Natural disaster relief draft articles need clearer parameters, argue delegates as legal committee continues review of international law commission report

from UN General Assembly
Published on 02 Nov 2012 View Original


Sixty-seventh General Assembly
Sixth Committee
19th & 20th Meeting (AM & PM)

Debate on First Cluster Concludes; Consideration of Third Cluster Topics Commences

In the ravaged wake of a hurricane that pummelled the United States east coast this week, the relevant issue of protecting people during disasters required fine-tuned approaches that would ensure assistance reached those who needed it, stated members of the Sixth Committee (Legal) today, as the debate on the Geneva-based International Law Commission’s annual report continued.

During the day-long meeting, more than 35 speakers voiced their views on a range of topics, from immunity of State officials to helping disaster-stricken populations, with the Commission’s Chair and the Special Rapporteur on the expulsion of aliens addressing the Committee.

Prior to the debate, the President of the International Court of Justice briefly spoke to the delegations and acknowledged the impact of Hurricane Sandy on the Committee’s work. He stressed that statements of the Committee and the International Law Commission were carefully scrutinized by the International Court of Justice and were important to the preparation of treaties.

Expressing his deepest sympathy to Hurricane Sandy’s victims, Indonesia’s representative said he could relate to the destructive impact of natural-borne disasters. His country was located in the most active volcanic plateau in the world. With that in mind, he stressed that disaster-affected States should be allowed to define the provision of assistance, which put forth the needs of its people, was reasonable and did not undermine the State’s duty to protect.

Speaking from its own experience after the 2011 tsunami and nuclear accident, Japan’s representative commended the Commission for deliberating on cooperation with disaster assistance. Since the State bore the primary responsibility to protect its population, it should be able to maintain overall control of assistance while ensuring that its domestic legislation did not impede the facilitation of external assistance.

A number of delegates pointed to areas that required further consideration and action. Australia’s representative said delivering humanitarian assistance in the absence of safety and security had a limited or even detrimental effect. The Commission should explore elaborating a model instrument in the form of a status of visiting personnel agreement, which could be annexed to the draft articles. The 1946 Convention on the Privileges and Immunities of the United Nations could be a possible model for a set of provisions that would serve as a legal framework of international disaster relief activities.

It was also important to bear in mind, said France’s representative, that humanitarian assistance could only be effective when provided and received willingly. Disaster-affected States should also have the right to refuse assistance, the United Kingdom’s representative pointed out, noting that States should also be able to place conditions on assistance. Assisting States should also have the right to withdraw and that withdrawal should not be subject to consultation. The appropriate form for the draft articles should be flexible, creating a guide for good practice rather than a convention.

The representative of the International Federation of Red Cross and Red Crescent Societies lamented that the proposed enumeration of “cooperation” was quite limited, and the present list seemed focused on relief, which might be taken to exclude disaster risk reduction, and preparedness for disasters and recovery. Also omitted were common types of cooperation, such as financial support, technology transfer, training, information sharing and others. “We had thought that the original obligation of cooperation referred not only to States providing assistance,” he said, “but also to those receiving it.”

The representative of the Russian Federation stressed the need to adopt guidelines that balanced State sovereignty with the need to assist victims. He was concerned that establishing an obligation of the affected State to request assistance would create several legal problems as to who would be authorized to determine whether the calamity actually took place, whether the affected State complied with an obligation to ask for aid, and whether the disaster was beyond the affected State’s capacity to address. The related draft article should stipulate a moral and political obligation instead of a legal one on the affected State to ask for external aid and not reject it deliberately.

A number of other speakers agreed. Saying that the development of the framework principles for States and other actors engaged in relief could have much more practical value than draft articles, Poland’s representative supported the inclusion of the duty to cooperate, humanitarian principles, respect for human dignity and human rights, and the primary responsibility of the affected States.

Turning to the subject of the expulsion of aliens, the Special Rapporteur on the subject addressed the Committee, saying while he fully understood States’ hesitation that rules of international law could regulate a subject that previously relied on national legislation, very few subjects on the Commission’s agenda in the last 30 years had had such a solid basis in international law. “In our globalized world characterized by a great flow of goods and funds, the subject of expulsions was particularly relevant,” he said. “It cannot be held outside the sphere of international law.”

However, some speakers remained divided about the final form of the 32 draft articles. The representative of Portugal said the subject was unsuitable for codification, but should become an overview of existing legal norms, including the possibility of establishing a general framework of principles. Meanwhile, South Africa’s representative said the format of the draft articles was an appropriate outcome, even though more clarity was needed to the differentiated rights and obligations of legal and illegal foreign nationals.

Presenting another view, the representative of the Congo said the international community needed an instrument to address the human rights of persons under an expulsion order. An international convention would enshrine the Commission’s codification work. Singapore’s representative suggested that “we should keep all options open”. That could include the possibility of the Commission’s work, taking the form of guiding principles, rather than draft articles.

After concluding its discussions on those topics, the Commission’s Chair opened a debate on the report’s chapters on the immunity of State officials from criminal jurisdiction, the provisional application of treaties, the formation and evidence of customary international law, the obligation to extradite or prosecute, treaties over time and the most-favoured-nation clause.

Providing an outline of those topics, he said draft articles would cover some of the highly complex issues, including discussions on the distinction and the relationship between the global responsibility of the State and that of the individual, and on their implications for immunity. He also said the Commission’s work regarding those topics was based on, among other things, reports from the Special Rapporteurs.

Speaking on the topics of expulsions of aliens and protecting persons in the event of disasters were the representatives of Chile, Canada, Mexico, Ireland, Netherlands, Thailand, El Salvador, China, Greece, Romania, Malaysia, United States, Iran, India, Iraq, Pakistan, Israel, Cuba, Hungary and Zambia.

During the subsequent debate, the representatives of Norway (on behalf of the Nordic countries), Canada, Austria and Chile delivered statements.

The Committee will meet again at 10 a.m. Monday, 5 November to continue its work.