LEGAL COMMITTEE BEGINS CONSIDERATION OF REPORT OF SPECIAL COMMITTEE ON CHARTER AND STRENGTHENING OF ORGANIZATION
Press Release
GA/L/2882
LEGAL COMMITTEE BEGINS CONSIDERATION OF REPORT OF SPECIAL COMMITTEE ON CHARTER AND STRENGTHENING OF ORGANIZATION
19951106 Report Recommends Deletion Of 'Enemy State' Clauses, Also Study of Sanctions IssueThe General Assembly should amend the Charter of the United Nations and eliminate the "enemy State clauses", it was recommended this morning as the Sixth Committee (Legal) began consideration of the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Special Committee Chairman Nalin Surie (India) said that the clauses had become obsolete and that States to which those clauses had been directed were valuable members of the Organization. [The "enemy State clauses" are a series of references in the Charter to any State "which during the Second World War has been an enemy of any signatory of the present Charter".]
He said that in its discussion of Charter provisions relating to assistance to third States adversely affected by the application of sanctions under Chapter VII of the Charter, it was decided that an open-ended working group of the Sixth Committee study the matter.
In concluding its work on the draft United Nations Model Rules for the Conciliation of Disputes between States, the Special Committee had recommended, he said, that the text be annexed to a resolution and thereby brought to the attention of States.
Also this morning, the Sixth Committee completed its consideration of the Report of the Ad Hoc Committee on the Establishment of an International Criminal Court.
Speaking on the criminal court were the representatives of Azerbaijan, Nicaragua, Gabon and Rwanda, as well as the Chairman of the Legal Committee.
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The Sixth Committee observed a minute of silence this morning in memory of Yitzhak Rabin, Prime Minister of the State of Israel. Committee Chairman Tyge Lehmann (Denmark), said that Mr. Rabin's death elicited feelings of profound sympathy for the people and nation of Israel. "It vividly and painfully reminds us that the cause of peace is a dangerous one to fight for and more often than not requires on the part of them who serve it the ultimate sacrifice," he said.
The Sixth Committee is scheduled to meet again at 3 p.m. tomorrow, 7 November, to continue with the Report of the Special Committee on the Charter and on the Strengthening of the Role of the Organization.
Committee Work Programme
The Sixth Committee (Legal) met this morning to begin consideration of the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (document A/50/33). At its 27 February to 10 March session, the Special Committee approved recommendations dealing with the question of the deletion of the "enemy State" clauses from the Charter, the Committee's membership, assistance to third States affected by the application of sanctions under Chapter VII of the Charter and Model Rules for the Conciliation of Disputes Between States.
On the question of deleting the "enemy State" clauses from the Charter, the Special Committee recommended that the General Assembly initiate amendment of the Charter with a view to their deletion. It noted that the States to which the clauses were directed were members of the United Nations in good standing and represented a valuable asset in the endeavours of the Organization.
The "enemy State" clauses are a series of references in the United Nations Charter to any State "which during the Second World War has been an enemy of any signatory of the present Charter" (article 53, paragraph 2).
Regarding assistance to third States affected by Chapter VII sanctions, the Special Committee invited the General Assembly, at its fiftieth session, to establish an open-ended Sixth Committee working group within the framework of the Sixth Committee, to consider the implementation of relevant Charter provisions.
In discussion of that topic, several Special Committee members said that as the application of sanctions was a collective measure, any adverse effects should be borne equally by all States. Others countered that sanctions were a necessary enforcement mechanism and the Council's decisions should not be impeded.
Representatives suggested the establishment of a trust fund to assist affected States, an idea first suggested at the Special Committee's 1994 session. By that proposal, the General Assembly would create a fund under the authority of the Security Council to provide direct financial assistance. The Council would be asked to prepare guidelines for affected countries along with procedures for evaluating losses. The Council would also be requested to establish a permanent consultative mechanism for Member States likely to be affected by sanctions.
Other representatives, questioning the advisability of a trust fund or any new mechanism that might hamper the Security Council, expressed preference for case-by-case treatment of each situation. It was suggested that international financial institutions could play a useful role and that the Council's sanctions committees were capable of handling problems relating to the application of sanctions.
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Some representatives called for more transparency in the Council's proceedings and said that sanctions should have clearly defined objectives and should be lifted when those objectives were met.
On the question of peaceful settlement of disputes between States, the Committee considered amendments to the text of the United Nations Model Rules for the Conciliation of Disputes between States, as submitted by Guatemala. The report notes that the Committee concluded a second reading of the text, the first having occurred at its 1994 session. The Committee recommended that the General Assembly bring the text to the attention of States by annexing it to a decision to be adopted at its fiftieth session.
The rules are for the use of States if they choose to resort to conciliation for settlement of disputes. The articles describe the application of rules; initiation of the conciliation proceedings; the number and appointment of conciliators; fundamental principles; procedures; conclusion of the conciliation proceedings; confidentiality; obligation to avoid action that might have an adverse effect on the conciliation; preservation of the legal position of the parties; and costs of conciliation proceedings.
Also at its session this year, the Special Committee considered a proposal by Sierra Leone on the establishment of a dispute settlement service. The proposal envisages the establishment of a permanent United Nations mechanism which States could use for prevention of conflicts and enhancement of dispute settlement. The service could be requested by the Security Council, the General Assembly, parties to a dispute, or when recommended by the Secretary-General.
While the proposal was welcomed by the Committee, the sponsor was encouraged to highlight those aspects of the proposal which distinguished it from existing mechanisms.
On the question of the reform of the Security Council, the Committee considered proposals by Libya referring, among other things, to the principle of consensus and expansion of the General Assembly's role in maintaining international peace and security, and proposals by Cuba on equitable representation and an increase in the Council's membership.
The Libyan proposal states that application of the principle of consensus among the permanent members of the Council had made it powerless to fulfil its responsibilities under the Charter. It proposes examination of areas in which that principle of consensus would not apply, such as its not being invoked to defend acts of aggression, occupation and injustice.
The Libyan paper further states that changes in the international arena had aroused fears of the domination by certain parties of the work of the
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Council and of its exploitation for the achievement of unilateral objectives. There was also concern at double standards employed by the Council with regard to certain issues.
It proposes expansion of the membership of the Security Council and strengthening of the role of the General Assembly in the maintenance of international peace and security.
In discussion of the text, some representatives expressed support, making the point that the veto in the Security Council could be employed contrary to the will of the majority of the Council. Other members took the view that the proposal could not serve as a basis for a meaningful discussion owing to its controversial and unbalanced nature.
The revised working paper submitted by Cuba suggested that the Special Committee carry out a legal study on the composition of the Security Council in light of the principle of equitable geographical distribution; and ways of ensuring that the Security Council report to the Assembly as required under the Charter.
The Cuban paper also proposes that the Special Committee should: determine what elements should be included in the definitive rules of procedure of the Security Council; study the viability of eliminating or modifying the special privileges enjoyed by the permanent members of the Security Council; and recommend guidelines for the application of Chapter VII of the Charter.
It further urges the Special Committee to promote transparency in the work of the Security Council, particularly the work done in informal consultations; make recommendations to ensure the effectiveness of consultations with third States affected by the application of Security Council sanctions; and propose measures to render the work of sanctions committees more open and transparent.
Finally, the Special Committee recommended that its membership be open to all Member States and that the Committee continue to operate on the basis of consensus.
The Committee also has before it a report of the Secretary General on the Implementation of Charter provisions relating to assistance to third States affected by the application of sanctions under Chapter VII of the Charter (document A/50/361).
The Secretary-General notes that, in order to permit the more effective and prompt consideration of applications under Article 50 of the Charter by the respective sanctions committees, a set of guidelines or procedures would be useful. Such guidelines or procedures should cover the right to approach
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the Security Council; expeditious consideration of all applications for assistance under Article 50; rendering non-preferential and fair treatment to all applications; inviting affected Member States to meetings of the Council and its subsidiary bodies; and establishment of a methodology for determining losses resulting from the imposition of sanctions.
The guidelines should also include provision for the Security Council to undertake periodic reviews of the response of the international community to appeals of the Secretary-General for assistance to applicant States. To that end the Council could request the Secretary-General or the sanctions committees to monitor the assistance provided to affected States.
The Secretary-General notes that as sanctions have become a more commonly used instrument for peace and security, a larger number of States have invoked Article 50. It was therefore essential to further develop a regular system of analysing the impact of sanctions on non-targeted States.
At its 1994 session, the Special Committee heard proposals for the establishment of a trust fund to ameliorate the impact of sanctions on third parties. In subsequent discussion, the Secretary-General states, those favouring such a fund said that it would better respond to the problem than would bilateral assistance or existing financial institutions. The right to consult provided for in Article 50 was not an end in itself, but was intended by the drafters of the Charter to have tangible and concrete effects.
Those opposed said that it was essential to respect the basic provisions of the Charter as concerned the unqualified obligation to apply mandatory sanctions. The specific concept of compensation for economic damage consequent on the imposition of sanctions had not been articulated in the Charter, they said.
The Secretary-General states that prior to the establishment of any trust fund, there should be clear assurance that voluntary contributions from Member States would be forthcoming.
In a series of consultations with potentially affected third States undertaken at its 1994 session, the report states, the Special Committee was told that States called upon to bear an inordinate burden of sanctions should have "early warning" and a chance to be consulted beforehand. As the goal of sanctions was not to harm third States, due consideration should be given to their situation before applying sanctions.
On the other hand, the point was also made at that session that a decision of the Security Council to apply sanctions could not be subjected to conditions not provided for in the Charter. The Council must be able to act swiftly, and urgency might make it difficult or impossible for it to conduct prior consultations.
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The Secretary-General recalls that in his "Agenda for Peace" he had proposed that States suffering collateral damage from sanctions regimes should be entitled to consult the Security Council and have a realistic possibility of having their difficulties addressed. In his "Supplement to An Agenda for Peace", he further suggested: the establishment of a mechanism to assess the potential impact of sanctions on target and third countries; that the application of the sanctions be monitored; that the effects of sanctions be measured in order to enable the Council to fine-tune them; that the delivery of humanitarian assistance to vulnerable groups be ensured; that ways of assisting Member States suffering collateral damage be explored and that claims submitted by such States under Article 50 be evaluated.
At its 1995 session, support was expressed for the mechanism to carry out those recommendations suggested in the Secretary-General's Supplement. Also, a proposal was made to establish a permanent mechanism for consultations between the Security Council and potentially affected third States, which might include: a preliminary assessment of sanctions or a pre-feasibility study based on objectivity and cost-effectiveness in terms of burden-sharing; regimes of exemption and criteria for suspension; and effective ways to address special economic problems arising from sanctions implementation.
At the 1995 session of the Special Committee, it was also noted that sanctions should have clearly defined objectives and should be lifted once those objectives were met. The Secretary-General's report goes on to state that his "Supplement to An Agenda for Peace" had also stressed the importance of clearly defining objectives. A number of Member States have proposed, the report continues, that when the Security Council decides to impose sanctions it should, at the same time, define objective criteria for determining that their purpose has been achieved.
Periodic reviews should be made an integral component of a sanctions regime, the Secretary-General states. Such reviews have been provided in the case of sanctions against Iraq, Libya and, most recently, the Federal Republic of Yugoslavia (Serbia and Montenegro).
On improving the methods of work and ensuring the transparency of the Security Council procedures and those of the sanctions committees, the report recalls that at the 1994 session of the Special Committee, it was observed that work of the Security Council, which relies heavily on closed informal consultations, prevented potentially affected States from exercising their rights at an early stage. It was suggested that those States should be invited by the Council to take part in relevant consultations. Those objecting to that proposal said the sensitive issues within the sanctions committees' mandate were more appropriately discussed in closed meetings.
Further, at the 1995 Special Committee's session, the report states it was proposed that press releases be issued after each meeting of sanctions
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committees; that the secretariat publish a monthly edition of the status of communications under the "no-objection" procedure in respect of the sanctions committees established under Security Council resolutions 661 (1990) and 724 (1991); that the Secretariat prepare a monthly list of favourable decisions by sanctions committees; that the report of the Council to the General Assembly contain more information on the work of such committees; that consideration be given to the publication of an annual report by each sanctions committee; and that the summary records of the committees be issued in a more timely fashion.
In the course of the 1994 and 1995 sessions of the Special Committee, it was suggested, the report continues, that the Security Council might allow exceptions from sanctions for selected States provided that those exceptions did not run counter to the objective of the sanctions. The Secretary-General notes that the practice thus far has been for the Council or sanctions committees to grant partial exemptions on a case-by-case basis.
The Security Council has consistently allowed exemptions in order to meet essential humanitarian needs, the Secretary-General states. In Haiti, both humanitarian supplies and "trade in informational materials" were exempted in the interest of ensuring the free flow of information. The Council authorized the export from the Federal Republic of Yugoslavia (Serbia and Montenegro) of diphtheria anti-serum as an exemption to the mandatory sanctions against that country. In Rwanda, the Council authorized the supply to Rwanda of explosives for use in demining programmes.
The Council has also authorized trade of specific commodities of crucial importance to neighbouring States or the maintenance of certain transportation or communication links. The Council exempted Libya from the freeze of specific funds derived from the sale or supply of petroleum or agricultural products. In 1991, it allowed Jordan to import oil from Iraq, pending arrangements for alternative supplies. With a view to preserving the safety of international navigation on the River Danube, the Council allowed vessels of the Federal Republic of Yugoslavia (Serbia and Montenegro) limited use of the lock system on the left bank of that river. The Council has also authorized the supply of fuel to the Federal Republic of Yugoslavia (Serbia and Montenegro) in connection with navigation on the Danube and the transit of electric energy to Albania.
The Secretary-General states that authority to grant exemptions from measures imposed by the Security Council resides solely with the Council. The granting of exemptions and their monitoring requires an enhanced capacity on the part of the Secretariat, particularly regarding ad hoc missions to monitor their implementation.
The Committee also has before it a letter addressed to the Secretary- General from Sierra Leone (document A/50/403) transmitting in an annex a clarification of a note presented to the Special Committee at its forty-eighth
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session on the "establishment of a dispute settlement service offering or responding with its services early in disputes".
According to that text, it was "ludicrous" that the one Organization charged with the maintenance of international peace and security had no permanent subsidiary unit to cope with the peaceful settlement of disputes. The dispute settlement service could be that body. That service would be based on the peacemaking provisions of Chapter VI of the Charter and should not be confused with peace-enforcement operations, which relate to the collective security aspects of Chapter VII.
Report of the Charter Committee
NALIN SURIE (India), Chairman of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, introduced the Special Committee's report.
On the question of the deletion of "enemy State" clauses from the Charter, the Special Committee recommended that the Assembly adopt a resolution which would recognize that substantial changes have taken place in the world, that the States referred to by the clauses were valuable members of the Organization and that the "enemy State clauses" had therefore become obsolete. The Assembly recommended amendment of the Charter at its earliest appropriate future session.
The entire Special Committee had recognized the need to implement Charter provisions relating to assistance to third States adversely affected by the application of sanctions under Chapter VII of the Charter, he said. The measures suggested by Special Committee members included resort to international financial institutions, the establishment of a trust fund, and full transparency in the proceedings of the Security Council and its sanctions committees. The Committee recommended the establishment of an open-ended working group of the Sixth Committee to study the matter.
Regarding the proposal of Libya to enhance the effectiveness of the Security Council, he said that some Committee members urged its serious examination while others were of the view that the text could not serve as a basis of discussion given its controversial and unbalanced proposals. A paper submitted by Cuba on strengthening the United Nations in the maintenance of international peace and security was not discussed.
The Special Committee concluded its work on the draft United Nations Model Rules for the Conciliation of Disputes between States, which had been undertaken following an initiative of Guatemala. The Special Committee recommended that the text of the Model Rules be annexed to a resolution and thereby brought to the attention of States.
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The Special Committee, he concluded, thought that many aspects of a proposal by Sierra Leone on the establishment of a dispute settlement service needed further clarification.
Statements on International Criminal Court
Before concluding its consideration today of the question of establishing an international criminal court, the Legal Committee heard the following three representatives on the issue:
ELCHIN AMIRBEKOV (Azerbaijan) reiterated his strong commitment to the establishment of a permanent international criminal court, which would promote the strengthening of international cooperation in ensuring effective prosecution and suppression of the most serious crimes of concern to the international community.
The principle of complementarity recognizing the primacy of national criminal jurisdiction was of paramount importance, but the principle itself should be defined in a more clear-cut manner, he continued. Only "hard-core crimes", namely genocide, aggression, serious violations of the laws and customs applicable in armed conflicts and crimes against humanity, should be included as issues pertaining to the court's terms of reference.
On the crime of aggression, he said that the recent tragic crisis in the Balkans, as well as the aggression of a neighbouring State against his own country must have proved to everyone that the acts or wars of aggression should be nipped in the bud and that their perpetrators must not go unpunished. It was also essential and possible to find a proper balance between the requirement of the independence of such a court and the need to respect the primary role of the Security Council in the maintenance of international peace and security.
ERICH VILCHEZ ASHER (Nicaragua) said there was a need to create a court to which States could submit cases on the basis of a multilateral treaty. Such a court should supplement national jurisdictions. The crimes that the court should deal with should be of major international importance.
In general, the draft statute of the court did not need to define international crimes, he continued. Such definitions should be contained in other international treaties. However, it was necessary to provide some definitions, such as the definition of aggression.
The statute should take into account general international law, he said, and the main principles of international law should be respected. The notion of inherent jurisdiction of the court over the crime of genocide was in contradiction to the principle of complementarity. The court should have
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competence only when a case was submitted by a State party to the statute or by the Security Council under Chapter VII of the Charter.
ANNETTE ANDREE ONANGA (Gabon) said that the proposed international criminal court would fill problematic gaps in the international legal system. As regards the role of the Security Council in the proposed court, she said that the competence granted to a political body such as the Council should not be allowed to prevent the court from freely exercising its functions, particularly as regards the crime of aggression.
The jurisdiction of the court should be confined to the most serious "hard core" crimes. She welcomed the offer by the Government of Italy to host a conference of plenipotentiaries in 1997 which would establish the criminal court.
TYGE LEHMANN (Denmark), Sixth Committee Chairman said that the debate on the proposed criminal court had demonstrated that all governments seemed willing to move the project forward in good faith. He hoped that the Committee would move the process along with a consensus resolution.
VENUSTE HABIYAREMYE (Rwanda) said an Ad Hoc Tribunal had been created for his country, for it had been a scene of genocide. The international community could not be complacent about such shameful crimes. It was necessary to prevent and deter large-scale crimes against humanity. The atrocities committed in Rwanda, which had not been punished, needed to be addressed by the permanent court.
The Ad Hoc Committee had carefully studied the problems arising from the establishment of an international criminal court, he continued. It was wise to survey the few remaining unsolved issues before convening a conference of plenipotentiaries. Genocide, crimes of war, crimes against mankind should be included in the draft statute, but only after they had been properly defined.
The effectiveness of the court would depend upon its independence from political influence of States, he said. The primacy of an international court should be preserved without affecting the effectiveness of national jurisdiction. The principle of complementarity must be clearly defined.
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