The Deputy Permanent Representative of Mexico to the United Nations, Juan Manuel Gomez-Robledo, was elected Chairman of the Sixth Committee (Legal) for the sixty-first session of the General Assembly on 8 June 2006. photo/Gemi José González López

Q: What is the main business of the Sixth Committee?

A: Most of the issues that the United Nations addresses have a legal expression, so the Sixth Committee is entrusted with promoting the codification and progressive development of international law. That means that the Committee receives all the inputs that are generated in other bodies, like the International Law Commission (ILC), on topics that are ripe to be converted into a convention or other legal instruments. For example, the Statute of the International Criminal Court (ICC) came out of a first draft by the ILC. Then the Sixth Committee took it up and set up a preparatory committee for the Rome Conference in 1997 [leading to the establishment of the ICC].

The Sixth Committee may also take up sources for further development of international law from other places. This year, a new topic in the Committee was to fundamentally change the way justice is administered at the United Nations. The Administrative Tribunal that is entrusted with the task of processing claims of UN staff members against the Secretary-General, for example. This is a tribunal that needs to be reformed, and we decided to hold a resume session on this item in March.

Q: How has the Sixth Committee dealt with the issue surrounding abuse in peacekeeping missions?

A: This issue came from the Fourth Committee, which is in charge of peacekeeping operations. In the last few years, there has been a series of complaints about sexual and other kinds of abuse by individual members of the United Nations peacekeeping operations. This prompted the Secretary-General to assign a special advisor on that topic, Ambassador Prince Zeid Ra'ad al-Hussein of Jordan. He identified a problem with this situation: Because people who belong to a peacekeeping operation are protected with immunity, it might be difficult, or almost possible, to prosecute them. Another expert group concluded that we need another convention to allow for mechanisms for prosecuting these people.

Q: What is the significance of the new agenda item on "The rule of law at the national and international level"?

A: In his annual report in 2004, the Secretary-General raised the issue of the "rule of law" and said he would use the remainder of his mandate to promote this issue in all UN activities. Mexico and Lichtenstein introduced this item because we realized there was no entity entrusted with promoting a coordinated approach for the promotion of the rule of law. That refers not only to the rule of law at the national level, but also the need to come to the assistance of the Member States when they ask themselves how to better incorporate international law in their domestic systems. An international law does not necessarily become part of a national system automatically. In some States it needs domestic legislation to be put it into practice. Many Member States do not have legal offices in their foreign ministries to perform a basic task like ratifying a treaty. These countries and also bigger ones, including mine [Mexico], might benefit from the help that various UN bodies, organs, programmes, etc, can offer, but you need a coordinated approach.

In my country we have a clause in our constitution that is a copy of Article Six of the United States constitution, where treaties become the supreme law of the land once they are ratified by the senate. However, that does not tell us anything about the hierarchy of international law with respect to the constitution. A local judge in Mexico may very well deny the value of a treaty if he or she believes it goes against the constitution, as happens quite often in other places, like this country [United States]. Certain Latin American countries have solved this by deciding that Human Rights treaties are above or at the same level as their own constitutions. That is already a big step forward.

The rule of law does not mean "état légal." The Nazi regime or the Franco regime was an "état légal,", meaning they had laws passed by Parliaments. Among other things, "État de droit"-"Rule of law"-means a separation of powers, so that decisions by bodies like the Security Council are rooted in the UN Charter and international law. The Security Council has been widely criticized because it has not only expanded its scope of action, but it has done so without necessarily basing its decisions in the rule of international law in all cases. For some Member States, strengthening the rule of law means that decisions by bodies like the Security Council that are binding on all States should be much more rooted in international law.

Q: How have concerns about preserving the environment and sustainable development been reflected in the activities of the Sixth Committee?

A: This year the ILC delivered a series of principles on how to handle transboundary damage from legal activities in one country that can harm the environment of another country. These include industrial activities such as drilling for oil or pollution in a river that is shared by two countries. We have to decide how to respond to transboundary damage and maybe compensate those who have been affected by them. Member States will have to decide if they prefer a binding instrument like a convention, or if they would rather adopt a set of principles that might be guidance for domestic law. This could include compensating mechanisms, funds for covering damages, obliging economic actors to enter into insurance schemes, or other instruments. The ILC has done a great deal of work on this issue.

Q: Diplomatic protection was an important topic in the Sixth Committee, and the possibility of a convention was brought up by several delegations. What does diplomatic protection imply?

A: Diplomatic protection has nothing to do with the protection that a country has to grant diplomats. Diplomatic protection is a legal institution whereby if a country's citizens or corporations encounters problems (for example, around the investment of a foreign corporation in another country, or when the rights of an individual are being violated by another country) and when certain requirements are met, such as the exhaustion of local remedies, the country of nationality can say, "I will pick up your claim as if it were mine, and I will convert what started as a private claim against a foreign Government into an interstate claim." This is very important to inter-American relations, and Europe-Latin American relations, because of foreign investment in Latin American countries. The ILC has examined this issue and come up with a series of articles that may very well become a convention in the future.

An example is the "The Cake War" in Mexico [1839], when a French baker in Mexico claimed that his business was damaged by internal unrest and violence. The baker claimed the protection of the French Government, and a brief war started because the French Government said that the Mexican Government did not respond to the claims of its citizen in an appropriate way.

Q: Some delegates, such as Switzerland and China, said that they considered diplomatic protection to be a "right" and not an "obligation". What does this distinction imply?

A: That is a very important issue because if a citizen requests his country of nationality to bring a claim against another country, the country can say "yes" or "no", meaning diplomatic protection is a right, not an obligation. The reason for a country's behaviour might be purely political; a country may understand that its citizen's rights have been violated, but it may not want a conflict with the other country. However, as the individual gains stature in international law, and especially with regards to human rights claims, some people think that it is less of a "right", and that the country of nationality has an "obligation" to provide that diplomatic protection.

Q: The Sixth Committee spent some time examining the "fragmentation of international law." What does this term imply and what are the possible remedies to this situation?

A: With the proliferation of international tribunals, there were very legitimate fears that these tribunals might overlap, and there might be different interpretations on the same topics of international law. The ILC wrote a wonderful paper about this topic and now there is less anxiety regarding this issue. International tribunals will proliferate and they need to start working together without prejudicing their independence. The time when the International Court of Justice was the only international tribunal is gone; now you have many, such as the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Inter-American Court of Human Rights, the ICC and special tribunals like those for the former Yugoslavia and for Rwanda.

Q: How have negotiations on a comprehensive convention on international terrorism progressed, and what issues must be resolved in order for such a convention to move forward?

A: This is still difficult, and the functions or acts of armed forces still need to be defined. This has to do with State terrorism: would the acts of regular armed forces be covered by the convention or not? There are countries that would like the convention to cover the acts of armed forces, and others would consider that armed forces, by their very definition, could not perform terrorist acts.

Q: The draft resolution on Protocol III to the Geneva Convention approved the "Red Crystal" for the International Red Cross and Red Crescent workers. What were some of the issues surrounding this item?

A: This was an effort to solve the problem of the lack of respect for the emblems of the Red Cross and Red Crescent movement. In conflict situations, the emblems must be respected by the armies fighting on the ground. In the Middle East, neither the cross nor the crescent was working. It was felt that we needed a neutral emblem for that part of the world. The parties to the Geneva Convention adopted Protocol III, hoping it would solve the problems on the ground.