UN General Assembly: Sixth Committee: Agenda Item 81: Report of the International Law Commission on the work of its sixty-third session (Chapters VI, VIII and IX): Statement by Ms. Päivi Kaukoranta, Director General for Legal Affairs, Ministry for Foreign Affairs of Finland, on behalf of the Nordic countries, New York, 27 October 2011
It is my honor to speak on behalf of the five Nordic Countries – Denmark, Iceland, Norway, Sweden and my own country, Finland.
I will first address Chapter VI of the report, namely “Effects of armed conflicts on treaties”. During this year´s session the Commission considered the report of the Drafting Committee and adopted the entire set of draft articles on the effects of armed conflicts on treaties, on second reading. Furthermore, the Commission adopted the commentaries to the aforementioned draft articles. Let me first commend Special Rapporteur, Mr. Lucius Caflisch, on his work and efforts on the topic and congratulate him for the results achieved. I would also like to pay tribute to the previous Special Rapporteur Sir Ian Brownlie and commend his valuable contribution to the work of the Commission.
This year the Commission recommended that the General Assembly takes note of the draft articles in a resolution, and annexes them to the resolution. The Commission also recommended that the General Assembly considers, at a later stage, the elaboration of a convention on the basis of the draft articles. The Nordic Countries agree on this general approach.
First, I wish to address the question of the scope of the draft articles. The Nordic Countries have in their previous statements consistently expressed their view that the articles should also apply to the effects of an internal armed conflict on the treaty relations of the State in question. The Nordic Countries welcome the formulation of draft article 1 which reflects the fact that internal armed conflicts could affect the operation of treaties as much as international armed conflicts. We also hold the view that the scope of the draft articles should be broad enough to cover cases in which only one of the States Parties to a treaty is a party to an armed conflict. In this regard, we are pleased with the formulation of article 1.
As to the definition of the term ´armed conflict´ in article 2, paragraph (b), we agree with the wording presented as accurately reflecting its meaning under international humanitarian law while taking into account the specific context of the present draft articles.
Article 5 requires that, in the absence of a clear indication in the text of the treaty itself, one should seek to ascertain its meaning through the application of the established rules of international law on treaty interpretation. We welcome the inclusion of article 5 as it clarifies the sequence of investigating the possible indications on the treaty´s susceptibility to termination or withdrawal or suspension of operation.
Article 7 of the draft articles addresses the question of continued operation of treaties resulting from their subject-matter. The article in question refers to an indicative list of treaties which is to be found in the annex of the draft articles. We would have preferred to incorporate such a list into the commentary to draft article 7. We wish to repeat that the Nordic countries hold the view that there is a presumption of continuity of treaties, although a treaty or provisions therein which continue in operation do not necessarily have to be applied as they are, given that some basic treaty principles need to be taken into account during armed conflicts. Furthermore, it would have been appropriate with an article containing a statement of principle to that effect.
Allow me to now thank the Commission for its report on “Expulsion of aliens”. The Nordic countries have in recent years commented on this topic and have with some consistency expressed our view: After careful consideration we remain unconvinced that the Commission’s work on this particular topic is likely to be of much benefit to the member states in developing and identifying the relevant rules. This is an area of law with significant and detailed regional rules, and we continue to question the usefulness of the Commission’s further work on identifying general rules of international law on expulsion of aliens.
We note that our skepticism is shared by a large number of other states who have taken the floor during discussions of this topic in recent years. Both for reasons of efficacy and relevance we would therefore hope that the Commission would focus its limited time and resources on the other and more important topics on its agenda.
Finally, I will comment on Chapter IX, namely the International Law Commission’s work on the topic “Protection of Persons in the Event of Disasters”. Let me first commend the Special Rapporteur, Mr. Eduardo Valencia-Ospina for his valuable work and efforts on this topic.
At the present session the Commission considered the topic on the basis of the fourth report of the Special Rapporteur. The report focused on the responsibility of the affected State to seek assistance where its national response capacity is exceeded, the duty of the affected State not to arbitrarily withhold its consent to external assistance as well as the right to offer assistance in the international community. Proposals for three further draft articles were made in the report, namely draft articles 10, 11 and 12.
It is the primary duty of the affected State to ensure the protection of persons and provision of disaster relief. The State, on the territory of which the disaster has taken place, has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory. The affected State is also best placed to assess the need to protect and to assist the persons affected by the disaster. This responsibility of the affected state, however, should not be exclusive. We welcome the focus taken by the Special Rapporteur in his efforts to find the right balance between state sovereignty on the one hand and the duty to co-operate on the other. When the affected State does not have the capacity or the will to protect and provide relief to the persons affected by the disaster, it should seek assistance from other states and international organizations in accordance with draft article 10 in order to fulfill its obligations under international human rights instruments and customary international law.
While article 11 refers to the consent of the affected states for external assistance , it is important to underline that the affected State has the duty to ensure protection and assistance to those within its territory in the event of a disaster and to guarantee the access of humanitarian assistance to persons in need. Should the State concerned be unable or unwilling to provide such assistance it is fundamental that the State does not withhold external assistance.
We note the ongoing work concerning draft article 12, which deals with the right of third parties, including States, international organizations or non-governmental organizations, to offer assistance. We acknowledge and welcome the interest of the international community to protect persons in the event of a disaster that exceeds the national response capacity. This interest should be viewed as a complement to the primary responsibility of the affected State to protect persons in its territory. We share the view of the Special Rapporteur that offering assistance in the international community is the practical manifestation of solidarity.
The Nordic countries look forward to continuation of the work of the Special Rapporteur on the topic and in particular further consideration in regard to draft article 12.
Thank you, Mr. Chairman.