Statement by Dr. Rohan Perera P.C , Member International law Commission, (ILC) at the 60^th Session of ILC, Geneva – 18 July 2008

Mr. Chairman

I join the previous speakers in thanking the Special Rapporteur, Dr. Eduardo Valencia Ospina on his most informative and analytical report and his oral presentation on a topic, the current relevance of which requires no special emphasis.  The comprehensive memorandum prepared by the Secretariat is also extremely useful, in deepening our understanding of the range of issues involved, for which we are most grateful.

The Special Rapporteur has underlined that the purpose of the Preliminary Report is to deal in a general way with the scope of the topic, in order to properly circumscribe it.  In this process, Special Rapporteur has broadly outlined the questions that need to be considered by the Commission at the outset, in connection with the protection of persons in the event of disasters.

The de-limitisation of the precise scope of the topic is undoubtedly of crucial importance, as the Commission embarks on a study of a topic which gives rise to a wide and varied range of issues with social, economic and political implications.

On the basis that the title imports a distinct “rights based approach”, the Special rapporteur proceeds to deal with the scope of the topic under 3 heads:

A.         Ratione Materiae -          Sub-divided into:                                               

i)          concept and classification of disasters; and                                               

ii)          concept of protection of persons 

B.         Ratione Personae 

C.         Ratione Temporis 

I wish to deal with some specific issues that arise for consideration under each of these heads.

(A)        Scope Ratione Materiae – Concept/Classification of disasters

            While noting that the Secretariat proposal for the topic had originally suggested that it be limited initially to natural disasters, based on a perceived more immediate need, the Special Rapporteur takes the view that the title eventually agreed upon by the Commission suggests a more broader scope, to cover all disasters, both natural and man-made.  In opting for a broader approach the Special Rapporteur points to the difficulties involved in a strict categorization of disasters and also contends that such an approach would be best for the achievement of the codification and progressive development of the rules relating to the topic.

While there is certainly merit in this argument, nevertheless, having regard to the diverse and complex range of issues that are bound to arise in the pursuit of such a broad approach, I wish to submit that it may be desirable for the Commission to consider a two-step approach to the topic.

The scope of the topic could accordingly, in the first instance, be confined to natural disasters, where the need for protection of victims is more immediate and thereafter could expand to other situations such as man-made disasters.  The approach adopted by the Commission in relation to the topic of acquifers and oil and gas  could serve as a useful precedent in this regard.

My own national experience of the scale and magnitude of the Tsunami disaster in December 2004, with its unprecedented death toll and human suffering, followed by an equally strong wave of international support and solidarity, prompts me to underline the priority that must be accorded to the protection of victims of natural disasters, in the Commission’s consideration of this topic, with a view to devising a possible legal framework for assistance to disaster victims.

The Special Rapporteur has very correctly excluded armed conflicts from the scope of the topic, on the basis that international humanitarian law constitutes Lex Specialis in such situations.  The same line of reasoning would apply with equal force to the protection of the environment in relation to the present topic.

In response to the question posed by the Special Rapporteur whether the concept of protection should be seen as a distinct concept or as also encompassing the concepts of response, relief and assistance, I wish to emphasize that the concept of protection would have very little meaning in tangible terms, unless the principle thrust of the concept revolves around the element of an immediate response by way of relief and assistance in the form of availability and distribution of goods, materials and services, essential to the survival of victims of disasters.

In this connection, it is useful to recall the intervention of Mr. Ian Brownlie during this debate, on a “problem-based approach” and the interesting discussion that followed. 

Paragraphs 53 – 55 of the Report raise a range of issues which are no doubt pertinent and also involve an element of legal complexity and political sensitivity.  It is very pertinently observed in paragraph 52, that the protection of persons in the event of disasters underscores the “essential universality of humanitarian principles” and is also predicated on such principles as humanity, impartiality, neutrality and non-discrimination as well as the principles of sovereignty and non-intervention.

Paragraphs 54 – 55 raises the issues, inter-alia, of the existance or otherwise of a right to humanitarian assistance, whether such a right could be said to be implicit in international human rights law, i.e. whether human rights law has developed in this direction.

In this regard, I wish to associate myself with the views expressed by several speakers in this debate, in particular by Prof. Nolte that, human rights constitutes only a part of an overall law based approach to the topic, in other words as he put it, what is required is “a human rights oriented approach, rather than an exclusive human rights approach.  This point was further accentuated in Mr. Brownlie’s intervention in the mini-debate this morning.

In the approach of the Commission to the crucial issues raised in paragraphs 53 – 55, due weightage must be given to the approach and practice of states in the adoption of several key resolutions such as Res.43/131 (1988) and 46/182 (1991) in the General Assembly wherein the principle that humanitarian assistance must be provided “with the consent of the affected country and in principle on the basis of an appeal by the affected country” was affirmed.  A corallory of the principle of sovereignty is the recognition that the affected state has the primary responsibility for the protection of persons on its territory and subject to its jurisdiction or control during a disaster.  These concerns were expressed by Prof. Vasanne in his eloquent contribution Yesterday & by Ms. Xue this morning, which I fully endorse.

In addressing possible ways and means of balancing the principle of sovereignty and the principle of free access to aid and assistance to victims of natural disasters, it would be pertinent to recall that during the debate on GA Res. 46/182, some sates had recalled the principle of subsidiary function being recognized by the General Assembly as one of the main principles of humanitarian law.

According to the principle of subsidiarity it is the territorial states which have the “primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within their respective territories.  Therefore, humanitarian assistance should be a subsidiary action which is never taken unilaterally”.  It may be noted, as the secretariat study reflects, that these views had been expressed by a broad spectrum of states cutting across the geographical and political divide.  Such principles should be augmented by the principle of international cooperation clearly recognized as one of the fundamental principles of international law and elaborated in the Declaration of Principles of International Law concerning Friendly Relations and cooperation among states, in accordance with the Charter of the United Nations.

While asserting that these principles should form the core of a possible legal framework of general principles for the protection of persons in the event of disasters, providing the necessary balance between the principle of sovereignity on the one hand and the victims rights to access to assistance on the other, this is not to deny that there may be, as indeed there have been, situations of an exceptional nature, which may have to be addressed through political and diplomatic means, outside a framework of general principles. A refusal to accept international assistance or situations of complete breakdown of national institutions mechanisms, and procedures for the providing of assistance could be cited as such exceptional situations.  The identification and formulation of general norms and principles must however address situations that would normally arise in the event of disasters rather than exceptional situations.

The Special Rapporteur has also raised the question of the appropriateness of extending the concept of “responsibility to protect” and its relevance to the topic and has, in my view very correctly stuck a cautiouns note.  The Commission must be cautious in invoking concepts which are essentially political in nature, the precise legal contours of which are yet to be developed and established and which could drag the work of the Commission into an avoidable mire of political controversy.

In addressing the scope of the topic ratione personae, the Special Rapporteur recognises the involvement of a multiplicity of actors in disaster situations, in addition to state actors, as a highly pertinent factor.

On the question of assessing the practice of non-state actors and the weight to be accorded to such practice, in order to place them properly within the framework of protection of persons in the event of disasters, the Special Rapporteur raises the question whether there is a ‘right of initiative’ on the part of such actors as is recognized as a matter of law in international humanitarian law instruments.  Here again it is necessary to underline the centrality of the primary role of the affected state as a general principle and the contributory and subsidiary role of other actors as part of an overall umbrella of international cooperation and solidarity.  Further, state practice would not support the existence of such an independent right.

Sri Lanka’s own experience in the post-Tsunami phase where some non-state actors were alleged to have been engaged in activities such as forced religious conversions as part of their relief and rehabilitation activities, strongly militates against the existence of such a “right of initiative” in providing assistance, outside the regulatory framework of the affected State.  In this regard, I would also like to recall the critical role played by local NGOs in providing an immediate response and assistance even before the arrival of international assistance to Sri Lanka in the immediate aftermath of the Tsunami.  This underlines the important role of multiplicity of actors in such situations which must be coordinated by the affected territorial State.

On the scope of the topic ratione temporis, I wish to reiterate that the response phase must remain the primary and central focus of the topic.

Finally on the form of the work on this topic, while a final decision should await the completion of the work as acknowledged by the Special Raporteur and referred to by a number of speakers, at the present stage of our work, I am inclined to the view that guidelines rather than a binding instrument would be the prudent and realistic path for the Commission to take on this topic. 

In conclusion, I wish to thank the Special Rapporteur once again for this preliminary but very useful report, as the starting point of the topic and to determine its scope.  The questions he has raised are most pertinent and calls for our careful and earnest consideration.  It is in that spirit I have attempted to respond to some of them and I wish to assure the Special Rapporteur of our continuing support as he continues to discharge his responsibilities concerning a topic which is of vital importance to all our States and our people.

I thank you Mr. Chairman