Delegates Take up Secretary-General Reports on Responsibility of International Organizations, Hear Working Groups’ Reports
As climate‑related hazards and natural phenomena continue to loom over many countries and the world continues to reel from the COVID‑19 pandemic, the debate on the protection of persons in the event of disasters took on an urgency that went beyond legal abstractions, as the Sixth Committee (Legal) today considered the Secretary‑General’s report on the matter (document A/75/214) and deliberated the merits of codifying related draft articles into an international agreement.
“How can social distancing be maintained in evacuation centres?” Japan’s representative asked, spotlighting new challenges that the pandemic poses to disaster risk reduction efforts. Natural disasters will not wait until COVID‑19 is over, she pointed out, calling for more preparedness for when a natural disaster and a public health emergency collide. To that end, the International Law Commission’s draft articles on the matter find a balance the roles and duties of affected and assisting States, while giving consideration to State sovereignty and humanitarian needs.
Echoing those words, the representative of Sweden, also speaking for Denmark, Finland, Iceland and Norway, highlighted draft article 9 on the duty of States to reduce the risk of disasters by taking measures to prevent, mitigate and prepare for disasters. Underscoring the importance of integrating a gender perspective in humanitarian assistance, she noted that the International Law Commission’s work on this matter may contribute to attaining Sustainable Development Goal 13 by strengthening resilience and adaptive capacity to climate‑related hazards.
Bangladesh’s delegate said that though his Government has achieved much in terms of disaster preparedness, the effects of climate change are eroding hard‑earned development gains. Pointing to his country’s susceptibility to natural disasters owing to geographic location, he called for an international legal regime to assist people affected by disasters. The draft articles accord special attention to the most vulnerable in society and ensure that assistance is rendered before, during and after disasters occur. To that end, an international convention is an important step in regulating protection efforts.
Italy’s delegate agreed, stressing that a convention would fill an important legal gap and provide certainty for recipient States and assisting actors. At the same time, he called for a more circumscribed definition of disasters under article 3 — which excludes economic and political crises as well as armed conflicts — and a more precise formulation of article 18, which avoids overlapping with international humanitarian law with respect to disasters occurring in the context of armed conflict.
The Sixth Committee also took up two reports of the Secretary-General on the responsibility of international organizations (documents A/75/80 and A/75/282), as well as the International Law Commission’s draft articles on the matter, with speakers, agreeing that such organizations have an enhanced role to play in tackling contemporary problems, explored ways to utilize the draft texts.
Australia’s delegate highlighted the unique role played by the World Health Organization (WHO), the World Food Programme (WFP) and the United Nations itself, in facing the COVID‑19 pandemic. While acknowledging the valuable contribution made by the International Law Commission’s draft articles, she also took note of the significant differences of opinion among States about the principles that should govern the responsibility of international organizations and observed a general lack of support for the elaboration of a convention.
However, the representative of the Russian Federation called the topic the most ready for codification of those on the Committee’s agenda, noting that international courts and tribunals have referred to the draft articles as an authoritative judicial source. Expressing support for developing a new international treaty based on them, he said the need to ensure that international organizations are responsible for internationally wrongful acts has stopped being theoretical in nature. The harm caused by international organizations could be more serious than that caused by States.
The Sixth Committee also heard oral reports from the Chairs of the Committee’s working groups on the groups’ activities during the seventy‑fifth session.
The representative of Costa Rica, Chair of the Working Group on the “Scope and application of the principle of universal jurisdiction” reflected on the absence of a consensus on that principle and the concerns regarding the potential abuse or misuse of universal jurisdiction and the need to avoid its politics.
The representative of Sri Lanka, Chair of the Working Group on “Measures to eliminate international terrorism” reported on a commitment from several delegations to the negotiation and successful conclusion of a comprehensive convention.
The representative of South Africa, Chair of the Working Group on “Criminal accountability of United Nations officials and experts on mission”, noted that delegations were divided on the question of when negotiations on a draft international convention on criminal accountability should be held, with some considering it premature to begin such discussions while others expressed more readiness to commence the process.
The Committee will next meet at 10:00 a.m. on Friday, 13 November to conclude consideration of the protection of persons in the event of disasters.
Reports of Working Groups
RODRIGO CARAZA (Costa Rica), Chair of the Working Group on the “Scope and application of the principle of universal jurisdiction”, recalled that the Sixth Committee decided at its first meeting on 6 October to establish once more a working group to continue consideration of this topic. He took note of various reports of the Secretary‑General on the matter as well as the non‑paper submitted by Chile, adding that the plenary meetings of the Sixth Committee held on 3 and 4 November provided useful information regarding positions of delegations.
At the Working Group’s first meeting, delegations were invited to address questions, including what crimes are subject to prosecution on the basis of universal jurisdiction under their country’s national laws and what are the conditions to the applicability of universal jurisdiction for such crimes, he said. Noting responses from several delegations, he said there was an absence of a consensus on the principle. “The point was made whether any progress could be made, given the divergences of views among delegations,” he said. In addition, there were also concerns regarding the potential abuse or misuse of universal jurisdiction and the need to avoid its politics.
Several delegations reiterated the usefulness of the dialogue in the Sixth Committee, he said, also highlighting a proposal to biannualize the work of the Working Group while keeping the item’s consideration by the Committee on an annual basis. Calling on the Committee to provide the necessary guidance, he also said that the COVID‑19 pandemic had an impact on the Working Group. Voicing the hope that conditions will soon improve to facilitate further consultations, he urged the delegations to engage with each other, adding that he looked forward to receiving their ideas.
ROHAN PERERA (Sri Lanka), Chair of the Working Group on “Measures to eliminate international terrorism”, noted that on 6 November that the Sixth Committee establish a working group with a view to finalizing the process on the draft comprehensive convention on international terrorism, and discuss convening a high‑level conference under the auspices of the United Nations.
During informal consultations held on 16 October, he noted that he provided an overview of the Working Group’s work to its participants. Delegations reiterated their commitment to the negotiation and successful conclusion of a comprehensive convention and several speakers expressed their continued interest to remain engaged in the efforts towards reaching a solution to the outstanding issues.
He went on to say that some delegations stressed the need to have a clear definition of international terrorism while other delegations highlighted the need to ensure that such a definition should distinguish terrorism from the right of peoples fighting against colonial domination and alien occupation and against racism regimes in the exercise of their right of self‑determination. Meanwhile, some delegations called any definition unacceptable if it was not based on clear principles or seemed to justify terrorism.
THABO MOLEFE (South Africa) presented the report of the Working Group on “Criminal accountability of United Nations officials and experts on mission”, taking note of related reports and documents on the matter. He listed several United Nations agencies who briefed on the Working Group on 14 October on respective roles and responsibilities of their units in addressing criminal accountability, as well as providing updates on relevant policies and procedures and information on other developments.
In addition, the Working Group held a virtual meeting on 21 October against the backdrop of the plenary debate in the Sixth Committee held on 12 and 14 October, he continued. The Working Group adopted its programme of work and agreed to hold informal consultations, including, among others, on whether criminal accountability should be addressed in the form of a convention; which substantive issues the convention should cover; and what matters should be included in this year´s resolution to further enhance the mechanisms of accountability.
He also noted that on the question of when negotiations on a draft international convention on criminal accountability should be held, delegations were divided. Some said it was premature to begin such discussions, stating that the focus should initially be on consideration of substantive issues. Other delegations expressed more readiness to commence the process, emphasizing that jurisdictional gaps existed and that a convention could contribute to closing them by harmonizing national legislation.
Responsibility of International Organizations
The representative of Sierra Leone said that, as with States, an international organization must incur certain consequences as a result of its interactions with other subjects of international law. In both cases, a breach of international law that is considered an internationally wrongful act must entail international responsibility. While agreeing that the draft articles on this subject reflect the progressive development of international law, she noted that the General Assembly’s mandate is not limited to codification alone or exclusively. Where consensus can be reached, the International Law Commission and General Assembly may consider topics reflecting new developments in international law. She called for this item to remain on the Committee’s agenda for continued consideration and eventual action on the elaboration of a convention based on the draft articles.
The representative of Egypt highlighted the topic’s importance, given the increase in the number of international and regional organizations, as well as the complexity of their areas of competence activities and impact. Welcoming the efforts of the International Law Commission to produce the draft articles on the responsibility of international organizations, he added that the Secretary‑General’s report provides a useful compilation of decisions from international and national jurisdictions that refer to the draft articles. However, taking note of the differing points of view over the draft articles, he said that international practice in this area may be insufficient currently, which raises a serious problem concerning the legal nature of international organizations versus those of States. A number of the elements contained in the draft articles require more in‑depth discussion among States, he pointed out, also stressing that it is necessary to establish the distinction between the responsibility of international organizations and that of Member States.
The representative of the Russian Federation said that the need to ensure that international organizations are responsible for internationally wrongful acts has stopped being theoretical in nature. Gaps in this area are becoming increasingly unacceptable and the harm caused by international organizations could be more serious than that caused by States. Noting that international courts and tribunals have referred to the International Law Commission’s draft articles on this topic as an authoritative judicial source, he stated that a more appropriate decisional basis for these bodies would be rules endorsed by States. To that end, while some of the draft articles require further work, he said that the topic is the most ready for codification of those on the Committee’s agenda and expressed support for developing a new international treaty based on the draft articles.
The representative of Mexico said the draft articles on the responsibility of international organizations represent major progress in developing the legal framework which regulates their acts, including responsibility and possible reparation for those affected by such acts. The key role which international organizations have is increasingly clear in a context where the major problems confronting humanity called for multilateral solutions. Therefore, it is essential to have clear rules when it comes to international responsibility and accountability. The draft articles are relevant to cases which come before not only international and national courts but also other political fora. Although the articles already have value as adopted, and some of their elements reflect customary standards, certainty must be given by adopting it as an international treaty. Highlighting the World Health Organization’s (WHO) role in tackling the COVID‑19 pandemic, she said that the greater role of international organizations in finding solutions to global problems called for greater awareness of the legal frameworks in which they should operate.
The representative of Iran said that since States and international organizations are separate subjects of international law, there was a need for separate sets of draft articles based on, but different from, the articles on State responsibility. Noting that the adoption of the draft texts on the responsibility of international organizations was the first attempt to provide a framework of law, he underscored that the draft articles not only have provided appropriate responses to the legal issues concerned but also serve as a reference text to guide the practice of States and international organizations. Taking into account the functions of international organizations, it seemed doubtful whether State responsibility in certain aspects are attributable to the responsibility of international organizations, inter alia the matters such as self‑defence, subsidiary or joint responsibility, necessity and counter measure. The rules of responsibility of international organizations should be crystallized in the form of a binding treaty, he said, welcoming the negotiation of a legally binding instrument on the basis of the draft articles.
The representative of the United Kingdom said that the draft articles addressing the responsibility of international organizations should be best left in their current form, as the time is not yet ripe to consider drafting a convention. There is limited practice in this area, she pointed out, adding that the Secretary‑General’s report reflects no significant developments in such practice since the Committee last considered the topic in 2017. This being the case, the draft articles represent the progressive development of international law, rather than the codification thereof. Further, she said that it was unlikely that an inevitably long, complex negotiation would lead to consensus in this area.
The representative of Australia stressed that international organizations play a major role in providing development assistance and disaster relief, supporting free and open trade and protecting the environment, among others. She also highlighted the role of multilateral cooperation through international organizations such as WHO, the World Food Programme (WFP) and the United Nations itself, in facing a significant global health threat such as the COVID‑19 pandemic. Acknowledging that the rules of responsibility applicable to sovereign States cannot necessarily be directly transposed or applied by analogy to international organizations, she noted the valuable contribution made by the International Law Commission’s draft articles. However, highlighting the significant differences of opinion among States about the principles that should govern the responsibility of international organizations, she observed a general lack of support for the elaboration of a convention.
Protection of Persons in Event of Disasters
The representative of Sweden, also speaking for Denmark, Finland, Iceland and Norway, said that due to the rising frequency of natural and human‑made disasters, it was crucial to strengthen international cooperation on humanitarian assistance systems. The draft articles constitute a framework for the reduction of disaster risks, through risk assessments and protection of persons, and set out the affected State’s duty to ensure protection, as well as the role of external assistance in this regard. In this context, she underscored the importance of gender equality and integrating a gender perspective in humanitarian assistance. This would ensure assistance reaches all parts of the population and take into account the different needs and vulnerabilities of women, men, girls and boys.
Turning to draft article 9 on the duty of States to reduce the risk of disasters by taking appropriate measures to prevent, mitigate and prepare for disasters, she noted that the International Law Commission’s work on this matter may contribute to attaining Sustainable Development Goal 13 by strengthening resilience and adaptive capacity to climate‑related hazards and natural disasters in all countries. In light of additional challenges posed by the COVID‑19 pandemic in humanitarian work, she reiterated the importance of fortifying international cooperation and added that she is open to discussing the advantages and disadvantages of the recommendation of the International Law Commission to elaborate an international convention on the basis of the draft articles.
The representative of Singapore commended efforts to reflect the diversity of State practice in the draft articles. Draft article 12, paragraph 2, for example, provides that requested entities should expeditiously give due consideration and reply to the affected State. Draft article 13, paragraph 1, says that provision of external assistance requires the consent of the affected State. The draft articles represent an important contribution to the field of international law governing response to disasters, serving as a useful guide for States and others engaged in disaster relief. Given the broad scope of the draft articles, it may be helpful to have further clarification on how they would interact with other existing legal frameworks.
The representative of Bangladesh said that his country is susceptible to natural disasters due to its geographic location and the effects of climate change. Such circumstances challenges Bangladesh’s hard‑earned development gains. However, the Government has achieved much in terms of disaster preparedness. Various domestic efforts include a national plan for disaster management; the construction of thousands of cyclone and flood shelters across the country; and the mobilization of 56,000 volunteers prepared to respond to any cyclone. Noting that natural disasters are increasingly prevalent around the globe, he called for an international legal regime to assist people affected by such disasters. Such a germane international convention is an important step towards this end. He added that the draft articles can be improved so that special attention is accorded to the most vulnerable in society; that assistance is rendered before, during and after disasters occur; and that the articles clearly define the term “disaster.”
The representative of the Philippines said that the articles apply to both natural and human‑made disasters outside the realm of international humanitarian law and apply without discrimination on the basis of nationality or legal status. Endorsing article 9 on the obligation of States to reduce risk of disasters by taking appropriate measures, she said that article 10 on the fundamental principle that the affected State has the primary role in the disaster relief assistance, should be read in conjunction with article 11 addressing the State’s duty to seek external assistance and article 13 on the State’s consent to external assistance. On the duty to seek external assistance, she said the abovementioned articles reflect the recognition that a disaster could exceed the affected State’s capacity to respond. “An affected State without adequate resources could and would seek assistance from other States, the United Nations, international NGOs and the private sector,” she stressed, calling for balance between the right of State sovereignty and the sovereign State’s obligation to protect human rights during disasters.
The representative of El Salvador, emphasizing that the agenda item had great relevance for her country as well as several other States, called attention to the damage caused in Central America by the passage of Hurricane Eta in recent weeks. Prevention, with the focus on resilience is crucial, she said, adding that her country is also highly vulnerable to the growing impacts of climate change. Highlighting the importance of effective risk management, protection civilians, early warning systems and restoring damaged social fabric, she said that the COVID‑19 pandemic has added more problems to these natural phenomena. Therefore, it is important to approve an internationally binding legal instrument with a human right focus and special emphasis on the role of the affected State to ensure the protection of people. Incorporating the draft articles into a convention will help systematize and harmonize practices and ensure international solidarity in responding to disasters, she said.
The representative of Sudan said that cooperation among States to protect persons in the event of a disaster must not belittle the effort of the affected State. That State has the right to impose conditions on any assistance received based on the needs of the people affected and the type of assistance required. Further, both the affected State and the assisting entity must abide by the national laws applicable in that realm. He expressed support for the codification and progressive development of international law in this area, as well as all efforts to protect civilians, develop early warning systems and reform the social fabric of those affected by disasters. An international instrument would elaborate principles already in practice among States, he added.
The representative of Brunei Darussalam said that due to its geographical position, his country has been extremely fortunate not to experience extreme impacts of any sort. However, the Government is not complacent, he emphasized, noting that Brunei Darussalam has faced calamities such as monsoons, floods, forest fires, landslides and strong winds. As a small country it is very much vulnerable to any natural disaster and has been implementing policies for disaster mitigation. A 2006 Government order provided effective disaster management and established a national disaster management centre which is the country’s lead Government agency for disaster response. The draft articles on this matter are an important contribution to the field of international law, he said, affirming commitment to further discussions on whether to elaborate a convention based on them.
The representative of Jamaica highlighted the fragmentation of the field due to a plethora of international instruments prior to the development of the draft articles. There was a need to develop a well‑crafted and clearly articulated flagship instrument. It was imperative that any comprehensive legal approach to international disasters respect and protect the dignity and human rights of persons affected by disasters, he stressed, commending the draft articles’ attempts to reconcile respect for State sovereignty and the provision of humanitarian assistance, as reflected in article 10, which recognizes that the affected State retains the primary role in directing, controlling, coordinating and supervising relief assistance.
The representative of Japan, recalling the great earthquakes that shook her country in 2011 and 1995, said protecting people from disasters is a key concern for all countries, particularly as climate change increases the number and severity of them. As mentioned in article 9, it is necessary to take proactive measures to reduce the risk of disasters and minimize their damages. The draft articles should be a pragmatic, effective and efficient legal framework for both disaster‑affected States and assisting States and can be applicable to real‑life, on‑the‑ground international cooperation efforts. The texts balance the roles and duties of affected and assisting States, while giving consideration to State sovereignty and humanitarian needs. She also called attention to how COVID‑19 has introduced new aspects to disaster risk reduction efforts, as it has to nearly everything else. “How can social distancing be maintained in evacuation centres?” she asked, pointing out that natural disasters will not wait until the pandemic is over. The international community must continue to improve its preparedness for cases where a natural disaster and a public health emergency collide, she stressed.
The representative of Italy, while acknowledging a number of bilateral, regional and sectoral agreements regulating international cooperation, said that a convention would fill an important legal gap, especially since current international law on disaster response lacks a universal treaty instrument. Although soft law and United Nations policy instruments such as the Sendai Framework for Disaster Risk Reduction have been adopted, a legally binding instrument would provide legal certainty for recipient States and assisting actors. He also called for a more circumscribed definition of disasters under article 3, which excludes economic and political crises as well as armed conflicts, and a more precise formulation of article 18, which avoids overlapping with international humanitarian law with respect to disasters occurring in the context of armed conflict. These and other proposals for further refinement of the draft articles should be considered in a State‑driven process aiming at a universal legally binding instrument, he said.
Also speaking today were the representatives of the United States, Israel, Portugal, Cuba, Malaysia, Switzerland, Thailand and Saudi Arabia.