ADDITIONAL MEETINGS FOR CRIMINAL COURT'S PREPARATORY COMMISSION RECOMMENDED BY ASSEMBLY'S LEGAL COMMITTEE

Press Release
GA/L/3139

ADDITIONAL MEETINGS FOR CRIMINAL COURT'S PREPARATORY COMMISSION RECOMMENDED BY ASSEMBLY'S LEGAL COMMITTEE

The General Assembly would schedule two extra sessions for the Preparatory Commission for the International Criminal Court, to enable it to complete its work on time, and also split the next annual session of the International Law Commission, according to draft resolutions approved this morning by the Sixth Committee (Legal).

The draft on the Criminal Court would have the Assembly ask the Secretary-General to convene the Preparatory Commission next year from 13 to 31 March, 12 to 30 June and 27 November to 8 December. In the Committee’s substantive debate on the Court, speakers were virtually unanimous in their concern that, without the benefit of additional meeting time, the Commission would not be able to complete its work on the technical underpinnings for the Court by the deadline of 30 June 2000 set by the Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 1998). [The Rome Conference called for the Preparatory Commission to finalize two key texts -- Rules of Procedure and Evidence and Elements of Crimes -- by that time. Other outstanding issues include a legal definition of the crime of aggression.]

That text was one of four draft resolutions approved by the Committee this morning, all without votes.

A draft on the International Law Commission would have the Assembly take note of the Commission’s most recent annual report. It would draw the attention of Governments to the importance of providing their views to the Commission on various issues on the Commission's agenda, and stress the desirability of enhancing dialogue between the International Law Commission and the Sixth Committee.

A paragraph in that text that would have the Assembly decide that the next session of the Commission would be held in two, three-week segments (from 1 May to 6 June and 10 July to 18 August 2000) was approved in a separate recorded vote of 111 in favour to one against (United States), with four abstentions (Guinea, Mali, Tunisia and Ukraine). (For further details of the vote, see Annex.)

Sixth Committee - 1a - Press Release GA/L/3139 36th Meeting (AM) 19 November 1999

In calling for the vote on that paragraph, the United States representative explained that it opposed the provision because of the increased costs it would entail [primarily for travel of staff and participants, according an accompanying state of financial implications]. Hitherto, the Commission has conducted its work in a single six-week session.

A draft on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, would have the Assembly authorize the continuation of various educational activities, including international law fellowships, seminars and grants for travel to such events, subject to the availability of funds. The Assembly would ask the Secretary-General to consider the possibility of having the various Programme components admit candidates whose participation was funded by their countries, and to consider the merits of funding regional, sub-regional or national courses, rather than organizing courses within the United Nations system.

The representative of the Solomon Islands, explaining his failure to support the adoption of that text, expressed strong opposition to its failure to emphasize the need for activities that would make the principles and mechanisms of international law accessible to the general public, and not just to legal scholars.

Also adopted was a draft resolution by which the Assembly would decide that work on a draft convention on jurisdictional immunities of States and their property should continue next year in an open-ended working group of the Sixth Committee. The working group would be instructed to consider not only outstanding substantive issues related to the draft articles on jurisdictional immunity that were adopted by the Commission in 1991, but also the form in which they should be codified.

Before taking action, the Committee concluded its debate on the subject of jurisdictional immunities of States and their property. In that discussion, differences emerged as to whether the working group should continue trying to incorporate the draft articles into an international convention, or finalize them in the form of a model law that might more readily achieve consensus.

The representative of the Ukraine said that although there were advantages to a model law, it would lead to a presumption that the international community was unable or lacked the political will to undertake an effective codification of international law on jurisdictional immunities. The legal weight of a model law would be far from sufficient to ensure the avoidance of uncertainties, inconsistencies and disparities in States’ practice, he added.

The speaker for South Africa, on the other hand, said the drafting of a model law was the most realistic option. A model law offered definite advantages, as a non-binding legal instrument that could provide guidance to

Sixth Committee - 1b - Press Release GA/L/3139 36th Meeting (AM) 19 November 1999

States in updating their national legislation. The United Kingdom representative said that option would be a successful and realistic conclusion of work on the topic and suggested, as did the German speaker, that the draft articles be reformulated for that purpose.

Statements in the debate were made by the representatives of Mexico (on behalf of the Rio Group), Japan, Myanmar, Burkina Faso, United Kingdom, Germany, Czech Republic, Slovakia, Ukraine, France, Netherlands and South Africa.

The representatives of Syria and Lebanon spoke in explanation of vote on the draft on the Criminal Court.

Speaking in explanation of vote on the draft on the work of the International Law Commission were the representatives of Finland (on behalf of the European Union), Côte d’Ivoire, United States, Canada and United Republic of Tanzania.

The Sixth Committee will meet next at 10 a.m., Tuesday, 23 November 1999 to act on its remaining draft resolution, concerning measures to combat international terrorism, and to conclude its work for the session.

Committee Work Programme

The Sixth Committee (Legal) met this morning to take action on several draft resolutions and to continue their discussion of jurisdictional immunities of States and their property.

A discussion of the issue of jurisdictional immunities first began in 1978 in the International Law Commission. In 1991, the Commission approved a final text on the draft convention of 22 articles and 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 to establish at this session, an open-ended working group of the Sixth Committee, to consider outstanding substantive issues relating to the draft articles on jurisdictional immunities. The working group was expected to take account of recent developments in State practice and legislation as well as the comments submitted by States on the matter.

The objective of a convention would be to codify on an international level, a legal regime governing the concept and content of jurisdictional immunity of States and their property. Among the issues surrounding the debate are theories of whether State immunity should be absolute or restricted under certain circumstances; and to what extent, given the growth of participation in international trade by States and State commercial enterprises, those activities should be covered by a blanket of State immunity.

Among the draft resolutions before the Committee is one on the International Criminal Court (document A/C.6/54/L.8/Rev.1), by which the General Assembly would ask the Secretary General to convene the Court’s Preparatory Commission from 13 to 31 March, 12 to 30 June, and 27 November to 8 December 2000.

All States would be called upon to consider signing and ratifying the Rome Statute. The Assembly would encourage States to make voluntary contributions to the trust funds set up to defray the costs of the participation of least developed countries and other developing countries.

A draft resolution on the convention on jurisdictional immunities of States and their property (document A/C.6/54/L.19) would have the General Assembly take note with appreciation the report of the working group of the International Law Commission on that topic (annexed to the Commission’s annual report). States would be urged to submit their comments on that report to the Secretary-General in writing by 1 August 2000.

The General Assembly would further decide to have the Sixth Committee working group on the subject continue its work on the Assembly’s next session.

By a draft on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/54/L.14), the Assembly would approve the Secretary-General’s guidelines and recommendations (outlined in document A/53/10), particularly those designed to achieve the best possible results in the administration of the programme with maximum financial restraint.

The activities the Secretary-General would be authorized to carry out in 2000 and 2001, as set forth in his report, would include international law fellowships, a scholarship under the Hamilton Shirley Amerasinghe Memorial Fellowship on the Law of the Sea (subject to the availability of new voluntary contributions made specifically to the fellowship fund), and travel grants for scholars, subject to the availability of overall Programme resources.

The Assembly would also ask the Secretary-General to consider allowing United Nations-sponsored legal education programmes to admit candidates whose countries would be willing to bear the entire cost of their participation. He would further be asked to consider the relative advantages of using available resources and voluntary contributions to subdisize regional, sub-regional or national courses, rather than organizing courses within the United Nations system.

By other provisions of the text, the Assembly would welcome secretarial efforts to bring up to date the United Nations Treaty Series and the United Nations Juridical Yearbook, and its placement of the Treaty Series and other legal information on the Internet.

It would express its appreciation to the Hague Academy of International Law for its contributions to the Programme and would call upon Member States and interested organizations to consider favourably the Academy’s appeal for financial contributions.

By a draft resolution on the Report of the International Law Commission (document A/C.6/54/L.7/Rev.1) the Assembly would draw the attention of Governments to the importance for the International Law Commission of having their views on issues before the Commission. It would reiterate its invitation to Governments to submit comments in writing by 1 January 2000 on the draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities) and to respond in writing by 1 March 2000 to the questionnaire on unilateral acts of State. It would also reiterate its invitation to Governments to submit national legislation, judicial rulings and practice relevant to "diplomatic protection".

According to the statement of programme budget implications for the draft on Commission (document A/C.6/54/L.21), a provision has been made in the programme budget for the 2000-2001 biennium to cover the convening of two 12-week sessions of the Commission at Geneva, one in 2000 and the other in 2001. Requirements for honoraria and travel for Commission members and Secretariat staff are estimated at $1,961,200.

Should the General Assembly adopt the draft contained in document A/C.6/54/L.7/Rev.1, the Commission would hold a 12-week split session at Geneva from 1 May to 9 June and from 10 July to 18 August 2000. The splitting of the session would entail additional costs for travel of the Chairman and members of the Commission ($90,000) and travel and subsistence for Secretariat members ($15,230). However, no additional resources would be required for the provision of conference services.

Statements made

SOCORRO FLORES (Mexico), speaking on behalf of the Rio Group, said that Member States had had several years to reflect in depth on the convention on jurisdictional immunities. The international community had now demonstrated its resolve to move towards the adoption of clear and precise rules that would assist States in avoiding the conflicts that arose in the practice of granting and interpreting such immunity in respect of States and their property. She called for greater efforts by Member States to overcome the remaining difficulties with the text. The time allotted to the working group had been insufficient to allow progress on matters of substance. The Rio Group had always supported the adoption of this convention; there was no justification for further delay.

HIROSHI KAWAMURA (Japan) dwelt on the five substantive issues outstanding in the work on the draft articles concerning jurisdictional immunities of States and their property. Some delineation would be useful to make the concept of a "state", for purposes of immunity, widely acceptable. The proposal of the International Law Commission, to delete references to specific criteria for determining the commercial character of a contract or transaction, deserved consideration. Japan intended to come up with specific jurisprudence on State practices to help achieve a compromise. It was concerned by some aspects of the draft articles concerning contracts of employment. He called for intensive discussions on measures of constraint against State property, with the aim of achieving a compromise.

If a model law option were accepted, the draft articles would have to be reformulated, he remarked.

U HLA WIN (Myanmar) said the definition of “commercial transaction” in the convention was very important because in such a transaction, a State could not exercise its jurisdictional immunity. There was a need to understand the practical side of what was taking place in the business world of Member States. Most States had domestic laws that created state-owned economic enterprises, which had their own legal personality and the right to sue or be sued. In business practice, they entered into various types of agreements with foreign investors or local investors. In that context, the State did not claim jurisdictional immunity. It was important that the definition enshrined in the convention reflect that principle in both the spirit and letter of the law.

He suggested further deliberation on issues related to aviation with the aim of formulating a draft article covering the entire area of transportation by sea and air. Draft article 18, on state waiver of immunity, was fairly drafted, he said.

ALAIN EDOUARD TRAORE (Burkina Faso) said codification of the draft articles into a model law would have positive aspects, including flexibility. But that flexibility could also be an obstacle to developing States. Some advanced countries could impose procedures to their advantage, without real guarantees being provided. There was need for a model law which could be adapted to provide uniformity.

SUSAN J.DICKSON (United Kingdom) said that international regulation of the question of State immunity would be desirable. However, the recent working group discussions had only served to confirm that the Sixth Committee was a long way from achieving any kind of consensus on the issues on which agreement would be needed before an international convention attracting widespread support could be concluded. The United Kingdom remained convinced that the time was not yet ripe to draft a convention on the subject.

The United Kingdom understood, on the other hand, that some States were seeking a legal instrument on jurisdictional immunities, she said. It shared the view expressed by a significant number of those in the working group that work on the issue could be brought to a successful and realistic conclusion by drafting a model law. At some point, the issue would have to be referred back to the International Law Commission, for reformulation of the draft articles.

GEORG WITSCHEL (Germany) welcomed the Commission’s proposal to bring the concept of “State” for purposes of immunity into line with the concept of “State” in the context of State responsibility, by attributing to the State the conduct of entities exercising governmental authority. It was also important to devise an appropriate solution for the status of constituent units of federal states in the immunity context.

As far as the determination of the commercial character of a contract or transaction was concerned, Germany endorsed the removal of any reference to the “nature and purpose” tests from draft articles. The proposed model law might be an appropriate way out of the present deadlock. Germany supported the continuation of work on the subject at the next session of the Assembly, and wanted the Commission to reformulate the draft articles into a model law.

IVO JANDA (Czech Republic) said the political and economic transformations of this century had produced significant departures from traditional concepts of state responsibility, making it apparent that the classical rule of absolute immunity had become outmoded. International codification of jurisdictional immunity was of the utmost importance, as suits and controversies relevant to questions of immunity were multiplying at an accelerating pace before national courts.

He said the draft articles represented a good basis for future codification efforts and reflected modern trends, which weakened the principle of absolute immunity on the one hand and strengthened the restrictive immunity approach on the other. If momentum were maintained and the working group given more time, the elaboration of a general multilateral instrument on jurisdictional immunities was not an unrealistic goal.

DRAHOSLAV STEFANEK (Slovakia) noted that, five years after the Assembly's resolution on the draft articles, a convention had not been concluded. Nor had a conference been held. The Commission had lived up to its mandate; it was now up to the Assembly to take advantage of the Commission’s work. The outcome of the working group had not been encouraging. There was still a spectrum of divergent views, particularly over the criteria for determining the commercial character of a contract or transaction. He agreed with the suggestion that the only way forward was to delete a reference to the specific criteria. Such a determination could be left to the discretion of the courts.

Slovakia preferred to see the draft articles take the form of a convention. The absence of a global convention had resulted in considerable legal uncertainty on this very practical issue. The status of the working group should not be diminished by allocating it such a limited time; three working days were insufficient.

MARKIYAN KULYK (Ukraine) said that deliberations in the working group had clearly proved the importance attached by the majority of Member States to the codification of rules of international law on jurisdictional immunities of States and their property. The establishment of a legal regime would contribute to the elimination of gray areas in international law and reduce disparities in States’ practice. He said international instrument was a realistic goal; his country strongly favored the elaboration of a convention. Although there were advantages to a model law, such an approach would lead to a presumption that the international community was unable or lacked the political will to undertake an effective codification of international law on jurisdictional immunities. The legal weight of a model law would be far from sufficient to ensure the avoidance of uncertainties, inconsistencies and disparities in States’ practice. All efforts should be extended to find a generally acceptable compromise and elaborate a practically- oriented instrument. Sufficient time should be allocated to the working group, and it should not be confined to a discussion of the five key outstanding issues.

FRANCOIS ALABRUNE (France) said his country did not share the view that a model law on jurisdictional immunities would be a more realistic instrument in the absence of a consensus. There was no need for an instrument that would leave open the door to a number of problems. France remained convinced that a model law would not be appropriate, and that a convention was the form the draft articles should assume. The working group should take up the item at the next session of the Assembly, and commence an article-by-article consideration of the text.

HARRY VERWEIJ (Netherlands) said the working group had rightly focused the debate on the most important topics. However, the difference in views were still so wide as to make it impossible to successfully negotiate a legally binding instrument. He suggested that a model law would have more success.

ALBERTUS JACOBUS HOFFMAN (South Africa) said no real progress had been made on bringing the very divergent views on the issue any closer together. Nor was there much hope of doing so in the future. He therefore recommended the drafting of a model law as the most realistic option. A model law offered definite advantages, as a non-binding legal instrument that could provide guidance to States in updating their national legislation.

Action on Drafts

HARRY VERWEIJ (Netherlands) introduced the draft resolution on the International Criminal Court.

The Secretary of the Committee said that, should the Assembly adopt it, no additional appropriations would be required for the 2000-2001 biennium.

The representative of Syria, speaking in explanation of position before the vote, requested a vision to the preamble.

The representative of Lebanon, also speaking in explanation of position, referred to the Commission’s working group on the crime of aggression and said that a legal definition of aggression was an essential matter to his country.

The Committee then approved the draft on the Court without a vote (document A/C.6/54/L.8/Rev.1).

Draft on jurisdictional immunities

HIROSHI KAWAMURA (Japan) introduced the draft resolution on jurisdictional immunities of States (document A/C.6/54/L.19), urging its approval without a vote. The Committee approved the draft text without a vote.

Draft on Programme of Assistance

HENRY HANSON-HALL (Ghana) introduced the draft resolution on the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/54/L.14), and recommended it for approval without a vote.

The representative of the Solomon Islands, speaking before the vote, said he would have liked to join the consensus but regrettably could not. His proposals to amend the draft to call for broadening the Programme to reach widely into civil society had not been capable of being acted upon in a timely way. His Government sought a programme that would serve as many people as possible through electronic and print media, schools and adult education. Furthermore, he said, the funding available to the Programme would always be very limited as long as its objectives were very limited. While the provision of some international law fellowships and travel grants, as well as assistance in the organization of seminars and funding for various law courses were commendable, it was pitifully little in the face of what needed to be done.

The Committee approved the draft resolution without a vote.

Action on Draft on International Law Commission

ANDRES FRANCO (Colombia) introduced the draft on the Commission.

The Chairman announced that the United States had requested a vote on operative paragraph 10, which would have the Assembly decide, “without prejudice to any future decision, that the next session of the Commission will be held at the United Nations Office in Geneva from 1 May to 9 June and from 10 July to 18 August 2000".

The representative of Finland, speaking on behalf of the European Union in explanation of vote, said she would vote in favour of the paragraph. The Sixth Committee had a tradition of approving its resolutions without votes. Member States should do their utmost to uphold that tradition. There were other options than requesting a vote. She hoped the threshold for resorting to the vote would be higher in future.

The representative of Côte d’Ivoire, speaking before the vote, said he would vote in favor of the draft. However, his country understood the phrase “will be held” in paragraph 10 to mean “would be held”.

The Committee then adopted operative paragraph 10 by 111 in favour to one against (United States), with four abstentions (Guinea, Mali, Tunisia and Ukraine).

The representative of the United States, speaking in explanation after the vote, said her country strongly supported the Commission and appreciated its efforts to improve the efficiency of its work. She had voted against operative paragraph 10 because of its budgetary implications. In view of her country’s support for the Commission, it would support the resolution. She said that operative paragraph 7 was misleading in its implication that there was a consensus that there should be early consideration of the question of liability for transboundary damage. The United States was among those that strongly supported deferring the issue.

The draft was approved without a vote.

The representative of Canada, after the vote, expressed concern over the budgetary implications of operative paragraph 10. He regretted that the proposal to reduce the Commission’s session by one week to offset the additional costs had not been accepted. Canada would review the matter very carefully next year.

The representative of the United Republic of Tanzania, speaking after the vote, said he was unsure what if any impact the draft's wording with respect to the holding of seminars it would have on the Commission’s ability to invite participants from developing countries. He added that the next time round, his country would seek clarification on that reference.

(ANNEX FOLLOWS)

ANNEX

Vote on Paragraph on 2000 Session of Commission

Operative paragraph 10 of the draft resolution on the International Law Commission (document A/C.6/54/L.7/Rev.1) was adopted by a recorded vote of 111 in favour to 1 against, with 4 abstentions, as follows:

In favour: Algeria, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Belarus, Belgium, Bolivia, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Cameroon, Canada, Chile, China, Colombia, Congo, Cote d’Ivoire, Croatia, Cuba, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Ghana, Greece, Haiti, Hungary, Iceland, India, Indonesia, Iran, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Lao People’s Democratic Republic, Lebanon, Libya, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Malta, Mexico, Monaco, Morocco, Mozambique, Myanmar, Namibia, Nepal, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, San Marino, Saudi Arabia, Senegal, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Swaziland, Sweden, Syria, The Former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Turkey, Uganda, United Arab Emirates, United Kingdom, United Republic of Tanzania, Venezuela, Viet Nam, Zambia.

Against: United States.

Abstain: Guinea, Mali, Tunisia, Ukraine.

Absent: Afghanistan, Albania, Antigua and Barbuda, Bahamas, Bangladesh, Barbados, Belize, Benin, Bhutan, Bosnia and Herzegovina, Botswana, Cambodia, Cape Verde, Chad, Comoros, Costa Rica, Cyprus, Democratic People’s Republic of Korea, Dominica, El Salvador, Equatorial Guinea, Eritrea, Estonia, Federated States of Micronesia, Fiji, Gabon, Gambia, Grenada, Guatemala, Guinea-Bissau, Guyana, Honduras, Jamaica, Kiribati, Latvia, Lesotho, Liechtenstein, Marshall Islands, Mauritius, Mongolia, Nauru, Nicaragua, Oman, Palau, Papua New Guinea, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Suriname, Tajikistan, Thailand, Tonga, Turkmenistan, Uruguay, Uzbekistan, Yemen, Zimbabwe.

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