|Report of the International Law Commission|
|Friday, 30 October 2009 18:19|
Statement by H.E Ambassador Palitha T.B Kohona
Permanent Representative of Sri Lanka to the UN
Agenda Item No 81: Report of the International Law Commission on the work of its 61st session
64th Session of the General Assembly
30th October, 2009
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. Through the systematization and precise formulation of rules, the Commission plays an invaluable role in the codification and progressive development of international law.
Sri Lanka would like to congratulate the Chairman, Ambassador Ernst Petric, for the successful completion of the 61st Session of the Commission under his experienced and able chairmanship. We would also like to thank him for the presentation of a comprehensive and commendable report on the work carried out by the Commission in its last session.
My delegation will focus our intervention initially on the topic the ‘Protection of Persons in the Event of Disasters’, but will also comment on the topics ‘the Obligation to Extradite or Prosecute ’, ‘the MFN Clause’ and ‘Treaties Over Time’ which are covered under chapters 9 ,11 and 12 in the Report, as part of a composite statement.
PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
Turning firstly to the topic ‘Protection of Persons in the Event of Disasters’ let me first pay tribute to the Special Rapporteur Mr Eduardo Valencia Ospina for the invaluable work he has accomplished so far in a challenging and complex topic.
The devastation caused by the Indian Ocean Tsunami on the 26th of December 2004 presented an unprecedented humanitarian challenge for the countries affected, including Sri Lanka, and the international community at large. Yet despite the enormity of the humanitarian task at hand, the countries affected were able to band together with the international community to implement an impressive humanitarian response.
Although generally well perceived, the international response to the tsunami also illustrated the need for a broad international framework that would provide guidance as to how the various players respond to natural disasters. My delegation takes the view that a framework that clearly articulates the rights and responsibilities of those involved would facilitate greater co-operation and would thereby expedite relief efforts.
An examination on the relationship between norms of international law and natural disasters reveal the existence of somewhat of a legal lacuna in this area. The International Federation of Red Cross and Red Crescent Societies has called the international legal response to natural disasters as a ‘long neglected facet of international law’ and have argued that ‘it is unlikely that any other challenge looming so large in world affairs has received so little attention in the legal realm’. This stands in contrast to the use of international law to address other extreme peacetime events such as industrial accidents and epidemics and more acutely, to the extensive body of international humanitarian law that is applicable in armed conflict. On this point, Sri Lanka is pleased to note that disasters in the context of armed conflict have been left outside the scope of this study as this area is already regulated by a highly developed body of law that is recognised as constituting lex specialis.
In the absence of major multilateral instruments applicable to disasters, it is our view that a thorough examination of the existing body of law needs to be undertaken, prior to enhancing any legal regulation in this area. Accordingly, my delegation would like to extend our full support to the Commission for including the topic ‘Protection of Persons in the event of Disasters’ in its program of work. In our view the ILC should give priority to natural disasters and other forms of disasters could be considered at a subsequent stage.
In relation to the work completed thus far, my delegation welcomes the draft articles, which are in a preliminary stage of consideration and extends our broad support for the rights based approach that has been adopted. As noted by the Special Rapporteur, we believe such an approach would complement, rather than compete with existing human rights regimes. Nonetheless, it is our view that the fundamental principles of sovereignty and non intervention should serve as the principal guiding tenets for the Commission’s consideration of this topic and any development in this area of law that may ensue. In this context, this means that the affected states should have the primary responsibility in initiating, organizing, coordinating and implementing any relief efforts within its territory. Moreover, humanitarian assistance provided by other states or non state actors should only be with the consent of the affected state. Any assistance provided by outside entities must also complement domestic initiatives. This does not negate the important role of the international community and non state actors in disaster management. Rather, my delegation believes that a regime that is formulated should recognise the centrality of the role of the affected state, supported by an umbrella of international solidarity and co operation.
Sri Lanka is also pleased to note that the project’s primary focus is on disaster response and early recovery and rehabilitation. That said, we believe that the Commission should endeavour to explore the question of disaster risk reduction and mitigation at a later stage.
With respect to the concept of “responsibility to protect”, we welcome the Special Rapporteur’s conclusion that in concordance with the 2009 Report of the Secretary General on the precise scope of application of this concept, it does not apply to disaster response and protection of victims of disasters. It’s a concept essentially political in character and has not acquired the status of an established legal principle.
While welcoming the preliminary draft articles which are still under consideration, Sri Lanka looks forward to the Special Rapporteur’s continuing work on this topic in the coming years.
OBLIGATION TO EXTRADITE OR PROSECUTE
Turning now to the topic the “Obligation to Extradite or Prosecute”.
Before I comment on the substantive elements of this topic, my delegation would like to thank the Special Rapporteur, Mr Zdislaw Galicki, for his work on this project thus far. Sri Lanka is also pleased to note the establishment of an open ended Working Group on this topic, under the able Chairmanship of Mr Alain Pellet and would like to extend our gratitude for the work that they have already accomplished.
The Working Group identified seven main subtopics that would serve as the framework for the Commissions consideration of this topic. My delegation hopes that the issues identified act as an impetus to advance the substantive work on this topic. We are also pleased to note that the Working Group has placed particular emphasis on taking into account national legislation and decisions in its methodology in approaching the topic.
Given the enormity of this topic, we would like to focus our remarks on a few select issues of general interest.
In relation to the legal basis of the obligation, my delegation believes that the main issue at stake is whether the obligation aut dedere aut judicare exists as a matter of customary international law. While appreciating that the obligation is generally treaty based, we are inclined to believe that it may have achieved customary status, at least with respect to specific categories of serious international crimes such as genocide, crimes against humanity, war crimes and terrorist crimes. Nevertheless, further deliberation on whether and to what extent the obligation has a basis in customary international law would be welcome.
In relation to the material scope of the obligation, we agree that it would be a useful exercise to identify the criteria to determine those categories of crimes where states could be considered ipso jure to be bound by the obligation. In this regard, we also agree that the work accomplished by the Commission in the 1996 Draft Code of Crimes would provide invaluable material for further study on this issue.
On the question of the relationship between the obligation and the surrender of the alleged offender to a competent international criminal tribunal, it is our view that this aspect should not be dealt within this study. This matter is governed by a distinct body of law and poses different problems than those arising from extradition between states.
As to the question concerning the concept of universal jurisdiction, the complimentary nature of their relationship and their interdependence may require further study. We believe that the nexus between these two institutions needs to be explored, while the focus must remain on the obligation to extradite or prosecute.
I am pleased to inform the Committee that Sri Lanka has already submitted its comments on this topic and urge other countries who are yet to comment to follow suit.
I will now offer some comments on the topic ‘MFN Clause’ which is under consideration by a Study Group.
With the inclusion of the MFN Clause in numerous bilateral, regional and multilateral investment related treaties, MFN treatment has become a central tenet of international investment and trade policy. Such clauses serve to minimize discrimination and to ensure that any priviliges, concessions and advantages accorded to one state by another are on par with those guaranteed to third states. Indeed, as the ICJ so eloquently articulated in the case Concerning Rights of Nationals of the United States of America in Morocco, the fundamental purpose of MFN Clauses are to ‘establish and to maintain at all times fundamental equality without discrimination among all of the countries concerned”. MFN Clauses have particular relevance to developing countries such as Sri Lanka who are striving to attract foreign investment and are dedicated to making international trade both liberal and fair.
While we appreciate the important work accomplished by the Commission’s earlier consideration of this topic, we have noted that there have been some significant developments that have taken place since then. These changes include:
• the proliferation of bilateral and regional investments agreements in the last two decades that have incorporated MFN clauses;
• the development of an extensive multilateral trading system under the auspices of the WTO which has broadened the ambit of MFN treatment to trade in services, investment and intellectual property;
• the existence of inconsistent jurisprudence as a result arbitral decisions pertaining to the precise scope of application of the clause; and
• the emergence of issues in the context of the present social and economic conditions.
These contemporary developments have resulted in a substantial new body of practice that needs to be taken into account in assessing how MFN clauses operate in practice. In light of these developments my delegation strongly believes that the time is ripe to re-examine this topic and would warmly welcome and support an initiative to include a study on the MFN clause in the Commission’s program of work. Furthermore, we also support the framework adopted by the Study Group that is to act as the Roadmap for future work and believe that it strikes the appropriate balance between bringing greater understanding to this area without prejudicing the work previously done by the Commission and developments in other fora.
My delegation is hopeful that the work would culminate with the drafting of broad guidelines that would bring greater coherence and consistency to the operation of MFN Clause which would be of benefit to both member states and arbitral tribunals.
TREATIES OVER TIME
Finally, Mr Chairman, my delegation would like to make some brief remarks on the topic ‘Treaties over time’.
One of the fundamental purposes of concluding a treaty is to provide a degree of certainty in the relationship between the parties. Nonetheless, treaties have been deemed as living instruments that are not frozen in time, but evolve as a result of intentional and treaty related acts, events and developments that have transpired 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 that treaty.
Despite being of great practical relevance, the interaction between subsequent practice and treaty interpretation has attracted very little academic attention. Accordingly, Sri Lanka welcomes the introduction of the topic ‘Treaties over time’ and the establishment of a Study Group under the chairmanship of Mr Georg Nolte.
We are also pleased to note that as a first step the Chairman would prepare for next year a report on subsequent agreement and practice as addressed in the jurisprudence of the ICJ and other international courts and tribunals.
Sri Lanka will be following the work of the Study Group with great interest in the coming years.
Let me conclude my comments by supporting the Commission’s view on the issue of honoraria. The adoption of General Assembly Resolution A/56/272 which reduced the honoraria payable to members of the Commission affects the Special Rapporteurs, especially those from developing countries, as it compromises support for their research work. Sri Lanka hopes that this issue will be duly reconsidered by the General Assembly.
I thank you for your kind attention.