Background (Source: A/58/100/Add.1)

The appeals process

At its fifty-fifth session, in 2001, under the item entitled “Human resources management”, the General Assembly requested the Secretary-General to report to it on an annual basis on the outcome of the work of the Joint Appeals Board (resolution 55/258, sect. XI, para. 5).

At its resumed fifty-seventh session, in April 2003, under the item entitled “Administration of justice at the United Nations”, the General Assembly requested the Secretary-General to include statistics on the disposition of cases and information on the work of the Panel of Counsel in his annual report on the administration of justice in the Secretariat (resolution 57/307, para. 21). The Assembly welcomed the Secretary-General's initiative in requesting the Office of Internal Oversight Services (OIOS) to conduct a management review of the appeals process; and requested the Secretary-General to ensure that the management review covers particular areas of the appeals process (resolution 57/307, paras. 8-11); requested the Secretary-General, taking due account of the findings of OIOS, management review of the appeals process, to submit a report to the fifty-eighth session of the General Assembly containing alternatives on strengthening the administration of justice (resolution 57/307, para. 9); also requested the Secretary-General, in consultation with the Ombudsman and staff representatives, to submit detailed proposals on the role and work of the Panel on Discrimination and Other Grievances for consideration by the Assembly at its fifty-eighth session (resolution 57/307, para. 20); and requested the Secretary-General to develop an effective system of personal responsibility and accountability to recover financial losses to the Organization caused by management irregularities, wrongful actions or gross negligence of officials of the United Nations Secretariat that resulted in judgements of the Administrative Tribunal, and to report thereon to the Assembly at its fifty-eighth session (resolution 57/307, para. 25).

Issues pertaining to the United Nations Administrative Tribunal

Also at its resumed fifty-seventh session, in April 2003, under the item entitled “Administration of justice at the United Nations”, the General Assembly decided to take a decision at its fifty-eighth session on amending the statute of the United Nations Administrative Tribunal requiring that the candidates for the Tribunal possess judicial experience in the field of administrative law or its equivalent (resolution 57/307, para. 14); requested the Secretary-General to take steps to ensure the independence of the United Nations Administrative Tribunal and the separation of its secretariat from the Office of Legal Affairs, to study the possibility of its financial independence and to report thereon to the Assembly at its fifty-eighth session (resolution 57/307, para. 5); and requested the United Nations Administrative Tribunal to submit a comprehensive report on its activities to the General Assembly (resolution 57/307, para. 23).

Background documentation:

(a) Reports of the Secretary-General:

Outcome of the work of the Joint Appeals Board during 2001 and 2002 (resolutions 55/258 and 57/307), A/58/300;

Possibility of the financial independence of the United Nations Administrative Tribunal from the Office of Legal Affairs (resolution 57/307);

Administration of justice at the United Nations (resolution 57/307);

(b) Notes by the Secretary-General transmitting:

Report prepared by the United Nations Administrative Tribunal on its activities (resolution 57/307);

Report of the Office of Internal Oversight Services on the management review of the appeals process (resolution 57/307);

(c) Report of the Advisory Committee on Administrative and Budgetary Questions.

References for the fifty-fifth session (agenda item 123)

Report of the Advisory Committee on Administrative and Budgetary Questions on the administration of justice in the United Nations (A/55/514)

Notes by the Secretary-General transmitting the report of the Joint Inspection Unit entitled “Administration of justice at the United Nations” (A/55/57) and his comments thereon (A/55/57/Add.1)

Summary record A/C.5/55/SR.68

Report of the Fifth Committee A/55/890/Add.1

Plenary meeting A/55/PV.103

Resolution 55/258

References for the fifty-seventh session (agenda item 123)

Report of the Secretary-General on the monitoring capacity in the Office of Human Resources Management (A/57/276)

Notes by the Secretary-General transmitting the report of the Joint Inspection Unit entitled “Reform of the administration of justice in the United Nations system: options for higher recourse instances” (A/57/441) and his comments and those of the United Nations System Chief Executives Board for Coordination thereon (A/57/441/Add.1)

Report of the Advisory Committee on Administrative and Budgetary Questions on the administration of justice in the Secretariat (A/57/736)

Summary records A/C.5/57/SR.41, 42 and 45

Report of the Fifth Committee A/57/768

Plenary meeting A/57/PV.83

Resolution 57/307

Work undertaken at the Fifty-eighth session:

The agenda item was allocated to the Fifth Committee for its consideration, and to the Sixth Committee for the sole purpose of considering the question of an amendment to the Statute of the United Nations Administrative Tribunal.

The Committee considered the item at its 9th and 12th meetings, held on 20 and 21 October, respectively. A procedural clarification was sought by Syria at the 9th meting.

Action taken by the Sixth Committee

At the 9th meeting, the Chairman of the Sixth Committee introduced the draft resolution contained in document A/C.6/58/L.7 (E, F, S, R, C, A), which had been prepared by the Bureau, proposing an amendment to Article 3, paragraph 1, of the Statute of the UN Administrative Tribunal, regarding the qualifications of judges.

At the 12th meeting, following clarification offered by the Chairman as to the appropriate action to be taken by the Sixth Committee on the agenda item, the Committee adopted draft resolution A/C.6/58/L.7, as orally revised, without a vote.

See: Report of the Sixth Committee (A/58/521) (E, F, S, R, C, A)

Progressive development of the principles and norms of international law relating to the new international economic order

Background (Source: A/58/100)

At its thirtieth session, in 1975, in the course of its consideration of the item entitled “Report of the Economic and Social Council”, the General Assembly, on the recommendation of the Second Committee (A/10467, para. 58), took note of the draft resolution entitled “Consolidation and progressive evolution of the norms and principles of international economic development law” and decided to include that question as a separate item in the provisional agenda of its thirty-first session.

The General Assembly considered the question at its thirty-first to forty-fourth, forty-sixth, forty-eighth and fifty-first sessions (decisions 31/409, 32/440 and 33/424; resolutions 34/150, 35/166, 36/107, 37/103, 38/128, 39/75, 40/67, 41/73, 42/149, 43/162, 44/30 and 46/52; and decisions 48/412 and 51/441).

At its fifty-fifth session, the General Assembly, on the recommendation of the Sixth Committee, decided to resume consideration of the legal aspects of international economic relations at its fifty-eighth session (decision 55/428).

Background documentation:

Summary records: A/C.6/55/SR.8, A/C.6/55/SR.25 and A/C.6/55/SR.26

Report of the Sixth Committee: A/55/604 (E, F, S, R, C, A)

Plenary meeting: A/55/PV.84 (E, F, S, R, C, A)

Decision: 55/428

Work undertaken at the Fifty-eighth session:

The Sixth Committee considered the item at its 4th and 21st meeting, held on 9 October and 4 November 2003. A statement was made by the representative of Cuba.

The need to establish a new system of international economic relations, based on the principles of the United Nations Charter, that would promote economic development, coordinate economic cooperation, ensure justice and promote equitable access to goods and distribution of wealth for all States in an increasingly globalized world was stressed. Such an approach was consistent will the Millennium Declaration.

It was also suggested that the consideration of the agenda item in the Sixth Committee needed to be revitalized, and that an action-oriented debate be held during the next session on the basis of proposals submitted by States.

Action taken by the Sixth Committee

At the 21st meeting, the Chairman of the Sixth Committee, on behalf of the Bureau, introduced draft decision, A/C.6/58/L.24 (E, F, S, R, C, A).

The Committee adopted draft decision A/C.6/58/L.24, without a vote.

See: Report of the Sixth Committee (A/58/510) (E, F, S, R, C, A)

Background (Source: A/58/100)

The United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law was established by the General Assembly at its twentieth session, in 1965 (resolution 2099 (XX)). Its continuation was subsequently authorized by the Assembly at its annual sessions until its twenty-sixth session, and thereafter biennially (resolutions 2204 (XXI), 2313 (XXII), 2464 (XXIII), 2550 (XXIV), 2698 (XXV), 2838 (XXVI), 3106 (XXVIII), 3502 (XXX), 32/146, 34/144, 36/108, 38/129, 40/66, 42/148, 44/28, 46/50, 48/29, 50/43, 52/152, 54/102 and 56/77).

In the performance of the functions entrusted to him by the General Assembly, the Secretary-General is assisted by the Advisory Committee on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, the members of which are appointed by the Assembly.

At its fifty-sixth session, the General Assembly approved the guidelines and recommendations concerning the Programme contained in the report of the Secretary-General and adopted by the Advisory Committee, authorized the Secretary-General to carry out in 2002 and 2003 the activities specified in his report, including the provision of: (a) a number of fellowships in both 2002 and 2003, to be awarded at the request of Governments of developing countries; (b) a minimum of one scholarship in both 2002 and 2003 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 (c) subject to the overall resources for the Programme, assistance in the form of a travel grant for one participant from each developing country, who would be invited to possible regional courses to be organized in 2002 and 2003; requested the Secretary-General to invite Member States and interested organizations, as well as individuals, to make voluntary contributions towards the financing of the Programme or otherwise to assist in its implementation and possible expansion; and also requested the Secretary-General to report to the Assembly at its fifty-eighth session on the implementation of the Programme during 2002 and 2003 and, following consultations with the Advisory Committee, to submit recommendations regarding the execution of the Programme in subsequent years (resolution 56/77).

The following 25 Member States are members of the Advisory Committee for a period of four years, beginning on 1 January 2000 and ending on 31 December 2003: Canada, Colombia, Cyprus, Czech Republic, Ethiopia, France, Germany, Ghana, Iran (Islamic Republic of), Italy, Jamaica, Kenya, Lebanon, Malaysia, Mexico, Nigeria, Pakistan, Portugal, Russian Federation, Sudan, Trinidad and Tobago, Ukraine, United Republic of Tanzania, United States of America and Uruguay (resolution 54/102).

A new membership of the Advisory Committee will be appointed at the fifty-eighth session for a four-year period beginning on 1 January 2004.

Background documentation:

Report of the Secretary-General: A/56/484

Summary records: A/C.6/56/SR.24 and A/C.6/56/SR.26

Report of the Sixth Committee: A/56/586

Plenary meeting: A/56/PV.85

Resolution: 56/77

Work undertaken at the Fifty-eighth session:

The Sixth Committee considered the item at its 21st meeting, held on 4 November 2003. The Chairman of the Advisory Committee on the Programme of Assistance, Mr. Thomas Kwesi Quartey (Ghana), introduced the report of the Secretary-General (A/58/446). Statements were made by the representatives of Bahrain, Thailand, the United Republic of Tanzania, Malaysia, Grenada, Cyprus and Mexico. The observer of the International Federation of Red Cross and Red Crescent Societies also spoke.

Delegates spoke of the valuable contribution that the Programme of Assistance was making to the strengthening of the rule of law among nations and of the capacity to face new global challenges, by providing for fellowships and seminars on international law topics, particularly for the benefit of students, professors and governmental officials of developing countries. The dissemination of legal publications, including online legal publications, was also singled out as important. Speakers also called for an expansion of Programme activities, and expressed appreciation for those countries that had made voluntary contributions to the Programme.

It was suggested that the Programme activities should be widened to include not only those involved in the legal profession, but also the public at large, particularly, those in the media and secondary teachers and college professors. It was further suggested that the funding for this expansion could come from any number of foundations, e.g., Ford Foundation, Carnegie Foundation.

Action taken by the Sixth Committee:

The Chairman of the Advisory Committee on the Programme of Assistance introduced the draft resolution contained in document A/C.6/58/L.13 (E, F, S, R, C, A)at the same meeting.

The Committee adopted draft resolution A.C.6/58/L.13, without a vote.

See: Report of the Sixth Committee (A/58/511) (E, F, S, R, C, A)

Background (Source: A/58/100)

At its forty-sixth session, in 1991, the General Assembly, recognizing the desirability of the conclusion of a convention on jurisdictional immunities of States and their property, decided to establish an open-ended Working Group of the Sixth Committee to examine: (a) issues of substance arising out of the draft articles in order to facilitate a successful conclusion of a convention through the promotion of general agreement; and (b) the question of the convening of an international conference, to be held in 1994 or subsequently, to conclude a convention on the subject (resolution 46/55).

The General Assembly continued its consideration of the item at its forty-seventh to forty-ninth and fifty-second to fifty-fourth sessions (decisions 47/414 and 48/413 and resolutions 49/61, 52/151, 53/98 and 54/101).

At its fifty-fifth session, the General Assembly, having considered the report submitted by the Chairman of the open-ended working group of the Sixth Committee established under resolutions 53/98 and 54/101, decided to establish an Ad Hoc Committee on Jurisdictional Immunities of States and Their Property (resolution 55/150).

Pursuant to General Assembly resolution 56/78, the Ad Hoc Committee met from 4 to 15 February 2002. At its fifty-seventh session, the Assembly decided that the Ad Hoc Committee should be reconvened from 24 to 28 February 2003 in order to make a final attempt at consolidating areas of agreement and resolving outstanding issues, with a view to elaborating a generally acceptable instrument based on the draft articles adopted by the International Law Commission at its forty-third session and also on the discussions of the open-ended working group of the Sixth Committee and the Ad Hoc Committee and their results, as well as to recommend a form for the instrument (resolution 57/16).

Background documentation:

Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property: Supplement No. 22: (A/57/22)

Summary records: A/C.6/57/SR.18, A/C.6/57/SR.19, A/C.6/57/SR.22 and A/C.6/57/SR.25

Report of the Sixth Committee: A/57/561

Plenary meeting: A/57/PV.52

Resolution: 57/16

Work undertaken at the Fifty-eighth session:

The Committee considered the item at its 12th, 13th, 20th and 21st meetings, held on 21 and 23 October and 3 and 4 November 2003. The Chairman of the 2003 Session of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property presented its report (A/58/22 (E, F, S, R, C, A)) at the 12th meeting. Statements were made by Italy (on behalf of the European Union and the acceding countries - Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, and the associated countries- Bulgaria and Romania and the EFTA country, member of the European Economic Area-Liechtenstein associated themselves with the statement), Norway, Peru (on behalf of the Rio Group), Australia, Japan, China, Republic of Korea, United States of America, the Russian Federation, Vietnam, South Africa, Ukraine, Guatemala, India, Mexico, Jordan, Morocco and Nepal.

Delegations expressed their satisfaction with the successful adoption by Ad Hoc Committee of its report containing draft articles on jurisdictional immunities of States and their property and understandings relating to some of the provisions. It was noted that the resolution of all outstanding issues on the draft articles constituted an important achievement. It was emphasized that the text, together with the set of understandings on some provisions of the draft articles, represented a carefully balanced compromise solution to the complex problems raised by the topic of state immunity.

Concerning the form that the draft articles should take, most delegations expressed their support for their adoption in the form of a legally binding instrument. In the view of some delegations, the draft articles, together with the set of understandings, could be included in such an instrument without further modification. However, the concern was expressed that the inclusion of the understandings as an integral part of the convention might cause problems in the application of the instrument. The point was also made that the current text of the draft articles, in some areas, lacked the necessary clarity and precision to be adopted as a legally binding instrument. In this regard, reference was made to the provisions concerning the definition and scope of "commercial activities", immunity for liability in respect of personal injury as well as compulsory equitable relief. On the other hand, it was noted that the adoption of such an instrument would fill a legislative gap, particularly for those States which did not have specific legislation on the matter and relied on international law. Some delegations stressed that the finalization of the draft articles would also bring uniformity in the law as well as certainty, stability, and predictability in the conduct of international legal transactions, thus encouraging international trade.

Others were of the view that more time was required for the further development of State practice in the area. Preference was therefore expressed for the adoption of the draft articles in the form of a non-binding declaration of the General Assembly.

Support was also expressed for the convening of the Ad Hoc Committee in spring of 2004 to finalize work on the subject. It was suggested that the Ad Hoc Committee be given the specific mandate of drafting preambular and final clauses for inclusion in a convention, which could be adopted at the 59th Session of the General Assembly. Some speakers stressed that the focus should be on drafting the preamble and the final clauses without reopening discussions on matters of substance, thus preserving the delicate compromises reached. Other delegations, however, also pointed out that the Ad Hoc Committee should reflect further on how to deal with and where to place the understandings in the future convention. In this regard, the point was made that the understandings only constituted an interpretative guide. Other suggestions included inserting a savings clause concerning the relationship between the draft convention and other international agreements on the same subject, a simple dispute resolution provision, and a provision forbidding reservations. The possibility of addressing disputes settlement in an optional protocol was also mentioned.

The proposal was made that the Secretariat be asked to prepare a draft of the preambular and final clauses of the proposed convention in advance of the proposed session of the Ad Hoc Committee, so that States might have the opportunity to carefully consider them.

Action taken by the Sixth Committee:

At the 20th meeting, the representative of the Japan introduced draft resolution A/C.6/58/L.20 (E, F, S, R, C, A). Australia, Denmark, Finland, France, India, Iran (Islamic Republic of), Ireland, Slovakia, South Africa, Spain, Sweden, Ukraine, United Kingdom of Great Britain and Northern Ireland and Vietnam joined as sponsors of the draft resolution.

At the 21st meeting, Cyprus, the Czech Republic, Norway, Poland and Portugal joined as sponsors of draft resolution, A/C.6/58/L.20. The Secretary of the Committee made a statement on the budgetary implications of the draft resolution. The Committee adopted draft resolution A/C.6/58/L.20, without a vote.

See: Report of the Sixth Committee (A/58/512) (E, F, S, R, C, A)

Background (Source: A/58/100)

The United Nations Commission on International Trade Law was established by the General Assembly at its twenty-first session, in 1966, to promote the progressive harmonization and unification of the law of international trade (resolution 2205 (XXI)). It began its work in 1968. The Commission originally consisted of 29 Member States representing the various geographic regions and the principal legal systems of the world. At its twenty-eighth session, the Assembly increased the membership of the Commission from 29 to 36 (resolution 3108 (XXVIII)). (For the membership of the Commission, see A/57/17, para. 4.)

At its fifty-seventh session, the General Assembly took note with satisfaction of the completion and adoption by the Commission of the Model Law on International Commercial Conciliation and commended the Commission for the progress made in its work on arbitration, insolvency law, electronic commerce, privately financed infrastructure projects, security interests and transport law (resolutions 57/17 and 57/18).

At the same session, the General Assembly emphasized the need for higher priority to be given to the work of the United Nations Commission on International Trade Law in view of the increasing value of the modernization of international trade law for global economic development and, thus, for the maintenance of friendly relations among States; took note of the recommendation contained in the report of the Office of Internal Oversight Services of the Secretariat on the in-depth evaluation of legal affairs; and requested the Secretary-General to consider measures to strengthen the secretariat of the Commission within the bounds of the resources available in the Organization, if possible during the current biennium and, in any case, during the biennium 2004-2005 (resolution 57/19).

The General Assembly decided to increase the membership of the Commission from 36 to 60 States, bearing in mind that the Commission was a technical body whose composition reflected, inter alia, the specific requirements of the subject matter; decided also that the 24 additional members of the Commission should be elected by the Assembly at its fifty-eighth session; and appealed to Governments, the relevant United Nations organs, organizations, institutions and individuals, in order to ensure full participation by the Member States in the sessions of the Commission and its working groups, to consider making voluntary contributions to the Trust Fund established to provide travel assistance to developing countries that were members of the Commission, at their request and in consultation with the Secretary-General (resolution 57/20).

Background documentation:

Report of the United Nations Commission on International Trade Law on its thirty-fifth session: Supplement No. 17: (A/57/17)

Report of the Secretary-General on the increase in the membership of the United Nations Commission on International Trade Law: (A/56/315)

Summary records: A/C.6/57/SR.4, A/C.6/57/SR.5 and A/C.6/57/SR.16, A/C.6/57/SR.17, A/C.6/57/SR.18 and A/C.6/57/SR.19

Report of the Sixth Committee: A/57/562 and Corr.1

Plenary meeting: A/57/PV.52

Resolutions: 57/17 to 57/20

Work undertaken at the Fifty-eighth session:

The Sixth Committee considered the item at its 2nd and 12th meetings, held on 6 and 21 October 2003, respectively. The Chairman of UNCITRAL at its thirty-sixth session presented the report of the Commission (A/58/17). The Legal Counsel made a statement.

Statements were made by the representatives of Sweden (on behalf of the Nordic countries), Belarus, Singapore, Uganda, Venezuela, India, Austria, Philippines, China, United States, Cyprus, Australia, Japan, Russian Federation, United Kingdom, Nigeria, Kenya, France, Mexico, Morocco, Algeria, Italy, Spain, Guatemala, Thailand, Republic of Korea and Democratic Republic of the Congo.

The speakers welcomed the adoption by UNCITRAL of the Model legislative provisions on privately financed infrastructure projects, supplementary to the UNCITRAL Legislative Guide of 2000 on the same subject. The request was put forward for the earliest allocation of necessary resources for the issuance of both documents in a single publication. The subjects of commercial fraud and public procurement identified by the Commission for its future work were considered appropriate.

Concern was expressed about the lack of adequate resources, including human resources, in the UNCITRAL secretariat that could jeopardise the implementation by the Commission of its increased workload, as well as the technical assistance and training, which was increasingly important for developing countries and countries in transition. Delegates called for the strengthening of the UNCITRAL secretariat within existing resources in the Office of Legal Affairs, as proposed by the Legal Counsel.

The Chairman of the Commission made a concluding statement. The secretary of the Commission and the Chairman of the Committee also spoke.

Action taken by the Sixth Committee

At the 12th meeting, the representative of Austria introduced draft resolution A/C.6/58/L.11 (E, F, S, R, C, A). It was announced that Afghanistan, Armenia, Costa Rica, Croatia, Mongolia, Portugal, the Russian Federation, Spain, Tunisia and Ukraine had joined as sponsors of the draft resolution.

The Chairman of the Committee, on behalf of the Bureau, introduced draft resolution A/C.6/58/L.12 (E, F, S, R, C, A).

The Committee adopted draft resolutions A/C.6/58/L.11 and A/C.6/58/L.12, without a vote.

See: Report of the Sixth Committee (A/58/513) (E, F, S, R, C, A)

Background (Source: A/58/100)

The International Law Commission was established by the General Assembly at its second session, in 1947, with a view to giving effect to Article 13, paragraph 1 a, of the Charter. The object of the Commission is to promote the progressive development of international law and its codification. The Commission concerns itself primarily with public international law, but it is not precluded from entering the field of private international law (resolution 174 (II)).

The statute of the Commission, annexed to resolution 174 (II), was subsequently amended (resolutions 485 (V), 984 (X), 985 (X) and 36/39). The Commission consists of 34 members elected for a term of five years. The last election was held at the fifty-sixth session of the General Assembly (decision 56/311), and the next election will be held during the sixty-first session.

At its fifty-seventh session, the General Assembly took note of the decision of the Commission to proceed with its work on the topic “International liability for injurious consequences arising out of acts not prohibited by international law"”, as requested by the Assembly in its resolution 56/82; also took note of its decision to include in its programme of work the topics “Responsibility of international organizations”, “Shared natural resources” and “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”; recommended that the Commission continue its work on the topics in its current programme; and also recommended that the debate on the report of the International Law Commission at the fifty-eighth session of the Assembly commence on 27 October 2003 (resolution 57/21).

Background documentation:

Report of the International Law Commission on the work of its fifty-fourth session: Supplement No. 10 and corrigendum: (A/57/10 and Corr.1)

Summary records: A/C.6/57/SR.20-28

Report of the Sixth Committee: A/57/563

Plenary meeting: A/57/PV.52

Resolution: 57/21

Work undertaken at the Fifty-eighth session:

The Sixth Committee considered the item at its 14th to 21st and 23rd meetings, held from 27 October to 4 November and 6 November respectively. The Chairman of the Commission, Mr. Enrique Candioti (Argentina), introduced the Commission's report for 2003 (A/58/10) in parts at the 14th, 16th, 18th and 20th meetings. The Special Rapporteur on Responsibility of International Organizations, Prof. Giorgio Gaja (Italy), also spoke.

Statements were made by the representatives of Algeria, Argentina, Australia, Austria, Belarus, Brazil, Bulgaria, Canada, Chile, China, Cyprus, Czech Republic, Denmark (on behalf of the Nordic countries), Egypt, Finland (on behalf of the Nordic countries), France, Gabon, Germany, Greece, Guatemala, Hungary, India, Iran (Islamic Republic of), Israel, Italy (on behalf of the European Union, the acceding countries Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia and the associated countries Bulgaria, Romania, and Turkey), Italy, Japan, Kenya, Malaysia, Mexico, Morocco, Nepal, Netherlands, New Zealand (on behalf of the Pacific Islands Forum Group of States that maintain permanent missions in New York), New Zealand, Nigeria, Norway (on behalf of the Nordic countries), Pakistan, Peru, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Sierra Leone, Slovakia, Slovenia, Spain, Sweden (on behalf of the Nordic countries), United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela and Vietnam.

With regard to the topic Responsibility of international organizations, delegations praised the progress already achieved by the Commission. It was suggested that future work on the topic should take into account the particular situation of regional economic organizations, such as the European Union.

Regarding the attribution of conduct to international organizations, most speakers considered that the definition of term “rules of the organization” contained in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations to be an adequate basis for the work of the Commission, while others emphasized the need to consider other formulations, including those contained in other conventions. However, the view was also expressed that such a reference might not be useful, since international organizations should not be able to rely on those rules to avoid responsibility under international law. It was also emphasized that any definition of the term should take into account the wide variety of rules of existing international organizations.

The speakers also acknowledged the difficulties posed by the question concerning the attribution of conduct of peacekeeping forces. In the view of some speakers, consideration of this question was premature, since the answer depended on a number of related issues, which the Commission had not had opportunity to discuss. Other speakers maintained that while the responsibility for their conduct should in principle be attributable to the United Nations where the forces were placed under U.N. command, it could be envisaged that in some situations the organization and the contributing State would share responsibility. It was noted that the question of attribution for the conduct of peacekeeping forces turned in part on whether the contributing States or the United Nations have “command and control” of the forces. It was suggested that careful attention be given to existing status of forces agreements and agreements between the contributing States and the organization.

As regards draft articles 1, 2 and 3 contained in chapter IV of the Commission's report, support was expressed for the approach taken thus far by the Commission. In particular, appreciation was expressed for the decision to follow the model adopted in the context of State responsibility, insofar as the two topics are parallel. However, many delegations stressed that analogies between the two topics cannot be drawn in all instances, since substantial differences existed as a result of the diverse nature of international organizations. Many speakers expressed support for the formulations proposed by the Commission, but numerous suggestions for revisions and clarifications were also offered. In particular, concern was expressed over the second paragraph of draft Article 1. Speakers noted that the definition of “International Organization” in draft article 2 would be a key element in codification of this topic. While general support for the approach taken by the Special Rapporteur was expressed, numerous comments and suggestions for improving the definition were offered. For example, some speakers were of the opinion that the definition should be limited to intergovernmental organizations, and that further clarification was necessary for the term “other entities”. It was further suggested that, with respect to draft Article 3, a reference to the internal rules of the organisation could be inserted.

With regard to the topic Diplomatic protection, several speakers welcomed the stated intention of the Special Rapporteur to complete the consideration of the topic during the current quinquennium.

On article 9, doubts were expressed at to the need for the inclusion of a reference to “declaratory judgments”. Concerning draft article 10, it was suggested that a reference to the “availability” of local remedies be included in paragraph (a). Regarding the exhaustion of local remedies rule, the view was expressed that there must be an assumption that the judicial system of any State is capable of providing reasonable legal remedies, and that any subjective judgement of the fairness and effectiveness of the injuring State's legal system should be avoided.

As regards draft article 17, several speakers expressed the view that the judgment in the Barcelona Traction case constituted an accurate statement of customary international law, and commended the Commission for its decision to proceed from that starting point. However, several concerns were expressed about the proposed definition of the State of nationality of a corporation, contained in paragraph 2. In addition, several speakers supported the decision of the Commission not to include a “genuine link” requirement in paragraph 2, while others regretted that decision. Others favoured the inclusion of a “genuine” or “effective” link criterion so as to deter the phenomenon of tax havens. Draft article 18 was also the source of some discussion, with speakers expressing different opinions on its validity and appropriateness. While some supported the inclusion of the two exceptions in the subparagraphs as reflecting contemporary practice in international economic relations, others expressed the concern that they were too broad and vague, thereby undermining the principle in draft article 17 whereby only the State of nationality of the corporation, as opposed to the State of nationality of the shareholders, would have the right to exercise diplomatic protection. Opposition was expressed as to the inclusion of the article 18, paragraph (b), which seemed to violate the principle of equality of treatment between national and foreign shareholders. Most speakers spoke favourably of draft articles 19 and 20. The view was expressed that a State may exercise diplomatic protection on behalf of shareholders only where the shareholders suffer from unrecovered direct losses.

As for draft article 21, the view was expressed that, although bilateral investment treaties have become prevalent, they have not become customary international law and should still be considered lex specialis. It was suggested that the provision should be applicable to the entire draft articles, so as to include, for example, protection afforded under international human rights treaties. On draft article 22, several speakers expressed doubts about the extending the scope of the draft articles to cover certain legal persons such as non-Governmental organizations. Some spoke in favour or retaining the general “mutatis mutandis” reference as proposed by the Special Rapporteur. Still others questioned its value, preferring a more in depth analysis into the rules applicable to different legal persons. Support was expressed for converting article 22 into a without prejudice clause.

Several speakers opposed the consideration of the protection of ship's crews within the context of the work on diplomatic protection. They were of the view that the issue was already sufficiently covered in the context of the United Nations Convention on the Law of the Sea. It was observed that it would be difficult to conclude that the Convention had enlarged the scope of the general international law institution of diplomatic protection. Others supported the extension of diplomatic protection by the flag State to crewmembers of ships regardless of their nationality. As for the protection of individuals employed by an international organization, it was pointed out that the ICJ gave clear guidance on the matter in the 1949 Reparations case, namely that agents of an international organization must be given effective protection. Some preferred excluding the issue from the scope of the draft articles entirely, or only dealing with the question of concurrent claims, namely for functional protection exercised by the organization and for diplomatic protection by the national State, in the case of injury to an employee of an international organization. Support continued to be expressed for the consideration of the exercise of diplomatic protection where a State or an international organization administers a foreign territory.

With regard to the topic international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities), support was expressed for the Commission's consideration of the liability aspects of the topic. Some speakers did not favour the development of a general international legal regime on liability. The Commission was also urged to carry out a further study on the success and failures of the existing regional and sectoral instruments concerning liability. Others favoured a regime that was general and residual in character, with some preferring that such liability be supplementary in nature as opposed to residual.

Concerning the basis of liability, several speakers preferred strict liability. Others noted that both strict and fault liability should be considered. It was also suggested that the conduct of the operator, on the basis existing legal regimes, be the focus of the topic, and that traditional exceptions to such liability be included. Such liability should emphasize the allocation of compensable loss and damage to the environment and primarily be based on proof of causation. It should also be complemented by the obligation of States to prevent transboundary harm. In terms of a further view, the primary liability should be on the person in direct command and control. Others suggested that the basis to be left to domestic law. Still others noted that State liability, even if residual, should not be ruled out. It was also suggested that the involvement of the State in supplementary schemes should be investigated. It was also suggested that the regime should be a legal regime for liability not for allocation of loss.

With regard to the standard of proof, several speakers stressed that it was not necessary to establish a strict causal connection between the act and the harm, pointing out that test of reasonableness was sufficient. It was also noted that the criteria of reasonableness should be clarified. As for the threshold of harm, several speakers supported “significant harm” as in the 2001 articles on prevention of transboundary harm from hazardous activities. Concerning the nature of the damage to be covered, support was expressed for the consideration of the topic to extend to the environment per se. Others expressed regret that the global commons was excluded from the scope of the topic, although it was proposed that it be added at a later stage. Some speakers expressed a preference to limit coverage to damage to persons and property. In relation to procedural and substantive requirements, it was suggested that States should make notification of the risk involved and insurance for the hazardous activity obligatory. However, others stressed the need for flexibility. Speakers also stressed the need to strengthen the polluter pays principle. It was also observed that the regime to be devised should contain framework principles allowing States the flexibility to settle disputes between them. Emphasis was also placed on the relevance of the proposition that the innocent victim should not be left to bear loss.

Concerning the form of the future instrument, several speakers noted that it was premature to decide but indicated preference for a convention. Others suggested model rules or guidelines. Some opposed the idea of a protocol as suggested by the Special Rapporteur.

With regard to the topic Unilateral Acts, while some speakers supported it continuation and stressed its importance, others were of the view that it should be discontinued. Some speakers welcomed the decision of the Special Rapporteur to single out specific types of unilateral acts (for example, recognition) in order to identify general rules applicable to all unilateral acts. Different views were expressed in regard to the recommendations of the newly established working group. Some supported the first recommendation of the Working Group relating to the definition of unilateral acts while remaining less convinced by the second.

Several speakers preferred limiting the scope of the topic to unilateral acts strictu senso. Other suggestions included: identifying a list of autonomous unilateral acts to be studied; focusing on the general and specific rules applied to the various types of such stricto sensu unilateral acts; including the conduct of States within the scope of the study; excluding acts of recognition by means of acquiescence, those based on treaty and expressed through a UN resolution or emanating from international organizations; and focusing on specific issues such as promise, waiver, acquiescence, etc. The view was also expressed that the modification, suspension or revocation of a unilateral should not be conditioned, and disagreement was expressed with the proposed principle of acta sunt servanda regarding the binding nature of a unilateral act. Several speakers were of the view that the Study on State practice would enable the Commission to assess the legal effects of unilateral acts. Several speakers expressed a preference for the eventual adoption of guidelines.

As for the topic Reservations to treaties, while support was expressed for the definition of objections proposed by the Special Rapporteur in draft guideline 2.6.1, several suggestions were made. The view was expressed that objections should be stated in a clear and unambiguous way. Support was expressed for a definition which would include both the legal effects of an objection and the intention of the objecting State. It was also pointed out that the possibility of not applying articles of a treaty between the parties should not be precluded. The view was expressed that guideline 2.6.1 on the definition of objections did not take into account all the effects that a State may wish to achieve, and support was expressed for the practice of stating the grounds for objections. It was suggested that the definition of objections should provide that objections can produce the legal effects defined in the Vienna Convention on the Law of Treaties directly or indirectly. Several speakers thought that intention is a key factor in determining whether a reaction to a reservation amounts to an objection. Some also felt that the proposed definition of objections to reservations was a narrow one and preferred the alternative option in paragraph 363 of the report. It was also suggested that non-contracting States should not be permitted to formulate objection to reservations made by contracting States. In addition, it was maintained that the depository should not express a view on the impermissibility of reservations. In terms of another suggestion, a distinction should be made between objections to permissible and impermissible reservations. Others proposed that the Commission should continue to work on the practice of States rather than codify a definition of objections to reservations. Still others doubted the desirability of defining “objections” in the guide to practice.

Concerning the possibility to extend the scope of a reservation it was observed that there was a fundamental difference between the late formulation of a reservation and the interpretation of an existing one in order to extend its range of application. Some speakers were of the view that enlargement of the scope of a reservation (guideline 2.3.5) should be viewed as late formulation of reservation. Others felt that such enlargement should be strictly limited or opposed such modification per se. Indeed, some were of the view that accepting the enlargement of the scope of reservations would set a dangerous precedent. It was also suggested that a definition of the enlargement of the scope was required as well as a clarification of the effects of objections thereto. It was pointed out that the definition of objections should be consistent with the relevant provisions of the Vienna Convention on the Law of Treaties. Support was also expressed for the position of the Commission on conditional interpretative declarations.

As for the topic Shared natural resources, speakers welcomed the Commission's decision to focus on groundwater, and welcomed the cautious approach taken by the Special Rapporteur, though it was stated that additional knowledge on the technical and geological aspects was required. Reference was made to the 2001 Convention on Persistent Organic Pollutants, the 1997 Convention on the Non-Navigational Uses on International Watercourses and G.A. Res. 1803 (XVI) on Permanent Sovereignty over Natural Resources. It was also suggested that the study required going beyond a mere analogy with the principles contained in the 1997 Convention, while others felt that stricter thresholds than those found in the 1997 Convention were required. The view was expressed that the eventual articles may need to have standards of use and prevention more strict than those applying to surface waters. Several speakers stressed that the subtopic of groundwaters required an approach dealing with their key role for sustainable development; and emphasized the need for heightened standards of due diligence, as compared to those of surface waters. It was suggested that the Commission also focus on the elimination of certain ultra-hazardous substances. Several speakers also felt that protecting groundwaters from pollution was necessary. Several speakers stressed the importance of applying the principle of national sovereignty over natural resources. Some speakers called for clarifying the scope of the topic, particularly by defining the term “groundwaters” based on hydrogeological considerations; and others emphasized the importance of having legal norms that could be understood and implemented at the technical level. The Commission was called upon to clarify the meaning of the reference in the title to “shared” resources. Several speakers proposed to amend the title of the topic to “transboundary groundwaters”. Examples were cited of regional international agreements regulating confined groundwaters, including the recent agreement between Argentina, Brazil, Paraguay and Uruguay relating to the Guarani underground aquifer. Some support was also expressed for dealing with the subtopics of oil and gas, at a later stage, and some preferred having a final study dealing with all three subtopics. Others preferred limiting the scope of the topic to groundwaters.

Concerning the topic Fragmentation of international law: difficulties arising from the diversification and expansion of international law, speakers expressed support for the consideration of the topic. It was noted that the consideration of the topic was timely and important for the future of the international legal system. Several speakers noted that fragmentation had positive and negative aspects and expressed support for the substantive approach suggested by the Commission. It was observed that, despite the problems and conflict arising from fragmentation, fragmentation as such served in enhancing the effectiveness of international law. Support was expressed for the proposed focus on the substantive rather than the institutional aspects of fragmentation. It was however pointed out that judicial institutions enhance their cooperation by considering each other's jurisprudence. Others noted that the topic could not be dealt with adequately without considering the mechanisms for coordination. It was also suggested that the Commission should aim to clarify the inherent lack of coherence and certainty in international law.

In relation to the sub-topic concerning the function and scope of the lex specialis rule and the question of self contained regimes, it was suggested that the Commission also examine the impact of measures undertaken by regional arrangements under chapter VIII of the Charter. It was also suggested that the focus should be on examining the lex specialis rule rather than the question of self contained regimes.

Concerning the final outcome for the topic, it was suggested that the Commission should avoid embarking on a purely academic exercise. Indeed, several speakers welcomed the indication that the Commission would prepare guidelines on the topic, which would distinguish it from a purely academic exercise. Others expressed caution, noting that it would be realistic to limit the scope of the guidelines. Others noted that the topic was particularly broad and theoretical, and therefore that the topic did not lend itself to the drafting of articles nor guidelines. It was also noted that the timetable proposed for the remaining part of the quinquennium seemed unrealistic.

With regard to the working methods and programme of work of the Commission, speakers commented on the need for streamlining the work of the Commission by eliminating topics in which little progress was being made, such as the topic “Unilateral Acts of States” . Hope was expressed that in its next report, the Commission could indicate its goals for the current quinquennium. Support was also expressed for exempting the Report of the Commission and those of the Special Rapporteurs from a maximum page requirement, and for the position taken by the Commission on honoraria for its members. It was also suggested that future topics address areas where legal regulation is both lacking and desirable. The issue of protecting vulnerable populations during internal conflicts or from man-made or natural disasters was suggested as a possible future topic. On the other hand, doubt was expressed regarding appropriateness of the proposed topics of “collective security” and “the principle of aut dedere aut judicare.”

States also made suggestions with regard to improving the debate of the Sixth Committee on the report of the Commission. In particular, support was for the joint proposal made by Sweden and Austria. Speakers welcomed the decision of the Bureau to hold informal consultations on portions of the Commission's report. Support was furthermore expressed for the International Law Seminar and appeals were made for voluntary contributions. It was also suggested that technical assistance be offered to least developed States in order to facilitate their review of the report of the Commission.

Action taken by the Sixth Committee

At the 23rd meeting, held on 6 November, the vice-Chairman, Ms. Gaile Ramoutar (Trinidad and Tobago) introduced draft resolution A/C.6/58/L.25 (E, F, S, R, C, A), on behalf of the Bureau.

The Committee adopted draft resolution A/C.6/58/L.25, without a vote.

See: Report of the Sixth Committee (A/58/514) (E, F, S, R, C, A)

Background (Source: A/58/100)

The Committee on Relations with the Host Country was established by the General Assembly at its twenty-sixth session, in 1971 (resolution 2819 (XXVI)). The Committee is currently composed of the following 19 Member States: Bulgaria, Canada, China, Costa Rica, Côte d'Ivoire, Cuba, Cyprus, France, Honduras, Hungary, Iraq, Libyan Arab Jamahiriya, Malaysia, Mali, Russian Federation, Senegal, Spain, United Kingdom of Great Britain and Northern Ireland and United States of America.

At its fifty-seventh session, the General Assembly endorsed the recommendations and conclusions of the Committee on Relations with the Host Country contained in paragraph 35 of its report; requested the host country to continue to take all measures necessary to prevent any interference with the functioning of missions; took note of the opinion of the Legal Counsel concerning the Parking Programme for Diplomatic Vehicles and of the positions expressed on that issue at the 213th meeting of the Committee, including the commitment of the host country to maintaining appropriate conditions for the functioning of the delegations and missions accredited to the United Nations in a manner that was fair, non-discriminatory, efficient and consistent with international law; and requested the Secretary-General to remain actively engaged in all aspects of the relations of the United Nations with the host country (resolution 57/22).

Background documentation:

Report of the Committee on Relations with the Host Country, Supplement No. 26: (A/57/26)

Summary records: A/C.6/57/SR.27 and 28

Report of the Sixth Committee: A/57/564 and Corr.1

Plenary meeting: A/57/PV.52

Resolution: 57/22

Work undertaken at the Fifty-eighth session:

The Sixth Committee considered the item at its 22nd meeting, held on 5 November 2003. The Chairman of the Committee on Relations with the Host Country introduced the report of the Committee (A/58/26). Statements were made by the representatives of Malaysia, Italy (on behalf of the European Union), Cuba, Sierra Leone and the United States of America.

Appreciation was expressed for the continued commitment of the host country to fulfil its obligations under the Convention on the Privileges and Immunities of the United Nations and the Headquarters Agreement to provide full facilities for the performance of the missions accredited to the United Nations, as well as for its efforts to continue to ensure the security of those missions and the safety of their personnel.

With respect to the Parking Programme for Diplomatic Vehicles adopted in 2002, hope was expressed that it would be implemented in a fair, non-discriminatory and effective manner and consistent with international law. It was also stressed that the programme should be carefully monitored with a view to addressing practical difficulties experienced by Missions.

Delegations also referred to instances of travel restrictions and delays in the issuance of entry visas, and urged the host country to resolve existing problems in conformity with the Headquarters Agreement.

The host country confirmed its commitment to fulfil its obligations under international law.

Action taken by the Sixth Committee:

The Chairman of the Committee on Relations with the Host Country introduced the draft resolution contained in document A/C.6/58/L.23 (E, F, S, R, C, A),at the same meeting.

The Committee adopted draft resolution A/C.6/58/L.23 without a vote.

See: Report of the Sixth Committee (A/58/515) (E, F, S, R, C, A)

Background (Source: A/58/100)

At its forty-ninth session, in 1994, the General Assembly established an ad hoc committee to review the draft statute for an international criminal court and to consider arrangements for the convening of a conference of plenipotentiaries to conclude a convention on the establishment of such a court (resolution 49/53).

At its fiftieth session, the General Assembly established the Preparatory Committee on the Establishment of an International Criminal Court (resolution 50/46). At its fifty-first session, the Assembly decided that a diplomatic conference of plenipotentiaries should be held in 1998, w