Statement by H.E. Dr. Palitha Kohona
Permanent Representative of Sri Lanka to the United Nations
Sixth Committee – 65th UNGA
Agenda Item 79: Report of the International Law Commission
on the work of its Sixty-Second Session
1st November, 2010, New York

Madame Chair,
 
On behalf of the delegation of Sri Lanka, I would like to congratulate the Chairman, Ambassador Mr. Nugroho Wisnumurti, for the successful completion of the 62nd Session of the Commission. We would also like to thank him for his comprehensive report.

We also wish to extend our appreciation to the chairmanship of Madam Hankin Xue for her able Chairmanship during the first segment of the Commission, prior to her elevation to the International Court of Justice.

It is a sad task for me to associate my delegation with the sentiments that have been expressed in the Committee, on the untimely passing away of Ms. Paula Escarameia, Member of ILC for almost 10 years.

Madame Chair,

At the outset, allow me to take this opportunity to express our appreciation and support for the very important work carried out by the International Law Commission in the progressive development and codification of International Law. Sri Lanka wishes to congratulate the Commission, in particular, Special Rapporteur, Mr. Alain Pellet for the provisional adoption of 59 guidelines on Reservations to Treaties together with commentaries. The draft guidelines will receive the close and careful consideration of my government.


Madame Chair,

My delegation will mainly focus our intervention on the topics falling under Parts Two and Three of the cluster, in particular, ‘Expulsion of Aliens’, ‘Effect of Armed Conflicts on Treaties’, and‘ the Protection of Victims of Disasters’.

Expulsion of Aliens

Madame Chair,

Turning to the topic ‘Expulsion of Aliens’, let me first pay tribute to the Special Rapporteur Mr. Maurice Kamto and thank him for the revised and restructured draft articles on the protection of human rights of persons and for his Sixth Report.

Madame Chair,

The Right of Expulsion falls essentially within the sovereign domain of States. However, the right must be exercised in accordance with International Law. The right is essentially governed by the domestic laws of States. Therefore, in dealing with this topic, over-prescriptiveness must be carefully avoided.

Having said this, my delegation is in broad agreement with the cluster of draft articles. However, we are of the view that the obligation to respect the dignity of persons could more appropriately be reflected as a general principle, as an overarching principle in an introductory section. As had been pointed out by some Members, human dignity is a general principle from which all human rights flow and not a specific human right.

Sixth Report
Draft Article 8- Prohibition of extradition disguised as expulsion

We share the concern that has been expressed on the advisability of including draft article 8, on Prohibition of extradition disguised as expulsion, even by way of progressive development. It would be inappropriate to have in the draft articles a provision that was more concerned with extradition than with expulsion, as the aim of the proposed draft article was to protect the integrity of the extradition regime. However, we note that the Special Rapporteur has presented a revised draft article seeking to accommodate these concerns. This aspect requires further discussion and clarification, and in the meantime the question of whether such an article is necessary must be left open.

Draft Article 9- Grounds for Expulsion

Concerning draft article 9 on grounds for expulsion, the grounds embodied in international conventions and international case law appear to be limited basically to public order and national security, although national legislation provides for various other grounds. We are in agreement with the approach in draft article 9 which accords particular importance to the grounds of public order and national security, without excluding other grounds and also lays down the condition that expulsion must be in accordance with the law. Further, with regard to the grounds for expulsion, the importance of maintaining a distinction between aliens lawfully and those unlawfully present in the territory of a State is of crucial importance.

Draft Article A1: Procedural guarantees for the expulsion of illegal aliens in the territory of the expelling State

We are of the view that in dealing with procedural guarantees, it is necessary to differentiate between the cases of aliens lawfully present in a State and those unlawfully present. Guarantees must also be limited to those established in international law. While basic minimum guarantees such as the right to receive notice, and the right to consular protection are well established, the inclusion of a right to legal aid and to legal counsel, etc., cannot be supported as established guarantees under international law. Furthermore, these will involve resource constraints for many States. Taking these factors into account, we welcome the Special Rapporteur’s revised draft article, which requires further discussion.

 

Effect of Armed Conflicts on Treaties

Madame Chair

Turning now to the Effect of Armed Conflicts on Treaties, we wish to congratulate Special Rapporteur, Mr. Lucius Caflisch, for his report in which he has included proposals for the reformulation of the draft articles adopted in the first reading, taking into account the comments and observations by Member States. My delegation wishes to pay tribute to the late Sir Ian Brownlie for his guidance of the work on this topic during its first reading.

Article I- SCOPE

Madame Chair,

With regard to Article 1 (Scope), two issues arise for consideration, first, whether the draft articles should be applied solely to inter-State armed conflicts or also to non-international armed conflicts. Secondly, the issue whether the draft articles should apply to treaties to which one or more intergovernmental organizations are parties.
 
We share the view that the effect of non-international conflicts where only one State is party to an armed conflict would be different from that arising in inter-State conflicts on a treaty. Therefore, we believe it is necessary that the question of why and how those cases of non-international armed conflict could affect the operation of a treaty between States, needs to be further clarified in the commentary.

On the question whether the draft Articles should cover treaties to which International Organizations are party, my delegation supports the view that this issue is a complex one in which practice is scarce. We would therefore agree with the suggestion that has been made that the matter be the subject of a separate study. For present purposes, we also think that the Savings Clause proposed by the Special Rapporteur at Paragraph 203 is helpful.
 
Article 2- Use of Terms

On the definition of the term “armed conflict”, we take the view that the term “Protracted” be retained so as to ensure that there is a minimum threshold provided for in the elements of duration and intensity for the application of the draft articles. This is an essential factor if the draft articles are to cover situations of non-international armed conflicts.

Article 5- Operation of treaties on the basis of implication from their subject matter

We do not favour a selective approach of including in draft article 5 some categories of treaties in a new sub-paragraph (2). We agree with the view that has been expressed, that the inclusion of such a paragraph would inadvertently have the effect of establishing “two tiers” of categories which might be difficult to substantiate in practice.

We are therefore of the view that retaining the indicative list of categories of treaties as an annex to the draft articles, as had been done on first reading, is a viable compromise between the different options discussed, with the qualification that it be augmented by the new categories identified by the Special Rapporteur namely: treaties which are constituent instruments of international organizations, treaties relating to international criminal justice, and treaties including rules of a peremptory (jus cogens) nature.

Article 8- Notification of termination, withdrawal or suspension

We are in broad agreement with this draft article. However, sufficient flexibility must be provided to take into account the reality of armed conflict situations, in which formal notification is not always possible. It should avoid prescriptive rules on time limits etc. and only reflect the obligation of States with regard to the Peaceful settlement of disputes. We would therefore go along with draft article 8 proposed by the Special Rapporteur with the deletion of sub-paragraph 4.

 

Article 15- Prohibition of benefit to an aggressor State

Madame Chair,

We are in agreement with the objective of draft article 15, which is to prevent an aggressor State from benefiting from a conflict it had triggered, in order to put an end to its own treaty obligations. We favour the inclusion of reference to General Assembly resolution 3314 (XXIX) on “Aggression”, and also to the Charter of the United Nations, as suggested by the Special Rapporteur.

Protection of persons in the event of disasters

Madam Chair,

My delegation wishes to extend our appreciation to Mr. Eduardo Valencia-Ospina for the invaluable work he has accomplished as Special Rapporteur in the Third Report (A/CN.4/629).

Madam Chair,

As a country that suffered the devastating effect of the 2004 Tsunami, Sri Lanka attaches special importance to the development of this topic. Our heartfelt sympathies go out to the victims of recent natural disasters in Indonesia, Pakistan and China.

An examination of the relationship between norms of international law and natural disasters reveal the existence of a legal lacuna in this particular area. We take that view that a legal framework that clearly articulates the rights and responsibilities of those involved would facilitate greater co-operation among States.

We welcome draft articles 6, 7, and 8 in dealing with humanitarian principles in disaster response, human dignity and human rights. That the response to disasters shall take place in accordance with the principles of humanity, neutrality and impartiality and on the basis on non-discrimination, while taking account of the needs of the particularly vulnerable is a proposition that is beyond debate. Respect for the inherent dignity of human persons and for the respect of human rights of persons affected by disasters, is similarly of a fundamental nature and we welcome their inclusion.

With regard to the role of the affected State, that the fundamental principles of sovereignty and non-intervention should serve as the primary principles guiding the Commission’s work on this topic and any expansion of this area of the law. It needs to be emphasized that the affected State, by virtue of its sovereignty has the primary role in the direction, control, coordination and supervision of relief and assistance in disaster situations. Humanitarian assistance provided by other States or non State actors as a matter of international cooperation and solidarity, must be undertaken only with the consent of the affected State. It is of crucial importance that, any assistance provided by external entities must complement domestic initiatives. We also recognize that sovereignty entails responsibilities and that the affected State has the duty to ensure the protection of persons and provision of disaster relief and assistance on its territory. These propositions are in consonance with the principles contained in the annex to the landmark General Assembly resolution 46/182 of 19 December 1991.

Madame Chair,

Permit me also to briefly comment on a couple of other important issues which are contained in the cluster in Part 3.

MFN Clause

I wish to commend the work of the Study Group on the MFN Clause contained in Chapter XI of the report. The MFN Clause has assumed particular importance in contemporary times with the proliferation of bilateral investment treaties, consequent to which there has been a shift in the importance of the MFN Clause from trade to investment. Similarly, the strengthened multi-lateral framework of the WTO/GATT and the dispute settlement mechanisms thereunder throw up new challenges, which were not present when the Commission formulated the 1978 Draft Articles.

In this context, we welcome the several papers that have been presented in the Study Group to serve as a basis for future discussions. My delegation is hopeful that the work would culminate with the drafting of broad guidelines or model clauses that would bring greater coherence and consistency to the operation of the MFN Clause in contemporary situations, which would be of benefit to both Member States and arbitral tribunals.

Treaties over Time

Madam Chair,

We welcome the report presented by the Chairman of the Study Group on Treaties over Time, Mr. Giorg Nolte, on the relevant jurisprudence of the International Court of Justice and arbitral tribunals of ad-hoc jurisdiction. 

One of the fundamental purposes of concluding a treaty is to provide certainty in the relationship between parties. Nonetheless, treaties have been deemed as living instruments that are not frozen in time, but evolve as a result of intentional treaty related acts, events and developments that have occurred subsequent to the treaty coming into existence. Taking into account subsequent practice in the interpretation of treaties not only ensures that the treaty remains relevant in contemporary times, but also encourages the practical application and longevity of the treaty.   However, we do recognize that this would pose questions in the domestic implementation of treaties. 

Future work of the Commission

Madame Chair,

It is our expectation that the Commission will proceed expeditiously with the outstanding work on the Immunity of State Officials from Foreign Criminal Jurisdiction and the Extradite or Prosecute obligation. Those are topics of current relevance and the work on them should not be delayed further.

Allow me also to comment briefly on the possible future topics that could be embarked upon by the ILC. It has been stressed time and again, that in the selection of new topics in the ILC, the Commission must be guided by the requirements of practical utility to Member States, and contemporary needs of the international society as a whole. One possible area worthy of study would be the issue of international humanitarian law and its application to non-State actors in contemporary conflicts. The existing legal framework is of a rudimentary nature. This was an aspect that was highlighted by the President of Sri Lanka, H.E. Mahinda Rajapaksa in his address to the UN General Assembly last month, “It is worth examining the capacity of current international humanitarian law to meet contemporary needs. It must be remembered that such law evolved essentially in response to conflicts waged by the forces of legally constituted States, and not terrorist groups. The asymmetrical nature of conflicts initiated by non-State actors gives rise to serious problems which need to be considered in earnest by the international community.” I trust that this issue will engage the attention of the Commission when deciding future topics.

Let me conclude my comments by supporting the Commission’s view on the issue of honoraria. The adoption of the General Assembly Resolution A/56/272 which reduced the honoraria payable to members of the Commission affects the Special Rapporteurs, especially those from developing nations, as it compromises support for their research work. Sri Lanka hopes that this issue will be duly reconsidered by the General Assembly. Sri Lanka also fully supports the views expressed by the Commission on the question of assistance to Special Rapporteurs as reflected in Paragraph 6, Chapter XII of the report.

I thank you for your kind attention, Madame Chair.

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