|Department of Public Information • News and Media Division • New York|
Sixty-eighth General Assembly
23rd & 24th Meetings (AM & PM)
Advancing Rule of Law Crucial to Inclusive Economic Growth, says General Assembly
President, Urging Principle’s Integration into Post-2015 Development Agenda
Sixth Committee Begins Debate
On International Law Commission Report’s ‘Third Cluster’ of Topics
Praising the Sixth Committee for its efforts to ensure justice and respect for international obligations, the President of the General Assembly emphasized that the rule of law must be integrated into other global processes, including the post-2015 development agenda.
John Ashe ( Antigua and Barbuda) told delegations that advancing the rule of law at the national and international levels was essential to inclusive economic growth, sustainable development, eradication of poverty and hunger, and the realization of all human rights and fundamental freedoms, including the right to development.
Still, there was unfinished work requiring attention, he continued, pointing out that finalizing the draft convention on international terrorism remained a high priority. He urged the Committee to address all outstanding issues to ensure a robust legal framework for combating the scourge.
Bernd Niehaus, Chair of the International Law Commission, then opened the debate on the third cluster of topics from the Commission’s annual report. He detailed the six topics under consideration, among them, “protection of persons in the event of disasters” and “protection of the environment in relation to armed conflicts”; “the obligation to extradite or prosecute (aut dedere aut judicare)”; and the “the most-favoured-nation clause”.
Commenting on the inclusion of a new topic, the “protection of the environment in relation to armed conflicts”, he said that, at this early stage, the Commission was still exploring how best to move forward. The Special Rapporteur on the matter had proposed a holistic approach in three phases: the first addressing legal measures taken to protect the environment before, during and after armed conflict; the second analyzing relevant existing laws of war; and the third addressing obligations relating to reparation for damage, reconstruction, responsibility, liability and compensation.
He also noted that the Commission had adopted draft articles on the topic “protection of persons in the event of disasters”. Those texts included different forms of cooperation and the duty to reduce the risk of disasters, to name a few.
Many delegations stressed the importance of cooperation and prevention, with Australia’s representative stating that protecting people from disasters was a challenge and core responsibility for all humanitarian actors. Thus, humanitarian agencies should take an anticipatory approach to the issue.
More so, said the representative of New Zealand, the impact of disasters could be significantly mitigated by building the resilience of communities and addressing the root causes of vulnerability. Poland’s delegate pointed out that while the principle of the responsibility to protect was generally related to genocide, crimes against humanity, ethnic cleansing, and war crimes, it also could be considered in the context of disasters.
Portugal’s representative emphasized that the key to debating the topic “protection of the environment in relation to armed conflicts” was environmental preservation. International law could not assume the inevitability of environmental destruction during conflict. As well, the Commission must address the issue of weapons, as the environmental impact depended on the type of weapons used.
Indeed, South Africa’s delegate said that the topic was the meeting place of two of the great issues directly affecting humankind and the planet. He welcomed the draft’s reference to environmental protection not only during armed conflict. He also stressed that the applicability of such rules and principles during non-international armed conflict should be considered in future work.
Concluding its consideration on the second cluster of topics, the Committee heard a report from the representative of Costa Rica, chair of the working group on the “scope and application of the principle of universal jurisdiction”. Through informal discussions, the working group had focused on compiling a list of possible crimes that could form part of the principle’s scope, and investigated issues on the application of the principle. Several delegations had stressed the principle’s “abuse” or “misuse”, as well as its use in an arbitrary, politically motivated or selective manner.
Also speaking today were representatives of the Finland (speaking for the Nordic countries), United States, Switzerland, Austria, Japan, United Kingdom, Italy, Greece, Germany, Chile, Romania, Republic of Korea, Pakistan and India.
A representative of the Delegation of the European Union also spoke.
The Sixth Committee (Legal) will reconvene on Tuesday, 5 November at 10:00 a.m. to conclude its debate on the third cluster of issues from the report of the International Law Commission.
The Sixth Committee (Legal) met today to continue its consideration of the work of the International Law Commission, specifically the third cluster of topics. For background see Press Release GA/L/3465.
Introduction of Third Cluster
BERND NIEHAUS, Chair of the International Law Commission, introduced the six topics included in the third cluster of topics under consideration by the Sixth Committee. On “protection of persons in the event of disasters” the Commission had adopted draft articles dealing with: forms of cooperation; cooperation for disaster risk reduction; offers of assistance; conditions on the provision of external assistance; facilitation of external assistance; termination of external assistance; and the duty to reduce the risk of disasters.
Turning to “formation and evidence of customary international law”, he said the Commission, after considering the first report of the Special Rapporteur on the matter, decided to change the name of the topic to “identification of customary international law” to more clearly indicate the proposed focus, which was on the method of identifying customary international law. The topic would, however, also include an examination of the requirements for the formation of rules of such law, as well as material evidence of such rules. Among issues proposed in the Special Rapporteur’s report was the possible range of materials to be consulted by the Commission in its work.
In that regard, he said, the report requested information from States, by 31 January 2014, on their practice and the types of evidence suitable for establishing customary international law in a given situation, particularly as set out in official statements before legislatures, courts and international organizations, and decisions of national, regional and subregional courts.
On the “provisional application of treaties” he said that the first report of the Special Rapporteur on that subject sought to establish the principal legal issues by considering doctrinal approaches to the topic and briefly reviewing existing State practice. It was noted that the provisional application of a treaty could give rise to the same obligations that might result upon the treaty’s entry into force. There was also a difference of views regarding the purpose of provisional application. Concern had also been expressed over the possibility of the circumvention of established domestic procedures.
He went on to say that the Commission would also consider the relationship between article 25 and other provisions of the Vienna Convention. In that context the Commission requested States to provide information on their practice concerning provisional application by 31 January 2014. Of particular interest to the Commission were examples in relation to the decision to provisionally apply a treaty; the termination of such provisional application; and the legal effects of provisional application.
He said that in regards to the new topic, “protection of the environment in relation to armed conflicts”, the Commission explored how to move forward. The Special Rapporteur had proposed approaching the topic holistically, in temporal phases, rather than considering each regime individually as a distinct category. The first phase would address legal measures taken to protect the environment before, during and after armed conflict; the second would analyze relevant existing laws of war; and the third would address obligations relating to reparation for damage, reconstruction, responsibility, liability and compensation. The Special Rapporteur also believed that the topic was more suited to the development of non-binding guidelines than to a draft convention.
Noting that “the obligation to extradite or prosecute (aut dedere aut judicare)” had primarily been dealt with in its working group, he said that the aim had been to evaluate the work and progress made on the topic, particular in light of the judgment of the International Court of Justice in the case, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). The report also looked at the topic in the broader framework of efforts to combat impunity, while respecting the rule of law of that judgment and of the 2010 Secretariat survey.
On the topic, “the most-favoured-nation clause”, he noted that it was a work in progress, and spoke of the two working papers the Commission had considered: “A BIT on Mixed Tribunals: Legal Character of Investment Dispute Settlements” and “Survey of MFN language and the Maffezini-related Jurisprudence”. The objective of the study group on the topic was to safeguard against fragmentation of international law and to stress the importance of greater coherence in the approaches taken in the arbitral decisions in the area of investment particularly in relation to most-favoured-nation provisions. In closing, he said that the Vienna Convention on the Law of Treaties continued to serve as a useful point of departure and that the development of guidelines and model clauses remained the objective for the final report.
Remarks by the President of the General Assembly
JOHN ASHE ( Antigua and Barbuda), President of the General Assembly, said that the Sixth Committee, through its efforts to ensure justice and respect for obligations arising from treaties and other legal instruments, supported the work of the United Nations in the development and promotion of international law. He also commended the Commission on International Trade Law (UNCITRAL) and the International Law Commission, whose work lay at the very core of the Organization.
While acknowledging achievements, he stressed that unfinished work required attention. Finalizing the draft convention on international terrorism was a high priority. The Committee should make every effort to address all outstanding issues that would ensure a robust legal framework to combat the scourge of terrorism. He also recalled the High-Level Meeting on the Rule of Law, held last year, citing from its declaration that the rule of law “was the foundation of friendly and equitable relations between States and the basis on which just and fair societies were built”.
It was important, he emphasized, to integrate the rule of law into other global processes, including the post-2015 development agenda. Noting his proposal for a thematic debate on the matter, he said that the Committee would help foster that process. Advancing the rule of law at the national and international levels was essential to inclusive economic growth, sustainable development, eradication of poverty and hunger, and the realization of all human rights and fundamental freedoms, including the right to development.
Statements on Third Cluster
EGLANTINE CUJO, Delegation of the European Union, said “people focused in purpose” was of utmost importance in her consideration of “protection of persons in the event of disasters”. Article 5 ter emphasized the need for cooperation even at the pre-disaster phase. Further, article 5 bis and 5 ter affirmed that cooperation extended ratione temporis, not only to the response phase of a disaster, but also the pre-and post-disaster phase.
On the “provisional application of treaties”, she said that since the Commission’s work on the topic was at a very early stage it would be premature to discuss the possible outcome. Given the need for flexibility in treatment of the topic, work on it should provide guidelines to help decision-makers in relevant aspects of treaty process. As it raised a lot of questions that had practical and theoretical importance, she suggested several aspects which were worth studying.
Turning to the topic, “formation of evidence of customary law”, she said it was important to take a careful look at customary international law due to the importance of the relationship between treaties and customary international law. Attention should be given to the mutual influence and interaction that each frequently exercised. On the question of “evidence” of customary international law, it would be useful to have a tool that could provide guidance, possible in the form of conclusions with commentaries.
LISSA VALJENTO ( Finland), speaking for the Nordic countries, addressed the topic “protection of persons in the event of disasters”, stating that in disaster and post-disaster phases, the affected State had the primary duty to ensure the protection of persons and provision of disaster relief. In the pre-disaster phase, the responsibility for disaster risk reduction belonged to each State at the domestic level.
Turning to “formation and evidence of customary international law” she said that the Special Rapporteur’s aim to identify certain conclusions with commentaries or guidelines could be a valuable tool for practitioners facing questions of customary international law. In developing such tools, it was important not to limit the sources or approaches in an unwarranted way.
She acknowledged that, in regards to the “provisional application of treaties”, there was often a need for such application in order to enable speedy implementation of newly established treaties. She agreed with the Commission’s approach to neither encourage nor discourage that possibility as it was for States to decide whether and when it was an appropriate avenue. However, since the Commission’s analysis was likely to identify strengths and weaknesses of different models of provisional application, it might be beneficial if its work included further analysis of the different models of provisional application, including partial provisional application.
On “the protection of the environment in relation to armed conflicts”, she said there were already applicable rules for the protection of the natural environment in relation to armed conflict. The existing international legal framework provided for significant legal obligations that either directly or indirectly had a bearing on the protection of the environment during armed conflict.
MARK SIMONOFF (United States), on “protection of the environment in relation to armed conflict”, said that while he noted the deleterious effect armed conflict had on the environment and that its protection was desirable for many reasons, the topic included broad and potentially controversial issues with ramifications far beyond the topic of environmental protection in relation to armed conflict. For that reason, he agreed with the Special Rapporteur’s view that the topic was not well suited to a draft convention. He welcomed her decision to focus on identifying existing rules and principles of the law of armed conflict that related to the protection of the environment and anticipated that the review would demonstrate the law of armed conflict contained a body of rules and principles relevant to environmental protection.
Turning to the “obligation to extradite or prosecute (aut dedere aut judicare)”, he said there was no obligation under customary international law to extradite or prosecute individuals for offenses not covered by treaties containing such an obligation. Instead, as the working group noted, any efforts on the matter should focus on specific “gaps in the present conventional regime” rather than a broad-based approach.
DARIO SILBERSCHMIDT ( Switzerland) recommended that the draft articles on “protection of persons in the event of disasters” encourage all States to conclude agreements on mutual disaster assistance, as Switzerland had with its neighbours. The Commission should also seek information from States and the United Nations on such agreements. He said the Commission should contact actors like the International Federation of the National Societies of the Red Cross and Red Crescent (IFRC), along with the Office for the Coordination of Humanitarian Affairs (OCHA) and the International Search and Rescue Advisory Group and expressed concern about gaps in protection for persons displaced across international borders by natural disasters. A global meeting planned for 2015 aimed to facilitate the definition of legal norms on the issue.
On the issue of “environmental protection in relation to armed conflict”, he asked for more understanding to what was meant by “obligations of relevance to a potential armed conflict”. He also wanted to know whether the Commission’s aim was to develop new obligations or only to draw up guidelines. As well, the protection afforded civilian objects by international humanitarian law benefited the natural environment. The Geneva Convention forbade “widespread, long-term and severe damage to the natural environment”. He asked whether clarification was needed on the topic or if the general rules governing protection of civilian objects were adequate. Customary international law contained rules that could, if made more precise and suitably developed, be deployed to help protect the environment in non-international armed conflicts. In addition, there was potential to further define the role of human rights and international environmental law in relation to the protection of the environment in armed conflicts.
AUGUST REINISCH ( Austria), addressing “the protection of persons in the event of disasters”, pointed out that draft article 12 established a right to offer assistance and that the stipulation of such a right was necessary. As a consequence, the affected State was precluded from considering such an offer either as an unfriendly act or as in intervention into its internal affairs. On draft article 13, the conditions under which assistance could be provided should not be the result of the unilateral decision of the affected State, but instead should the result of consultations between the affected State and the assisting actors, taking into account the general principles governing assistance and the capacities of the assisting actors.
On “formation and evidence of customary international law” and with regard to the reliability of domestic courts to identify custom, he said the development of jurisdictional immunities served as a clear example of domestic courts, not only “identifying”, but actually “forming” customary international law. In that regard, the practice and legal opinion of State organs competent for international relations should be duly reflected. As well, that project was not suited to lead to a convention or similar form of codification.
Turning to the topic, “provisional application of treaties”, he said it was necessary to explain whether provisional application encompassed the entire treaty or whether certain clauses could not be applied provisionally. Also, it must be clarified in which way provisional application could be initiated and terminated, in particular whether unilateral declarations were sufficient for that purpose. On “protection of the environment in relation to armed conflicts”, he said the second phase, namely during conflict, was already subject to certain conventional regimes. In that regard, it would be necessary to coordinate the Commission’s work on that topic with the ICRC to avoid duplication of work or different results.
TOMOYUKI HANAMI ( Japan) said that, in regards to the “protection of persons in the event of disasters”, his country had given and received assistance following disasters, recalling the 2011 earthquake in Japan which was “still vivid in our minds”. Disaster risk reduction was essential, and prevention was closely linked to mitigation of any actually occurring disasters. Observing that measures listed in the relevant draft were not exhaustive, he expressed support for that stance as different approaches were required to different types of disaster and needed to be based on States’ differing geographical characteristics.
He said he looked forward to further discussion on whether the Commission should seek to promote the “provisional application of treaties”, and on whether such application would circumvent domestic procedures, including constitutions. Turning to “protection of the environment in relation to armed conflict”, he pointed to articles of the Geneva Convention and its additional protocols which were relevant to protection during conflict. He hoped negotiations would establish whether those articles might become customary law, whether norms relating to non-international armed conflicts might have a bearing on the issue and whether peacetime environmental law could apply to armed conflicts. He also noted efforts to achieve a practical outcome to talks on the newly renamed topic of “identification of customary international law”. As well, he said that he hoped for a concrete result on “the obligation to extradite or prosecute (aut dedere aut judicare)” and greeted further work on “the most-favoured nation clause”.
MATEUS KOWALSKI ( Portugal) said the “protection of persons in the event of disasters” should be discussed initially vis-à-vis the response to disasters that had occurred, since it dealt with questions of sovereignty, territorial integrity and non-interference. The Commission must clarify the degree of disaster risk expected, as well as the timing around reducing risk and preparing for disasters. The definition of risk was important. Turning to “formation and evidence of customary international law”, he urged a focus on formation rather than evidence, as that would better help to identify current and future norms. A study of jus cogens should take a wide approach to the research, with case law of different courts appraised critically.
He went on to encourage a study on the “provisional application of treaties”, stressing that a guide with commentaries and model clauses would be the best outcome to that topic. The key issue of the “protection of the environment in relations to armed conflicts” was environmental preservation. International law could not take as a point of departure the inevitability of environmental destruction, he said, noting the need for a development exercise should existing international legal obligations not be sufficient. The Commission must address the issue of weapons, as the environmental impact of conflict depended on the type of weapons used. The Commission also must study the topic, “obligation to extradite and prosecute”, and advance towards harmonized rules on the matter. As for extending the “most-favoured-nation clause” to dispute resolution, the approach should be determined by referring to the rules of treaty interpretation, as outlined in the Vienna Conventions on the Law of Treaties of 1969 and 1986.
RUTH TOMLINSON ( United Kingdom) said, in regards to “the protection of persons in the event of disasters” the substance of the two new draft articles proposed were in line with activity that already took place within her country. Legislation in the United Kingdom established obligations to assess risks, take measures to mitigate them, and to put preparations in place. The legislation also included a duty to warn and inform, along the lines of that set out in draft Article 16.
On “formation and evidence of customary international law”, she considered that both State practice and opinio juris were essential elements to the formation of a rule of customary international law. Thus, the adoption of “a two-elements approach” to the topic was appropriate; it required an assessment of both State practice and opinio juris. As well, the topic should not deal in detail with jus cogens since whether a rule constituted a rule of jus cogens was a different question to whether a rule constituted a rule of customary international law.
On the “provisional of application of treaties”, she agreed with the Special Rapporteur on the need for flexibility. In order to ensure that flexibility was maintained, the Commission’s work should be aimed at the provision of some kind of “guidelines” with commentaries to help decision-makers at various stages of the treaty process, taking into account State practice rather than model clauses or the development of agreed principles, which could tend to suggest something prescriptive and could hinder flexibility of parties to treaties.
On the “protection of the environment in relation to armed conflicts”, she said the Special Rapporteur was right not to focus on ‘Phase II’ (the phase during conflicts) as although obligations applicable during armed conflict were arguably the most important issue in that context, a great deal of relevant law already existed.
Report of Working Group
EDUARDO ULIBARRI ( Costa Rica), Chair of the working group on the “scope and application of the principle of universal jurisdiction”, said that discussions initially focused on the principle’s scope and then on its application. They covered a list of crimes which would come under universal jurisdiction. That list was, through further discussions, revised, resulting in one listing possible crimes that could form part of the principle’s scope, with the understanding that it did not reflect consensus among delegations, was without prejudice to their positions, and that it was preliminary and illustrative rather than indicative and/or exhaustive.
He went on to say that the working group also considered ways of how to present the list, including dividing the crimes into groups of “core crimes” and “treaty based crimes”, using the basis of the Commission’s classification to elaborate the Statute of the International Criminal Court. However, some of the crimes on the list overlapped categories. There were differing opinions on the crimes to include, with some delegations, for example, questioning the inclusion of “transnational organized crime” as being too broad a concept.
Delegations also raised issues on the “application of the principle of universal jurisdiction”, he said, with several stressing its “abuse” or “misuse”, as well as its use in an arbitrary, politically motivated or selective manner. Many further recalled the need for universal jurisdiction to be applied with due regard to international law and an understanding of the relationship between international and national law. The interrelationships and distinctions of the principle of universal jurisdiction from other concepts of international law, among them aut dedere aut judicare, and the complementary but distinct role of international criminal tribunals was raised for future discussion.
He said that several delegations proposed that the International Law Commission be requested to undertake a study of certain aspects of the topic. However, that proposal remained an issue for further consideration.
Statements on Third Cluster
MAURO POLITI ( Italy) said that, in regards to “protection of the environment in relation to armed conflicts”, the concept should be intended broadly in areas such as the protection of cultural property, which faced grave risks during international or internal conflicts. Noting that next year marked the sixtieth anniversary of the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, he stated his support for the Commission’s ongoing work to address the subject. He also agreed with the Special Rapporteur that the issue was more suited to the development of draft non-binding guidelines and not a draft convention. It would be more useful to provide a handbook that would reflect both existing basic norms in the various fields of law involved, and the elements that signified a possible evolution of relevant State Practice.
Turning to the Commission’s work on the “obligation to extradite or prosecute (aut dedere aut judicare)” he praised the working group’s materials in the report’s annex. The normative mechanism, rooted in a long-standing tradition of conventional instruments to combat the most serious crimes, was in fact aimed at filling the lacunae that could allow those responsible for such crimes to escape prosecution and punishment. Some of the annex’s relevant elements included the strict connection between the obligation to extradite or prosecute with States’ duties to cooperate in the fight against impunity and the review of the different types of provisions in multilateral instruments containing formula aut dedere aut judicare. The identification of gaps in the present conventional regime related to the obligation to extradite or prosecute, he said in conclusion.
THEMBILE JOYINI ( South Africa) said his country’s domestic legislation contained comprehensive and legally binding provisions aimed at addressing all aspects of the “protection of persons in the event of disasters”. He urged that the draft articles be improved to give them proper credibility. On the “formation and evidence of customary international law”, he said that the Commission should tackle aspects relating to how such law was created as well as to how its existence was shown. How treaty law may contribute to the formation or serve as evidence for customary international law should form part of the work of the Commission. It should not ignore the different approaches that courts took with respect to how evidence was presented. Governments should be engaged from the outset to examine the jurisprudence of international, regional and sub-regional courts. He supported the Commission’s decision to exclude the study of jus cogens, stressing that it was an important topic whose peculiarities deserved to be examined separately.
With regard to the “protection of the environment in relation to armed conflict”, he said the topic was the meeting place of two of the great issues directly affecting humankind and the planet. He welcomed the draft’s reference to environment protection not only during armed conflict. While drawing up contours for further work, he stressed that the applicability of such rules and principles during non-international armed conflict should be considered. On the “obligation to extradite or prosecute (aut dedere aut judicare)”, the harmonization of multilateral treaty regimes would be a less than meaningful exercise because of their complex nature. It was important to involve universal jurisdiction in some form or the other. The future of the topic should be dependent on the approach that the Commission decided to take with regard to crimes against humanity.
MARIA TELALIAN ( Greece), on the topic “protection of persons in the event of disasters”, said the duty of cooperation enshrined in article 5 ter was not set forth clearly in the draft articles. A reference to that article should be included in article 16. Linkage between those two provisions was not clear but was derived indirectly since the wording of article 16 did not specify any ‘right to ask for cooperation’ from the State that had the duty to reduce the risk. The measures that each State had to take, as well as the technically advanced and scientifically specific character of such measures, required cooperation among stakeholders. Thus, it would be the State upon which the duty of risk reduction was incumbent, and the relevant assisting actors, such as international organizations and/or non-governmental organizations with expertise on the specific issue, in order for article 16 to be fulfilled.
On the “formation and evidence of customary international law”, she said normative guidance was needed on the topic, as it was a novel one. In that regard, it would be extremely useful for States and lawyers if the Special Rapporteur and the Commission placed more emphasis on less traditional, and thus less obvious, means of custom formation. Examples of such could include the practice of international organizations, or the formation of customary law in fields, such as international human rights law, where one could witness a differentiation of the weight attributed to the two constitutive elements of customary law - State practice and opinio juris.
JULIA O’BRIEN ( Australia) said that the “protection of persons in the event of disasters” was a challenge and a core responsibility for all humanitarian actors. Humanitarian agencies should take an anticipatory approach to disasters. The draft articles provided good guidance to both affected and assisting States. On the “formation and evidence of customary international law”, the Commission should continue to explore both formation of customary law and the evidence of its existence. The best outcome would take the form of conclusions and commentaries. As well, the “provisional application of treaties” was best suited for guidelines or model clauses, consistent with diverse State views. Noting the Commission’s request for information, she looked forward to contributing to that discussion.
Turning to the “obligation to extradite or prosecute (aut dedere aut judicare)”, she said that impunity for crimes of international concern must not be tolerated. There were, in that regard, an increasing number of treaties that sought to apply the principle to a growing range of crimes. On the “most-favoured-nation clause”, she said it was important to assure greater certainty and stability in investment law. She expressed support for the study group’s emphasis on greater coherence to approaches taken by arbitral tribunals in that regard, and urged them to more clearly define “less favourable treatment” in the context of investment treaties.
MARTIN NEY ( Germany), speaking on draft articles 14 and 15 of the “protection of persons in the event of disasters”, said that more scope should be given to the discretion of the States involved. Collecting and analyzing existing practice to elucidate lex lata was itself an enormous challenge. The Commission should not attempt to develop new rules de lege ferenda. The final outcome on the matter should be a set of recommendations supporting domestic legislation to establish effective national systems of disaster prevention, preparedness, and response, rather than a binding international instrument.
Turning to “identification of customary international law”, he welcomed the proposition to elaborate conclusions with accompanying commentaries. The Commission should also examine the requirements for the formation of rules of customary law, as well as the material evidence of such rules. In addition, jus cogens was too large a subject to be covered sufficiently within the topic. State practice and opino juris were crucial to produce the final outcome.
On the “provisional application of treaties” he pointed out that it was a flexible tool as demonstrated by its broad use in multilateral and bilateral treaties. Such application meant that its rules would be put into practice and govern relations between the negotiating States, but was not an expression of consent to be bound, or lead to an obligation to consent to be bound. An in-depth analysis of State practice and case law regarding the legal effect of provisional application would be valuable.
HERNAN SALINAS ( Chile) said, in regards to the “protection of persons in the event of disasters”, that the principle of prevention was at the root of international law, and that an important legal basis for the draft article was States’ general practice. The recognition of that commitment was demonstrated further by States that incorporated disaster risk reduction measures in their framework. Nonetheless, the legal regulation for such protection must respect principles that also regulated the international community, such as cooperation, respect for territorial sovereignty and non-interference in the domestic affairs of affected States.
On the “formation and evidence of customary international law”, he said it was important for the topic to be restricted to its exact terms. With regard to treaties, their contribution to the process of establishing customary law must be determined. It might be important to provide elements that facilitated the distinction between customary law and general principles of law. However, that exercise should not lead to a review of international law as a whole.
When it came to treaties and customary law, he continued, the links between the two sources should not be studied because that would go beyond specific mandate established on that point. Nonetheless, it was important to ponder and make comments on issue of treaties as they provided evidence in existence of custom. On the “provisional application of treaties”, he said the work of the Special Rapporteur should be oriented to draw up guidelines or interpretative guidelines that dealt with the legal regime of provisional implementation, including how States expressed their will, their legal effects and their termination.
CRISTINA MEZDREA (Romania), among her comments on the third cluster, said the provisionally adopted draft articles on “protection of persons in the event of disasters” should reflect better cooperation on disaster risk reduction, along with the forms that cooperation might take. Further elaboration was needed on the right of affected States to impose conditions on assistance. In addition, provisions related to the special needs of women and vulnerable or disadvantaged groups should also be included. There should also be reference made to termination of assistance not impacting the needs of affected persons.
She noted the complexity of work on “formation and evidence of customary international law”, stressing the importance of customary international law, even as bilateral and multilateral agreements became more common, and codification of several areas of international law increased. Further clarifications were needed on the relation between customary law and treaties, with “the general international law” and with general principles of international law. The Commission should focus on assessing that complex relationship, and identifying the formation and evidence of customary international law.
In regards to the “provisional application of treaties”, she said she fully agreed that the Commission should not be seen as encouraging or discouraging, but should simply provide greater clarity regarding the legal regime. Provisional application was a tool to be used only exceptionally, and guidelines on its use should be developed. On “protection of the environment in relation to armed conflicts”, she did not think environmental issues could be easily divided into clear categories, and did not feel the need to separately address the effects of particular weapons. Turning to the “obligation to extradite or prosecute (aut dedere aut judicare)” was an important topic with regard to combating impunity and strengthening inter-State cooperation, she noted the working group’s conclusion about gaps in the conventional regime.
KIM SAENG (Republic of Korea) said, in regards to “protection of persons in the event of disasters”, ratione temporis should include not only disaster response, but the pre-and post-disaster phases, in order to establish a comprehensive framework. The draft articles 5 ter and 16 had been adopted without making a distinction between natural and industrial disasters, even though there were many dissimilarities, especially in the phase of pre-disaster prevention. Regarding the legal nature of the duty to prevent, it went far beyond the current public international legal regime to deem the duty to prevent as one of the general principles of public international law, other than in certain specific fields such as environmental law. An attempt to stretch the notion of duty-to-prevent to make it applicable to disasters was somewhat worrisome as it could reduce State sovereignty. The post-disaster phase comprised of not only legal issues, but economic, political and world-wide international cooperation mechanisms, including the United Nations system.
ALEXANDRA LENNOX-MARWICK (New Zealand), in regards to “protection of person in the event of disasters” welcomed the inclusion of article 5 ter and article 16 and the emphasis they placed on the responsibility to reduce the risk of disasters. The impact of disasters could be significantly mitigated by building the resilience of communities and by addressing the root causes of vulnerability. Further, preventing a hazard from becoming a disaster would not only save lives but also save on the costs of response and recovery.
She also shared the view that, in regards to “provisional application of treaties”, it was not appropriate for the Commission to seek to promote that application in general. While provisional application could be a legitimate tool, domestic procedures for entering into binding international obligations and for accepting provisional application were of the utmost importance. Such domestic procedures were a matter for individual States to determine in the context of the relevant constitutional framework.
On the “protection of the environment in relation to armed conflict”, she said she recognized the need for increased attention to the topic in light of continuing technological developments which placed the environment at greater risk from weapons of mass destruction as well as from conventional methods and means of warfare.
RYSZARD SARKOWICZ ( Poland), aligned himself with the European Union, and said that in regards to the “protection of persons in the event of disasters”, that ratione temporis should include pre- and post-disaster phases, in addition to the disaster response phase. Further, the conclusion on the topic’s scope reflected general trends, including that disaster risk reduction had become the predominant tendency. That should be reflected in draft articles 6 and 7, which currently were formulated only in terms of disaster response. He went on to suggest that the principle of responsibility to protect, while generally accepted as relating to genocide, crimes against humanity, ethnic cleansing, and war crimes, be considered also in the context of disasters. The final outcome should take the form of principles, rules, and norms, which could serve as a legal framework for the conduct of international disaster activities.
Turning to the “formation and evidence of customary international law”, he said that there must not be self-contained regimes governing the formation and identification of customary international law. He agreed that jus cogens should be excluded from the scope of the topic. In addition, the relationship between different sources of international law needed clarification. He underlined the importance of State practice in identifying customary rules. While recognizing that it could be difficult to collect such practice, he stated his willingness to cooperate in that regard, and suggested that the practice of non-State actors also be considered.
MASOOD KHAN ( Pakistan) said that, in regards to “protection of persons in the event of disasters”, the assumption of draft articles 10 and 11 that States would not seek assistance from the international community, even in cases of overwhelming natural disaster, was flawed. He had not found sufficient empirical evidence that if the disaster exceeded the affected State’s capacity, the affected State would not seek or accept assistance from any external actor arbitrarily, and would let its citizens suffer indefinitely. However, based on its national security concerns, a State might prefer receiving assistance from certain States, and external assistance actors over offers of others. A sovereign State had the right and must be free to choose among various external factors offering assistance. A suitable reference would be welcome in the draft articles to assure the affected State that the humanitarian assistance would not be abused in any manner to undermine its sovereignty or to interfere in its domestic affairs.
He said a legal framework for preventive measures was vital for disaster preparedness. Equally important were risk assessments and installation and operation of early warning systems. He would infer from the language of article 16 that even if prevention and disaster risk reduction might be formulated as a legal obligation for each State, the scope of that obligation should be left to the State itself. The affected State was likely to have the most authentic data about risk assessment and its capacity to prevent it. In that regard, a broad approach towards the obligation of States for disaster prevention, in particular, and the definition of disaster and the consequent obligations, in general, must be avoided.
Mr. RAJEEVE (India), commenting on several third cluster topics, said that in regards to the “protection of persons in the event of disasters”, and specifically draft article 16, the scope of the topic would thus comprise not only the disaster phase, but also the pre- and post-disaster phases. However, it was unclear whether the same would also be applicable to industrial disaster situations. Also, as a State's undertaking of rights and obligations during pre-disaster phase was largely linked with that State's economical development, technical know-how and human resources, a balance was needed to ensure that the interests of developing States were not affected by the rights and obligations under that draft article. Similarly, the principle of common but differentiated responsibility envisaged under environmental law for developing States needed to be considered and respected while determining the characteristics of due diligence. As for draft article 5 ter, there should be flexibility regarding the location of that draft article, or the possibility of combining it with other draft articles.
Turning to the topic "formation and evidence of customary international law", he shared the view that the purpose of the work on the topic should be to provide practical assistance to the practitioners of international law, as well as to the judges and lawyers in the domestic jurisdictions. Thus, the outcome should be in the form of non-prescriptive conclusions and commentary. The substance of the rules of customary international law should not fall within the scope of the topic. Nor should jus cogens, as the peculiarity of non-derogation distinguished it from the customary international law rules. The relationship between customary international law and other sources of international law, especially the general international law, should also be examined. He said he would like to see that both elements – the State practice and opinio juris — be given equal importance in the study.
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