63th session of the United Nations General Assembly, Sixth Committee
Report of the International Law Commission on the work of its sixtieth session (item 75), Chapter IX "Protection of persons in the event of disasters"
At the sixtieth session, the Commission began reviewing the topic of the protection of persons in the event of disasters, and also reviewed the preliminary report by Mr. Valencia-Ospina. In addition to this highly instructive report, the Commission had before it a memorandum, which is a remarkable substantive study of the topic.
Recent disasters remind us of the extent of human suffering they can cause; they are factual situations in which the normal functioning of human societies or the environment is hampered, and which suggest that the rules and principles of international law in periods considered as peaceful should be relaxed or changed. In my view, this falls within a general and de lege ferenda reflection, which as desirable as it may be, could be regarded as exceeding the mission of codification and the gradual development of international law, which the ILC looks after. The purpose of codifying is indeed to determine the exact status of the law before contemplating what would be desirable to develop within the existing law. In this respect, reasoning based exclusively on the "exceptional" nature of the disaster should not prevent taking into consideration the existing, de lege lata, normative framework in international law, so as to come to the assistance of natural disaster victims; and this framework could be drawn on without necessarily preventing it from being reinforced or supplemented.
In this respect, I have not underestimated the scale of ILC’s challenge, as this topic may involve several branches of international law as well as two or more legal systems - international law and the legal system of one or more States - and in particular, a wide array of texts with an extremely variable legal value.
Despite all these constraints, my delegation is inclined to think that the topic could undergo a draft codification that is reasonably balanced between identifying the principles of customary law governing the matter and determining their consequences of the concrete mechanisms that provide for the protection of persons in the event of disasters. Such an undertaking would in itself represent significant progress by offering States the terms of reference in accordance with which cooperation, assistance and relief can be organized at national and international levels in the event of disasters.
At this preliminary stage, I will merely make a few comments on the main trends that have come to the fore at the first reading of the Commission’s work.
First of all, I believe that the topic should be dealt with without limiting its scope beforehand. In this regard, I do not think that the title chosen should strictly govern the way in which the Commission intends to study it. Thus, the expression "protection", while not to be understood literally, should certainly encompass a wide array of activities which must be undertaken in the event of a disaster, whether it be actual "relief" or, more broadly, "assistance". Conversely, I have a few doubts as to the advisability of including disaster prevention in the topic, as this could move the Commission away from the central theme and could encroach upon areas which are already heavily bi- or multi-laterally regulated, such as the environment or industry.
With regard to the other terms which make up the title of the topic, there is no need to keep to a strict nominalism, especially when they do not seem to cover a specific legal category, as seems to be the case for the concept of "disaster". It may, however, be necessary to make choices, and I agree entirely with the Special Rapporteur’s decision to focus his initial efforts on natural disasters, just as the Secretariat did in its first study in 2006. Nevertheless, the term "disaster" should be defined for the purposes of the final draft, perhaps in a way that would cover a greater variety of disasters. In this regard, I think that a definition centred around the common effects that different disasters have on people, the environment or property would avoid needless controversy about the cause of such disasters and the distinction between so-called natural and man-made disasters.
The third term in the topic - persons - seems to have played a significant role in the general approach to the topic, which should be followed. I believe that the Special Rapporteur’s suggestion of a "rights-based approach" for persons is an interesting starting point, it being understood, however, that this does not exclude international law from humanitarian assistance and States from their rights and obligations. From the viewpoint of a possible framework convention on the protection of persons in the event of disasters, the Commission should certainly try to identify and specify the principles of customary law regarding offers of relief or assistance from relevant States and international organizations and the conditions under which an affected State could accept such conditions, as well as the general conditions under which relief or assistance should be provided.
Thus, by remaining as close as possible to States’ general practice and to their convictions as regards the rights and obligations which they are subject to, the Commission could, in my delegation’s view, significantly contribute to consolidating rules to achieve better international cooperation, in the interest of victims of disasters, and in compliance with the principles of humanity, neutrality, impartiality and sovereignty.
Thank you very much./.