IN SIXTH COMMITTEE, PERSPECTIVES VARY AS TO UTILITY, FEASIBILITY OF LEGAL INSTRUMENT ON STATE IMMUNITY

Press Release
GA/L/3123

IN SIXTH COMMITTEE, PERSPECTIVES VARY AS TO UTILITY, FEASIBILITY OF LEGAL INSTRUMENT ON STATE IMMUNITY

The Sixth Committee (Legal) this afternoon concluded its consideration of the jurisdictional immunities of States and their property, in the context of its ongoing examination of the report of the International Law Commission.

Participating in the discussion were the representatives of Guatemala, India, Australia and the United Republic of Tanzania.

The International Law Commission has been attempting to identify the circumstances under which States should be prevented from invoking jurisdictional immunity for themselves or their property in connection with proceedings against them in the court of another State. It has been working this year on updating a 1991 version of draft articles on jurisdictional immunities of States and their property. To that end, a Commission working group looked at recent developments in State practice and legislation, as well as comments submitted by States, and prepared suggestions. Those proposals, annexed to the Commission's report, were designed to inform the work of an open-ended working group of the Sixth Committee.

The representative of Australia, citing the potentially contentious nature of several issues connected with jurisdictional immunity, questioned whether the draft articles would ever be appropriate for consideration at a diplomatic conference. As an alternative to a binding instrument, he urged serious consideration of the elaboration of a model law on jurisdictional immunities of States. The Tanzanian representative, however, envisaged the possibility of a Convention on the subject, provided the text were formulated so as to promote stability, predictability and equity.

The Commission will meet tomorrow, 29 October at 3 p.m. to take up the chapter of the Commission's report dealing with State responsibility.

Programme of Work

The Sixth Committee (Legal) this afternoon continued consideration of the International Law Commission's efforts to articulate the circumstances under which States should be prevented from invoking jurisdictional immunity for themselves or their property in connection with proceedings against them in the court of another State.

The Commission's 1999 report (document A/54/10 and Corr.1 and Corr.2) states that the Commission set up a working group to prepare comments on outstanding substantive issues in the Commission's 1991 version of draft articles on jurisdictional immunities of States and their property. These were to be forwarded to the attention of a working group the Sixth Committee would set up at this session to update the draft articles.

(For details of the report of the International Law Commission generally, see Press Release GA/L/3118 of 25 October 1999. For details of the annex on jurisdictional immunities, see GA/L/3121, issued this morning.)

Statements

ROBERTO LAVALLE (Guatemala) said that interest in the jurisdictional immunity of States and their property had grown with the increasing involvement of States in commercial activity as a result of trade liberalization. There could no longer be a postponement of codification of laws in this area. The absence of such laws posed difficulties for developing countries, few of which had developed case law in the field.

He was grateful for the working group’s report. Guatemala agreed to the redrafting of the Commission’s draft articles relating to the definition of terms, such as the concept of State. There should be a provision to the effect that State action as defined in the draft article 2 was action based on the exercise of the authority of the State, although that could be challenged.

Guatemala had reservations about the proposal to delete references to the “nature and purpose” tests for determining commercial transactions.

T. N. CHATURVEDI (India) said the drafting of draft articles on nationality had been guided by several important principles, such as the issue being essentially governed by internal law and the need for sensitivity both to the legitimate interests of States and to those of individuals. The text emphasized the right of every person, including children, to nationality. Occupation of territory by use of force, or any other exchange or separation of territories accomplish without a State's consent, was outside the scope of the draft, as such acts would generally be considered illegal.

The draft articles had a fine line and did not endorse or denounce the right of States to grant and recognize dual or multiple nationalities, he noted. States were required to take suitable measures to safeguard family unity. The articles would play a very useful role as a legislative guide for States. The draft should take the form of a declaration as that would allow States the necessary flexibility in applying the principles, and also avoid the long time lag associated with the entry into force of a convention. Concerning jurisdictional immunities, he took note of the Commission’s useful suggestions; he was confident that the Sixth Committee's working group would be able to achieve consensus on the basis of those proposals.

DAVID BLUMENTHAL (Australia), speaking on commercial transactions in the context of jurisdictional immunity, said that in the light of the different tests applied in different States, it would be necessary for parties to commercial transactions to specify in their dealings the criterion by which the transaction was to be characterized. Given the potentially contentious nature of several issues, it was questionable whether the draft articles were appropriate for consideration in a diplomatic conference.

Concerning measures of constraint against State property, he said immunity should not be so extensive as to virtually reintroduce the rule of absolute immunity. Australia supported the deletion of certain existing provisions in the draft so as to enable execution of judgements where a State was properly subject to jurisdiction. However, such a solution might be too sweeping for acceptance by all States. The suggestion of drawing up a model law on immunities deserved serious consideration.

He supported adoption of the draft articles on nationality in relation to succession of States in the form of a declaration. A declaration would provide clear guidance and would preclude the elaboration of a legally binding instrument at a later stage if that became necessary. The extent of political transitions and the consequent potential for statelessness in so many parts of the world, including his own region, made the Commission’s contribution an important and timely one.

TUVAKO MANONGI (United Republic of Tanzania) said the codification of law on immunities of States required careful consideration. It demanded not only an evaluation of legal principles and existing State practice, but also the support of the international community. A convention on State immunity should be one that received the widest possible support, as that would promoted stability, predictability and equity.

He regarded the Commission’s draft provisions on commercial transactions as an important effort, but regretted the Commission’s decision not to pursue the elaboration of criteria further. That question was critical to Tanzania, which saw anything less, an endorsement of the status quo. The draft text was a good basis for negotiation.

Tanzania was concerned about the provision relating to contracts and employment. It saw the distinction between sovereign and commercial acts in the context of such obvious commercial acts as the sale of goods, guarantees or loan agreements as being simpler. It did not see the distinction as simple in relation to employment.

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