2 November 2009
Statement by Professor Djamchid Momtaz
Legal Advisor of the Ministry of Foreign Affairs of the Islamic Republic of Iran
before the Sixth Committee
on Agenda item 81: Report of the International Law Commission
on the Work of it Sixty-First Session
(Protection of persons in the event of disasters
The obligation to extradite or prosecute (aut dedere aut judicare)
Treaties over time)
(New York, 2 November 2009)
In the Name of God, the Compassionate, the Merciful
My delegation wishes to make a few comments on the following topics:
– Protection of persons in the event of disasters;
– The obligation to extradite or prosecute (aut dedere aut judicare); and
– Treaties over time.
I. Protection of Persons in the Event of Disasters
The delegation of the Islamic Republic of Iran would like to begin by commending Mr. Eduardo Valencia-Ospina, Special Rapporteur, for his second report (A/CN.4/615 and Corr.1) on topic “Protection of persons in the event of disasters” in which he has identified a number of relevant issues for discussion and presented proposals for three draft articles concerning the scope, definition of disaster and the duty to cooperate. The report enabled the Commission to have a focused discussion. I wish to say a few words on the report.
The three draft articles proposed by the Special Rapporteur, namely draft article 1 containing the scope of the protection, draft article 2 containing the definition of disaster, and draft article 3 containing the approach opted by the Special Rapporteur, will constitute the frame of the work, and as such need to be strictly examined. “Disaster” is the single key word in the whole exercise and its definition, whatever it might be, would affect the information of the entire edifice of the project. It is our understanding -which I believe is shared by almost all other delegations- that this topic is exclusively aimed at “natural” disasters. The definition of “disaster” should, therefore, be clear enough to denote the same and avoid any interpretation or connotation to the contrary. It needs to be clarified to the effect that man-made catastrophes would not fall under its coverage. The Commission could, as an option, provide some examples of disasters, e.g, earthquake, flood, drought, volcanic eruptions, etc. Moreover, any natural disaster causes widespread and significant loss of life or serious hardship by effecting major material or environmental damage. The end result would be a serious disruption of the functioning of society. In other words, “significant, widespread human, material or environmental loss” should form the bulk of the definition of disaster. I would also prefer to add “serious human hardship” to signify that disasters could happen without necessarily resulting in physical loss of human life but, instead, they would significantly harden the man’s living conditions by damaging the infrastructures of the societies.
Draft articles 1 and 2 are equally important, as well, in the sense that they establish the overall tenet of the future rules. My delegation believes that “Protection of persons in the event of disasters” is principally aimed at providing effective and timely assistance to those in dire need because of the occurrence of a natural disaster. In other words, this topic enters the domain of “humanitarian assistance”, and, therefore, “Assistance” might be a better term than “protection” to communicate this meaning. We are yet to be convinced about the rationale, relevance, feasibility and utility of a rights-based approach in addressing this topic. Furthermore, this approach seems to imply that the affected State must accept international aids. The State practice indicates, however, that international assistance has always been provided subject to the request and/or authorization by the affected State. In fact, international assistance supplements, not substitutes, the actions of the affected State. The affected State has the obligation, first and foremost, to provide assistance to its populations affected by a disaster which has occurred in its territory. The territorial State is entitled to ensure proper coordination of relief measures as well as receive aids from other States and intergovernmental organizations, upon request. Nonetheless, the affected State is not under an obligation to accept all offers of assistance from other States or international organizations; rather, it may refuse an offer of assistance which is made with no good intention.
We don’t see any relevance whatsoever between the topic “Protection of persons in the event of disasters” and the recently introduced notion of “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. The latter – still far from being established as a consensual norm- is limited to the four grave crimes enumerated in the 2005 Summit Outcome Document. Any attempt to make a linkage between the two would be theoretically and practically adversely consequential for both. Hence, we fully concur with the conclusions of the Special Rapporteur concerning the non-applicability of the concept of “responsibility to protect” to the topic at hand. We don’t agree with his observation that the former is an “emerging principle”, either.
As regards the question of cooperation between the affected State and the international community, I need not emphasize the relevance and importance of the principles of State sovereignty and non-interference in internal affairs which entail the element of “consent” by the affected State as the essential prerequisite for international cooperation. I would also like to underline the fact that the United Nations has a unique status and distinct character compared to any other international organization. In other words, the affected State could not be obliged to cooperate equally with the United Nations and other international organizations. Furthermore, we share the concerns raised by some members of the Commission over the inclusion of “civil society”, a concept without an established legal standing. In the same vein, we could not approve of the assertion that solidarity constitutes an international legal principle.
Therefore, while we agree, in principle, with the approach followed by the Special Rapporteur (i.e., dealing first with State actors, in particular the role of the affected state), we believe that draft article 3 requires more consideration in order to clearly articulate the scope and limits of the duty to cooperate in light of the relevant principles enshrined in the Charter of the United nations and international law.
Now I turn to the topic “The obligation to Extradite or Prosecute (aut dedere aut judicare)”.
II. The Obligation to Extradite or Prosecute (aut dedere aut judicare)
The delegation of the Islamic Republic of Iran notes the establishment of the open-ended Working Group on the topic and appreciates the development of proposed general framework for the Commission’s consideration of the topic. We hope that the general framework would facilitate consideration of the topic and help the Commission make tangible progress on this topic. Given the diversity of international practice concerning the topic and the wide range of crimes for which this obligation is prescribed, it is highly advised that the Commission focus on codification of international law rather than venturing into development of international law. The Commission should take note of two key established practices concerning the topic, namely: 1) States are not obliged to extradite their nationals; 2) States are not obliged to extradite in absence of a treaty between the requested State and the requesting State, or when the principle of double criminality is not met. My delegation wishes to reiterate that the surrender of suspects to international criminal tribunals should not be examined by the Commission, as it is governed by distinct legal rules. We are looking forward to have more in depth discussion on the topic next year.
I will conclude my remarks by making a short comment on the topic “Treaties over time”.
III. Treaties over Time
My delegation considers the topic “Treaties over time” very important since it will address the effect of passage of time on States obligations under international treaties. We note the establishment of the Study Group on “Treaties over time” chaired by Mr. Georg Nolte. As the scope of the topic “Treaties over time” has yet to be clearly defined, the Study Group has a crucial responsibility to accomplish. We believe that the Study Group should concentrate its efforts on the subsequent practice. The question of subsequent practice and agreement are merely an issue in relation to the interpretation of treaties, and should be considered just from this angle. In any event, the task should be fulfilled in line with the principles of stability and continuity of treaty relations. In other words, the work of the Study Group should not, in any manner, lead up to undermining the legal stability of contractual obligations or affect the continuity of treaty relations or system of the law of the treaties.
I thank you for your attention.