Fifty-ninth General Assembly
13th Meeting (AM)
COMPLETION OF DRAFT TEXT ON JURISDICTIONAL IMMUNITIES WELCOMED
BY LEGAL COMMITTEE; CLIMAX OF EFFORT BEGUN IN 1977
Debate Concluded on Expansion of Protection for UN, Related Personnel
Finalization of the draft convention on jurisdictional immunities of States and their property was welcomed by delegations in the Sixth Committee (Legal) this morning as it took up the item, as well as a request for observer status in the General Assembly for a subregional organization in the Caribbean.
As Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property, Gerhard Hafner of Austria, introducing its report, said the conclusion of the preamble and final clauses meant the Committee had a completed draft text of a convention ready for adoption by the General Assembly.
Negotiations on the text began in 1977 when the General Assembly recommended that the International Law Commission should take up the study of the law of jurisdictional immunities of States and their property with a view to its progressive development and codification.
The representative of the Netherlands, speaking for the European Union and associated States, said the time had come for the General Assembly to adopt the draft convention and to open it for signature.
The representative of India said a binding legal instrument on the subject would help clarify the scope and nature of those immunities in proceedings concerning commercial activities of States. It would be a significant contribution to the development of international law. India supported its adoption by the General Assembly.
Brazil’s representative, speaking for the Rio Group, said he welcomed the conclusion of the work on the draft convention, noting that the jurisdictional immunities of States and their property was a principle enshrined in customary international law.
Japan’s delegate said his country had played a role in the elaboration of the draft convention as a member of the International Law Commission. He welcomed the stability that the draft convention would provide to international law on the question.
Others speaking on the item were the representatives of Norway, Republic of Korea, China, United Republic of Tanzania, Venezuela, Cuba, United States, Guatemala and Libya.
Also this morning, the Committee concluded its debate on expanding the scope of legal protection under the 1994 Convention on the Safety of United Nations and Associated Personnel. Speaking on the issue were the representatives of Ukraine, Kenya, Canada, Australia, Nepal and Sierra Leone.
Finally this morning, the Committee heard the introduction of a draft resolution requesting observer status in the General Assembly for the Organization of Eastern Caribbean States. Saint Lucia introduced the draft. The representative of Trinidad and Tobago recalled that the aim of the intergovernmental body was to promote cooperation, unity and solidarity among its nine member States.
The Committee will meet again at 10 a.m. Tuesday, 26 October, to continue debate on the jurisdictional immunity convention.
The Sixth Committee (Legal) met this morning to conclude its consideration of the scope of legal protection under the Convention on Safety of United Nations and Associated Personnel; to begin consideration of the convention on jurisdictional immunities of States and their property; and to consider a request for observer status of an intergovernmental organization. (For background on the Convention on Safety of United Nations and Associated Personnel, see Press Release GA/L/3256 of 20 October).
The Committee had before it a resolution requesting observer status in the General Assembly for the Organization of Eastern Caribbean States (OECS) (document A/C.6/59/L.7). By it, the Assembly would invite the organization to participate in its session and work as an Observer and would request the Secretary-General to take all necessary action to implement the text. A letter from Saint Lucia (document A/59/233) states the main purposes of the organization are to promote cooperation, unity and solidarity among its nine members and to defend their territorial integrity and independence. It also seeks to achieve the fullest possible harmonization of their foreign policy, as well as economic integration.
A memorandum accompanying the application for observer status said the organization provides an effective cooperation mechanism for enhancing the economic and social development of its members, supported by good governance practices and respect for human rights. The nine members are: Antigua and Barbuda, Anguilla, British Virgin Islands, Dominica, Grenada, Montserrat, Saint Kitts and Nevis, Saint Lucia and Saint Vincent and the Grenadines.
Also before the Committee is a report of its Ad Hoc Committee on the convention on jurisdictional immunities of States and their property (document A/59/22) on proceedings of its most recent session (New York, 1-5 March). Meeting as a Working Group of the whole, members formulated and agreed upon a preamble and final clauses to the draft convention, the text of which appears as Annex I. Set out as an annex to the convention were understandings with respect to certain provisions.
The report states that during its present session, the Working Group reiterated the general understanding that the draft convention did not cover criminal proceedings, which would be more appropriately addressed by a General Assembly resolution. The Group also agreed that the draft convention should be entitled “United Nations Convention on Jurisdictional Immunities of States and Their Property”.
Contained in Annex II are texts of the written proposals and suggestions submitted for the Working Group’s consideration in formulating the preamble and final clauses. The issues covered include: the relationship between the draft articles and understandings, along with the provisions of the preamble and final clauses; relationship between the draft convention and other international agreements; settlement of disputes; signature; ratification, acceptance, approval or accession; entry into force; denunciation; depositary and notifications; authentic texts; and reservations.
The Ad Hoc Committee decided to recommend to the General Assembly that the text of the convention be adopted and that the general understanding of the convention not covering criminal proceedings be contained in the resolution adopting the convention.
Statements on Scope of Legal Protection
OLEKSANDR KUPCHYSHYN (Ukraine) said the issue of protection for United Nations and associated personnel was a top priority for his country which had suffered many losses among peacekeepers. The increasing number of losses among such personnel called for urgency in efforts to strengthen the legal regime for their protection. An important step had been taken with the adoption of the 1994 Convention. His country supported its universal application and would actively participate in the elaboration of appropriate legal instruments to expand its scope.
Ukraine commended the Secretary-General in incorporating key provisions of the Convention in status-of-forces and status-of-mission agreements with host countries.
LAZARUS AMAYO (Kenya) said his country hosted several United Nations organizations, agencies and associated personnel. It also provided an operating base for many United Nations personnel working in conflict areas in the wider Eastern and Central African region. Besides, Kenya was a major troop contributor to various United Nations peacekeeping operations. His delegation, therefore, supported all efforts and initiatives to strengthen protection and safety of United Nations and associated personnel. He urged flexibility, particularly on the definition of United Nations operations as contained in draft article 11 of the proposed protocol additional to the 1994 Convention.
He also called for the incorporation of clear guidelines distinguishing the activities of United Nations personnel involved in development work and those providing humanitarian assistance. He said the ultimate success in the protection of United Nations and associated personnel lay in the commitment of States to implement the Convention. As a demonstration of its support, Kenya had deposited its instrument of accession on October 19.
JULIE CROWLEY (Canada) said concrete steps must be taken to enhance the safety and security of United Nations and associated personnel and to hold accountable those who attacked them. States must not continue to wait to extend the scope of the Convention to as broad a range of United Nations operations as possible in order to maximize the legal protection available. Canada fully endorsed the conclusions and recommendations contained in the report of the Working Group, in particular those of the Ad Hoc Committee. It was encouraged by the constructive nature of the discussions and progress made in the recent meeting of the Working Group.
BEN PLAYLE (Australia) said the decision last week by the Working Group to adopt the Chairman’s text of the draft optional protocol as the basis for work was extremely significant. It would lead to a more effective legal basis for protecting United Nations and associated personnel. The Convention should be extended to the broadest range of United Nations operations, recognizing that a particular mission involved risk by reference to its purpose rather than the specific situation in which it was established.
He said the Ad Hoc Committee should meet again early next year. Also, all appropriate and reasonable resources should be allocated to ensure security for United Nations operations. That would be taken up in the Fifth (Administrative and Budgetary) Committee.
ARJAN BAHADUR THAPA (Nepal) said the Convention must be made more universal to cover political missions and those in post-conflict situations, and the full range of missions in which the United Nations was involved, and to extend protection to those who were not yet included in the Convention. A declaration of exceptional risk should serve as the basis for the trigger mechanism but risk must be more fully defined. As a troop contributor, his country supported the extension of the Convention to local personnel but the Convention must not be amended without a meeting of States parties. Any States becoming party to the additional protocol must also become parties to the Convention as well.
ALLIEU KANU (Sierra Leone) said he was pleased to see the requirement of a declaration eliminated from the working paper and the draft before the Committee. The element of “risk” continued to be a key issue. Defining the purpose of the operation as being for humanitarian, political or development assistance included the inherent element of risk. New language should continue to be explored in that regard, but definitions should not be too restrictive and thereby hamper the exercise of broadening the Convention’s scope. Also, overly restrictive definitions would have a particularly negative impact on locally hired personnel. The applicability of international humanitarian law and the Convention should be clarified so as to avoid any imbalance in protection and also to fill gaps.
Introduction of Draft on Observer Status
The representative of Saint Lucia introduced the draft resolution on the granting of observer status in the General Assembly to the Organization of Eastern Caribbean States.
The representative of Trinidad and Tobago spoke on the organization’s aims.
Introduction of Report by Ad Hoc Committee on Jurisdictional Immunities
GERHARD HAFNER (Austria) introduced the report of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property. He drew attention to the two recommendations in the report. The first was for the Assembly to adopt the draft. The second was for the Assembly to include, in the resolution that would adopt the report, the general understanding that the convention did not cover criminal proceedings. He said the convention would have to be read in conjunction with the commentary prepared by the International Law Commission to clarify the text if interpretative questions remained.
On the question of whether military activities were covered by the convention, he said they were not. The convention also did not affect the question of diplomatic immunities or situations involving armed conflicts. Also rules of customary international law continued to govern in matters not regulated by the convention. The approach of the convention was general: it did not apply where there was a special immunity regime.
Finally, he said the finalization of the convention in an increasingly important area of law promised to harmonize the practice of States. It would also facilitate commercial relations between States and private actors.
Statements on Convention on Jurisdictional Immunities
CETA NOLAND (Netherlands), speaking for the European Union and associated States, said they fully endorsed the recommendations contained in the report of the Ad Hoc Committee on the subject. The agreement reached on the preamble and final clauses marked the completion of the work of the Ad Hoc Committee. For the first time, there was a complete text of a draft United Nations convention on jurisdictional immunities of States and their property, she stated. That was the successful outcome of a long process of extensive preparatory work and difficult negotiations that started in 1977 when the International Law Commission took up the subject on the recommendations of the General Assembly.
She said the commentary prepared by the Commission, the reports of the Ad Hoc Committee, the statement by its Chairman, and the resolution that the General Assembly would eventually adopt on the text would together form an important part of the “travaux préparatoires” of the convention. The time had come for the General Assembly to adopt the draft United Nations convention and to open it for signature, she added.
KALRAJ MISHRA (India) said the draft convention represented the views of Member States as expressed in the Sixth Committee over the years. It also represented a fair and delicate balance and his delegation could live with it. A binding legal instrument on jurisdictional immunities of States and their property would help clarify the scope and nature of those immunities in proceedings concerning commercial activities of States. It would be a significant contribution to the development of international law. India supported its adoption by the General Assembly.
SIDNEY LEON ROMEIRO (Brazil), speaking for the Rio Group, said those countries welcomed the conclusion of the work on the draft convention through the adoption of the preamble and final clauses by the Ad Hoc Committee. They pointed out that the jurisdictional immunities of States and their property was a principle enshrined in customary international law. They welcomed the transformation of the draft text into a reality.
WEGGER STRØMMEN (Norway) said his country was one of those States that did not have a tradition of legislating the extent of State immunities. The adoption of the draft convention would constitute a major achievement providing States and their courts with legal certainty. Norway favoured its adoption based on the draft articles and the general understandings provided in the commentary.
CHUSEI YAMADA (Japan) said members of the International Law Commission, of which Japan was a member, had played a useful role in the elaboration of the draft text. He paid tribute to those others who were involved. His delegation associated itself with the statement made by the Chairman of the Ad Hoc Committee in introducing the Committee’s report. He welcomed the stability that the draft convention would provide to international law.
AHN EUN-JU (Republic of Korea) noted the spirit of cooperation and compromise achieved in the finalization of the draft convention.
GUAN JIAN (China) said long-standing differences on the issue of State immunities and conflicting national practices adversely affected international exchanges. The elaboration of an international legal instrument on the subject was, therefore, highly significant for regulating State conduct and harmonizing and defining legal provisions on the subject. It would have a positive bearing on harmonious and stable international relations.
He reiterated the Chinese position on some of the issues related to the draft convention, such as status of understandings with respect to the convention’s provisions and immunities in criminal proceedings. He said the understandings did not share equal legal status with the provisions of the draft convention.
ANDY ACKIM MWANDEMBWA (United Republic of Tanzania) said there had been much controversy throughout the Ad Hoc Committee’s work about such issues as absolute or restricted State immunity or when the immunity should not apply. Notwithstanding, there was now a draft convention to codify State practice in that area, covering issues such as employment, liability and property. It would greatly ease relations between States and natural or juridical persons. It reflected developments in State practice.
IMERIA DE ODREMAN (Venezuela) said the convention was a general guideline which States could apply in their national legislation. The document was a well-balanced one that recognized the sovereignty and equality of all States.
JUANA ELENA RAMOS RODRIGUEZ (Cuba) said the approval of the convention represented 27 years of difficult negotiations. States should enjoy immunities. Adoption of a legally-binding instrument to regulate relations represented an important step toward harmonizing codification between States in that area. It would lead to greater respect for international law and would offer States a basis for confidence on which to interact. It was not enough to approve the document, however; it must be met with the broadest possible universality of acceptance.
ERIC ROSAND (United States) said agreement on the text convention was an important achievement that would provide a solid foundation on which States could develop domestic law and regulate their interaction with greater harmony between legislation of States. No convention was perfect, however. There were outstanding issues to be resolved in this one. Throughout the negotiations, his country had pointed out the gaps and lack of precision in certain areas, as for example with the article on remedies, immunity to liability regarding personal damage, the status of non-commercial ports and the jurisdiction of host States with regard to employment. Finally, an important omission from the scope was the generally accepted rule of international law giving States 60 days to respond in the event of a suit. In other words, work in some areas was incomplete.
ROBERTO LAVALLE-VALDÉS (Guatemala) said the convention would only serve in the area of interpretation. The understandings set out in the document were normally principles that were included in the body of the convention itself. States that already had legislation in the area would not find it useful, and the form of the convention was not something a majority would find familiar. Certain provisions limiting the scope would best be moved to an annex, such as the content of article 3 on privileges and immunities not affected by the convention.
AHMED ELMESSALLATI (Libya) said the Ad Hoc Committee had made an important addition to the international instruments on codification by approving the convention. The text was balanced and effective in the important and emerging area of the State immunity principle. A number of State immunities were reinforced by the fact that the convention explicitly excluded them from its scope. Other State immunities were spelled. Once the Assembly adopted the text, there would be a strong set of principles to strengthen international relations along a legal framework.
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