LEGAL COMMITTEE URGES ACTION BY STATES TO
Second Text, Approved Today, Seeks General Assembly Appeal
For Wider Adherence to Protocols Protecting Victims of Armed Conflict
NEW YORK, 22 October (UN Headquarters) -- The General Assembly would strongly condemn acts of violence against diplomatic and consular entities, and against officials of intergovernmental organizations, by terms of a draft resolution approved by the Sixth Committee (Legal) this morning. It was one of two drafts approved without a vote, as the Committee also took up the matter of a convention on jurisdictional immunities of States and their property.
The text on violence against diplomatic and consular entities emphasized that such acts of violence could never be justified and would have the General Assembly urge States to take all necessary measures at the national and international levels to prevent them. It would recommend that States exchange information and assist juridical authorities in bringing offenders to justice.
By the second draft approved this morning, the Sixth Committee would have the Assembly appeal to all States to become parties to the Protocols additional to the Geneva Conventions of 1949, relating to the protection of victims of armed conflicts. It would also call upon States to become parties to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and to its two Protocols, as well as to other relevant treaties relating to the protection of victims of armed conflict.
The representatives of Israel, Jordan and Egypt spoke on the matter.
A draft text by which the General Assembly would decide to increase membership of the United Nations Commission on International Trade Law (UNCITRAL) from 36 to 60 States was introduced in the Committee this morning. By the text, the Assembly would also decide to set out the geographical distribution of the additional members.
The Committee then began its substantive consideration of a proposed convention on jurisdictional immunities of States and their property. That convention would be based on a text of 22 draft articles the International Law Commission had adopted in 1991. The scope of the articles was applied to the immunity of a State and its property from the jurisdiction of the courts of another State.
The Chairman of the Ad Hoc Committee elaborating the text of the convention introduced a report of the Committee’s last session earlier this year. He said the working group of the whole had made substantial progress, reducing the number of the five substantive outstanding issues. It had agreed on a definition of "State" for the purposes of the draft articles and had narrowed the divergent views on the remaining issues. It had not reached agreement on all the outstanding ones.
In the debate on the convention, most delegates called for another meeting of the Ad Hoc Committee to finalize the work on the convention. Japan’s representative proposed a week-long meeting in February/March. The idea was endorsed by a number of representatives. Delegates said the meeting should decide the form that the draft articles should take, be it a convention, model law, non-binding general principles or declaration attached to a consensus resolution.
A number of delegates called for an international diplomatic conference to discuss the important issues involved in the draft articles. Mexico’s representative said the time had come to implement a General Assembly decision on convening an international conference to elaborate the convention.
Also speaking on the convention were the representatives of Norway, Germany, Switzerland, Iran, China, United Kingdom, Greece, Portugal, Australia and South Africa.
The Committee will meet again at 10 a.m. on Thursday, 24 October, when it will continue considering the convention on jurisdictional immunities of States and their property.
The Sixth Committee (Legal) met this morning to begin substantive debate on a convention on jurisdictional immunities of States and their property, based on a text of 22 draft articles adopted by the International Law Commission in 1991. The scope of the articles apply to the immunity of a State and its property from the jurisdiction of the courts of another State.
Also, the Committee was expected to receive and act upon a number of draft resolutions on other items.
The General Assembly, by resolution 55/150 of 12 December 2000, established an Ad Hoc Committee on the convention on jurisdictional immunities. The Ad Hoc Committee is open to States members of the specialized agencies and is mandated to elaborate a generally acceptable instrument based on the International Law Commission’s text.
A report of the Ad Hoc Committee (document A/57/22), which met at Headquarters from 4 to 13 February this year, says it made good progress in completing its work ahead of the scheduled date of 15 February.
The Ad Hoc Committee’s Working Group of the Whole made substantial progress in its discussions on five substantive issues previously identified, namely, (a) a concept of a State for purposes of immunity; (b) criteria for determining the commercial character of a contract or transaction; (c) a concept of a State enterprise or other entity in relation to commercial transactions; (d) contracts of employment; and (e) measures of constraint against State property.
Clear trends in views emerged on some of the draft articles, but agreement was not reached on all the outstanding issues, the report states. On 13 February, the Ad Hoc Committee adopted its report containing the revised text of the draft articles on jurisdictional immunities of States and their property.
The Ad Hoc Committee urged States to make every effort to resolve the remaining outstanding issues for an agreement to be reached, emphasizing the importance for a generally acceptable instrument to be elaborated in a timely manner. It recommended the convening of a working group by the Sixth Committee to resolve those issues.
It was expected that a Secretariat-sponsored draft resolution on enlargement of the membership of the United Nations Commission on International Trade Law (UNCITRAL) (document A/C.6/57/L.15) would be introduced. By that draft, the General Assembly would increase the Commission’s membership from 36 to 60 States. The Assembly would also decide that the 24 additional Commission members would be elected during the Assembly’s next (fifty-eighth) session for a term of six years, except for 13 members whose terms would expire before the Commission’s fortieth session in 2007. The Assembly would also decide to set out the geographical distribution of the additional members.
By a 49-Power draft resolution on measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/57/L.18), the General Assembly would strongly condemn acts of violence against diplomatic and consular missions and representatives, as well as against missions and representatives of international intergovernmental organizations and officials, emphasizing that such acts could never be justified. The draft would have the Assembly urge States to strictly observe, implement and enforce the principles and rules of international law governing diplomatic and consular relations, in particular with regard to obligations to protect them.
Further, it would urge States to take all necessary measures at the national and international levels to prevent any acts of violence or abuse of diplomatic and consular persons and property. It would recommend to States that they cooperate on such measures, especially by exchanging information and providing assistance to juridical authorities in bringing offenders to justice.
It would call upon States to consider becoming parties to the instruments relevant to the protection, security and safety of diplomatic and consular missions and representatives, and to report to the Secretary-General any violations of those instruments. The Secretary-General would be asked to send circulars to all States reminding them about that, including details of where the violation took place and measures taken to protect such diplomats and missions.
Finally, an 80-Power draft on the status of the Protocols additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts (document A/C.6/57/L.17) was expected to be introduced and acted upon by the Committee. By that draft, the Assembly would appeal to all States to become parties to the additional Protocols at the earliest possible date. They would also be asked to make declarations providing for the establishment of an international fact-finding commission as called for by article 90 of Protocol I.
Furthermore, States would be called upon to become parties to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and to its two Protocols, as well as to other relevant treaties relating to the protection of victims of armed conflict.
The Secretary-General would be requested to submit to the General Assembly at its fifty-ninth session a report on the status of the additional Protocols relating to the protection of victims of armed conflicts, as well as measures taken to strengthen the existing body of international humanitarian law.
Introduction of Draft on Trade Law Commission Membership
ARPAD PRANDLER (Hungary), the Committee Chairman, introduced the draft resolution on enlargement of the membership of the United Nations Commission on International Trade Law (document A/C.6/57/L.15), which was a proposal by the Bureau. He recalled that consideration of enlarging UNCITRAL had begun last year. He said it was gratifying to have an agreement that would allow for the enlargement at the next election. Once the draft was adopted, as of the next election, the African Group would have 14 seats, the Asian Group would have 14, the Eastern European Group would have 8, the Latin American and Caribbean States would have 10 and the Group of Western European and Other States would have 14.
Action on Security Draft
The Committee took up the draft on measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/57/L.18), which Finland had introduced. The resolution was adopted without a vote.
Introduction and Action on Protocols Draft
Finally, the Committee took up the draft on the status of the Protocols additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts (document A/C.6/57/L.17). The representative of Sweden introduced it. The resolution was adopted without a vote.
Speaking after the vote, the representative of Israel said she would have abstained had the resolution been put to a vote since the Protocols had become politicized. Jordan’s representative, as a co-sponsor, said he was pleased the resolution had been adopted without a vote and that the Protocols would become part of normative law. The representative of Egypt said he had joined the consensus despite the fact that there was unsatisfactory language in the resolution.
Jurisdictional Immunities of States and Their Property
GERHARD HAFNER (Austria), Chairman of the Ad Hoc Committee on the Jurisdictional Immunities of States and Their Property, introduced its report, and said the Committee worked in the format of a working group of the whole. They exchanged views on the five outstanding issues previously identified by the working group of the Sixth Committee, and discussed the remainder of the 1991 draft articles prepared by the International Law Commission to identify and resolve any further issues arising from the text.
The working group of the whole made substantial progress, reducing the number of the five substantive outstanding issues, he said. It was able to agree on the definition of "State" for the purposes of the draft articles. It was able to narrow the divergent views on the remaining issues, but could not reach agreement on all the outstanding ones.
The working group decided to reflect those differences in some of the draft articles, either as an alternative proposal or bracketed text in the entire set of draft articles on jurisdictional immunities of States and their property. That document had been reproduced in Annex I of the Ad Hoc Committee’s report, he said. The Committee emphasized the importance of the elaboration of a generally acceptable instrument based on the draft articles in a timely manner.
CHUSEI YAMADA (Japan) said his delegation was satisfied with the substantial progress achieved by the Ad Hoc Committee. He said there should be a further week-long session, in February/March 2003, for the Ad Hoc Committee to try to finalize the elaboration of a generally acceptable instrument of draft articles, and also to recommend the form it should take.
He outlined Japan’s position on the five substantive outstanding issues. On the question of criteria for determining the commercial character of a contract or transaction, he said Japan supported the Chairman’s compromise proposal which said that reference should be made primarily to their nature. On the question of a State enterprise, he said it might be preferable to have a paragraph in the text clearly indicating that a State enterprise did not in principle enjoy immunity. On the question of contracts of employment, he noted that the sending State was entitled to immunity for its employees who had been recruited to perform particular functions in the exercise of governmental authority.
On the form the instrument should take, his delegation could accept a two-stage formula: adoption of a resolution by the General Assembly incorporating draft articles as those reflecting current practice and customary international law and, several years later, a review of the situation with a view to concluding a convention.
ASMUND ERIKSEN (Norway) said his country desired the establishment of principles that provided clear guidance to domestic courts when considering questions of immunity of foreign States, as well as ascertaining the uniform application of those principles. That clarity and predictability could best be served through the adoption of a convention, he said. It was Norway’s view that the deletion of the five substantive outstanding issues should be considered as the possible best way forward.
On principles for characterization of a commercial transaction, he said Norway strongly preferred the establishment of rules that enhanced legal certainty. It also supported the deletion of the proposed paragraph in the provisions concerning the concept of a State enterprise or other entity. As a minimum, the provision should be redrafted. With regard to the issue of immunity for proceedings relating to contracts of employees, he said the international community would best be served by clearer rules to which States might adapt their practice.
CHRISTIAN MUCH (Germany) recalled that 10 years had passed since the International Law Commission had first submitted its draft articles on the immunities Convention to the General Assembly. It was high time to resolve the remaining issues, and it was possible to do so.
He said he was flexible about the question of whether a definition of the commercial character of a transaction was needed. Also, there seemed to be a broad understanding that a State enterprise with an independent legal personality should not enjoy immunity, and that where the State was a guarantor, it should not be allowed to hide behind the enterprise and enjoy immunity. Putting that understanding into words was a matter of language rather than of substance. Rather than a general security clause, some contractual relations that did not benefit from the principle of immunity should be enumerated. On post-judgement measures of constraint, the so-called "nexus requirement" set too high a threshold. Finally, certain limits to State liability must be set in cases of personal injury and damage to property.
The reconvening of the Ad Hoc Committee offered a real chance to resolve the issues, he concluded. The articles should create clarity and should have an impact on jurisdiction. A convention was the preferred solution, but other options could be considered if that was overly ambitious.
VALENTIN ZELLWEGER (Switzerland) said the working group’s last meeting earlier this year had been disappointing. A very small number of delegations had stalled progress and had even undone some of the work already accomplished. On the five substantive areas being considered, two difficult issues remained open, two seemed close to resolution and one had been resolved.
The Ad Hoc Committee should be reconvened to finalize the work on the instrument and the form of the instrument should also be decided upon. As Japan’s delegation had suggested, the Ad Hoc Committee should hold a one-week meeting in the spring for that work.
SOCORRO FLORES (Mexico) said her delegation preferred a combination of the nature and purpose criteria, in determining the commercial character of a contract or transaction as proposed in the draft text of articles. It also preferred the alternative proposal regarding the contracts of employment, noting that the employer should be covered by the definition given in the Vienna Convention on Diplomatic Relations of 1961.
She said the time had come for the implementation of a General Assembly decision on the convening of an international conference to elaborate a convention on the jurisdictional immunities of States and their property. Her delegation welcomed Japan’s proposal that the Ad Hoc Committee should hold another session next year to complete its work.
ALIREZA KAZEMI (Iran) said the elaboration of a uniform legal regime on jurisdictional immunities of States and their property would add further clarity and precision to the norms and principles of international law. The international community should not rely on national legislation to define the limits of immunity of States and their property. Efforts should be made for an international standard for that purpose.
The Sixth Committee’s working group should also consider the form the draft articles should take during the current session. Iran agreed with the recommendation of the International Law Commission that the articles be prepared in the form of a binding instrument. If the outstanding issues were resolved, the General Assembly could adopt the text. Another option could be the convening of a diplomatic conference.
LIU ZHENMIN (China) said the Ad Hoc Committee had held a candid and fruitful exchange on the five substantive issues that had long been subjects of controversy. While it had not been able to reach consensus on a finalized draft, the full exchange of views and the cooperative approach that had characterized the session had laid the groundwork for eventual resolution of the question.
He said the question of State jurisdictional immunity was an important issue in international law. The domestic laws of most countries had a vacuum in the area, leading to widely varying practices. With the steady increase in the number of lawsuits or proceedings against foreign States, foreign leaders and property of States, the urgency of addressing the question of jurisdictional immunities had been recognized. A uniform international treaty on the question in the context of international law was not only essential for regulating actions of States and defining State jurisdiction, but it would impact positively on the preservation of harmonious and stable international relations.
ANDREW CANNON (United Kingdom) said a timely and successful conclusion of an instrument on State jurisdiction was necessary. From the amount of agreement reached, it was possible to believe the next session of the Ad Hoc Committee would finalize it.
MARIA TELALIAN (Greece) said the Committee had come close to agreement at its last meeting. The immunities with relation to military action could be resolved by the open-ended working group of the Sixth Committee. Differences on some key issues still persisted, for example on the matter relating to the "concept" of a State for purposes of immunity.
Outlining her position in each of the five substantive areas, she stressed the need for codifying existing rules in the matter of State immunities which, she said, was dominated by widely varying national legislation. In addition, an international legal system on State immunity would promote commercial interactions. The instrument should be based on the draft articles being elaborated by the Ad Hoc Committee. A diplomatic conference should be convened. That was the appropriate forum in which to discuss the important issues involved. Also, another meeting of the Ad Hoc Committee should be convened as the last attempt to achieve consensus before finalizing the instrument.
PATRICIA GALVAO TELES (Portugal) said a universal convention on jurisdictional immunities of States and their property should benefit all States. Special efforts must be made for a consensus to be reached on the most significant alternatives left open in the draft articles. She said the Sixth Committee should convene an intersessional working group, preferably at the beginning of 2003, to work on eliminating the divergent views on the remaining substantive issues, so as to finalize the draft articles.
Portugal strongly preferred the adoption of the articles in the form of an international convention. It would, however, accept the articles serving as a model law or a declaration to be attached to a resolution adopted by the General Assembly.
KYM TAYLOR (Australia) said her country already had legislation covering the jurisdictional immunity of States and their property. She recalled her delegation’s previous statement that a widely accepted instrument would be an important contribution to the development of international law. However, it had thus far supported an instrument in the form of a model law, since it would be the most appropriate way to achieve consistency in the domestic law of States on the topic of jurisdictional immunities. Australia could accept the text on the draft articles as the basis of a convention, should a significant number of States support it.
ALBERTUS JACOBUS HOFFMANN (South Africa) outlined his position on the five substantive areas under consideration. He said that with regard to the criteria for determining the commercial character of a contract, the nature test should have primacy over the purpose test. Also, a State must not be allowed to hide behind its enterprises. With regard to contracts of employment, only diplomats and counsellors should have immunity, not staff, since that would leave them without employment security in some countries.
He said the Ad Hoc Committee should not meet if the Sixth Committee could not agree on the outstanding issues. It would be premature and a waste of resources for the Committee to meet again before the law was developed. The State immunities instrument should be formulated as a non-binding instrument such as a resolution or model law.
* *** *