Statement by Prof. Dr. Miriam Defensor Santiago Before the Sixth Committee Plenary Meeting On the report of the work of the 63rd session of the International Law Commission

10 Nov

27 October 2011, United Nations Headquarters, New York

Mr. Chairman:

As it is my first time to address this meeting, allow me the pleasure of extending my warmest felicitations to you on your election and that of the members of the Bureau.  Allow me to express once again my delegation’s firm commitment to support you in advancing the important work on this agenda item.

Mr. Chairman:

Respect for and adherence to the rule of law has allowed nations to thrive.  It lays out the firm foundations for a freer and more just world, guides us in our national efforts to achieve lasting peace, sustainable progress and fuller prosperity and moves us in the establishment and maintenance of our respective relations with other members in the larger international community in pursuit of common goals.

As a matter of consequence and duty, therefore, we must ensure that respect for and adherence to the rule of law – as expressed in various commitments under international law – are faithfully observed.

As a matter of consequence and duty too, we must ensure that international law remains responsive to the many changes and developments that impact on the legal framework that defines the rights and obligations of States.

In this regard, the important role and function of the International Law Commission cannot be overstated.

With the “promotion of the progressive development of international law and its codification,” as its object, the Commission and its work are of clear strategic value to the international community.

Since its establishment pursuant to Resolution 174 of 1947, the Commission has positively considered and acted on many topics in its long term programme of work;the Philippines commends the Commission for its laudable work and considerable output.

Given the Commission’s track record, the Philippines is confident that the Commission will continue to carry out its mandate.

Mr. Chairman:

The Philippines welcomes the publication of the report of the 63rd session of the International Law Commission.

The report is comprehensive and detailed, showing the significant workload of and the progress made by the Commission on a number of items.  The Philippines wishes to focus its comments on the Commission’s work on the “Effects of Armed Conflicts on Treaties” which was included in the Commission’s Programme of Work in its fifty-sixth session.

Since 2004, the Commission adopted, on second reading, a set of 18 draft articles together with commentaries on the effects of armed conflicts on treaties.  In accordance with article 23 of its Statute, the Commission also recommended to the General Assembly to take note of the draft articles in a resolution and to annex them to the resolution, and to consider, at a later stage, the elaboration of a convention on the basis of the draft articles.

For these advancements, we are thankful to Special Rapporteur Mr. Lucius Caflisch for his outstanding work and the contributions of his predecessor Sir Ian Brownlie.

Mr. Chairman:

In its appreciation of the topic and of the draft articles, wishes to state that the takeoff point and the frame of reference should always be that States – as contained in the United Nations Charter – are committed to prevent conflict and to the peaceful resolution of disputes.

This reiteration is important to remind us of States’ continuing individual and collective obligation and responsibility to maintain international security and stability in our relations with the larger community of nations.

That said, Mr. Chairman, it must also be pointed out that, with proper safeguards, it is to the interest of States to address the issue of the effect of armed conflicts on treaties.

In this regard, the Philippines holds as crucial the importance of maintaining stability and security with respect to the obligations of States in relation to treaties they are parties to.  We must strengthen the stability of the world’s legal framework.

We welcome then the general principle expressed in Article 3 that “The existence of armed conflict does not ipso facto terminate or suspend the operation of treaties as between States parties to the conflict; and as between a State party to the conflict and a State that is not.”

The approach of the Commission in the subsequent articles on the operation of treaties, the application of rules on treaty interpretation, and factors indicating whether a treaty is susceptible to termination, withdrawal or suspension as contained in Articles 4, 5 and 6, respectively, build on the general principle and are illustrative and instructive.

Mr. Chairman:

The Philippines also takes note with interest Article 7 on the “Continued Operation of Treaties resulting from their Subject Matter.”  This provision establishes a link to the annex which contains an indicative list of categories of treaties involving an implication that they continue to operate, in whole or in part, during armed conflict.

This indicative list includes, among others, Treaties for the international protection of human rights; Treaties relating to the international settlement of disputes by peaceful means; Treaties relating to international protection of the environment; Treaties of friendship, commerce and navigation and agreements concerning private rights; Treaties relating to international watercourses and related installations and facilities and Treaties relating to diplomatic and consular relations.

The indicative list does not in any way imply order of importance and rightly reflect a wide range of obligations which should not be subject to suspension in cases of armed conflict owing to value of the principles they uphold and their importance to the international community.

Mr. Chairman:

The Philippines also takes note of Article 10 on Obligations imposed by international law independently of a treaty which states that the “termination of or withdrawal to a treaty, or the suspension of its operation as a consequence of an armed conflict shall not impair in any way the duty of a State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of that treaty.

We believe Articles 10 and 7 serve to further reinforce the stability of State obligations and underscore the rule of law, even in instances of armed conflict.

Mr. Chairman:

The Philippines continues to study in great detail the other draft articles and their possible implications.

Of particular interest is the use of the term “armed conflict” which we understand opens the draft articles to include the effect on treaties of “non-international armed conflicts.”  While a threshold requirement has been included with the introduction of a qualifier to the effect that such a type of armed conflict needs to be “protracted,” the Philippines believes that this aspect of the draft articles require further examination and clarification.

Mr. Chairman:

The Philippines views this topic with great interest and we remain committed to provide support for the work of the Commission on this matter.  As we strive to further strengthen the ramparts for a peaceful, progressive and prosperous world, this is the least that is expected of us.  As we claim the right to enjoy the fruits of the rule of law, it is our bounden duty to make our own contributions to further strengthen the rule of law, through the continuous and progressive development of international law.  Thank you.

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