26 Oct 2011
STATEMENT BY MR LIONEL YEE, DELEGATE TO THE 66th SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 72, ON THE REPORT OF THE INTERNATIONAL COURT OF JUSTICE, 26 OCTOBER 2011
Mr Chair
1. My delegation thanks the International Law Commission for its report on the topics "Effects of armed conflicts on treaties", "Expulsion of aliens" and "Protection of persons in the event of disasters". After making brief comments on these three topics, my delegation would also provide our views on the new topics that the Commission has placed on its long-term programme of work.
Effects of armed conflicts on treaties
2. Let me begin with the topic "Effects of armed conflicts on treaties". We congratulate the Commission for completing the draft articles and their commentaries. In particular, we acknowledge the efforts of the Special Rapporteur, Mr. Lucius Caflisch, and the former Special Rapporteur, the late Sir Ian Brownlie, in guiding this topic to a successful conclusion.
3. My delegation welcomes this text as a useful collection of relevant State practice and academic writings on this difficult area of treaty law. In addition, we wish to express our strong support for draft article 3, which clearly states "the general principle of legal stability and continuity": that the existence of an armed conflict does not, in and of itself, cause the suspension or termination of a treaty. It affirms the important principle that treaty rights and obligations cannot be lightly ignored or overridden just because an armed conflict exists.
4. However, my delegation has some difficulties with the analytical approach set out in draft articles 5, 6 and 7. We note from the commentary that the new draft article 5 was added to "provid[e] expository clarity" that the rules of treaty interpretation are to be applied to determine the continued operation of the treaty in the event of an armed conflict. We are of the view that the relationship between draft article 5 on the one hand, and draft articles 6 and 7 on the other, should have been better articulated. The commentary to draft article 6, paragraph (a) acknowledges "a measure of overlap" with the inquiry undertaken under draft article 5, but then goes on to say that "the object and purpose of the treaty when taken in combination with other factors such as the number of parties may open up a new perspective". Respectfully, we cannot agree with this statement. My delegation is of the view that the rules which draft articles 6 and 7 purport to articulate should really be treated as an application of the normal rules of treaty interpretation referred to in draft article 5. They should not be articulated as rules which operate independently, or even partially independently, of draft article 5.
5. In other words, the termination, withdrawal or suspension of a treaty as a result of an armed conflict situation arises because the interpretation of its provisions produces this conclusion. Such interpretation is to be made by reference to context, and in the light of the treaty's object and purpose. The factors which draft article 6 identifies-namely the nature of the treaty and the characteristics of the armed conflict-are but factors in determining whether the context of the treaty provision or the object and purpose of the treaty might, in those circumstances, make the treaty in question susceptible to termination, withdrawal or suspension.
6. Turning to the "indicative list" of treaties in the annex for which a presumption or implication exists that they continue to operate during armed conflict, we think that it would have been more appropriate to focus the analysis more squarely on the character of specific treaty provisions in order to determine the continued operation of the treaty, rather than on the categorisation of the treaty as such. The weakness of the categorisation approach adopted in the draft articles is that some of the categories set out in the annex encompass treaties which should not necessarily come within the "implication" created by draft article 7. To take an example, while we understand category (d) ("Treaties on international criminal justice") to cover international crimes such as war crimes and crimes against humanity, and that understanding is reflected in the commentary, the term "treaties on international criminal justice" could also be wide enough to cover extradition and criminal mutual legal assistance treaties for quite ordinary offences of a transnational nature, such as corruption, drug trafficking or organized crime. Similarly, category (e) ("Treaties of friendship, commerce and navigation and agreements concerning private rights") uses nomenclature that covers a wide range of inter-State arrangements, when the clear objective of the Commission (based on the commentary to the annex) was only to include those treaties or treaty provisions dealing with "private rights". It follows that my delegation remains uncertain about the correctness of the "indicative list" approach used in draft article 7 and the annex. We would have preferred an "indicative list" of specific types of treaty provisions, rather than categories of treaties.
7. Given our views on this text, with regard to the Commission's recommendation, my delegation would support only "taking note" of the draft articles, and annexing them to a relevant General Assembly resolution. We are not persuaded of the need for them to be elaborated into a convention.
Expulsion of aliens
8. We turn next to the topic "Expulsion of aliens". We thank the Commission for its continued work on these proposed draft articles, and extend our particular appreciation to the Special Rapporteur, Mr. Maurice Kamto, for his seventh report and the remaining portion of his sixth report on this topic. Singapore notes the list of three specific issues on which comments would be of particular interest to the Commission. We will endeavour to provide written responses on these issues to the Commission through the Secretariat in due course.
Protection of persons in the event of disasters
9. On the topic "Protection of persons in the event of disasters", my delegation thanks the Commission for its continued work on these proposed draft articles. We extend our particular appreciation to the Special Rapporteur, Mr. Eduardo Valencia-Ospina, for his fourth report on this topic. We commend the Commission's efforts in attempting to navigate "the tensions underlying the link between protection and the principle of respect for territorial sovereignty and non-interference in the internal affairs of the affected States", to borrow the words of the Special Rapporteur.
10. We would like to offer some initial observations on draft article 12. Though we note that this draft article is still with the Drafting Committee, we were interested to read the debate in the Commission as summarised in its report. Draft article 12 asserts the "right" of "States, the United Nations, other competent intergovernmental organizations and relevant non-governmental organizations" to offer assistance to the affected State. My delegation shares the views expressed by some members of the Commission who were doubtful that this concept is correctly expressed as a "right". In our view, the focus should more correctly be on the duty of the State that receives offers of assistance to give serious consideration to such offers, whether they emanate from States, intergovernmental organisations or non-governmental organisations. Moreover, we are not certain that all of the entities referred to in that draft article-States, the UN and other competent intergovernmental organizations and relevant non-governmental organisations-should be treated on the same juridical footing.
11. To conclude our comments on this topic, we would like to address a question posed by the Commission in Chapter III of its report. In connection with this topic, the Commission has asked for views on whether the duty to cooperate includes a duty on States to provide assistance when requested by the affected State. Here, we wish to draw the Commission's attention to the 2005 ASEAN Agreement on Disaster Management and Emergency Response. Article 4, paragraph (d) of that Agreement requires that "in pursuing the objective" of the Agreement, "the Parties shall", among other things, "promptly respond to a request for assistance from an affected Party" (emphasis ours). This regional agreement therefore does not go as far as obliging States parties to provide assistance on request, but it does require them to respond promptly to a request for assistance.
New topics on the Commission's long-term programme of work
Mr Chair
12. Finally, we wish to make some observations on the new topics that the Commission has placed on its long-term programme of work.
13. We would like to underline our strong support for the Commission's inclusion of the topic "The fair and equitable treatment standard in international investment law" in its long-term programme of work. We have noted concerns expressed by some delegations that this is too specialised an area of international law to be taken up by the Commission. We are, however, unable to share that view. First, we do not see how international investment law is any more specialised in character than many other fields of public international law which the Commission has undertaken work on. Second, the Commission's priorities must be guided by the practical value and impact of its work to the activities of Governments and the international community as a whole, not whether a particular endeavour engages a specialised field of international law.
14. The practical value and impact of work on the fair and equitable standard cannot be ignored. The cross-border movement of investors and investments is a huge and growing phenomenon, and it is of high priority to both exporting and receiving States. Capital flows from developing economies to other developing economies are as significant as the more traditional movements of capital from developed to developing economies. Rules governing the treatment of such investments, including the "fair and equitable treatment" standard, may not be familiar to many public international lawyers. But the volume of jurisprudence emanating from this field, its impact on governmental activity and the amount of legal work generated for Government lawyers and private practitioners is significantly higher than that generated by many other topics which are or have been on the Commission's agenda. We simply cannot ignore this reality. International investment law cannot remain on the periphery of public international law. It must be mainstreamed into the Commission's work if the Commission's work is to continue to be relevant to the realities of international discourse and public policy. And it bears clarifying that we are not looking at the field of private international law in this regard. The rights and obligations in question are creatures of treaties, and they are governed by public international law and not domestic law. They do not fall within the mandate of UNCITRAL. UNCITRAL's work on investment arbitration rules does not touch on the substantive norms, which are public international law norms.
15. The need for a thorough study of the "fair and equitable treatment" standard is underlined by the fact that much of the jurisprudence in this field has emanated from arbitration tribunals adjudicating claims brought by private investors against States. These tribunals are usually ad hoc in nature and a good number of them have limited public international law expertise. And yet, their pronouncements on whether State measures breach the legal requirements of "fair and equitable treatment" are often extremely far-reaching and involve claims running into hundreds of millions of dollars. The existing jurisprudence would benefit greatly from an authoritative study and articulation of relevant principles by the Commission. This will greatly facilitate consistency in interpretation and consequently, greater certainty for investors and Governments alike.
16. As to the other new topics, we would align ourselves with those delegations which have expressed the view that the Commission should give priority to the topics "Formation and evidence of customary international law" and "Provisional application of treaties". These topics directly engage a central aspect of public international law-namely, the doctrine of sources-and in both cases, we would welcome concise final products that could serve as practical and authoritative guidance on these important issues.
Thank you, Mr Chair.