DELAY IN CONVENING CONFERENCE ON IMMUNITIES OF STATES CALLED FOR IN LEGAL COMMITTEE

11 November 1997

Press Release
GA/L/3059

DELAY IN CONVENING CONFERENCE ON IMMUNITIES OF STATES CALLED FOR IN LEGAL COMMITTEE

19971111 Speakers Cite Lack of Consensus on Draft Articles Adopted By International Law Commission on Immunities of States and Their Property

Further consultations were needed before a diplomatic conference could be convened on the elaboration of an international convention on the immunities of States and their property, speakers said this morning, as the Sixth Committee (Legal) began consideration of the topic and, in particular, the draft articles on the subject adopted by the International Law Commission in 1991. A lack of consensus between States on the provisions of the Commission's draft articles was noted by several speakers, who suggested that, because of that disagreement, consideration of a conference be postponed until the fifty- third session of the General Assembly. The representative of the United States said the prior sessions of the working group on the immunities of States and their property had failed to reconcile very important issues, namely the criteria for determining commercial activity and measures of constraint. There was little chance of consensus in the near future on those issues unless some States were willing to substantially reconsider their positions, he said. A full exchange of views should be held among States to find the common ground for the future convention, said the representative of China. The immediate task was to settle differences through full consultation. The representative of the Netherlands said there should be a reasonable prospect for the widest possible agreement before a diplomatic conference was convened. Time restraints had this year prohibited further substantive consideration of the item and it would be unadvisable to rush into a commitment on holding the conference. The Committee would be in a better position during the fifty-third session of the General Assembly to evaluate all aspects of the subject. Statements were also made by Paraguay (on behalf of the Rio Group), France, Austria, Paraguay and Slovakia. The Committee will meet again at 10 a.m. Thursday, 13 November, to begin its consideration of item 122, measures to eliminate international terrorism.

Committee Work Programme

The Sixth Committee (Legal) met this morning to begin consideration of a proposed convention on jurisdictional immunities of States and their properties.

The Committee has before it a report of the Secretary-General (document A/52/294) which details comments made by States on the draft articles on jurisdictional immunities of States, which were adopted by the International Law Commission in 1991, and also examine the question of convening an international conference to conclude a convention on the subject.

In light of the Commission's completion of the second reading of the draft articles on jurisdictional immunities, the forty-sixth General Assembly, in 1991, decided to establish an open-ended working group of the Sixth Committee. The working group was charged with examining issues of substance arising out of the articles in order to facilitate a successful conclusion of a convention as well as examining the question of convening an international conference, to be held in 1994 or subsequently to conclude a convention on the subject.

At its forty-ninth session, the General Assembly accepted the recommendation of the Commission that an international conference of plenipotentiaries be convened to consider the articles on immunities of States and to conclude a convention on the subject. The General Assembly also invited States to submit to the Secretary-General their comments on the conclusions of the chairman of the informal consultations held pursuant to General Assembly resolution 48/413 of 9 December 1993 and on the reports of the working group established on 9 December 1991. It also decided to resume consideration of the issue during its fifty-second session.

In its reply, Argentina says the norms applicable to sovereign immunity of States should be complementary and should not modify the regime of privileges and immunities already established by diplomatic and consular law. It would be inappropriate for the regimes provided by the draft articles to overlap with the various norms of those laws.

On article 2 of the draft text, on the definition of a "State", Argentina says the terms "constituent units of a federal State" and "political subdivisions of the State" do not appear to be clearly differentiated from one another in respect of their field of application. A constituent unit of a federal State was still a political subdivision of the State.

Also in article 2, the inclusion of diplomatic agents, consular officials or other persons under the immunities law could represent an overlapping of the regimes of the international instruments in force in that

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area, the delegation states. The Commission's draft text was meant to establish a regime of immunity for States not for diplomatic agents and consular officials which were already protected by other conventions.

On article 14, intellectual and industrial property, the Argentine delegation says the rule was understood to apply only in cases in which the State commits acts that involve a clear infringement of an intellectual property right enjoyed by a person in the State of the forum, for example, the commercial exploitation of a product which has been patented in the said State. Under no circumstances should a claim be allowed against a State for failure to provide the legal protection for a patent in its own territory. To make that last point clear, a new paragraph should be inserted which allows States to enjoy immunity in the courts of the State of the forum.

In relation to article 18, State immunity from measures of constraint, the delegation says a paragraph should be inserted saying that no measures of constraint shall be taken against the property of a State before that State was given adequate opportunity to comply with the judgement.

On a dispute settlement mechanism, Argentina says the draft articles should contain a mechanism for the settlement of any disputes which may arise concerning the interpretation of application of the Convention, to which States would be required to have recourse. Text should be inserted that reflects that principle

In its reply, Bolivia says that the contents of the draft articles conflict with neither the provisions of its Constitution nor those of other norms of Bolivia's internal legal order.

Statements

BERNARDINO HUGO SAGUIER CABALLERO (Paraguay), speaking on behalf of the Rio Group, welcomed the decision of the General Assembly's forty-ninth session to call a conference of plenipotentiaries to analyse the draft articles on the jurisdictional immunities of States and their goods, and to conclude a convention on the matter. The Group considered the draft articles, prepared by the International Law Commission, as an excellent basis for what could be the convention. Possible conciliatory formulas proposed by the Chairman of informal consultations reflected in document A/C.6/49/L.2 deserved detailed analysis. As chairman of the consultations during the forty-eighth and forty- ninth sessions of the General Assembly, the representative of Brazil, Carlos Calero-Rodrigues, had made a laudable effort to resolve the existing differences, and advantage should be taken of that.

According to the Rio Group, there was a need to find a point of equilibrium among international cooperation, the responsibility of States and respect of internal jurisdiction. The Group reiterated its willingness to examine the arrangements for the convening of the conference and to also

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seriously consider any initiative that could help ensure its success. The Group saw the possibility of the establishment of a working group within the framework of the Sixth Committee during the fifty-third session of the Assembly to examine all proposals and to decide on the conference arrangements. They also believed that 1999 -- the end of the United Nations Decade for International Law -- could be a good opportunity to convene the conference at Headquarters.

FRANCOIS ALABRUNE (France) said that currently each State had the ability of defining the scope of the immunities that a foreign State enjoyed on its territory. Many States had their own legislation on the topic and others, such as his country, preferred to allow their courts to determine rules on that topic. Different rules on immunities of States, however, ran the risk of having disparities of laws become greater. The International Law Commission's draft articles on the topic would eliminate that disparity by giving States the same rights and the same duties.

On the work of the Sixth Committee on the topic, he said there was not enough time devoted during the current session for consideration of the topic or for convening an international conference. Arrangements for a lengthy debate should be made on the programme of work for the next session of the General Assembly; also, a working group should be established to consider a convention. Without adequate time being given to the topic's consideration, there was little chance of States coming to agreement on that topic.

On the draft articles, he added that some of the definitions would gain if they were spelled out further. Clarification would be helpful on such topics as: the provisions on damage to persons or property and on the exact meaning and scope of the provisions on the immunities of States.

ISAO FUKUSHIMA (Japan) said, on the question of the commercial character of the contract or transaction, the nature of a contract or transaction should be the primary criterion. It would also be necessary to elaborate a list of categories of contracts or transactions for which immunities could be invoked. That step would limit the possibilities for arbitrary interpretations by States.

On measures of constraint against the property of a State, he said States should concentrate on the properties against which a measure of constraint might be taken, and the degree of connection between such State property and the dispute in question. On the draft articles on the topic, it would be difficult to proceed as scheduled or determine the arrangements for convening the international conference on the topic because a great number of governments have not submitted comments. Given the need for concluding the convention, however, it would be time-consuming and not appropriate to once again refer the draft articles to the International Law Commission.

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LINDA JACOBSON (United States) said the prior sessions of the working group on the immunities of States and their property failed to reconcile very important issues, namely the criteria for determining commercial activity and measures of constraint. There was little chance of consensus in the near future on those issues unless some States were willing to reconsider their positions substantially. Since her delegation saw little chance of that occurring, consensus must await the further development of State practice and customary international law.

On article 18, measures of constraint, she said prior discussion revealed wide differences among States concerning the fundamental question of whether State property was ever to be subject to judicial constraint. More thought and work was needed in that area before a conference was convened.

On article 11, contracts of employment, she said the provisions became more inadequate with time because they failed to address the current major labour-employment issues facing diplomatic missions. Instances of lawsuits against foreign States for action relating to downsizing, reorganization and closing of diplomatic facilities had increased in recent years. There had also been an increase in the withdrawal of diplomatic missions from participating in bankrupt mandatory social security systems for their locally hired personnel. Informal consultations in the Sixth Committee next year on that subject may be useful in bridging the gap between the current scope of article 11 and State practice.

DUAN JILONG China said an international convention on the jurisdictional immunities of States and their property was needed. A full exchange of views among States should be held to find the common ground for a future convention. He had no objection to the convening of a diplomatic conference to conclude the convention. The immediate task was to settle differences through full consultation.

He reiterated China's position on: the criteria for judging whether a transaction was commercial in nature; the need to distinguish between a State and its state enterprises; and enforcement measures against state property. In judging whether a transaction was commercial, he said its nature and purpose had to be taken into account. Treating all international transactions of a State as commercial could lead to an abuse of judicial jurisdiction that would harm relations between States.

State enterprises should not be equated with the State, he said. Furthermore, the State clearly should not incur any liability in connection with transactions of the State enterprise, unless that enterprise was specifically authorized by the State to enter into a commercial transaction on its behalf. In case of unfavourable judgement on a State with regard to its property, he said enforcement should be confined to the part of State property related to the case. That would prevent a lawsuit from jeopardizing the entirety of a State's property, thus compromising its social management and

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public-interest functions. His Government did not favour such enforcement measures as seizing or freezing the assets of the State before a judgement was finalized.

H.G.J. VERWEIJ (Netherlands) commenting on procedural aspects of the item, said there should be a reasonable prospect of the widest possible agreement before a diplomatic conference was convened. It would be unadvisable, therefore, to rush into a commitment on holding the conference. Time restraints had this year prohibited further substantive consideration of the item. Efforts should be concentrated on the preparations for the 1998 Rome diplomatic conference on the proposed international criminal court. The Committee would be in a better position during the fifty-third session of the General Assembly to evaluate all aspects of the subject, he said.

LILY SUCHARIPA (Austria) said a decision on the convening of the diplomatic conference should be made during the fifty-third session of the Assembly. It should be possible to overcome existing divergencies of opinion and find an acceptable compromise. Further discussions could be held on international dispute settlement procedures concerning the implementation of judgements and possible measures of constraint against state property.

To reach a compromise, she said different criteria and conditions could be introduced to restrict the property subject to such measures. For example, prejudgment measures could be restricted to those against earmarked property, property connected with the object of disputes or property situated in the concerned State. Her Government favoured introduction of international mechanisms of dispute settlement, particularly legally binding instruments. In the context of the draft articles of the International Law Commission, rules on the settlement of disputes had to be closely interconnected with the specific requirements that had resulted from court proceedings involving States and their property.

BERNADINO HUGO SAGUIER CABALLERO (Paraguay) said he strongly supported the convening of a diplomatic conference to adopt a convention on jurisdictional immunity of States and their property. As evidence of the need for such a convention, he described a recent case in which a group of nine banks had sued the Government of Paraguay in a Swiss court in an action involving a Paraguayan official, who was already in prison in Paraguay. The action brought by the banks had been recognized as fraudulent, as confirmed by the Federal Swiss Ministry of Foreign Affairs. The convention should be adopted so that other countries did not have similar experiences. He reiterated Paraguay's support for the draft articles prepared by the International Law Commission.

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JAN VARSO (Slovakia) said he supported the idea of deferring substantive consideration of immunities of States and their property until the next Assembly session. Rules governing such issues were very important to the international community, because they would clarify legal provisions in that area and help strengthen legal stability among States. Also, the fact that some States had detailed laws on immunities should not hamper the work of the Committee in adopting a convention on the topic.

The work done by the International Law Commission provided a foundation for the adoption of a convention, he continued. The next session of the Assembly should indicate how to proceed with future work on the draft articles. The Assembly could refer the issue back to the Commission or set up a working group to clarify the text and obtain the largest possible acceptance by States. Either option was adequate, he said.

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