LEGAL COMMITTEE APPROVES RANGE OF TEXTS ON EFFECTS OF SANCTIONS, DISPUTE SETTLEMENT, SAFETY OF PERSONNEL, OTHER ISSUES

Fifty-seventh General Assembly

Sixth Committee

25^th Meeting (PM)                                           

LEGAL COMMITTEE APPROVES RANGE OF TEXTS ON EFFECTS OF SANCTIONS,

DISPUTE SETTLEMENT, SAFETY OF PERSONNEL, OTHER ISSUES

Delegates Express Concern at Secretary-General’s ‘Economy’

Plan To Move Committee’s Technical Secretariat to Assembly Department

The Sixth Committee (Legal) approved five resolutions this afternoon, including one on assistance to third States affected by sanctions, in the course of its continued debate over the report of the International Law Commission on the work of its fifty-fourth session.

The Committee acted without a vote on all five texts.  By the terms of one, on implementing Charter provisions related to assisting third States affected by the application of sanctions, the General Assembly would invite the Security Council, its sanctions committees and the Secretariat to take a number of specific actions.  The draft said an analysis of the effect sanctions would have on third States should be included in both pre-assessment reports and ongoing assessment reports.  Recommendations should be sought on how to mitigate negative effects on third States.  The Special Committee on the Charter would be asked to consider the question as a priority at its 2003 session.

Introducing a draft on the prevention and peaceful settlement of disputes, the Chairman of the Committee, Arpad Prandler, recalled that the resolution was a successful outcome of the Charter Committee’s work during its 2002 session.  By the draft, the Assembly would urge States to use existing measures for preventing and settling disputes, and the Secretariat would be asked to improve the United Nations capacity to respond by strengthening mechanisms for information-sharing, developing an early-warning plan, training and cooperating with regional organizations.

Also approved were resolutions on the report of the Special Committee on the Charter.  One dealt with the scope of legal protection under the Convention on safety of United Nations personnel and the other, the Convention on Jurisdictional Immunities of States.

In addition, the representative of Sweden introduced a draft on recommending observer status in the General Assembly for the International Institute for Democracy and Electoral Assistance.  The representatives of China, Egypt, Sudan and Libya made statements proposing that consideration of the item be deferred

until next year; those of Namibia, Costa Rica, Germany, India, Chile and Belgium called for a consideration at the present session.

The debate on the Law Commission’s report today focused on the final chapters of the report, dealing with unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics.

On fragmentation of international law, Jordan’s representative said the risks and complexities of fragmentation justified the Commission’s work on it.  Those risks had been highlighted by international law jurists, including the President of the International Court of Justice.

Also speaking this afternoon were the representatives of Romania, Poland, Switzerland and Japan.

Today’s meeting concluded with an exchange over the proposed transfer of the Committee’s technical secretariat from the Office of Legal Affairs to the Department for General Assembly and Conference Management.  The Under-Secretary-General in the Department, Jian Chen, took part, as did Assistant Secretary-General Miles Stoby from the Department.  Under-Secretary-General and Legal Counsel, Hans Corell, also spoke.  The representatives of Switzerland, Peru, Austria, United States, Cuba, Costa Rica, United Kingdom, Slovakia, Argentina, Netherlands, Jordan and Ethiopia took part in the discussion.

The Committee meets again at 10 a.m. tomorrow, 6 November, to continue the debate on the report of the International Law Commission, and to begin debate on the report of the Committee on Relations with the Host Country.

Background

The Sixth Committee (Legal) met this afternoon to continue its discussion on the Report of the International Law Commission on the work of its fifty-fourth session (document A/57/10 and Corr.1).  The focus was to be on the final chapters covering unilateral acts of States; international liability; responsibility of international organizations; fragmentation of international law; and other decisions, including new topics.

(For more details on the Commission's report, see Press Release GA/L/3220 of 28 October.)

Also this afternoon, the Committee was expected to hear the introduction of a draft resolution, and to take action on others, relating to the work of the Special Committee on the Charter in the peaceful settlement of disputes; to assistance to third States, and to the report of the Special Committee.  Action was also likely on drafts relating to the Convention on safety of United Nations personnel and on jurisdictional immunities of States.

Draft Resolutions

A draft on observer status in the General Assembly for the International Institute for Democracy and Electoral Assistance (document A/C.6/57/L.23) was expected to be introduced.  By the draft, the General Assembly would decide to invite the Institute to participate as an observer in its sessions and work.

[The Stockholm-based International Institute for Democracy and Electoral Assistance is an intergovernmental organization based in Stockholm whose objectives include promoting and advancing sustainable democracy worldwide.  It also promotes transparency and accountability, professionalism and efficiency in the electoral process.]

The organization’s application for observer status was first made in 2002 and considered in the Sixth Committee during the fifty-sixth session of the General Assembly.  Action on the request was deferred to the current session of the Assembly.

The Committee has before it a number of drafts on which action was expected.  One is entitled prevention and peaceful settlement of disputes (document A/C.6/57/L.10).  By that draft, the General Assembly would urge States to make the most effective use of existing methodologies for preventing disputes and peaceful dispute settlement.  It would urge the Secretariat to continue enhancing concrete steps to improve the United Nations capacity to respond in matters relating to dispute prevention.  Those measures would include the strengthening of cooperative mechanisms for information-sharing, the development of a comprehensive early-warning plan, and training and cooperation with regional organizations.  States would be encouraged to nominate candidates for inclusion in the register, listing persons willing to provide fact-finding services.  They would also be encouraged to nominate conciliators and arbitrators provided for by certain treaties.

Also before the Committee was a draft on implementing the provisions of the United Nations Charter related to assistance to third States affected by the application of sanctions (document A/C.6/57/L.11).  By terms of that draft the Assembly would invite the Security Council, its sanctions committees and the Secretariat to ensure a number of actions.  One would be to include an analysis of the likely and actual impact of sanctions on third States in both pre-assessment reports and ongoing assessment reports.  Recommendations on how to mitigate those impacts would also be invited.  Sanctions committees would be invited to provide opportunities for third States to brief them on the impacts they were experiencing and on assistance needed to mitigate the negative impacts.  The Secretariat would provide advice and information to third States to help them pursue the means to mitigate the negative impacts.  Where economic sanctions had severely affected third States, special representatives could be appointed or fact-finding missions could be dispatched to assess the situation and identify ways of assistance.  Working groups could also be established to consider such situations.

Further by the draft, the United Nations system, international financial institutions, other international organizations, regional organizations and States would be invited to specifically and directly address the special economic problems of third States.  The Assembly would request the Special Committee on the Charter to consider the question on a priority basis at its 2003 session.  It would also decide to consider elaborating measures to implement Charter provisions in this regard within the Sixth Committee or in a working group within it.

By a draft entitled the report of the Special Committee on the United Nations Charter and on strengthening the Organization's role (document A/C.6/57/L.19), the Assembly would decide that the Special Committee would hold its next session from 7 to 17 April 2003.  The draft would ask the Special Committee, at that session, to continue considering proposals for the maintenance of peace and security and also, on a priority basis, the question of implementing the provisions of the Charter related to assisting third States affected by the application of sanctions.  Further, the Committee would be requested to keep the question of the peaceful settlement of disputes on its agenda and to continue considering proposals concerning the Trusteeship Council.  Finally, it would be asked to consider the improvement of its own working methods as a priority.

By the terms of a draft on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel (document A/C.6/57/L.20), the Assembly would call upon States to become parties to the relevant international instruments, particularly the Convention.  It would recommend that key provisions of the Convention be included in existing status-of-forces, status-of-mission and country agreements between the United Nations and countries.

Finally, by a draft on the Convention on jurisdictional immunities of States and their property (document A/C/6/57/L.21), the Assembly would decide that the Ad Hoc Committee on the topic should be reconvened from 24 to 28 February 2003.  It would make a final attempt to consolidate areas of agreement and to resolve outstanding issues, with a view to elaborating a generally acceptable instrument based on the draft articles on jurisdictional immunities of States and their property.  The International Law Commission had adopted the articles at its forty-third session in 1991.

Action on Drafts

The Committee took up the draft resolution on prevention and peaceful settlement of disputes (document A/C.6/57/L.10).

ARPAD PRANDLER (Hungary), Committee Chairman, recalled that the resolution was one of the successful outcomes of the Charter Committee’s work during its 2002 session.  He introduced the draft on behalf of the Bureau.

The draft was adopted without a vote.

The Committee turned to the draft on implementation of the provisions of the United Nations Charter related to assistance to third States affected by the application of sanctions (document A/C.6/57/L.11).  It had been introduced by the representative of Bulgaria.

The text resolution was adopted without a vote.

The draft on the report of the Special Committee on the United Nations Charter and on strengthening the Organization's role (document A/C.6/57/L.19) had been introduced by Egypt's representative.

VACLAV MIKULKA, Director of the Codification Division of the Office of Legal Affairs and Committee Secretary, read out the financial implications of the proposed resolution.  He recalled that by terms of the draft, the Special Committee on the Charter would meet from 7 to 17 April 2003.  He said there would be two meetings a day with interpretation in six languages.  Conference services requirements were estimated at $247,106.  The meeting would be of a type for which provision had been included in the proposed programme budget for the 2002-2003 biennium.  No additional appropriation would be required if the Assembly adopted the resolution.

The Committee approved the draft without a vote.

The draft resolution on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel (document A/C.6/57/L.20) was taken up.  It had been introduced earlier by the representative of New Zealand.  She read out the programme budget implications, saying that the Ad Hoc Committee on the Scope of Legal Protection would meet from 24-28 March.  With two meetings a day and interpretation in all six languages, the servicing requirements were estimated at $182,129.  Again, no additional appropriations would be required.

The draft resolution was approved without a vote.

Finally, the Committee took up the draft on the Convention on jurisdictional immunities of States and their property (document A/C.6/57/L.21), which had been introduced by the Bureau.

The Committee Chairman read out the programme budget implications of the draft, saying that for a reconvened meeting of the Ad Hoc Committee to be held from 24 to 28 February 2003, the servicing requirements were estimated at $156,318.  Again, no additional appropriation would be required.

The Committee approved the draft without a vote.

Statements on Law Commission report

IOANA GABRIELA STANCU (Romania), speaking on “unilateral acts of States”, said the effort to codify unilateral acts should not lead to a combination of purely theoretical assessments with rules drawn from the Law of Treaties.  She therefore welcomed the suggestion of a comprehensive study of State practice in that area by a Special Rapporteur.

Turning to the topic of “international liability”, she said the Commission could make a valuable contribution in the area of loss allocation.  She agreed that the innocent victim should not, in principle, be left to bear the loss.  States had only a subsequent role in sharing the loss arising out of harm caused by hazardous activities and State liability should serve as a last resort.

On “responsibility of international organizations”, her delegation regarded the Commission’s work on the topic as a logical step following its finalization of a text on State responsibility.  Her delegation envisaged that the draft articles on responsibility of international organizations would be an independent text from those on State responsibility.  It believed that a study on the topic should be limited to responsibility of intergovernmental organizations, leaving aside the question of responsibility of non-governmental bodies.  Widening the study might lead, indirectly, to an implicit recognition of those organizations as subject of international law.  

She said the study on “fragmentation of international law” should first assess both the positive and negative effects that the subject had on the efficiency of international law. Based on that general assessment, the Commission would then identify ways to encourage the positive results of the fragmentation, as well as ways to counter its negative effects.

ZDZISLAW GALICKI (Poland), speaking on “reservations to treaties”, said his delegation shared the opinion that the draft guideline on the procedure in case of manifestly impermissible reservations, went a step beyond the 1969 Vienna Convention with regard to the functions of depositaries.  He said the Commission should adopt a cautious approach towards the powers of depositaries -– similar to one taken by the drafters of the 1969 Vienna Convention.

He said the harmonization of terminology used in the draft guideline (2.1.8) with the rest of guidelines in the draft text and with both Vienna Conventions (1969 and 1986) seemed to be inevitable.  Without clear and precise meaning and unified understanding of used terms, it was difficult to solve some substantial problems, he said.  A final decision on rejection of reservations should belong to the parties to the treaty and not the depositary.  There were numerous examples of international treaties that had more than one depositary.  They favoured a restrictive approach to the powers of depositaries, he said.

JURG LINDENMANN (Switzerland), speaking on “reservations to treaties”, noted the progress made by the Commission this year.  On the functions of depositaries, he said his country, which was a depositary, believed that their functions were important.  Draft guideline 2.1.7,(functions of depositary) seemed to be well drafted, and well founded in international law, and went beyond a role of simply being “a mail-box”.  Switzerland believed that in no way should a depositary decide on matters of substance.  In particular, it was not for the depositary to decide on the compatibility of a reservation with the objective of a treaty.  That was a matter for States parties or monitoring bodies established by the treaty.

He said the draft guideline (2.1.8) on the procedure for cases of manifestly impermissible reservations should be deleted as it ventured on uncharted territory.

His delegation was happy about the quality of the initial work done by the Special Rapporteur on “international liability”.  He said that as far the sharing of liabilities was concerned, a polluter should bear the main responsibility.  The “innocent” victim terminology should be re-examined.  The Commission should also deal with the question of damage to the “global commons”.

Regarding the topic of “responsibility of international organizations”, his delegation welcomed confining the scope of the study to intergovernmental organizations and excluding non-governmental bodies.

On “fragmentation of international law”, he said that his delegation was gratified to see the topic on the agenda of the Commission.  His delegation had an open mind on the subject.

MIWA YASUDA (Japan) speaking on “reservations to treaties” said the Commission must be fully informed on recent developments about reservations to human rights treaties.  It would be useful for it to consult closely with human rights treaty bodies such as the Sub-Commission on the Promotion and Protection of Human Rights.  Japan supported the Commission’s positive attitude on that matter.

She said the functions of depositaries should not affect their duty to notify, as soon as possible, States and organizations for which a reservation was intended.  The terms “impermissible” and “impermissibility” must be carefully examined when the Commission considered the legal consequences of reservations.  The Commission’s Guide to Practice should spell out the kind of treaty monitoring bodies that could decide on the impermissibility of reservations.  She stressed the importance of the preservation of a balance between the factors of universality and integrity of a treaty.

On “unilateral acts of States”, she said that perhaps the topic was not yet ripe for codification, considering the few answers received from Member States on their State practice on the subject.  As regards “international liability”, her delegation would like the Commission to limit the scope of activities to be covered.  It should build on its related work on the subject.

She recalled that at the time the Commission submitted the draft articles on prevention, it recommended to the General Assembly the elaboration of a convention on the basis of those draft articles.  It was regrettable, she said, that the Assembly did not respond to that call last year.  Codification of international law was the joint responsibility of the Assembly and the International Law Commission.  Their cooperative efforts were particularly important on that topic.  The Assembly’s failure to address the preventive aspect would jeopardize and undermine the Commission’s efforts on the issue of liability.  The Commission must receive a clear indication as to the fate of its draft articles on prevention to enable it to proceed decisively with its work on international liability.

MAHMOUD HMOUD (Jordan) said he hoped the 11 “guidelines” on the formulation and communication of reservations and interpretative declarations would be issued as the Guide to Practice by 2006.  Commenting on individual guidelines, he said he welcomed the progress made on the topic of “diplomatic protection”, but the scope should not go beyond the traditional notion of the issue, as encompassing nationality of claims and exhaustion of local remedies.  That would risk confusing different legal regimes that would not necessarily coincide, in addition to other problems.

He said a thorough study was needed on the right of a State to delegate its right to protection to another State.  Although diplomatic protection was a State’s discretion, it involved a “mutual” relationship with the protected person.  The transfer of rights could adversely affect the person’s rights. 

He said the subject of unilateral acts of States was complex, given the fact that the doctrine was not yet established under international law and there was no general State practice recognizing it as an independent legal doctrine.  The Commission could perhaps reconsider its approach and whether there was a need to deal with it in the Commission.  The resumption of the Commission’s consideration of the liability matter was welcome.  Last year’s adoption of a draft on transboundary harm had opened the door for rapid progress in developing articles on liability.  The topics of responsibility of international organizations and fragmentation of international law were also important.  The risks and complexities of fragmentation justified the work of the Commission on the subject.  They had been highlighted by international law jurists, including the president of the International Court of Justice.

Exchange on Committee’s Technical Servicing

The Chairman of the Committee, ARPAD PRANDLER (Hungary), introduced the Under-Secretary-General, Department for General Assembly and Conference Management, Jian Chen, who had responded to a Committee request for clarification.  The question concerned the transfer of the technical secretariat of the Sixth Committee (Legal) from the Office of Legal Affairs to the Department for General Assembly and Conference Management.

 The representatives of Costa Rica, United States and China took part in an exchange with the Chairman on whether to proceed in a formal or informal venue.

Mr. CHEN briefed the Committee on the question.  He said the Secretary-General had made the decision in line with overall reform, and with the aim of improving the Organization’s functioning to facilitate the substantive work.  The Committee would receive the same level of servicing it had received from the Office of Legal Affairs. 

The representatives of Switzerland, Peru, Austria, United States, Cuba, Costa Rica, United Kingdom, Slovakia, Argentina, Netherlands, Jordan and Ethiopia made comments and posed questions.

Some said there had been no warning about the change.  They asked whether Member States should have been consulted before the decision was made.  Was the decision a fait accompli?  They said there seemed to be confusion over that.  The Secretary-General’s reform efforts were welcome and supported, but what improvements could the Committee expect? 

These were among other questions asked:  How would the highly specialized technical needs of the Committee be met?  Who would ensure it?  If the Committee had to give up expecting some expertise from the Secretariat, what financial benefit in turn would accrue to the Secretariat?  What had occasioned the decision for the change?  How would the change affect the Secretariat assistance to the International Law Commission?  Assuming that the decision to implement the change would be taken by the Fifth Committee (Administrative and Budgetary), what would happen with the Law Commission, the United Nations Commission on International Trade Law (UNCITRAL) and the Bureaus?  How would the preparation of resolutions be affected?  What would be the effect on the preparation of legal documents, such as Treaties and rolling texts?

It was said that measures to improve efficiency and proficiency were appreciated, but law-making was a major task of the Sixth Committee.  It was a highly specialized field.  What problems, it was asked, had been identified in that regard in the Secretariat that had led to the proposed change?  What kind of advantages were expected if the new system were introduced?  Could the Committee be provided with the technical and historical memory its work required?

One delegate said, the move was tantamount to the “shooting of oneself in the foot”.  How could the change improve the functioning of the Committee in coordinating its work with the legal and technical actors in the regional commissions?  Had the Secretariat consulted with the Office of Legal Affairs in the overall process of Organization reform before making the change?  The Committee’s work was expanding, as in the area of codifying International Trade Law.  Had the Secretariat considered the Committee’s broadening mandate before making the decision?

Responding to questions, Mr. CHEN, the administrative Under-Secretary-General, said the Secretary-General had already made the decision on the question in his capacity as Chief Executive of the Secretariat.  The programme budget aspects would be part of the biennial 2004-2005 and onwards.  It would be considered by the Administrative Committee on Administrative and Budgetary Questions.  The decision in no way ran counter to the interests of Member States. 

He recalled that it was Member States who had in 1997 urged the integration of the servicing arrangements.  They had stressed that the rationalization should lead to greater unity of purpose, greater coherence of efforts at all levels and greater cost effectiveness, which would result in economies of scale.

He said General Assembly resolution 52/220 had also noted that the newly created Department of General Assembly Affairs and Conference Services (at the time) would not, at that time, undertake the servicing of the Fifth and Sixth Committees or the Security Council.  The Secretary-General was asked to keep the arrangements under review and to submit to the General Assembly at its fifty-fifth session a report on the arrangements with a view to considering possible integration of all conference-servicing resources for all main committees of the General Assembly, the Security Council, the Economic and Social Council -- as well as their subsidiary and ad hoc bodies and special conferences -- into the Department of General Assembly Affairs and Conference Services.  

He stressed that note had been taken of the legitimate concerns of members of the Sixth Committee.  Utmost effort would be made to ensure that the work of the Sixth Committee would have all the background and the institutional memory it required.

Miles Stoby, Assistant Secretary-General, Department for General Assembly and Conference Management, gave a background to the decision of the Secretary-General.  He said that since the adoption of the General Assembly resolution in 1997, technical secretariat services had been spread among a number of Departments.

The Secretary-General’s philosophy in carrying out the rationalization policy had received the full support of the General Assembly, which seemed concerned then that the Secretary-General had not gone much further. 

He said the phasing out of services was not unique to the Sixth Committee and that discussions had been going on for quite some time.  The Secretary-General had decided that after five years, he was now ready to go further with the plan.  Every single main organ, and main committee, including the Fifth were to be serviced by a technical secretariat.

HANS CORELL, Under-Secretary-General and Legal Counsel, said the decision of the Secretary-General was being implemented. He said the specific problems posed by the expansion of the work of UNCITRAL would be taken into account.

ROBERT ROSENSTOCK, Chairman of the International Law Commission, said his concern was to have a seamless working relationship between the Law Commission and the Sixth Committee.  He could not see how that would be improved by removing the Legal Department’s linkage with the Commission.  Also, so far no one had mentioned any advantages to the change.  All that had been said was “it wouldn’t be so bad”.

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