Sixty-third General Assembly

Sixth Committee

25^th Meeting (AM)

LEGAL COMMITTEE RECOMMENDS ASSEMBLY OBSERVER STATUS FOR UNIVERSITY FOR PEACE,

GROUP PROMOTING SOUTH-SOUTH COOPERATION; DEBATE ON LAW COMMISSION REPORT ENDS

The Sixth Committee (Legal) this morning approved the granting of observer status in the work of the General Assembly to two organizations, as it also heard the introduction of another six draft resolutions, three of them related to the report of the United Nations Commission on International Trade Law (UNCITRAL), and concluded its consideration of the report of the International Law Commission, with a focus on protection of persons in disaster situations, immunity of State officials and the obligation to extradite or prosecute.

Acting without a vote, the Committee recommended the granting of observer status for the South Centre, an international organization promoting South-South cooperation, and for the University for Peace, a specialized international organization with close ties to the United Nations.

Observer status for a third organization, the International Fund for Saving the Aral Sea, would be recommended by terms of a draft resolution introduced today by the representative of Tajikistan.  The aim of that international regional mechanism is to resolve the deterioration of the Aral Sea Basin, through international cooperative projects and programmes.

Also introduced today, by the representative of the Democratic Republic of the Congo, was a draft on the nationality of natural persons in relation to the succession of States.  By that text, the Assembly would invite Governments to take into account provisions of articles to elaborate regional and subregional legal instruments aimed at preventing statelessness.

Finland’s representative introduced a resolution on measures to enhance the protection, security and safety of diplomatic and consular missions.  By it, the Assembly would strongly condemn recent acts of violence against diplomatic and consular missions.  It would urge States to strictly observe, implement and enforce applicable principles and rules of international law, and to take measures to prevent abuse of diplomatic or consular privileges and immunities.

The drafts related to UNCITRAL were introduced by the representative of Austria.  By one text, the Assembly would commend the Commission’s work and approve the direction of its future programme.  By another, the Assembly would recommend to States the UNCITRAL Legislative Guide on Secured Transactions.  By the third UNCITRAL draft, a Convention on contracts for the carriage of goods by sea would be recommended to States.  Under it, the Assembly would also authorize a signing ceremony to be held from 21 to 23 September 2009, in Rotterdam, Netherlands.  It would also recommend that the convention rules be known as the “Rotterdam Rules”.

As the Sixth Committee ended its debate on the report of the International Law Commission, the representative of the United Republic of Tanzania said challenging times called for innovative responses, and the Commission should not restrict itself to traditional topics, but should consider new developments in international law and pressing international concerns.  She welcomed the inclusion of topics listed as “treaties over time” and “the most-favoured-nation clause” in the Commission’s programme of work, and said that, in the longer term, it might consider such areas as migration, functional protection, and the legal mechanisms to register sales or other transfers of arms between States.

Uruguay’s representative said the Commission’s work on the obligation of States to extradite or prosecute was of fundamental importance to the protection of human rights.  The most important source of the obligation was found in the Commission’s 1996 Code of Crimes against the Peace and Security of Mankind and in the Rome Statute of the International Criminal Court.  He said his country’s domestic law committed it to cooperate with the Court on prosecution of genocide, war crimes and crimes against humanity.

Representatives of the Russian Federation, Portugal and Sudan also spoke on the Law Commission’s report.

The Sixth Committee is expected to meet again at 10 a.m. on Friday, 14 November, to act on draft resolutions and consider the report of the Committee on Relations with the Host Country, among other matters.

Background

The Sixth Committee (Legal) met today to conclude its consideration of the report of the International Law Commission, with a focus on protection of persons in disasters; immunity of State officials; and obligation to extradite or prosecute.  (For background on the report, see Press Release GA/L/3351 of 27 October).  The Committee was also expected to hear the introduction of draft resolutions and to take action on others.

Among the drafts before the Committee was a text on nationality of natural persons in relation to the succession of States (document A/C.6/63/L.14), which would have the Assembly invite Governments to take into account provisions of articles dealing with the issues.  States would be encouraged to elaborate legal instruments at the regional and subregional levels with the aim of preventing statelessness.  They would also be encouraged to submit comments concerning the advisability of elaborating an instrument on natural persons and State succession.

Also before the Committee was a draft on consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/63/L.12).  It would have the Assembly strongly condemn recent acts of violence against diplomatic and consular missions, and representatives of international intergovernmental organizations.  It would urge States to strictly observe, implement and enforce applicable principles and rules of international law governing diplomatic relations, and to take appropriate measures to prevent any abuse of diplomatic or consular privileges and immunities, in particular serious abuses, including those involving acts of violence.  States would be called upon to become parties to relevant instruments and to make use of the means available for settling disputes peacefully.

Further by the text, the Assembly would request States to report to the Secretary-General any serious violations of this nature and, also, to report on measures taken to bring offenders to justice.  The Secretary-General would also be requested to send to the General Assembly, at its sixty-fifth session, a report containing information on State ratification and accession to relevant instruments, and a summary of reports received and views expressed by States on the matter.

A draft resolution on observer status for the International Fund for Saving the Aral Sea (document A/C.6/63/L.13) would have the Assembly grant that organization observer status in its work.  A letter by Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan transmits an explanatory memorandum describing the international regional mechanism for resolving the deterioration of the Aral Sea Basin through international cooperative projects and programmes.

Further, before the Committee were three drafts relating to the report ofthe United Nations Commission on International Trade Law (UNCITRAL) on the work of its forty-fifth session.  One was a draft on the UNCITRAL report (document A/C.6/63/L.4), by which the Assembly would take note of the Commission’s report and, would commend it for the completion and adoption of its Legislative Guide on Secured Transactions, and for the completion and approval of a convention on contracts for the international carriage of goods wholly or partly by sea.  It would welcome the Commission’s progress in its other work, including that related to procurement and insolvency, as well as its decision to undertake further work in the area of electronic commerce and commercial fraud.  It would encourage completion of work on arbitration for consideration of revised rules on the matter at the Commission’s next session.

Further, by the draft, the Assembly would endorse the efforts and initiatives of the Commission, as the core legal body in the field of international trade law, and would reaffirm the Commission’s work related to providing technical assistance to developing countries.  It would express appreciation for contributions to the trust fund providing travel assistance to developing countries and would decide to continue considering the granting of travel assistance to the least developed countries.  The Assembly would welcome the review of the Commission’s working methods, its role in promoting the rule of law and its proposed strategic framework for 2010-2011, along with its review in the area of harmonizing, modernizing and unifying international trade law.

Finally, by the draft, the Assembly would recall its resolutions on partnerships between the Commission and non-State sectors, in particular the private sector, and would stress the importance of bringing into effect the conventions emanating from the Commission’s work for the global unification and harmonization of international trade law.  The Conference celebrating the fiftieth anniversary of the “New York Convention” related to arbitral awards would be noted.

By a draft on the Legislative Guide on Secured Transactions (document A/C.6/63/L.5), the Assembly would recommend that all States give favourable consideration to the Guide in revising or adopting relevant legislation.  It would also recommend that States become party to the Convention on the Assignment of Receivables in International Trade, the principles of which were reflected in the Guide.

Finally, a draft on the Convention on contracts for the carriage of goods by sea (document A/C.6/63/L.6) would have the Assembly adopt the Convention and authorize a ceremony for the opening for signature to be held on 21 to 23 September in Rotterdam, Netherlands.  The Assembly would also recommend that the rules in the Convention be known as the “Rotterdam Rules”.

The Committee was expected to take action on a draft resolution relating to observer status for the South Centre (document A/C.6/63/L.3) in the work of the General Assembly.  A report on the Centre (document A/63/141), submitted by Tanzania, contains the explanatory memorandum describing the Centre as a 51-member intergovernmental organization of developing States aimed at promoting South-South solidarity.

Action was also expected on a draft relating to observer status for the University for Peace (document A/C.6/63/L.2) in the work of the General Assembly.  A report on the organization (document A/63/231), submitted by Costa Rica, states that the University is a specialized international institution for postgraduate studies, research and dissemination of knowledge, specifically aimed at training for peace.

An explanatory memorandum, attached as annex I, states, additionally, that the University, based in San Jose, Costa Rica, has a special relationship with the United Nations system that is strengthened by a Council consisting of high-level United Nations representatives.  That includes representatives designated by the United Nations Secretary-General, the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Rector of the United Nations University and the Executive Director of the United Nations Institute for Training and Research (UNITAR).  The University’s Charter also envisages close links with UNESCO in view of its special responsibilities in the field of education.  Permanent observer status is requested for the University so that it may participate in discussions on peacebuilding and peacekeeping.

Statements

When the Committee resumed its consideration of items in the report of the International Law Commission, ANASTASIA TEZIKOVA ( Russian Federation) said the problem of immunity and the protection of officials from foreign jurisdiction was a topic of growing importance.  National judicial bodies often had to deal with an issue that was also on the docket of the International Court of Justice, as had been the case this year in a matter between Djibouti and France involving cooperation.  Customary international law should now be codified to provide immunity not only for the “troika” of high officials but for other high-level officials as well.  Those officials should be identified.  The limits for the immunity should be based on a study of the Court’s decisions, particularly with regard to mutual assistance.

Immunity of officials, she stressed, was the basis of stability between States, and the principle should not be undermined.  At the same time, respect for human rights was also paramount.  Serious crimes must not go unpunished.  However, the mechanism for holding officials responsible had already been set out by the Court.  Regardless of the immunity rule, there already was an instrument to fight impunity.

On the obligation to extradite or prosecute, she said it was not appropriate to examine the source of the obligation for determining the direction of future work.  Examining the source was an important exercise, but a quick solution might not be possible.  Therefore, it would be better to examine the relationship between the two elements involved; the obligation to extradite and the obligation to prosecute.  Work should focus on analyzing the grounds for denying a request for extradition, on guarantees, and on extradition of persons not on the territory of the State being requested to extradite.  National practice should be examined.  The nature and source of the obligation should be examined alongside that work.  As for the articles, it was premature to consider their substance in detail.  Some articles could turn out to be unnecessary as work progressed.  Article 3 on treaty as a source for the obligation did not offer anything new; the “triple alternative” was not appropriate in the context.

Finally, on the protection of persons in disaster situations, she said the scope should include both natural and man-made disasters, because it was not always possible to distinguish between the two.  The pre- and post-disaster phases should be addressed later.  Armed conflicts, however, should be excluded from the scope, because those situations were already regulated.  The work should complement work already done, for example, by the International Federation of the Red Cross and Red Crescent Societies.  It was good that the text reaffirmed State sovereignty, which encompassed not only rights but also obligations.  However, other States did not have the right to force assistance on a State; that situation had no basis in international law.  It was essential to secure the consent to assistance of a disaster-affected State.  The concept of the responsibility to protect did not apply.  It referred to horrible crimes such as genocide, not to disasters.

LUÍS SERRADAS TAVARES ( Portugal), on the subject of protecting people during disasters, concurred with the Commission that a rights-based approach was adequate.  International humanitarian law, human rights law, and the law relating to refugees and internally displaced persons should be the rationale of the topic.  A cautious, step-by-step approach towards elaboration of articles on the topic should be followed.

Turning to the immunity of State officials from foreign criminal jurisdiction, he said this topic involved two major values protected by international law:  the immunity of State officials and the obligation to fight impunity.  Immunity allowed State officials to perform their duties in a proper manner, while fighting impunity took care of victim’s rights by letting no perpetrator go unpunished.  Questions of immunity before international criminal tribunals and courts of the “sending State” should not be considered within the topic.  However, the fact that many State parties to the International Criminal Court Statute had passed domestic legislation to punish the most serious crimes would have to be addressed.

He said that although he was of the view that Heads of State and Government, and Ministers of Foreign Affairs enjoyed immunity ratione personae, further analysis was welcome on whether personal immunity extended to other high-ranking officials.  Regarding immunity ratione materiae, he invited the Commission to make efforts towards elucidating sources, State practice and other relevant elements to justify this type of immunity.  Also, the concept of “State official” had some grey areas that had to be clarified, in particular the scope of the term.

Furthermore, he went on, the source of immunity was found in international law, not on comity.  Immunity was an exception to the procedural aspect of the law and not to its substantive aspects.  Noting that immunity did not release the State official from the obligation to obey the law or from criminal responsibility, he said due care must be paid to the pre-trial phase of criminal jurisdiction.

On the obligation to extradite or prosecute, he said he welcomed the Special Rapporteur’s decision to revise the title of draft article 1 on the matter.  In that connection, it was unnecessary to qualify this obligation as “legal”, since it seemed to be superfluous.  He looked forward to the further development of draft article 2; the terms “persons”, “persons under jurisdiction” and “universal jurisdiction” should find their place in that draft article.

IRENE KASYANJU (United Republic of Tanzania), commenting on the future work of the Law Commission, said that despite its achievements, challenging times still called for dynamic and innovative response.  Further success of the Commission would depend on the selection of relevant topics.  The Commission should not restrict itself to traditional topics, but should consider new developments in international law and the pressing concerns of the international community.  Thus, she welcomed the proposal for the inclusion of the new topics, “treaties over time” and “the most-favoured-nation clause”, in the Commission’s programme of work.

She suggested three further topics for the Commission’s longer-term consideration:  law concerning migrations; functional protection; and the legal mechanisms necessary for the registration of sales or other transfers of arms, weapons and military equipment between States.  On the third, she noted that the proliferation and transfers of small arms was of great concern to developing countries that were victims of civil strife fuelled by those small arms.

GUSTAVO ÁLVAREZ ( Uruguay), on the obligation of States to extradite or prosecute, said he supported the work of the Special Rapporteur and the methodology employed during the debate on the matter; this was an obligation that was of fundamental importance to the protection of human rights.  The most important source of the obligation was found in the Draft Code of Crimes against the Peace and Security of Mankind, that had been elaborated by the International Law Commission in 1996, and in the Rome Statute of the International Criminal Court.

He said his country was committed, through its domestic law, to cooperate with the International Criminal Court towards the prosecution of genocide, war crimes and crimes against humanity.  In particular, Uruguayan law stipulated that, when a national was accused of committing a crime outside of Uruguay’s borders, and there was no request by the International Criminal Court for extradition and prosecution, Uruguay would take action against the accused without regard to the nationality of the victim.  Even if the perpetrator was outside of national borders when the crime was committed, he or she would be treated as if the crime was committed on national territory.  Without prejudice to the basic rules of the conventional and legal nature which he had emphasized, he considered the obligation to extradite and prosecute as customary in nature, at least in terms of a certain number of crimes, including war crimes, crimes against humanity and genocide.

AMANUEL YOANES AJAWIN ( Sudan) concurred with the assertion in the Commission’s report that the source of immunity for State officials from foreign criminal jurisdiction was not international comity but, first and foremost, international law, in particular customary international law.  Although criminal jurisdiction was not exercised over a State, criminal prosecution of a foreign State official might affect the sovereignty and security of a State, and constitute interference in its internal matters; this would especially be true in the case of prosecuting senior officials.  Regarding the legal definition of “immunity”, he said it was a legal relationship which implied the right of State officials not to be subjected to foreign obligation.  The scope of such immunity should include senior Government officials, instead of confining immunity to Heads of Government and State, and Foreign Ministers.  Furthermore, he noted the Special Rapporteur’s suggestion to include a footnote in the report to obligate international courts to contain a provision in their laws, binding them to accord immunity to State officials.  He also stressed the need, in cases of alleged serious human rights violations, for the defendant to be accorded the chance for a proper investigation, and the person making the allegation to be cross-examined and meticulously investigated before charges were brought.

EDUARDO VALENCIA-OSPINA, Special Rapporteur on the topic of the protection of persons in the event of disasters, said relevant points made on the matter would be a valid guide for the future Special Rapporteur’s work on the topic.  The Committee’s debate on the matter reflected an interest in the report towards determining the main legal points of relevance.

Noting that all speakers approved the decision to include the topic in Commission’s work programme and to appoint a Special Rapporteur, he concluded that the Commission should continue with draft articles without prejudice to formulating a draft convention.  It was also decided to exclude armed conflicts from the scope of the topic.  The need to cooperate with non-State actors was stressed; in that regard, he welcomed the cooperation already established with the International Federation of Red Cross and Red Crescent Societies and the Office for the Coordination of Humanitarian Affairs and other bodies.  These associations and links were essential to achieve the purposes of the draft.

He thanked delegations for their willingness to supply the Commission with information on current State practice in this regard; they could be assured that their points of view would be taken into account by the Special Rapporteur when preparing future reports.

Introduction of New Drafts

The representative of Tajikistan introduced the draft resolution on observer status for the International Fund for Saving the Aral Sea (document A/C.6/63/L.13).

The representative of the Democratic Republic of the Congo introduced the draft on nationality of natural persons in relation to the succession of States (document A/C.6/63/L.14).

The draft on measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/63/L.12) was introduced by the delegate of Finland.

Austria’s representative introduced the three draft resolutions on the work of the United Nations Commission on International Trade Law (UNCITRAL):  the report (document A/C.6/63/L.4); the Legislative Guide on Secured Transactions (document A/C.6/63/L.5); and the Convention on contracts for the carriage of goods by sea (document A/C.6/63/L.6).

Action on Drafts

The Committee then took up the draft on observer status for the South Centre (document A/C.6/63/L.3).  The Committee approved the resolution without a vote.

The draft on observer status for the University for Peace (document A/C.6/63/L.2) was then taken up and also approved without a vote.

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