SIXTH COMMITTEE CONSIDERS ADDITIONAL EFFORTS TO COMPLETE INTERNATIONAL CONVENTION ON JURISDICTIONAL IMMUNITY OF STATES AND THEIR PROPERTY

9 November 1998

Press Release
GA/L/3091

SIXTH COMMITTEE CONSIDERS ADDITIONAL EFFORTS TO COMPLETE INTERNATIONAL CONVENTION ON JURISDICTIONAL IMMUNITY OF STATES AND THEIR PROPERTY

19981109 Many Speakers Urge Establishment of Committee Working Group To Consider Draft Articles during Fifty-fourth Assembly Session

Great difficulties still existed regarding the international community's search for common understanding and a final solution to the question of State immunity, the representative of China told the Sixth Committee (Legal) this afternoon as it discussed a convention on jurisdictional immunities of States and their property

At present, there was no uniform theory or practice among States regarding jurisdictional immunity, he said. The controversy surrounding absolute immunity versus restrictive immunity had been a perennial topic in international legal circles. The time had not yet come for convening a diplomatic conference to conclude such a convention.

At its forty-third session in 1991, the International Law Commission adopted the final text of a set of 22 draft articles for an international convention on the jurisdictional immunities of States and their property. The Commission submitted them to the General Assembly with a recommendation that the Assembly convene an international conference of plenipotentiaries to examine the draft articles and to conclude a convention on the subject. Last year, the Assembly decided that the Sixth Committee should consider whether a working group should be established at the fifty-fourth session of the General Assembly.

The representative of Italy pointed out that an instrument on jurisdictional immunity would provide States and private parties with greater certainty on a wide range of legal matters and would benefit international trade. However, in order to achieve that goal, it was essential to find an acceptable synthesis of solutions provided by different legal systems.

Also speaking this afternoon were the representatives of Panama (on behalf of the Rio Group), Japan, France, United States, Belgium, Ukraine, United Kingdom, Guatemala, Greece, Bangladesh, Cuba and the Czech Republic.

The Committee will meet again tomorrow at 3 p.m. to begin its review of the Statute of the Administrative Tribunal.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to discuss the agenda item on Convention on jurisdictional immunities of States and their property.

The Committee had before a Secretary-General's report (document A/53/274 and Add.1) which contains comments from Austria, France and Germany on specific articles and paragraphs of the draft convention. Their observations are submitted in accordance with General Assembly resolution 52/151 which solicited comments from Member States on the proposed convention, and by which the Assembly decided to consider again the item on convention on jurisdictional immunities of States and their property, with a view to the establishment of a working group at its fifty-fourth session, taking into account the comments submitted by States..

A discussion of the issue of jurisdictional immunities first began in 1978 in the International Law Commission. In 1986, the Commission completed a first reading of draft articles of such a convention which it had drawn up. Following a second reading, the Commission approved a final text on the draft of 22 articles and submitted them to the General Assembly in 1991, with a recommendation that the Assembly convene an international conference of plenepotentiaries to examine the draft articles and to conclude a convention on the subject.

Some of the issues surrounding an attempt, through the draft articles, to codify on an international level a legal regime governing the concept and content of jurisdictional immunity of States and their property include: theories of whether there should be absolute or restricted State immunity, that is, were there circumstances where the principle of State immunity could not be applied; and the growth of international trade and participation in it by States and State commercial enterprises, and to what extent those activities might be or should be covered by a blanket of State immunity.

Statements

JUDITH MARIA CARDOZE (Panama), speaking on behalf of the Rio Group, said that in 1977, the General Assembly had recognized the importance of the issue of jurisdictional immunity of States and their property to the international community. Yet, 20 years later, there was still no instrument. The Rio Group remained convinced of the usefulness of such a convention. Such an instrument would provide greater security for States in the conduct of their relations. Although there were differences of opinions on the issue, she believed the draft articles constituted an excellent basis for further discussion. It was time to reactivate work on the matter, she said.

KANSUKE NAGAOKA (Japan) said State practices regarding jurisdictional immunities were based upon either the so-called "doctrine of absolute

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immunity" or that of restrictive immunity. That could introduce a confusion into the rules of international trade. It was necessary, therefore, he said, for a convention to be concluded with sufficient room for flexibility to ensure wider participation of States. Such a convention should also ensure harmonious development of State practices with respect to decisions of local courts within a framework to be formed by the convention. The draft articles prepared by the Commission remained valid, though several years had passed since their adoption, he said. His Government believed that the draft articles provided a solid basis for further discussion of the topic.

He said the draft articles should not be left in limbo any longer. His government supported the establishment of a working group at the fifty-fourth session of the General Assembly to consider the topic. A reconsideration of specific articles which the Commission had already adopted would not be acceptable, he said, and added that the Commission's work must be regarded as supplementary to the consideration of the working group.

GAO FENG (China) said that, at present, there was no uniform theory or practice among States regarding jurisdictional immunity. The controversy surrounding absolute immunity versus restrictive immunity had been a perennial topic in international legal circles. Great difficulties still existed in the international community's search for common understanding and a final solution to the question of State immunity.

Since the end of the Second World War, the functions of the State had become more complex, he said. More and more States were engaging in international trade and transactions on their own behalf. While some of those commercial transactions were for profit, others sought to promote public welfare, such as the purchasing of grain for disaster relief purposes. In the latter instance, it was obviously inappropriate for a foreign court to exercise jurisdiction over that State when it had not expressly given up immunity beforehand.

Other issues to be resolved included the definition of States and their property, the criteria by which a transaction was judged to be commercial, and whether giving up immunity from procedural jurisdiction meant giving up immunity from enforcement measures. The time had not yet come for the convening of a diplomatic conference to conclude a convention.

FRANCOIS ALABRUNE (France) said his country favoured the elaboration of a convention on jurisdictional immunities of States and their property. He said any State could determine unilaterally the immunities which others would enjoy on its territory. A convention would, therefore, restrict the proliferation of such immunities. He recalled the General Assembly recommendation that a working group of the Sixth Committee be established at its fifty-fourth session.

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His delegation did not think that the International Law Commission should review the topic again, he said. Account should be taken of State practices in the area of jurisdictional immunities of States. France had already submitted its views on that.

He recalled that the General Assembly had accepted the recommendation of the International Law Commission about the convening of an international conference of plenipotentiaries on the topic. France would like to see a follow-up to that recommendation, he added.

MAURO POLITI (Italy) said he wished to reaffirm Italy's deep interest in the adoption of a widely accepted international convention on jurisdictional immunity. Such an instrument would provide States and private parties with greater certainty on a wide range of legal matters and would benefit international trade. However, in order to achieve that goal, it was essential to find an acceptable synthesis of the solutions provided by different legal systems. He supported the idea of continuing discussion on the draft articles and to establish a working group of the Sixth Committee. He expressed hesitation about setting specific deadlines for the conclusion of discussions in the working group, as well as for the convening of a diplomatic conference. There were still a number of substantive issues related to the draft articles on which general agreement needed to be reached.

ROBERT B. ROSENSTOCK (United States) said the issues that divided delegations on the topic included the nature versus purpose of transactions and measures of constraint. He said that without a clear and unequivocal provision in the draft articles that incorporated the nature-only test, his Government would not be able to accept a convention on jurisdictional immunities of States and their property.

A growing number of delegations shared that view, he said. He was aware that other delegations had different views, hence the lack of consensus. The United States was not aware of any development which suggested a likelihood of agreement today. The paucity of comments from governments and the three comments received by the Secretariat did not suggest any narrowing of the differences. Attempting to force the issue would lead to the hardening of positions.

EVERT MARECHAL (Belgium) said only non-standardized jurisprudence existed on jurisdictional immunity. Most disputes in Belgium involved diplomatic missions which were not covered by the Vienna Conventions. As had been stressed by many speakers, a convention would make it possible to have greater international harmonization. He therefore supported the establishment of a working group to study the most important aspects of jurisdictional immunity.

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VIKTOR Y. KACHURENKO (Ukraine) said his delegation supported the convening of an international conference of plenipotentiaries to consider the issue of jurisdictional immunities of States and their property. He said the draft articles prepared by the International Law Commission should form the basis for discussion at a conference. The chance for early work on the convention should not be missed. Differences between States on some aspects of the draft articles could be resolved within the working group which had been proposed. The working group, if established, should be given enough time to complete its work.

SUSAN DICKSON (United Kingdom) said the working group could meet next year as proposed by the General Assembly. It should first examine the major substantive issues and then consider whether there were specific areas in which the International Law Commission could comment. Her delegation would like the Commission to contribute further on the topic. The Commission should be given more time to do its work, if it were to take up the issue again.

ROBERTO LAVALLE-VALDES (Guatemala) said the issue of jurisdictional immunity could now be considered part of customary internal law. However, it was without a legal regime to govern it. It was startling that there were no general laws on the matter. He was disappointed that the General Assembly had not set a date for a conference and had deferred consideration of a convention.

MARIA TELALIAN (Greece) said a convention would eliminate disparities between national rules governing jurisdictional immunities. She supported the establishment of a working group within the Sixth Committee next year, as had been proposed by the General Assembly. She was not convinced about the usefulness of requesting the International Law Commission to present fresh comments on the issue. The convening of an international conference of plenipotentiaries to consider the question of jurisdictional immunities should not be precluded in the future.

A.K.H. MORSHED (Bangladesh) also supported the establishment of a working group. He said the Commission should be requested to come up with fresh comments on the topic.

YAMIRA CUETO MILIAN (Cuba) said the question of jurisdictional immunities was a complex one and any process of codification of instruments in that field would necessarily have to reconcile the diversity in the practice of States, as well as seek a common denominator. The Committee should accept the Commission's report as fact, using the draft articles as the basis for further discussions. The relevant Assembly resolution clearly provided the basis for the creation of a working group. Her delegation would like to stick to what was outlined by the General Assembly resolution. She did not see the need to ask for additional comments. She supported the creation of the working group for the next session of the General Assembly.

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MARTIN SMEJKAL (Czech Republic) said the issue of jurisdictional immunity was a very difficult and complex subject. The subject fell more within the field of comparative law at this stage, rather than general law. Generally, jurisdictional immunity was left to States. In the Czech Republic, it was governed by domestic law that was rather skeletal. It was, therefore, very important to take concrete steps towards codification of international law in that area. The draft articles represented a good basis for further work, but were not free of questions. It was important to take a decision this year to convene a working group for next year.

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