ASSEMBLY WOULD ENDORSE MODEL LAW ON CROSS-BORDER INSOLVENCY, UNDER TEXT APPROVED IN SIXTH COMMITTEE
Press Release
GA/L/3060
ASSEMBLY WOULD ENDORSE MODEL LAW ON CROSS-BORDER INSOLVENCY, UNDER TEXT APPROVED IN SIXTH COMMITTEE
19971113 Committee Also Approves Text on Report of United Nations Trade Law Commission (UNCITRAL), Which Adopted Model LawThe General Assembly would recommend that States consider favourably the Model Law on Cross-Border Insolvency adopted this year by the United Nations Commission on International Trade Law (UNCITRAL), and that they review their legislation to determine whether it met the objectives of a modern and efficient insolvency system, under a draft resolution approved this morning by the Sixth Committee (Legal).
The Assembly would also recommend that in reviewing their legislation, States should take account of the need for an internationally harmonized legislation governing instances of cross-border insolvency. It would further recommend that the Model Law, together with a guide to its enactment prepared by the Secretariat, should become generally known and available.
Work on the 32-article Model Law began in 1995. It is intended to assist States in improving their national insolvency legislation, to enable them to cope with the growing number of bankruptcies involving enterprises and individuals with assets in more than one country.
The Assembly would also commend UNCITRAL for its progress in a number of areas, under another text approved this morning, as orally revised, It would cite, in particular, the Commission's work on receivables financing, digital signatures and certification authorities, privately financed infrastructure projects, and legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Both texts were introduced by the representative of Austria and approved without a vote.
Also this morning, the Committee began its consideration of measures to eliminate international terrorism. Speakers urged that agreement be reached on the text of a draft convention on the suppression of terrorist bombings, now before the Committee. The representative of Canada introduced the reports of the Ad Hoc Committee on the drafting of that convention and of the Sixth Committee working group which had continued that work.
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Statements on the elimination of terrorism were made by the representatives of Costa, Netherlands (for the European Union), Paraguay (for the Rio Group), Japan, Mali, Saudi Arabia, Malawi, Republic of Korea, Brunei Darussalam, Romania and Sri Lanka.
The Committee will meet again at 3 p.m. today to continue its consideration of measures to eliminate international terrorism.
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Committee Work Programme
The Sixth Committee (Legal) met this morning to consider measures to eliminate international terrorism and to act on two draft resolutions relating to the report of the United Nations Commission on International Trade Law (UNCITRAL).
International Terrorism
The Committee also had before it a report of the Secretary-General (document A/52/304 and Add.1) on measures taken at the national and international levels to eliminate terrorism. It is based on information submitted by governments and international organizations. It also lists 13 global or regional treaties concerning international terrorism, as well as the status of participation in those conventions.
The report also includes information on workshops and training courses aimed at combating international terrorism. It states that the International Civil Aviation Organization (ICAO) is developing a training programme for aviation security which comprises a series of standardized training packages designed for global application. The purpose of the initiative is to provide States with the necessary training tools to assist them in developing the components of their national aviation security training programmes.
In addition, the report contains information provided by governments relating to the publication by the Secretariat of a compendium of national laws and regulations on the prevention and suppression of international terrorism in all its forms and manifestations.
On 17 December 1996, the General Assembly decided to establish an Ad Hoc Committee to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism, aimed at supplementing existing international instruments, the report states. The ad hoc committee -- which would be open to all Member States and members of the specialized agencies and the International Atomic Energy Agency (IAEA) -- was also to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.
The report of the Ad Hoc Committee on its first session, held from 24 February to 7 March, is before the Sixth Committee (document A/52/37). Its work continues from 22 September to 3 October within the framework of a working group of the Sixth Committee (document A/C.6/52/L.3).
The Ad Hoc Committee's report contains revised texts of the draft convention proposed by its bureau on the basis of informal consultations. It also contains a preliminary draft that had been submitted by France on behalf
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of the "Group of Seven" industrialized countries and the Russian Federation, as well as proposed amendments and a summary of the Committee's discussions.
The 17-article draft convention for the suppression of terrorist bombings and the revised texts proposed by the Ad Hoc Committee's bureau cover definitions, the scope of the convention, the obligation of States parties to implement the instrument; detention; extradition or prosecution; and cooperation to prevent actions that would be proscribed by the convention.
The revised draft defines a "terrorist bomber" as a person who "unlawfully and intentionally delivers, places, discharges or detonates a bomb, explosive, lethal or incendiary device in, into or affecting a place of public use, a government or other public facility, a public transportation system or an infrastructure facility ... with the intent to cause death or serious bodily injury ... extensive destruction of public or private property likely to cause serious disruption of economic life". A provision in the text states that the convention would not apply to "the delivery, placement, discharge or detonation of an explosive, incendiary device, or lethal device, by the military forces of a State in connection with their official duties".
To facilitate the extradition of suspects, the crimes specified in the draft shall be included by the parties as extraditable offences in the extradition treaties they sign among themselves, it states. For extradition purposes, none of the offences defined in the draft convention shall be regarded as a political offence, as connected with a political offence, or as an offence inspired by political motives. Those taken into custody or placed on trial shall be guaranteed fair treatment, including the enjoyment of all rights.
The draft also states that the parties to the convention shall carry out their obligations under it according to the principles of sovereign equality, with due respect for the territorial integrity of States, and non-intervention in the domestic affairs of other countries.
Annexed to the report of the working group of the Sixth Committee are the revised texts of the draft convention and texts of proposals from delegations.
UNCITRAL Draft Resolutions
By a 54-Power draft resolution on the report of UNCITRAL (documents A/C.6/52/L.6 and Corr.1), the Assembly would commend the Commission for the progress made in its work on receivables financing, digital signatures and certification authorities, privately financed infrastructure projects, and legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It would appeal to governments that
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have not yet done so to reply to the questionnaire circulated by the Secretariat regarding the Convention.
The Assembly would reaffirm the Commission's mandate, as the core legal body within the United Nations system in the field of international trade law, to coordinate legal activities in that field. It would call upon all United Nations bodies and invite other international organizations to bear that mandate in mind, as well as the need to avoid duplication and to promote efficiency, consistency and coherence in the unification and harmonization of international trade law.
By other terms of the text, the Assembly would stress the importance of bringing into effect the conventions emanating from the Commission's work for the unification and harmonization of international trade law, and would urge States that have not yet done so to consider becoming party to them. It would reaffirm the importance, particularly for developing countries, of the Commission's work on training and technical assistance in international trade law, including assistance in the preparation of national legislation based on the Commission's legal texts. It would express the desire for the Commission to increase its efforts in sponsoring seminars and symposiums and to provide training and technical assistance.
The Assembly would appeal for voluntary contributions to the Commission's trust fund for symposiums and for the financing of special projects and fellowship awards for candidates from developing countries, to enable them to participate in seminars organized by the Secretariat. To ensure full participation by all member States of the Commission in its sessions and working groups, the Assembly would also appeal for voluntary contributions to the trust fund for travel assistance for Commission members from developing countries.
In addition, the Assembly would appeal to the United Nations Development Programme (UNDP) and other bodies responsible for development assistance, as well as governments, to support the Commission's training and technical assistance programme and to coordinate their activities with it.
The draft resolution is sponsored by Argentina, Australia, Austria, Azerbaijan, Belgium, Botswana, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Finland, France, Germany, Greece, Guatemala, Hungary, India, Israel, Italy, Kazakhstan, Kenya, Luxembourg, Malaysia, Mexico, Mongolia, Morocco, Myanmar, Netherlands, Nigeria, Norway, Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Thailand, Turkey, Uganda, United Kingdom, United States, Uruguay and Venezuela.
By a 30-Power draft resolution on UNCITRAL's Model Law on Cross-Border Insolvency (documents A/C.6/52/L.7 and Corr.1), the Assembly would express
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appreciation to the Commission for completing and adopting the Model Law annexed to the draft text. The Secretary-General would be asked to transmit to governments and other interested bodies the text of the Model Law, together with a Guide to Enactment of the Model Law prepared by the Secretariat.
The Assembly would recommend that all States review their legislation on cross-border aspects of insolvency to determine whether it met the objectives of a modern and efficient insolvency system. It would recommend that they give favourable consideration to the Model Law, bearing in mind the need for an internationally harmonized legislation governing instances of cross-border insolvency. It would recommend also that all efforts be made to ensure that the Model Law, together with the Guide, become generally known and available.
The draft resolution is sponsored by Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Czech Republic, Denmark, Finland, Guatemala, Hungary, Israel, Italy, Luxembourg, Mexico, Netherlands, Norway, Portugal, Romania, Slovakia, South Africa, Spain, Sweden, Thailand, United States and Venezuela.
Statements
PHILIPPE KIRSCH (Canada), who chaired both the Ad Hoc Committee on the suppression of terrorist bombings and the Sixth Committee's follow-on working group, presented the reports of these two bodies. He said the text that emerged from their deliberations was in many ways the most progressive and broadest of all the counter-terrorism instruments that had been adopted within the United Nations system, while taking the general approach of its predecessors. The draft convention defined certain offences, requiring that States criminalize them if they had not done so already and make them subject to a "prosecute or extradite" scheme.
The draft convention also contained a number of provisions on mutual assistance and other forms of international cooperation, he said. All those provisions were generally based on a number of successful and respected precedents. What made the instrument different -- and what presented such a challenge to the negotiators -- was the scope of the offences covered. In the past, terrorism conventions had responded to specific incidents with highly specific offences, requiring frequent additions when an instrument became inadequate as new forms of terrorism emerged. The present draft countered the proven inventiveness of terrorists with its flexibility and manoeuvring room.
A notable development was achieved in the area of extradition, he said. For offences under the draft convention, State parties might not refuse extradition or assistance solely on the grounds that the offence was politically motivated. To accommodate delegations who could not contemplate removing the political offence exception for the most heinous crimes, offences aimed at causing property damage only -- rather than serious injury or death
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of persons -- were included only if the intended destruction was extensive and resulted in major economic loss.
The proposal concerning an exemption for military forces in the exercise of their official duties proved more difficult to resolve, he said. Informal discussions were continuing at capitals and on the margins of the Committee. More time would be required to resolve that and other outstanding issues.
CARLOS F. DIAZ (Costa Rica) said he hoped the draft convention would be adopted during the Assembly's current session.
HARRY VERWEIJ (Netherlands), speaking on behalf of the European Union, said the Union had contributed actively, both in and outside the United Nations, to measures aimed at combating terrorism. Efforts for the elimination of international terrorism sent a strong and clear message that the fight against it concerned all States individually, as well as the United Nations as an organization. No single nation or group of nations could win the battle against international terrorism on its own.
The European Union's member States had participated actively in the negotiations in the drafting of an international convention for the suppression of terrorist bombings. The General Assembly's decision on the elaboration of that convention was important. Many countries in the world, and many Union members among them, were the unfortunate victims of sinister and indiscriminate bombings which brought terror and death to innocent people.
BERNARDINO SEGUIER CABALLERO (Paraguay) spoke on behalf of the Rio Group -- Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Mexico, Panama, Peru, Uruguay, Venezuela, Honduras (for Central America) and Guyana (for the Caribbean). He said important progress had been made at the international level to strengthen the legal framework for confronting terrorism. At the regional level, judicial cooperation against terrorism, drug and weapons trafficking and other illicit activities had been strengthened. A declaration adopted at the Rio Group's summit at Asunción included the issue of terrorism, which was considered as a threat to peace and the development of their peoples. International cooperation based on the principles of the United Nations Charter represented the best means of confronting international terrorism. Such cooperation must be intensified.
The Rio Group supported the work of the Ad Hoc Committee and noted the important advances it had made, he said. The draft convention elaborated subsequently by the working group of the Sixth Committee contained novel elements that amplified the existing mechanisms on judicial cooperation and assistance. In some cases, the duties imposed on States on the issue opened new avenues in the war on terrorism.
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The Group condemned any abuse of the system of asylum, he said. Those who internationally committed criminal acts for political ends should be prosecuted to the full extent of the law. The Group would continue to support all initiatives that would result in the elimination of the terrorist threat. It was firmly committed to strengthening the juridical and political framework to effectively fight terrorism.
HISASHI OWADA (Japan) said that last year his delegation stressed the urgent need for the international community to deal squarely with the issue of terrorism as one of the major threats to the maintenance of the international public order. Just two months later, in December 1996, a group of terrorists stormed the residence of the Japanese Ambassador in Peru and occupied it, holding 72 hostages for more than 120 days. That terrible event had reinforced Japan's resolve to combat terrorism and to strengthen international cooperation to that end.
He said it was unfortunate that the draft international convention on the suppression of terrorist bombings was not yet ready for adoption, owing to differences regarding its application to the activities of military forces. His country understood the objection that some of the proposals gave the impression that the convention condoned otherwise unlawful conduct by a State or its military forces. Nevertheless, the activities of foreign military forces enjoyed immunity from national legal processes. The convention should not apply to the activities of States' military forces undertaken in connection with their official duties. It was hoped those differences could be reconciled so the convention might be finalized and adopted.
FOUNE SYLLA (Mali) said that, although international terrorism had not decreased worldwide, his country had taken steps to reduce the types of terrorism that confronted it. Legislation had been passed on drugs and arms trafficking, and Mali had signed on to international legal instruments aimed at suppressing terrorism. Importing or exporting toxic substances or illegal drugs earned a penalty of five to 10 years of forced labour and heavy fines. Those who grew or produced such substances faced a life sentence.
The proliferation of weapons was a particularly urgent problem in Africa, and his country had also taken steps to enforce harsh punishments for such actions, he said. Mali had also signed an agreement with six other countries to cooperate in efforts to eliminate cross-border acts of aggression, such as drug and weapons proliferation. In a world that had been reduced to a planetary village, all countries should work together to eliminate criminal acts, including ecological and economic criminality. It was imperative that a consensus be reached regarding the elimination of terrorism.
MOHAMAD A. AL-AJLAN (Saudi Arabia) said his country had signed and ratified a number of international conventions relating to terrorism, and
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hoped for intensified efforts to achieve the convention against terrorist bombings. All delegations were urged to reconsider their position on aspects of the draft convention with which they disagreed. Saudi Arabia condemned all forms of terrorism and called for an acceptable convention that would command wider acceptance.
He said that an international community of secure and peaceful coexistence for the benefit of mankind could be achieved through international cooperation, on the one hand, and protection of the interests of small States, on the other. Some countries were acquiring more lethal weapons, far beyond their needs. That affected international efforts to achieve peace and security.
TREVOR P. CHIMIMBA (Malawi) said his delegation would have preferred more elaborate provisions in the convention on the suppression of terrorist bombings. The present article 2, on what acts were covered by the convention, did not seem to go far enough. The convention should also contain a provision envisaging the possibility of crimes covered by it being tried by an international tribunal. The failure to establish international jurisdiction as in the Genocide Convention seemed to be a weakness of the present draft.
Draft article 3, which states that the convention would not apply to military forces, should not be a stumbling-block to adoption, he said. It was imperative that extra efforts should be made so that the draft convention, as a whole, stressed that all acts, methods and practice of terrorism were criminal and unjustifiable, wherever and by whomsoever committed.
CHANG BEOM CHO (Republic of Korea) said his country deplored the escalation of international terrorism and strongly condemned it in all its forms, regardless of what its purposes or perpetrators. Terrorism posed a serious threat to the security, stability and development of the global community and was a problem that no one single country could deal with alone. No tolerance should be allowed for the heinous crimes of terrorists, who should be brought to justice and refused safe haven. His country had acceded to seven conventions on terrorism and was considering favourably to become party to others.
MOHD TAHIR (Brunei Darussalam) said that in its efforts to become a service hub for trade and tourism in South-East Asia by the year 2003, his country had embarked on various programmes to upgrade security measures at international points of entry. It had also completed a workshop on measures to eliminate terrorism involving various senior officers from United States departments and agencies. New technical and legal security measures were currently being formulated with the assistance of experts from the United States Federal Aviation Authority as a result of that workshop.
The element of actus reus and mens rea must exist and be clearly defined in the general principles of criminal law provided for in the draft convention
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on the elimination of terrorist bombings, he said. That would ensure that there was no room for legal confusion when the convention was applied. The international community could also into the possibility of preventing and discouraging terrorist organizations or individuals from seeking refuge or establishing safe havens from legitimate prosecution.
[Note: "Actus reus" is defined as a wrongful deed which renders the actor criminally liable if combined with "mens rea" -- which is defined as "a guilty mind", a guilty or wrongful purpose, criminal intent.]
AUREL PREDA (Romania) reaffirmed his country's commitment to the various international conventions relating to terrorism and expressed its willingness to be active in international efforts to curb terrorism, including acts of nuclear terrorism. Romania was convinced of the need for cooperation, specifically through the exchange of information.
He drew attention to a 3 October declaration by the Presidents of Bulgaria, Turkey and Romania, on the fight against organized crime, illegal trafficking in small arms, narcotic drugs and terrorism. The declaration provided for the extradition of persons guilty of acts of international terrorism.
Importance should also be attached to public education on terrorist crimes, he said. The United Nations should be involved in the dismantlement of terrorism infrastructures all over the world. No nation alone could prevent and combat terrorism.
ROHAN PERERA (Sri Lanka) said that as recently as October, the commercial centre of Colombo was subject to a devastating bomb attack, in which a number of innocent civilians died and suffered injury and considerable damage was caused to public buildings. His office had not escaped the effects of the attack. For his delegation, the suppression of terrorist bombings was not a question of legal semantics, but a matter of life and death.
Democratic polity cherished by the people of Sri Lanka for 50 years had come under severe stress and strain as a result of the continuing acts of terrorism by groups, who believe in the resort to terrorism as a means to an end, he said. A strong message must go out from the United Nations without further delay, through the creation of legal norms, that the resort to terrorism against unarmed civilians was morally repugnant and legally unacceptable.
He said the convention did not completely satisfy all the concerns of every delegation, and his was no exception. However, to strive for a perfect convention and postpone action would be self-defeating. The time had come to demonstrate a spirit of compromise to achieve consensus. The failure to reach agreement on a matter which affected the very survival of organized society
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would only send a wrong signal. It would represent a failure of the collective will of the United Nations in its resolve to combat a threat which took a heavy toll on innocent civilian lives.
Introduction of Draft Resolutions
LILLY SUCHARIPA (Austria) introduced the draft resolution on UNCITRAL's Model Law on Cross-Border Insolvency. She said that Iceland, Jamaica and the former Yugoslav Republic of Macedonia had joined in sponsoring it.
She also introduced draft resolution on the report of UNCITRAL. She said, in operative paragraph 5, the word "States" should replace "Governments" in the first line. The paragraph would read as follows: "Invites States to nominate persons to work with the private foundation established to encourage assistance to the Commission from the private sector." She said that Germany, Iceland and the former Yugoslav Republic of Macedonia had joined as co-sponsors of the draft.
The draft resolution on the report of UNCITRAL was approved without a vote, as orally revised.
The representatives of Japan and Colombia said their countries would join in sponsoring the draft on UNCITRAL's Mode Law.
The draft resolution on UNCITRAL's Model Law on Cross-Border Insolvency was approved without a vote.
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