Stepped-up Efforts on Mechanisms for Natural Disaster Relief Are Discussed as Legal Committee Continues Review of International Law Commission Report
Stepped-up Efforts on Mechanisms for Natural Disaster Relief Are Discussed as Legal Committee Continues Review of International Law Commission Report
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
23rd Meeting (PM)
Stepped-up Efforts on Mechanisms for Natural Disaster Relief Are Discussed
as Legal Committee Continues Review of International Law Commission Report
As the Sixth Committee (Legal) today continued to consider the report of the International Law Commission, with continued focus on expulsion of aliens, effects of armed conflict on treaties and protection of persons in natural disasters, the delegate of Italy called on the Commission to interact with organizations working in the field to protect victims of natural disasters and to meet in Geneva with members of the Office for the Coordination of Humanitarian Affairs (OCHA) as well as to consult with prominent non-governmental organizations in continuing its work.
He said the recent natural disasters in Haiti, Chile, Pakistan and elsewhere highlighted the importance of conducting a study on the complex topic of enhancing the effectiveness of international response to such disasters. Among the aspects to be considered was a clarification of the ambiguous term referring to the “primary role” of the affected State. Further, the role of the affected State in relation to gaining access to victims needed to be clarified.
Thailand’s representatives said that natural disasters had been reaffirmed as complex transnational security challenges beyond the scope of any country to handle alone. Thailand had been “a good citizen of the world” when disasters had struck in Myanmar, Haiti, Chad, Pakistan and China, to name just a few. The policy was to carry out national relief efforts by networking to strengthen regional mechanisms and expand the effectiveness of best practices under the global management of the United Nations. The scope of the draft article on the topic should cover pre-disaster activities related to risk reduction, prevention and mitigation.
Noting that the obligation to cooperate was a fundamental United Nations principle enshrined in the Charter, the representative of El Salvador said the magnitude and duration of recent natural disasters rendered the situations beyond the capacity of any country to handle. That made cooperation an intrinsically important obligation that should be enacted into the domestic legislation of States.
On the subject of the expulsion of aliens, the delegate of the Russian Federation noted that no provisions dealt with property rights, a circumstance presumably to be taken up later in the work. The approach, she said, would be different from those addressing the right to life or the prohibition of torture. However, rights to the immovable property in the expelling State’s territory called for guarantees of inviolability that would allow the expelled person to maintain ownership.
The text on the effect of armed conflict on treaties should distinguish between the various types of conflict and should include non-international conflicts, the representative of New Zealand said. Also, treaties to which one or more international organizations were party should be excluded from the scope of the articles, since organizations could not be party to armed conflicts. A listing of major treaties to which organizations were party should be compiled.
On that issue, the delegate of Belarus called for a study of the nature of the armed conflict in question since the criteria and intensity of the conflict would have an impact on the effect of the conflict on a treaty. Only protracted conflicts would have that kind of impact.
Also speaking today were the representatives of Portugal, Germany, Czech Republic, Austria, Netherlands, Estonia, France, Monaco, Cuba and Poland.
The Committee will meet again at 10:00 a.m. tomorrow (Friday, 29 October) when debate on the Law Commission report will continue with the same focus.
The Sixth Committee (Legal) met today to continue its annual consideration of the report of the International Law Commission with a focus on issues dealing with “expulsion of aliens”, “effects of armed conflicts on treaties” and “protection of persons in the event of disasters”. (For background on the report and themes, see Press Release GA/L/3399 of 25 October.)
MIGUEL DE SERPA SOARES ( Portugal) spoke of the revised and restructured articles on the expulsion of aliens. He expressed his concerns on the situation in which there were issues of the death penalty and torture or inhuman or degrading treatment; he said the possible situation of a receiving State’s lack of adequate assurances needed to be addressed. Also on this issue, it was unclear as to whether or not expulsion or extradition was being addressed. There was a fine line between two different legal concepts.
Turning to the topic of “effects of armed conflicts on treaties”, he said that the questions raised regarding the inclusion of international organizations were too difficult to be dealt with within the framework. On the definition of “armed conflict”, and in particular “internal conflicts”, he said he supported the adapted definition as proposed by the Special Rapporteur. This reflected a modern and comprehensive wording as well as contributing to a concrete shape of the definition of “armed conflict”.
Continuing, he observed that in armed conflict there was always an aggressor and a victim who could act in self-defence, but, many times it was unclear which was which, as a State might qualify itself as the victim, yet have this qualification overturned by the Security Council. He referred to the complex questions regarding responsibility and treaty relations that might arise when the Security Council made a different determination from the Court. The main purpose of the draft articles was to preserve the stability of treaty relations during armed conflict.
On the topic of “protection of persons in the event of disasters”, he said he supported the reference to the humanitarian principles under which relief to disaster victims should be delivered, as well as the reference to respect and protect human dignity. However, the principle of neutrality was of concern, since it was closely connected with situations of armed conflict which fell outside the scope of the study. He suggested that inclusion of the principle of neutrality be attained through reference to the principle of impartiality.
NATALIE RYAN ( New Zealand) said on “expulsion of aliens” that the draft articles on specific rights in the context of disguised expulsion, collective expulsion, and grounds for expulsion were welcome, as was the analysis of the distinction between procedures applied to the expulsion of aliens who had entered a State territory lawfully or unlawfully. Further revisions by the drafting committee would be appreciated, as was the consideration given to New Zealand’s written response on the topic.
To help codify international law on the “effects of armed conflict on treaties”, she said draft articles should relate to the various types of conflict, including non-international conflicts. More consideration must be given to excluding treaties to which one or more international organizations were party, as they could not be party to armed conflict. A formula could be devised to include major treaties to which one or more such organizations were party. A pragmatic approach should be taken on the “protection of persons in the event of disasters”. Consideration should be given to the obligations of both affected and assisting States on the extent to which they were relevant to such protection.
GUIDO HILDNER ( Germany) said, on the issue of expulsion of aliens, that a common understanding and distinction had to be reached on a State’s right to expel or a State’s right to deport an alien. The right to expel derived from the principle of State sovereignty, which also included the right to decide on the access of aliens to the State’s territory. With actual deportation, a State’s discretionary power was “far more limited”. Procedural rights were essential when non-citizens were subject to expulsion and deportation. However, he went on, he understood that only aliens who resided illegally in a certain country could actually be deported, and that legal residents were entitled to remain as long as there were no legally valid decisions on their expulsion. Hence, expulsion seemed to be mainly about illegal aliens and their rights, a situation where their procedural rights needed to be recognized. A definition of legal and illegal aliens would be helpful in these drafts.
He said that every human being residing legally or illegally in a country was entitled to the protection of human rights in all situations. States that were willing to expel or deport an alien were bound by all international human rights instruments to which they were a party. Such relevant international instruments included the guarantees in the draft articles and he suggested that a general reference to them would be appropriate.
Turning to the directive of the European Union (the “Return Directive”) on common standards and procedures in returning illegally staying third-country nationals, he said the directive, which was a response to the need for clear, transparent rules concerning return while ensuring the absence of coercive measures, detention and re-entry, had introduced a minimum set of legal safeguards on such decisions. It was in the process of being implemented into national law. It set common, legally binding standards as a prerequisite for the return of aliens, as well as a catalogue of material and procedural rights. He urged that the Special Rapporteur and the Commission consider this directive as an example of State practice.
MILAN DUFEK ( Czech Republic) said, in respect of the draft articles on the human rights of persons who had been or were being expelled, that caution was needed as to the level of protection being granted to such individuals. He believed the Law Commission should set forth the principles of general international law rather than drawing up an instrument on the protection of human rights which each State would be free to accept or reject. However, he commended the inclusion of the jurisprudence of the European Court of Human Rights in the revised and restructured draft articles. He said that while appreciating the Special Rapporteur’s effort to engage a broad scale of sources, he suggested that future reports reflect to a larger extent the views of States expressed at various international forums.
On the topic of “protection of persons in the event of disaster”, he said that when speaking about humanitarian principles, that the international and national documents on this issue worked with four core principles: humanity, neutrality, impartiality and independence. He said those four principles were also relevant to the issue of disaster response. He noted that the drafting committee had not had enough time to address the provision on the affected State’s consent to disaster relief and assistance from outside. The draft article should reflect the role of the international community when the affected State did not have sufficient capacity to provide humanitarian assistance.
GIORGIO MARRAPODI ( Italy) noted the recent natural disasters in Haiti, Chile, Pakistan and elsewhere to underline the importance of a study on the complex topic of enhancing the effectiveness of international responses to such disasters. To do so, he said, the Commission should interact closely with relevant international organizations in the field, perhaps by holding meetings in Geneva with representatives of the Office for the Coordination of Humanitarian Affairs (OCHA) and by consulting significant non-governmental organizations. Aspects to be considered included clarification of the ambiguous term relating to the “primary role” of the affected State, and the role of the affected State in relation to accessing victims.
On the effects of armed conflicts on treaties, he reiterated the desirability expressed by many delegations of the Commission making a distinction between armed conflicts involving a plurality of States and those in which only one party to a treaty was engaged. He said a thorough analysis of practice should allow the Commission to conform to or restrict, the indicative list of categories of treaties for which a presumption of continuity was considered to apply. This would be regardless of the difficulty presented by treaties often covering multiple subjects, with provisions that were entwined and often inseparable.
He said the text on the important issue of expulsion of aliens was confusing. The Commission should clarify the overall purpose of the text to determine the structural framework before States engaged in a discussion of the issues raised in the current presentation. At the same time, given the importance of the subject, States should continue to provide substantive comments.
HELMUT TICHY ( Austria) said the restructuring of the draft articles on the expulsion of aliens had made them more complex, and the Commission should organize the articles in five parts, and renumber them, before proceeding further. He said any combination or mixture of the concept of expulsion and the concept of extradition should be avoided. Commenting that the list of vulnerable persons seemed incomplete, he said victims of human trafficking, or single mothers with small children, should also “enjoy special protection” under international law.
On the issue of States not expelling persons to a State where their life or liberty would be in danger, he said, “diplomatic assurances are not always effective in ensuring respect for human rights”. The abolition of the death penalty in the expelling States was not related to the possible risk to the life of the person being expelled in the receiving States. The obligation to not expel a person applied not only when there was a pronounced death sentence, but a threat to life or a threat of a death sentence.
Turning to the effects of armed conflicts on treaties, he said that the draft articles should not pertain to non-international armed conflicts. He asserted that neutrality was not always established by treaty: Germany’s permanent neutrality was an example of a unilateral declaration. The Law Commission should consider the problem of occasional neutrality and the status of non-belligerency in international armed conflicts.
On the protection of persons in the event of disasters, he said that relief efforts should be confined to helping the victims of such disasters. He noted, on the relevant draft concerning the responsibility of the State affected by a disaster that the international community may also have to at least offer assistance. In the case of a State being responsible for a disaster affecting another State, the responsible State did have an obligation to offer reparations, which could include assistance to the victims of the disaster. However, the affected State had a duty to protect its population.
LIESBETH LINJZAAD ( Netherlands) said she had concerns about the report of the Special Rapporteur on the draft articles on protection of the human rights of persons who had been or were being expelled. Her delegation agreed with some members of the Commission that the subject seemed to lend itself more to political negotiation than an exercise in codification. The Netherlands strongly believed that the draft articles should reflect principles of general international law and that it was not the task of the Law Commission to draw up a new human rights instrument. She agreed that the members of the Commission to look into the possibility of reorganizing the draft articles in five parts.
On other issues, she said she was not convinced of the need to address the topic of “effects of armed conflicts on treaties”, since recent armed conflicts had not led to great problems in terms of treaty laws. Turning to the topic of “protection of persons in the event of disasters”, she noted draft article 6, which incorporated the humanitarian principles that assistance should be in accordance with, including the principle of “impartiality”; her delegation was less sure whether the principle of “neutrality” could be expected from States, since they were political entities.
NATALIA SILKINA ( Russian Federation), speaking on the draft articles on expulsion, said it was preferable to pay special attention to those human rights in which the risk of violation was especially high. The provisions regarding family life and special protection of the vulnerable groups required further elaboration, as the current formulation was unclear. Children, older persons and persons with disabilities needed special attention, but it would be incorrect to propose a total prohibition of their expulsion.
She noted that the draft did not contain any provisions dealing with property rights, a circumstance she would assume would be addressed in the next stage of work. The approach to this issue would be different from those addressing the right to life or the prohibition of torture. However, rights to the immovable property in the expelling State’s territory called for the guarantees of inviolability of such property, allowing the possibility of the person expelled to sell or to lease, even when abroad.
Turning to the “effects of armed conflicts on treaties”, she said that it was important the draft articles “reflect the presumption” that armed conflict did not entail automatic termination or suspension of the international treaty, and that the armed conflict would only be perceived as a specific circumstance which would give States a possibility to regulate the questions of further application of the international treaty. As for armed conflicts of non-international character, she said that this should be considered separately from this issue.
On the “protection of persons in the event of disasters”, she said the draft articles would benefit by including a principle to protect the interests of the affected State, its main values, and its way of life; that would especially be the case when, as a result of a disaster, public places and institutions may be damaged. Although reconstruction was not obviously tied to the rights of the individual, public institutions and places were necessary for the normal execution of the rights and interests of all inhabitants in the affected region. She agreed with the position that a State affected by a disaster had a right and a responsibility to take legitimate measures in ensuring the protection of its population in its territory, and that other States and international organizations could not interfere in this process on a unilateral basis.
VLADIMIR CHUSHEV (Belarus) said that although the draft articles on the “effects of armed conflict on treaties” required consideration, and although the application of the draft articles addressed both international and non-international armed conflict, it was a fact that non-international armed conflicts, which were happening more frequently, had become an issue regarding States living up to their commitments. The work being done needed to have its basis in international law, and was valuable only in so far as it did not contradict international treaties but work with them. Treaties, he emphasized, must remain in force during a conflict unless it was impossible to implement the provisions effectively. The designers of the draft were not trying to design a legal regime on armed conflict which would be used as a justification to end a treaty.
Turning to the relevant article on the susceptibility to termination, withdrawal or suspension of treaties, he said these could be crystallized and the article needed to fulfil its basic premise. The possibility of withdrawal would unlikely have practical significance. The criteria and the intensity of the conflict was important because only armed conflict that continued for an extensive and long time could impede and impact a treaty.
MANUEL MONTECINO GIRALT ( El Salvador) said natural disasters caused devastation and cost immeasurable amounts of money to every State the world over. The scope of the draft article relating to the events to be covered by the text was too narrow; it should indicate a broader range of situations in which the articles applied, and should extend to a wider range of activities, including mitigation and pre-disaster activities. The protections being addressed should be made applicable to persons in States offering assistance or serving as assistance-transit countries. Finally, implementation of the human rights guarantees should be addressed.
He said that although the question of elaborating the articles into a convention was premature, consideration should be given to the format for an instrument on such an important issue, in which there was a certain “implicit margin” for the protection of rights. Whether the disaster was natural or man-made, people needed to be protected. The elaboration of that principle should be further expanded. The text should also make explicit mention of the aspects of human rights to be protected since they were not protected under other applicable human rights instruments, with the manner of implementation more clearly specified.
He said the obligation to cooperate was one of the basic purposes of the United Nations, and that fundamental principle was reflected in the Charter. The magnitude and duration of natural disasters were very often beyond the capacity of any country to handle, which made cooperation intrinsically important in such situations. Widespread domestic legislation should be enacted toward that end, as it had been in 2005 in his country with relation to prevention and mitigation.
LAURI BAMBUS ( Estonia), on the topic of expulsion of aliens, said it was a particularly sensitive subject because the right of a State to expel a non-national was a right inherent in State sovereignty. In tackling the subject, it was important to clearly define the groups of persons he was referring to. He welcomed the clarification in the draft articles between aliens considered to be lawfully in a State’s territory and aliens unlawfully in that territory. General legal principles governing expulsion must take into account the distinction between the two categories of aliens, especially when attempting to determine the procedural rights that should be given to the aliens facing expulsion.
Turning to the subject of protection in the event of disasters, Estonia agreed to the proposed wording on the draft articles. While the principles of humanity, neutrality and impartiality were well established, the providing of assistance should not interfere with the sovereignty of the receiving State and should first take into account the interest of the people suffering. He said he was therefore hesitant on the exact significance of “neutrality” and noted different possible meanings. In a humanitarian context, it meant “to not choose sides.” However, in inter-State relations and absence of conflict, the meaning was harder to determine. The principle of neutrality seemed to refer to the duty of those responding to disasters to avoid political or ideological actions toward the receiving State. If that were the case, the principles of impartiality and non-discrimination might better reflect the actual considerations.
KRIANGSAK KITTICHAISAREE ( Thailand) recalled that his country had been an affected State with the primary obligation of protecting persons within its jurisdiction at the time of the 2004 tsunami. His country had also been a cooperating State and “a good citizen of the world”, he said, when disasters occurred in the 2008 cyclone in Myanmar, the 2010 Haiti earthquake and the severe floods in Chad, Pakistan and China, to name just a few natural disasters. His country’s facilities served as a staging centre for humanitarian assistance in the Asia Pacific region and had led the promotion of joint cooperation on disaster relief by hosting an Association of South-East Asian Nations (ASEAN) forum on disaster relief last month.
Thailand’s policy, he said, was to carry out its relief efforts by networking with the international community, international organizations and regional disaster relief centres. The aim was to strengthen regional mechanisms, so as to expand the effectiveness of efficient best practices under the global management of the United Nations. Respect for the overriding interests of affected persons was foremost, along with the need for disaster relief to be delivered in accordance with applicable rules of international humanitarian laws and with basic principles such as non-interference in the domestic affairs of States.
He said the Law Commission’s text on the matter should clarify the issue that the well-recognized principal of “independence” in humanitarian assistance was not implicit in – or the same as - the principle of neutrality, which encompassed the concept of non-intervention. Since it had been reaffirmed that natural disasters were complex transnational security challenges that were beyond the scope of any country to handle alone, the Commission should determine the “content” of the principle of independence in the “context” of protection. Independence could mean, for example, the prohibition against imposing conditions other than altruistic ones. In addition, the scope should cover the pre-disaster phase as relating to risk reduction, prevention and mitigation. The definition of “disaster” set too high a threshold.
Finally, he said the text on expulsion of aliens needed to strike a fair balance between the rights of a host State and the human rights of aliens. A distinction must be drawn between aliens lawfully present on the territory of the host State and those unlawfully present, whose situation could perhaps be regulated by national legislation. On the obligations of a State relating to the amount of time aliens were to be detained prior to expulsion, the text should recognize the wide range of State situations and capacities; in host or transit States for unlawful economic migrants, for example, there could be hundreds of aliens in detention centres awaiting expulsion.
EDWIGE BELLIARD ( France) said the scope of the articles on the expulsion of aliens was too broad and of questionable applicability. In France, for example, the period of detention for those to be expelled was among the shortest in Europe. Implementing procedural guarantees to protect the rights of those to be expelled was effectively guaranteed. The language of certain expressions in the text should also be better defined, as in the term “disguised expulsion”. The reference to extradition should be avoided, since the principle was not applicable to expulsion of aliens. Overall, numerous regional instruments already provided for protection of the rights of those to be expelled. Rights and obligations under the different instruments could come into conflict. The Special Rapporteur should clarify the relationship of the text to the various relevant regional instruments.
The scope of the text on the effect of armed conflict on treaties had been appropriately extended to include non-international armed conflicts, she continued. The current definition of armed conflict was problematic. It should emphasize the specific nature of the conflicts involved and should cover all armed conflicts. Excluding treaties in which international organizations were parties was problematic in that a large body of treaties were excluded.
Finally, the article listing categories of treaties presented difficulties and had more disadvantages than advantages, because of the uncertain and vague nature of some of the treaties, such as those pertaining to peremptory norms. The prohibition of a benefit to an aggressor State should be clarified and the advantage of including the provision should be set out in more detail.
On the protection of persons in the event of natural disasters, she said the text was considerably different from that previously presented. The definition of “humanitarian response” should be spelled out. The scope of the article on humanitarian principles was unclear, as it related to the principle of “dignity”. The declaration of principles on human rights was unnecessary. Other points to be clarified included the concept of the affected State, State sovereignty and the consent of the affected State. Overall, however, the text made a significant contribution to the consolidation of the relevant rules in the area and would be of great practical use to States.
M. LAURENT ANSELMI ( Monaco) said he welcomed the work towards formalizing the draft articles on the “protection of people in the event of a disaster”, which would help protect people in disaster situations. These principles were an expression of general values, as well as the values of international law. The very nature of disaster relief was neutral and apolitical; the primary concern of relief workers should be for the condition of the persons affected. This, not the interference with the affected State, was the scope of these articles; the principles of impartiality made a decisive contribution to the vital needs of a person affected by a disaster.
He said Monaco was sensitive to humanitarian issues; this was reflected in its foreign policy, and since 2000, in its involvement in international cooperation. Its humanitarian assistance was provided apart from political consideration and in partnerships with all stakeholders. He also noted the importance of cooperation with non-governmental organizations and international organizations which could intervene, coordinate and provide international emergency assistance, according to the principles of neutrality and impartiality. Further, the Monaco Humanitarian Collective was currently working to hospitalize fifty children from countries where medical assistance was not available.
LESTER DELGADO SANCHEZ ( Cuba) said a general article on the expulsion of aliens should respect the national law, the maintenance of public safety and the security of each State, and the principles of international law in every procedure. He also urged that expulsion as a discriminatory practice be opposed. On the relevant article regarding specific cases of vulnerable persons, he said it would be helpful to introduce criteria for “child” and “older person” that would eliminate the existing ambiguity in both. As well, the protection of pregnant women needed to be extended to all women and girls
On the topic of “effects of armed conflicts on treaties”, he said the term “blockade” needed to be included in the definition of “armed conflict”, because even without direct armed actions between parties the term reflected a “reality of hostilities” which had great impact on the validity and application of bilateral treaties. Turning to the issue on the “protection of persons in the event of disasters”, he said he welcomed the idea of including a declaration referring to friendship and cooperation among States, which focused on the principle of non-interference in the internal affairs of States and in the prioritization by States receiving assistance. He emphasized the importance of disaster prevention, as well as the need to strengthen international cooperation based on the sovereignty of States.
MACIEJ SZPUNAR ( Poland) said, on the expulsion of aliens, that the difficulty was the need to reconcile a traditional power of States to admit aliens into their territory and to exercise control with regard to their stay, and protection of the human rights of a person to be expelled by that State. According to classical international law, rights derived from State sovereignty prevailed over international rights and obligations. The right of the State to expel an alien should be emphasized in the draft articles of the Law Commission. However, the fundamental human rights of expelled aliens should be protected, even though the scope of those rights was open to question. Further, a distinction should be drawn between “irregular aliens” and those who had previously been lawfully admitted to the territory of the State concerned.
On the effects of armed conflicts on treaties, he said that the absence of a rule providing for automatic suspension or termination of treaties reflected the current state of international law. He said it was timely to be discussing the issue of protecting persons in the event of disasters, in view of the frequency, magnitude and devastating character of recent disasters. He said he was fully aware of the agreement of many States’ that the work of the Law Commission be limited to the disaster proper, and post-disaster or early recovery, but he preferred to re-emphasize the utmost importance of disaster prevention. A culture of disaster prevention, mitigation and resilience, and associated pre-disaster strategies should be treated as equal to that of disaster response and long-term rehabilitation.
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