to resume.
The Sixth Committee (Legal) met today to continue its consideration of the report of the International Law Commission, with a focus on “protection of persons in the event of disasters” and “on shared natural resources”. (For background on the Commission’s report, see Press Release GA/L/3374 of 26 October.)
The Sixth Committee also has before it two draft resolutions. By a draft on the report of the United Nations Commission on International Trade Law (UNCITRAL) (document A/C.6/64/L.10), the Assembly would welcome the progress made by the Commission on the revisions of its Model Law on Procurement of Goods, Construction and Services and of its Arbitration Rules, as well as progress on a draft legislative guide on the treatment of enterprise groups in insolvency and a supplement to the Legislative Guide on Secured Transactions dealing with security rights in intellectual property. It would endorse the UNCITRAL decision to undertake further work in the area of arbitration, electronic commerce, transport law and commercial fraud, as well as in the areas of insolvency and security interests, and would welcome decisions regarding the holding of international colloquiums on electronic commerce and on security interests.
Further by the draft, the Assembly would affirm the importance of the Commission’s work, particularly for developing countries, in technical assistance and cooperation in international trade law reform and development, including through initiatives towards expanding those programmes and building partnerships towards that end. Among other provisions, the Assembly would express appreciation for contributions to the trust fund providing travel assistance to developing country members of UNCITRAL, and would decide to continue considering travel assistance grants to members which are least developed countries.
The draft would welcome the review of UNCITRAL’S work methods in light of its increased workload, and would welcome the discussion in the Commission on the role of modern private law standards in the area of international trade as an essential element for advancing good governance and development. The Assembly would also affirm the view that promotion of the rule of law in commercial relations should be an integral part of the broader United Nations agenda to promote the rule of law, including through the Rule of Law Unit. The Commission’s proposed strategic framework for 2010-2011 would also be welcome.
Recalling resolutions on partnerships, the Assembly by the draft would request the Secretary-General to explore options to facilitate timely publication of the Commission’s Yearbook on international trade law and would stress the importance of implementing the Commission’s conventions for global unification and harmonization of trade law. Digests of case law would be also welcome.
The other draft resolution before the Sixth Committee relates to UNCITRAL’S Practice Guide on Cross-Border Insolvency Cooperation (document A/C.6/64/L.11). By the text, the Assembly would request the Secretary-General to publish, including electronically, the text of the Practice Guide and to transmit it to Governments. It would also recommend that the Guide be given due consideration by judges, insolvency practitioners and other relevant stakeholders. Finally, the Assembly would recommend that all States continue to consider implementing the Model Law.
The Committee was also to hear a statement from the President of the International Court of Justice.
Statement by the President of the International Court of Justice
HISASHI OWADA, President of the International Court of Justice, told the Committee the rising number of cases and areas dealt with by the Court reflected the mounting confidence of Member States in its work. It also reflected the international community’s growing conviction that rule of law should prevail in the conduct of international relations. There had been a great increase in the use of the Court by States in different parts of the world, and on a great diversity of issues. The number of pending cases had risen from 3 cases through the 1960s, with fewer than 5 through the 1980s, to 13 in the 1990s, and then an average of 20 cases each year over the last decade. The last five years were perhaps some of its most active; the Court currently had 15 cases in its docket.
He said the increase in number of cases had led to a corresponding increase in the use of ad hoc judges. Between July 2008 and July 2009, Member States had chosen 25 judges, with functions being carried out by 20 individuals. Each ad hoc judge needed resources and materials on an equal footing with permanent judges. The biennial expenditure for ad hoc judges stood at €678,856 as of 1 October this year.
He said that a proliferation of multilateral legislation in areas such as international human rights law, international humanitarian law and international criminal jurisdiction had made the Court’s task more complex. Even in classical areas of international law, where the Court had a long-established jurisprudence -- such as the law on the delimitation of land and maritime boundaries, the law of sovereign immunity, or the law of international responsibility of States and of diplomatic protection -- changes in the international environment had made it much more complex for the Court to ascertain the law.
He said the docket had come to reflect the need of States for judicial settlement in areas where States had tended not to submit disagreements in the past. There seemed to be an emerging notion of “the world” as a “community of human individuals.” It had dealt directly with the rights of individuals in some cases, and had similarly upheld the importance of the protection of the individual rights of private persons under the concept of rule of law, as derived from international humanitarian and human rights law. He cited the case of “Armed activities on the territory of the Congo” ( Democratic Republic of the Congo v. Uganda). Another case involved the application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. the Russian Federation), put to the Court on the question of alleged infringement on the rights of individuals.
He noted a growing emphasis on public order cases, as seen in the case of “Application of the Convention on the Prevention and Punishment of the Crime of Genocide” (Bosnia Herzegovina v. Serbia), in which the Court had ruled that States were obliged not to commit acts of genocide. Environmental issues were another area of focus: the Court was currently examining the case concerning Pulp Mills on the River Uruguay ( Argentina v. Uruguay), and would soon take up another case on aerial herbicide spraying ( Ecuador v. Colombia). It reflected a growing awareness of the importance of environmental law for global human survival.
One implication of those new developments was the Court’s need for an adequate support system, he said. Through its Rules Committee, the Court was attempting to rationalize its procedures and improve its working methods. One approach was to balance the need to give sovereign States their due respect with the need to speed up the Court’s work in securing the proper and just administration of justice. But there were limits as to what could be achieved through its own internal rationalizations -- there was also a need for adequate external support.
He said judges benefited greatly from having clerks assigned specifically to them, rather than having a pool of associate legal officers at the legal department of the Registry of the Court. The way judges worked, they each formed an opinion separately and independently from other judges. Each judge must form his or her own views in the course of deliberations. If the information, materials and viewpoints a judge wished to pursue was researched by a pool of legal officers, as coordinated by the Department of Legal Matters, it could create an “institutional filter”. As such, the Court would like to create a body of law clerks, which is used by national Supreme Courts and other international tribunals.
He then turned to the issue of jurisdictional basis of the cases brought before the Court, where he pointed to a weakness. Amid the growth of an international global community, institutions to govern the conduct of States in this new order were not fully backed by “a comparable institutional framework”. The origin of the Court was the establishment of the Permanent Court of International Justice (PCIJ) in 1920. A debate on the Court’s jurisdiction ended with a compromise, where the Court’s jurisdiction was voluntary rather than compulsory, which remained the case at the San Francisco Conference because of strong objections from the Soviet Union and the United States.
He said some 300 bilateral or multilateral treaties currently provided for the Court’s jurisdiction, and more cases were being brought before the Court based on “compromissory clauses” found in multilateral conventions. In the last decade, more than half of pending cases had been brought under such clauses. Only 66 out of 192 States had made optional clause declarations, recognizing the Court’s jurisdiction as compulsory. That form of jurisdiction was frequently challenged by respondents before the Court, leading the Court to spend a substantial amount of its judicial activity on preliminary objections rather than tackling substantial issues.
He said that as new international judicial bodies came into being, it could lead to a fragmentation of jurisprudence and uncertainty in the law, and past Presidents of the International Court of Justice had expressed their views on this issue, including Judges Jennings, Guillaume and Higgins. He himself was personally inclined to think that the risk was somewhat exaggerated.
He said the function of a judge in any jurisdiction, whether domestic or international, was in his or her quest for, and realization of, “justice” in the context of a concrete case. In international disputes, it was difficult to identify what was “just” in view of the international community’s pluralistic values. It was difficult, as well, to apply justice where there was tension between justice and stability in the delivery of international legal judgments. It was also difficult to characterize justice when there was dichotomy between justice in human terms and justice in sovereign terms.
However, he said, the Court had the unique attribute of being a collegial body united in its quest for justice in the concrete context of the cases before it, which he said needed to be further promoted. It was also important to intensify dialogue among judges of different international judicial bodies, among whom there seemed to be a growing convergence of “juristic” view of the contemporary world. Indeed, his own impression was that judges in different fields were carefully examining each others’ decisions and coming to a largely common understanding of the law in areas such as human rights law, humanitarian law, and environmental law.
He said the International Court of Justice occupied a unique place as the principal judicial organ of the United Nations, for all practical purposes representing the international communities of the present-day world. Its authority lay in the rationale of a “comprehensive perspective” of the uniformity of international law as the common law of the global community.
Interactive Dialogue with the Judge
In an interactive dialogue between Judge Owada and the Committee, the representative of Austria asked whether using Chambers might reduce the Court’s budget, and if three groups working in parallel might not help ease the workload. Pakistan’s representative asked what the status of a case would be when a country did not recognize the Court’s jurisdiction, but did recognize a bilateral agreement. China’s delegate asked how the limitation of only two official languages impacted the Court’s work. Would more literature sources in other languages give the judges more access to information? Also, what was the legal standing of the staff?
Judge Owada said nothing prevented parties going to Chambers, but the option was not often chosen. Rather than solving the workload and budget problems, going to three groups might aggravate it since the Registry workload would increase. Now, judges started a new case when a certain stage in a previous one was reached. Further, the Court was founded on principles such as impartiality and fairness of judgment. By considering together the various legal systems of the world, the 15 judges with different backgrounds emerged with a consensus that had more clarity to the international legal community. Dividing into three work groups would eliminate that possibility.
On the question of States not accepting the Court’s jurisdiction but accepting a bilateral treaty, Judge Owada said the Court considered competing jurisdictions as parallel and not mutually exclusive. They were seen as supplementary, and if the dispute fell outside one jurisdiction but within another, the Court exercised on that basis.
He said the language question was a difficult one for the Court. Judges were expected to understand both English and French and some were better at one than the other. Notes in the judge’s language were translated by a secretary and then circulated in both the original language and the translation to ensure preciseness. Discussion took place through simultaneous interpretation. Judgments were also worked out simultaneously in French and English to ensure the texts agreed. Budgetary constraints and workloads prevented expansion into other languages.
Expressing thanks for the support of delegations to provide more support to the Court, he said the Court had begun with no clerks and now had eight junior officers in the Registry. Each assisted two Judges.
Statement: Special Rapporteur on Reservations to Treaties
ALAIN PELLET, Special Rapporteur on reservations to treaties, addressed the Committee on the topics of those reservations, and of expulsion of aliens. He said interpretative declarations and reservations presented very different legal issues, and were subject to different rules from one another. Rather than disseminate the guidelines, he suggested regrouping these texts into a special section of the Guide to Practice.
He reminded the Committee that the Law Commission had decided that these questions would remain pending until next year when work was concluded on the issue of permissible and impermissible interpretative declarations. He and the Commission supported interpretative declarations falling within the legal regime of reservations, but said the issue should be addressed again next year.
He said he was surprised at the criticism of the United Kingdom on the issue of permissibility. Noting that the French text said “validity”, he observed that the United Kingdom had for the past 12 years used the word “permissibility.” He said he was now reviewing the language, and he urged the English-speaking delegates to reach a decision in this regard. Although English was not his mother tongue, he said, the term “validity of reservation” was quite appropriate.
He also expressed surprise at the number of delegates who complained of the scope of the matter being too wide. He did not know if this could be easily rectified, since the issue was so extremely complex that there was a need for detailed guidelines. He observed that the delegates complained “forcefully” about the number of guidelines, and then complained about the vagueness and scope. Committee members should decide what they wanted; he would welcome feedback and suggestions for the Guide.
He said that if the Law Commission examined all guidelines by 2010, the Guide to Practice for the first reading would be concluded. The effects of reservations and their permissibility, or validity, were short chapters and his draft on interpretative declarations would be done before the end of 2009. He appealed to Committee members, with regard to the draft articles, to abide by the work of the Commission and to shorten the time of review and consideration to one year. This would enable the Commission and the Committee to complete the work on this subject.
Statements: Protection of Persons; Natural Resources
PAIVI KAUKORANTA (Finland), speaking for the Nordic countries, said that with respect to the scope of the topic, “protection of persons in the event of disasters”, and the definition of “disaster” in draft articles 1 and 3, her delegation fully agreed with the Special Rapporteur in deeming that a strict distinction between natural and man-made disasters would not be reasonable, from the point of view of the affected individual. Moreover, in practice, such a distinction could be artificial and difficult to make. The Nordic countries also subscribed to the exclusion of situations of armed conflict from the scope, by way of reference to the rules of international humanitarian law, as proposed in draft article 4. The Nordic countries also supported the current wording of draft article 2, which, in addition to the rights-based approach, took into account the needs of the affected persons. There was no contradiction between needs and rights of affected persons in the event of disaster; the two approaches complemented one another.
She said it was opportune that the Special Rapporteur had also examined the rights and obligations of the affected States and other relevant actors. During a disaster, the affected State had the primary responsibility for protecting persons on its territory or subject to its jurisdiction, even if international cooperation was indispensable in protecting persons during such events. Draft article 5 correctly reflected the duty to cooperate. Other core principles of international law, such as humanity, neutrality, impartiality, sovereignty and non-intervention also had significance, and should be addressed in the further development of this topic by the Committee.
GERHARD HAFNER (Austria), on the same topic, said the rights-based approach, combined with the needs-based approach, was appropriate for providing legal remedies for individuals suffering from the results of disasters. However, these approaches were not sufficient to address all problems arising from such situations, since issues between States would also have to be addressed.
He said he supported the Law Commission’s view that the definition of “disasters” should not include armed conflicts for the purpose of the draft articles. He also said that because of the difficulty in determining cause, it seemed wise not to distinguish between man-made and natural disasters.
The elements of the definition of disaster were serious disruption of society, excluding armed conflict; widespread human, material or environmental loss, and finally the link established by causation. Although this definition was based on a 1998 convention on telecommunication resources in disaster mitigation and relief operations, he questioned if the element of disruption of the functioning of society was appropriate. In case of disaster, a society might in fact show its well-prepared emergency plans and relief measures, and thus be excluded from benefiting from the rights provided in the draft articles.
He also questioned if the losses linked to earthquakes, avalanches, floods or tsunamis should only apply to the dysfunction of society or should they not rather be linked to the events themselves. He suggested that the definition of disaster be reviewed to include all disasters even if they did not seriously disrupt the society of an entire State. Further, he endorsed the conclusion that the relevant draft articles comprised disasters with a transboundary effect, as well as those without such an effect.
On the topic of shared natural resources, he said the Commission did not present substantive draft articles this year. He commended the Special Rapporteur who not only worked on this issue, but had also worked on State immunities that, because of his efforts, had been finalized and adopted in the United Nations Convention on the jurisdictional immunities of States and their property.
SHAFI ALOATIBI ( Saudi Arabia) devoted his remarks to the Law Commission’s agenda item on “shared natural resources”. He said the draft law on transboundary aquifers did not address the prevention of side, diagonal and horizontal drilling inside water aquifers. It did not take into account the different areas of water layers, their extension, thickness and characteristics, and the direction of groundwater flow. It did not mention the use of polluting materials and the impact on aquifers. Nor did the draft deal with hidden, invisible underground water sources, representing high risks because of inaccuracy of information and data, and the large sub-surface geological structures such as faults and folds that impede the flow of aquifers.
Further, he said it was important that the drafts distinguish between dry desert areas of scarce rainfall and those areas rich in groundwater. In this regard it was imperative to give priorities for transboundary groundwater use in the desert area, particularly for drinking water uses. To this end, he called for establishing a mechanism to review and exchange successful methods in transboundary aquifers management.
LIU ZHENMIN (China), on the topic of the protection of persons in the event of disasters, expressed doubts about the viability of a “rights-based” or “needs-based” approach, noting that it seemed an ambiguous approach. He said it overlooked the need to address individual interests, collective interest and interests of public order in an integrated manner. It also implied that individuals were in a position to appeal for international relief in the event of disasters, which could contravene the principles of sovereignty and non-interference in internal affairs. Duty to cooperate should not mean that States affected by disasters were obligated to accept international relief, or that States providing relief were required to satisfy the requests of affected States.
He said more extensive study was needed on the relationship of rights and obligations between States. The first focus should be the response to disasters and post-disaster reconstruction, leaving pre-disaster prevention for a later stage of review. He also believed it was too difficult to draw a strict distinction between natural disaster and man-made disaster. The focus should be on the protection of persons in the event of disasters, not on the disasters themselves.
Affected States in disaster situations bore the responsibility to protect their citizens, he said, and international relief should be provided only with the consent of the affected States, he said. Further, because natural disasters were not limited by national boundaries, the varied levels of capacity to respond by developing countries and those by developed countries needed to be noted and addressed.
CLAUDIO TRONCOSO REPETTO ( Chile) said, on the topic of expulsion of aliens, that it should be established that the State was obligated to observe and respect an alien’s human rights. He said the draft article also needed to include the right to life. Although the death penalty had not been universally abolished, it was important to expressly state in the relevant draft articles that an alien condemned to death in another State would not be expelled until that State guaranteed the death penalty would not be imposed.
Turning the protection of persons in the event of disasters, he said protection should be given to persons at all stages, from prevention to post-disaster, and it was mistaken to distinguish between natural and man-made disasters. He said he disagreed with the exclusion of situations of armed conflict from the definition of disaster. While armed conflict was governed by international humanitarian law which must take priority, there were other aspects of disaster, occurring during or as a result of an armed conflict, which were not covered by the Geneva Convention or its Additional Protocols. In post-disaster situations, where the rules of international humanitarian law might be inadequate, such inclusion would be appropriate.
On the topic of shared natural resources, his Government agreed with the Commission’s decision to continue its process in the study of trans-frontier oil and gas resources, and he urged States to provide information and comments on this issue so that the Commission could make an informed decision on how to continue its work on the subject.
He said the issue of the obligation to extradite or prosecute was a corollary of efforts to combat impunity for serious crimes and offences, and commended the Working Group’s outline and efforts. On the subject of the immunity of State officials, he regretted that the Commission had not considered it during the more recent session.
CHRISTOPH RETZLAFF ( Germany) said that the adopted draft articles on transboundary aquifers would serve as an important guide in preventing future conflicts around the utilization of groundwater. His country met the requirements outlined in the Commission’s draft, since it was bound by the European Union Water Framework Directive and its “daughter directive” on the protection of groundwater.
He said that, continuing to share oil and gas resources, Germany had in past sessions taken a more cautious approach. Because of limited resources on German territory, bilateral agreements with neighbouring States sufficed in addressing all issues, and they had no need for a global regulation. In that regard, he noted his country’s bilateral agreements with Poland and with the Netherlands, and pointed out that there was no legislation on the European level concerning transboundary energy resources such as oil, gas or coal.
JESSE CLARKE ( United Kingdom) said the Commission’s work on the protection of persons should proceed on the basis that the notion of a right to humanitarian assistance did not imply a right to impose assistance on a State that did not want it. A needs-based, rather than rights-based approach should be taken, so as to be consistent with the Red Cross and Red Crescent Guidelines for Disaster Relief adopted at the 30th International Conference. He agreed that a draft article on objectives should be prepared, separate to that on scope. He further suggested that the term “adequate and effective” in the text should be replaced with “timely and effective,” while the terminology of “protection” should be changed to reflect assistance and relief. Further consideration should be given to whether the topic should cover all phases of disasters. Further work on delimiting the topic also should be undertaken.
He said considerations such as scope, definition and scope of duty to cooperate would need to be revisited on completion of the text. Therefore, all three articles should be considered in more detail once a clearer idea of scope and direction were determined. Finally, on the matter of form, codification or progressive development of comprehensive and detailed rules was unlikely to be suitable on the topic. Non-binding guidelines or a framework of principles would be of more practical value and more likely to enjoy wide acceptance and support.
On shared natural resources, he recalled he expressed serious doubts last year on the usefulness of the Commission codifying or developing a set of draft articles or guidelines on oil and gas. He said the view was based on his own experience and views expressed by others. He would answer the Commission’s questionnaire, but his clear view was that the Commission would be better off directing its attention to projects more likely to yield real utility to States.
MILAN DUFEK ( Czech Republic) expressed agreement with the Drafting Committee’s choice of a rights-based approach supported by the needs-based approach. As for the duty to cooperate, he said the primary responsibility lay with States, and that the duty to cooperate with the United Nations should be differentiated from duties owed to other organizations. There needed to be a differentiation, as well, between duties owed to the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies, since the former operated mostly on the basis of international humanitarian law. In addition, he supported the exclusion of the concept of “responsibility to protect” in the discussion. With respect to future draft articles, he said they should -– as non-binding guidelines -- supplement current documents on humanitarian assistance.
Regarding shared natural resources, he said his Government had responded to the questionnaire concerning transboundary oil and gas resources and would encourage other States to do the same. Such information would help the Commission decide whether it should continue its consideration of the subject. There was no need for the Commission to develop universal rules on the subject. Nevertheless, it could elaborate elements that States could use when negotiating bilateral agreements. It could also summarize State practice. But, it should avoid addressing questions of maritime delimitation, which would be better dealt with through the Convention on the Law of the Sea or by competent judicial bodies, such as the International Court of Justice.
A. TEZIKOVA ( Russian Federation) expressed gratitude to Special Rapporteur E. Valencia-Ospina for his contribution to the elaboration of the topic regarding protection of persons in the event of disasters. Regrettably, the urgency of this topic was recently confirmed by an increased number of tragic events in different regions of the world. In this regard, the progress in the work of the Commission was becoming significant, in light of global ecological and man-made changes.
Turning to the issue of the draft articles provisionally adopted, he supported them, and commented briefly. Conceptually, he supported draft articles 1, concerning scope and 2, on purpose. Draft article 2 represented an elegant compromise in the dispute between Commission members on the choice between the so-called rights-based approach and the needs-based approach.
He thought the decision of the Commission not to focus on particular rights or the groups of rights, but to deal with all categories of human rights in general, was positive. In addition, he supported the approach of the Commission to not make a distinction between natural and man-made disasters. At the same time, the use of the term “effective” with regard to “response to disaster” gave rise to certain doubts. It was crucial to ensure that the implementation of that criterion did not imply the obligation of an affected State to accept the assistance from other actors of the international community.
Regarding portions of the draft articles, for example, as to the scope of ratione temporis, he wanted to mark separately “in all phases of disaster,” which he said allowed the Commission not to set aside such an important phase as disaster prevention. The task of the Commission was to reveal the particularities of legal relations arising between States. Draft article 3 contained the definition of “disaster.” As formulated by the Commission, it was balanced and an acceptable starting point, as it included either a single event or “chain of events” in the form of a complex situation. As for article 4, he welcomed the Commission’s decision to exclude armed conflicts from the scope of the draft articles.
CONCEPCION ESCOBAR HERNANDEZ ( Spain) said the Special Rapporteur had made significant progress on the protection of persons in disasters, particularly in eliminating armed conflict from the scope of the item. Progress had also been made with regard to early warning actions to be taken. Future work should include an analysis of operational aspects of providing assistance to persons in disasters, since it was one of the essential components of the Commission’s work. The rights-based approach was the best to adopt, with the needs approach as the foundation.
He said protection should be considered from two angles -- from the perspective of inter-State relations, and the other from the perspective of the relationship between the State and the persons to be protected. Both were important and the work would be incomplete without considering both perspectives. On terminology, he said, the use of the word “solidarity” presented concern, since that important principle had yet to reach the level of legal validity. The manner in which the subject of solidarity was addressed showed sensitivity to the issues involved. The term “civil society” was too broad in scope to be used in a legal context, another term should replace it, one that encompassed elements of the concept as applied in both domestic and international law.
He said work should continue at a fast pace on the important issue that so directly affected the human rights of so many people.
When the Committee met again this afternoon, KHIN OO HLAING (Myanmar) noted her country’s experience with “Cyclone Nargis,” which hit three of its regions in May last year, and said it was appropriate to have a needs-based approach rather than a rights-based approach, in the case of protection of persons in the event of disaster. A rights-based approach could create unwanted situations, she said, and result in consequences such as forced humanitarian intervention. Non-intervention, as stated in the Charter, needed to be fully respected.
Turning to the topic of shared resources and the issue of offshore oil and gas deposits under sea areas under negotiations between States, she said it would be difficult to regard those as shared natural resources. The United Nations Convention on the Law of the Sea provided the means for maritime boundary delimitation, but it did not deal with oil and gas deposits. However, a State could not be denied the sovereign right to explore and exploit the natural resources located within its land and maritime territory.
NGUYEN THUY HANG ( Viet Nam) also spoke the question of oil and gas under the category of shared natural resources. She said consideration of the matter would contribute to the maintenance of peace and security, and towards the optimum use of such resources for the benefit of mankind.
She said the second reading of the draft articles on transboundary aquifers last year, and their subsequent transmission to the General Assembly, had been welcome. However, the work on oil and gas should be independent of the work on aquifers, not only because of the fundamental difference between the two kinds of resources but also because there was much material on States practice in the form of agreements or arrangements for exploration and exploitation of oil and gas to serve as the basis for the Commission’s work.
In considering those agreements and arrangements, she said, a distinction should be made between those related to areas still in dispute and those that crossed already established State boundaries. There may be common general legal principles between those two categories to ensure that equality of benefits, good neighbourliness and cooperation were applied. However, different legal rules prevailed in relation to delimitation or management of the boundary. Her country had experience with both types of legal instruments and was willing to contribute to the Commission’s codification work.
LESTER DELGADO SÁNCHEZ ( Cuba) said that because oil and gas resources were of vital importance, the issue of large powers trying to control those resources must be acknowledged and addressed. A core element in the consideration was respect for the sovereignty of a State to use resources in its territory. The principles of sovereignty, sustainable development and good faith, among others, must ensure equitable distribution of natural resources.
On the protection of persons in the event of disasters, he urged a detailed study on the sovereignty of States and their rights in relation to receiving and accepting assistance. Attention to the new concept, “responsibility to protect,” was required, as this was a complex issue. In the case of disasters, the sovereignty of States must prevail. Cuba had been affected by natural disasters from climate changes in the recent past, but because of their citizen defence network and Government action, the loss of life was minimal.
Turning to reservations to treaties, he said the Guide to Practice should not modify the regime stated in the Vienna Convention. They should be complementary to each other. Because interpretative declarations and reservations were different legal instruments, the Commission should continue its study of the issue.
On the expulsion of aliens, he said it would be difficult to establish a norm, since some States accepted dual or multiple citizenship; in studying the topic this element should be taken into account. The Commission should enhance its relationship with States and engage more extensively for their input and observations on the matter.
PIYAWAT NIYOMRERKS ( Thailand) said the question of protection of people in disasters was of particular interest to his country and region because of the natural catastrophes that had struck there. Specifically, the text of the draft in article 1 should take the rights-based approach, putting the individual at the centre of efforts, taking into account the particular factual situation of victims. He said the provision of physical security and necessities should not ignore the economic, social and cultural rights of victims, which entailed obligations and responsibilities of affected States towards individuals. There was no dichotomy between a rights-based and a needs-based approach.
He said the definition in draft article 2, excluding armed conflict, was adequate. The principle of special rule must be respected. In addition, the kind of protection under consideration was focused on consequences that individuals experienced in either natural or man-made disasters. While cooperation between States, and between them and organizations, was important, the principles of sovereignty, neutrality, non-discrimination and non-intervention must prevail. Also, the concept of responsibility to protect did not apply to disaster response. That emerging concept should be cautiously applied.
He said the development of disaster assistance through the Association of Southeast Asian Nations (ASEAN) could be a case study for the Commission’s work. Among other regional measures, the 2005 ASEAN Agreement on Disaster Management and Emergency Response was expected to enter into force by the end of the year. It would provide a legal framework for regional cooperation.
EDWIGE BELLIARD ( France) said the topic of protection of persons in a disaster was delicate, as the definition of each term required careful consideration. The scope of the definition of the terms should not prejudge any future work. The rights of States in regards to their people should be emphasized. A focus should be on the response to disasters; future draft articles should identify the duty of States to prevent disasters, and the actions needed to protect its citizens in the case of their occurrence. This could be in a legal framework of the definition to provide protection, but she doubted it could go further than that.
On the essential needs of the relevant draft article, she noted that this notion was not a legal category. In regards to essential needs and the rights of people, the draft article should be welcomed, since it did not establish a hierarchy between essential needs and rights.
Turning to the topic of shared natural resources, she expressed uncertainty about regarding transboundary oil and gas in this context, and said the questionnaire should be sent again to Governments. The issue was not part of customary international law but between States. Work on the codification of this topic was unrealistic and untimely.
ALAN H. KESSEL ( Canada) spoke on shared natural resources. He noted that Canada physically shared seven transboundary aquifers with the United States, and said the full range of its transboundary water issues was exclusively bilateral. Its relationship with the United States was governed generally by the International Boundary Waters Treaty of 1909 and specifically by the Great Lakes Water Quality Agreement of 1978, which was amended in 1987.
He recalled that the 1978 quality agreement was amended in 1987 to include an annex addressing pollution from contaminated groundwater. There was a further agreement on diversions, which included consideration of groundwater use and quality. These instruments, institutions and processes effectively determined how Canada approached groundwater issues with its neighbour. They also formed the basis on which consideration of any other instrument must rest. As such, Canada considered the draft articles as a set of model principles.
His delegation believed that the oil and gas issue was essentially bilateral in nature, in addition to being a political and highly technical issue. Canada doubted the need for the Law Commission to proceed with any codification process relating to the issue. It would be concerned if the Commission broadened the topic to include matters related to offshore boundary delimitation. Nevertheless, there may be scope for useful work respecting the essential bilateral nature of the topic, and Canada would find it useful for the Commission to provide a set of common principles and best practices.
SHARIFAH AMINAH SYED MOHAMMED ( Malaysia) commended the International Law Commission for its adoption of the draft articles on the responsibility of international organizations, urging further clarification and a cautious approach in respect to countermeasures taken by such organizations when they are injured by a State. She said those issues should be dealt with either as part of the articles or through a separate report, which should also address the question of whether organizations could give consent for a State to commit certain acts. On the subject of reservations to treaties, she said she supported the contention that an approval of, or an opposition to, an interpretative declaration should not be presumed, and she urged greater consideration to the wording of the relevant paragraphs of the guidelines before they were finalized, as well as general clarification of the guidelines.
Turning to the topic of the protection of persons in the event of disasters, she said she looked forward to the debate on draft articles 1 to 5, and she made preliminary wording suggestions, stressing the primacy of the needs of a person over their rights in situations of calamity, and favouring a definition of disaster that was limited to natural disasters. On shared natural resources, she said she welcomed the two-step approach taken in adopting the draft articles on the law of transboundary aquifers. She felt the issue of transboundary oil and gas was best dealt with through bilateral or regional arrangements, because it involved highly technical data and politically sensitive issues.
GLENNA CABELLO DE DABOIN ( Venezuela) said that a greater interaction between the Law Commission and States was needed in order to promote international law. On the protection of persons in the event of disasters, she commended the merit of the two-prong approach of rights and obligations among States and between States and persons requiring protection. The “responsibility to protect” applied to genocide, war crimes and crimes against humanity and this was still not an established definition. Her country was interested in ensuring the sovereignty of States and non-intervention. The text, therefore, needed to respect the role of each State and assistance should not be imposed.
On the topic of natural resources, the legal regulation of groundwaters in areas where more than one State exercised authority reflected the efforts of the Commission in this field. However, while there were similarities in the non-refundable aspects, the norms for oil and gas were not applicable to aquifers. In her view, oil and gas should not be categorized under “shared natural resources.” Regulations from one area such as aquifers, where conservation and protection across borders of aquifers was essential to the survival of humanity, should not be automatically applied to another area, such as gas and oil.
PHANI DASCALOPOULOU-LIVADA ( Greece) said that it was premature to define “disaster” before identifying the rights in the rights-based approach being taken for the “protection of persons in the event of disaster”. However, the definition in the draft article requiring a disaster to “seriously disrupt the functioning of the society,” might be excessively narrow. On draft article 4, she said that although armed conflict should be excluded from the definition, that should not constitute a pretext for excluding the application of the articles should a disaster take place during an armed conflict.
On the “obligation to extradite or prosecute”, she said the concept had been rightly connected with the fight against impunity, and at the same time with universal jurisdiction, which she found largely unjustified. Whether that concept constituted part of international law was debatable, she agreed that the concept applied to anti-terrorism conventions, but said that piracy had only been linked to universal jurisdiction.
She referred to clause française, which would not allow the procedure to go forward if there were grounds to believe that the alleged offender was actually sought for extradition for reasons other than those claimed by the requesting State.
PALITHA KOHONA ( Sri Lanka) recalled the 2004 Indian Ocean tsunami that had affected his country and said an examination of the relationship between norms of international law and natural disasters revealed legal gaps. The Red Cross/Red Crescent had characterized legal response to natural disasters as a “long neglected” facet of international law, in contrast to the extensive body of humanitarian law addressing other extreme peacetime events such as industrial accidents and epidemics. The decision not to include disasters in the context of armed conflict within the scope of the articles was welcome. At present, in the work on the subject, priority should be given to natural disasters; other forms of disasters should be addressed later, and likewise disaster risk reduction and mitigation.
On the obligation to extradite or prosecute, he said the issue was whether the obligation was a matter of customary international law. While appreciating that it was generally treaty-based, it may have reached customary status at least with respect to specific categories of serious international crimes on the level of genocide. Further deliberation on the extent to which the obligation was based in customary law would be welcome. The scope should be determined on the basis of criteria identifying the crimes that would bind States to the obligation.
He said that there had been some new developments to affect the work on the “most favoured nation” clause, currently being considered by a study group. It was an issue that had particular relevance to developing countries striving to attract foreign investment. There had been a proliferation of investment agreements over the last two decades that incorporated the clause. A new body of practice was needed, and broad guidelines should be developed that would bring coherence and consistency into the operation of the clause.
SIMONA DRENIK ( Slovenia) said that States would benefit greatly from the guidelines on reservations to treaties, because the practice of States in that regard was diverse. In some areas, there was a clear lack of such practices to show the intention and understanding of States. Her delegation would be open to simplifying the structure of the guidelines. Among other things, she welcomed the inclusion of the topic of interpretative declarations into the guidelines, but with regard to guideline 1.5, there was not sufficient State practice to prove that the same rules applied for multilateral and bilateral interpretative declarations.
She said she underscored the sensitive nature of the issue of expulsion of aliens, which touched upon State sovereignty. She had doubted whether work on that subject could lead towards codification; some core issues were missing, such as to which categories of aliens those “rules” would apply. It was not clear why there should be any distinction between human rights in general and fundamental rights. She said she could not see why persons subjected to expulsion should not enjoy all human rights, the protection of which was binding on States. She supported the obligation of a State not to subject a person being expelled to torture or cruel or inhumane treatment, although she shared the doubts of some delegations on the need for such a provision, given that the prohibition of torture was absolute.
REMIGIUSZ HENCZEL ( Poland) said that it was important for Governments to help the Law Commission in analysing the complex issues on the topic of protection of persons in the event of disasters. Existing international human rights obligations were at the core of protection in disasters, and in his view, a rights-based approach should cover both the rights of the victims and those of the affected State. The principles of sovereignty and non-intervention should not be interpreted in a way that would allow a State to deny victims access to assistance, if it were unable to provide assistance essential to the survival of its citizens. In those cases, he believed that such affected States must cooperate with assistance from other States and organizations.
He said solidarity and cooperation among nations and individuals were the underlying principles of protection of persons in the event of disasters. Solidarity within the international community supported the belief that justice and the common good were best served by policies that benefited all nations.
On the topic of shared natural resources, he said he supported the decisions of the Commission to defer any decision on any future work on oil and gas until 2010, and to re-circulate to Governments the 2007 questionnaire on the subject. He hoped the wide basis of opinions of States would help the Commission in making a final decision on this subject.
SHUMAIL ASHRAF ( South Africa) said the future work of the International Law Commission in the area of shared natural resources should consider that energy demands were continuously rising, with primary demands doubling by 2030. The sensitive nature and scarcity of these resources should encourage support for and adherence to international law and cooperation. While issues of oil and gas should be managed to ensure respect for international law and to avoid conflict, the promotion of sustainable development should be at the core of attempts to regulate these shared resources.
On the question of whether the Law Commission should undertake a codification exercise on shared natural resources, a number of factors should be considered: scarcity and growing energy demands required rules to avoid transboundary conflict; a platform was needed to deal with these issues bilaterally on the basis of international law and cooperation; and issues of transboundary oil and gas were complicated by private and commercial interests. The Commission should approach the second and third factors with caution, perhaps by considering surveying the practice of both inter-State and private contracts with a view to elucidating some general trends in practice, both in public and private law.
MIGUEL DE SERPA SOARES ( Portugal) said he agreed with the rights-based approach taken on the issue of the protection of persons in the event of disasters. The Law Commission was dealing with two types of relations -- States vis-à-vis each other, and States vis-à-vis affected persons. The proposed two-stage approach, beginning with rights and obligations of States towards each other followed by the same topics concerning States towards affected persons, was a good starting point for future discussions.
He said Portugal was in favour of expanding the scope of the draft articles to cover activities of non-State actors, but had some doubts about the priority given to the study of States rights, and obligations to each other, over the study of States vis-à-vis affected persons. While at this initial discussion stage, the study should be limited to the response to disasters that had occurred; this did not mean the Commission should not address pre-disaster issues at a later stage. The definition of disaster should be as broad as possible, increasing the State’s responsibility on the issue. There should be an additional study on the relation between international cooperation and international principles, in order to establish derogations from the principles of sovereignty and non-intervention.
On the topic of shared natural resources, he said the draft articles on the law of transboundary aquifers should develop into an international framework convention. The working group on groundwater, oil and gas touched on relevant and complex questions; the potential conflict inherent to shared oil and gas, and the economic and political importance and related environmental issues attested to this. Portugal strongly supported the development of this work, and believed there were similarities between groundwaters and oil and gas, from legal and geological viewpoints.
LIESBETH LIJNZAAD ( Netherlands) said her Government appreciated the work done on the study of reservations to treaties, with respect to the re-characterization of interpretive declarations, but had some concerns. The attention given to those declarations might suggest that they were, or were becoming, an acceptable form to express intention to exclude or restrict State obligations under a particular treaty. Such attention might be perceived as validating the use of those declarations, and she insisted that States aiming to exclude or modify their obligations under a particular treaty make reservations, rather than declarations.
On the right to expulsions, she said the Netherlands was concerned at the continued study of the rules limiting the right of expulsion. The list of inviolable rights would vary with regard to time, and differ from one continent to another. It was unclear what was meant by the “right to dignity”. The Special Rapporteur’s list differed from that of “non-derogable rights” contained in human rights treaties.
Turning to the protection of persons in the event of disasters, she said clear emphasis on areas where the law needed codification or further development would enhance the value of the Rapporteur’s second report. It was useful that the report incorporated a definition of the term “disaster”. She had doubts over the general reference to “the realization of the rights of persons,” which, if maintained in the article, ought to incorporate a more specific indication of which rights were referred to there. On the reference in the proposed definition to the exclusion of “armed conflict”, she wondered whether the draft article was the right place to express that exclusion.
MARK SIMONOFF (United States) said that although he was still sceptical regarding the formal framework for interpretative declaration, the work of the Special Rapporteur was excellent. However, he still had concerns on the suggested treatment of “conditional” interpretative declarations as reservations, simply because the declarant consented to be bound by the treaty subject to the proposed interpretation. Subjecting conditional interpretative declarations to a reservation framework was inappropriate, and could lead to restrictive treatment such as temporal limits for formulations, conditions of form and reaction regarding such declarations. Further, he said there was value in the uniform application of rules regarding reservations for all types of treaties, and that no special regime was applicable to reservations to human rights treaties.
On the subject of expulsion of aliens, he said the decisions to deny entry did not fall within the scope of the draft articles. Nor did the draft articles apply to extraditions or other transfers for law enforcement purposes, or expulsion of aliens in situations of armed conflict. Specifically, extradition was not expulsion, but “the transfer of an individual for a specific law enforcement purpose. Further, the draft articles should apply to individuals within a State’s territory who were subject to a State’s jurisdiction. He did not think that States should be placed in the situation of being responsible for anticipating conduct by third parties beyond their control.
On the protection of persons in the event of a disaster, he said he was concerned about adopting a rights-based approach and instead agreed with the current relevant draft that emphasized the meeting of essential needs of persons affected by disasters. He urged the Special Rapporteur to explore how core humanitarian principles could be incorporated into the context of the Commission’s work on this topic. Supporting international cooperation and collaboration in providing disaster relief, he said he understood there would be further elaboration on the relevant draft articles to provide additional content.
On the issue of shared natural resources, the United States did not support the inclusion of oil and gas issues in the Commission’s consideration. “State practice in the area of transboundary oil and gas resources is divergent, essentially bilateral, and relatively sparse,” he said. Because the issue was also highly technical and with political and economic stakes, he did not think States were in need of the Commission’s input.
ANDREW EMMERSON ( Australia), speaking on the topic of shared natural resources, noted that Australia did not share aquifers with other countries, and that States which did should determine whether or not proper management of transboundary aquifers would benefit through a global instrument or by regional agreements. Further, he supported the Commission’s decision to treat the topic of shared oil and gas resources independently. Developing international law needed to be done with caution when fundamental bilateral interests were involved.
States involved with the particular issue were best able to negotiate agreements reflecting their sovereign rights. In that regard, Australia was one of many States which had successfully concluded agreements for the joint development of shared oil and gas resources. He urged the Commission, in its future work, to abstain from the issue of offshore boundary delimitation. Delimitation agreements often contained provisions for the joint exploitation of oil and gas deposits straddling the agreed boundary.
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* The 19th Meeting was not covered.