Sixth Committee Approves Three Draft Resolutions on International Trade Law, One Addressing Transboundary Harm from Hazardous Activities

GA/L/3612
11 November 2019
Seventy-fourth Session, 34th Meeting (AM)

Sixth Committee Approves Three Draft Resolutions on International Trade Law, One Addressing Transboundary Harm from Hazardous Activities

Chairs Present Working Groups Reports on Diplomatic Protection, International Terrorism, Universal Jurisdiction

After hearing the oral reports of its working groups, the Sixth Committee (Legal) today approved without a vote three draft resolutions concerning international trade law and one on transboundary harm and allocation of loss.

By the terms of the text on “Report of the United Nations Commission on International Trade Law on the work of its fifty‑second session” (document A/C.6/74/L.7), the Committee would have the General Assembly commend the Commission for the finalization and adoption of a number of texts.  (For background, see Press Release GA/L/3611.)

The draft text would have the Assembly welcome the signing ceremony, held in Singapore on 7 August, for the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) and invite Governments and regional economic integration organizations that have not yet done so to consider becoming a party to the Convention.

Also approved today was the text on “Model Legislative Provisions on Public‑Private Partnerships of the United Nations Commission on International Trade Law” (document A/C.6/74/L.8) and the draft resolution on “Model Law on Enterprise Group Insolvency of the United Nations Commission on International Trade Law” (document A/C.6/74/L.9).

In addition, the Committee approved without a vote a text on “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” (document A/C.6/74/L.10).  Among the terms of that text, the Assembly would invite Governments to submit further comments on any future action for the articles and principles, bearing in mind the Commission’s recommendations that the articles and principles be elaborated into a convention.

Prior to taking up those draft texts, the Chairs of the Committee’s working groups provided oral reports on the groups’ activities.

The representative of Sri Lanka, Chair of the Working Group on “Measures to eliminate international terrorism”, highlighted the discussions concerning Egypt’s proposal of convening a high‑level conference on the matter.  While the proposal met with some support, there was concern that holding a high‑level conference without achieving consensus on the draft convention would be premature, he noted.

Brazil’s delegate, Chair of the Working Group on “Responsibility of States for internationally wrongful acts”, said that although some delegations considered the draft articles on that topic a crystallization of custom, others emphasized that they are not considered customary international law.  There was also concern that proceeding towards a convention would threaten the delicate balance established in the articles by the International Law Commission.

South Africa’s representative, Chair of the Working Group on “Diplomatic Protection”, noted that during discussions, several delegations highlighted substantive concerns with certain provisions of the articles, while others spoke in favour of the eventual adoption of these texts as a convention.  The Working Group also considered proposals for a draft resolution aimed at streamlining the Committee’s work on the articles on State responsibility articles and those on diplomatic protection, he said, noting that it would be introduced in due course.

The representative of Costa Rica, Chair of the Working Group on “the Scope and application of the principle of universal jurisdiction”, said the discussions in that Group focused, among other things, on which crimes are subject to prosecution on the basis of universal jurisdiction under their country’s national laws.  While it was possible to achieve progress in this complex and sensitive topic, he emphasized that “it is incumbent on the Sixth Committee to provide the necessary guidance.”

Michal Mlynár (Slovakia), Chair of the Committee, on the agenda item addressing the revitalization of the work of the General Assembly, highlighted various innovations that had led to improved working methods.  Although the Committee ran beyond the planned time for the debate on the Commission’s report by about an hour, it was a “rather insignificant delay”, he said, encouraging restraint and the timely commencement of meetings.

The representative of Mexico repeated the appeal for more succinct statements, noting that delegations can opt to send more detailed comments directly to the Commission and upload longer statements to PaperSmart.  He also proposed the possibility of shorter and fewer working groups sessions.

However, the representative of Togo, spotlighting that his delegation’s working language is French, said he was not convinced that statements uploaded to PaperSmart in that language would be considered by the International Law Commission in the same way they would be if delivered orally.  Calling for flexibility, he stressed the need to allow delegations to express themselves fully during the consideration of the Commission’s report.

As it prepared to adopt the remainder of its programme of work, the Committee also heard from several delegations who continued to raise the issue of denial of visas and movement restrictions.

Iran’s delegate expressed a growing scepticism about the ability of the United States to be a host of the United Nations.  However, the restrictions on his delegation could not undermine its contributions, he said, noting that it delivered 22 statements, including 6 group statements.  “The Sixth Committee is dear to our hearts,” he said.

The representative of the Russian Federation pointed out that the host country has still not issued visas to 18 members of her country’s delegation.  Since neither the Sixth Committee nor the Committee on Relations with the Host Country have been able to resolve the matter, the agenda item on that Committee should be left open, she said.

Also speaking today were the representatives of Syria, Cuba and Nicaragua.

The Sixth Committee will next meet at 10 a.m. on Wednesday, 20 November to take action on various draft resolutions.

Reports of Working Groups

AMRITH ROHAN PERERA (Sri Lanka), Chair of the Working Group on “Measures to eliminate international terrorism”, noted that on 7 October, the Sixth Committee decided to establish a working group to finalize the process on the draft comprehensive convention on international terrorism and to discuss the question of convening a high‑level conference under the auspices of the United Nations.  The Group held three meetings during the current session.

On the question of convening a high‑level conference, he said that during the 24 October meeting, the sponsor delegation of Egypt reiterated the continued relevance of that proposal.  While some delegations voiced support, others indicated that without achieving consensus on the draft convention, holding a High‑level conference would be premature.

At its November 7 consultations, the Group considered a proposed recommendation that the Sixth Committee establish a working group with a view to finalizing the process on the draft convention as well as to discuss the item concerning the question of the high‑level conference.  A number of delegations saw merit in the possible reconvening of a working group in 2021 as this would allow more time for reflection on the outstanding issues.

MAITÊ DE SOUZA SCHMITZ (Brazil), Chair of the Working Group on “Responsibility of States for internationally wrongful acts”, said the Group’s initial general exchange of views showed diverging opinions on negotiating a convention to address this topic.  There were also different views on the status of the articles, as some delegations considered them a crystallization of custom, while others emphasized that they do not consider the articles in their entirety as customary international law.  Similarly, while some delegations said it was unnecessary for all articles to constitute customary international law before moving towards a convention, others deemed it important to wait for development of enough State practice and opinio juris before negotiating a convention.

Generally, delegations referred to the importance of legal certainty and stability but diverged on whether negotiating a convention would contribute to attaining this goal, he continued.  Some indicated that proceeding towards a convention would threaten the delicate balance established in the articles by the International Law Commission.  The articles are widely accepted and a negotiating exercise could undermine their coherence and put into question their status in international law.  Other speakers said continued postponement in taking a decision on the future of the articles could undermine their status.  For some, the absence of action regarding the articles could give rise to a perception of disagreement among States, thus potentially undermining their status.

THABO MICHAEL MOLEFE (South Africa), Chair of the Working Group on “Diplomatic Protection”, said that the Group held meetings on 16 and 23 October.  Consideration of this item had, so far, been linked to the 2001 articles on “Responsibility of States for internationally wrongful acts”.  During discussions, several delegations highlighted substantive concerns with certain provisions of the articles on diplomatic protection, while others spoke in favour of the eventual adoption of these articles as a convention.  Delegates agreed that the continued solicitation of Government views on the articles was a useful exercise.  More time was needed for State practice to develop before further action could be taken on the articles, speakers said, drawing attention to the ongoing consideration of the articles on State responsibility.

He also said that a number of suggestions were made for the Sixth Committee to organize its work on the articles on diplomatic protection more effectively in relation to its work on the articles on State responsibility.  Some delegations advocated for parallel consideration of both items, focusing on closer analysis of substantive issues raised by States.  Others proposed to merge these agenda items. In light of these discussions, the Working Group considered proposals for a draft resolution aimed at streamlining the Committee’s work on both sets of articles.  That draft resolution will be introduced in due course, he said, calling on delegations to keep this item under consideration during the intersessional period with a view towards making concrete proposals on how to proceed in the future.

CHRISTIAN GUILLERMET-FERNANDEZ (Costa Rica), Chair of the Working Group on “the Scope and application of the principle of universal jurisdiction”, outlined reports the group has before it, including an informal paper containing a road map on the methodology and issues for discussion.  The Working Group held meetings on 18 and 24 October and discussed the way forward, given that the next year will mark the Group’s tenth anniversary.  Discussions focused on:  which crimes are subject to prosecution on the basis of universal jurisdiction under their country’s national laws; whether there are any conditions to the applicability of universal jurisdiction for such crimes; and the instances in which universal jurisdiction has been the basis of jurisdiction in prosecution of crimes in their country.

He observed that the information provided by the delegates tracked the information that Governments have submitted over the years to the Secretary‑General in response to various General Assembly resolutions on the item.  Some delegations reiterated their commitment to fighting impunity, while others highlighted concerns on abuse or misuse of universal jurisdiction and the need to avoid its politicization.  Delegates suggested a broadening of the scope of discussions and focusing on their concerns.  Support for the consideration of the topic by the International Law Commission was also reiterated.  Progress can be achieved by an open and honest debate on the complex and sensitive topic, he noted, adding, however, that “it is incumbent on the Sixth Committee to provide the necessary guidance.”

Introduction and Action on Draft Resolutions

The representative of Israel introduced the draft resolution on “The law of transboundary aquifers” (document A/C.6/74/L.11).  That text represents a technical rollover from the last resolution on the subject, adopted at the seventy‑first session, she noted.  There is wide consensus in the Committee that the draft articles prepared by the International Law Commission on the law of transboundary aquifers are a positive contribution to international law.  This year, States also reached consensus that a three‑year cycle for the consideration of the item would allow adequate time for development of the law and State practice, she said.

The Committee then turned to three draft resolutions relating to the work of the United Nations Commission on International Trade Law (UNCITRAL).  (For background, see Press Release GA/L/3611.)

The resolutions included the “Report of the United Nations Commission on International Trade Law on the work of its fifty‑second session” (document A/C.6/74/L.7), which was approved without a vote.  The text would welcome the signing ceremony, held in Singapore on 7 August 2019, for the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) and invite Governments and regional economic integration organizations that have not yet done so to consider becoming a party to the Convention.

The representative of the Russian Federation, speaking in explanation of position, commended the Commission’s work on relevant legal issues pertaining to international trade.  Recalling the importance of applying the Commission’s procedure and working methods, she called for transparent and inclusive deliberations in the Commission, which should strive to make decisions on the basis of consensus.  She expressed hope that the Commission’s work will be built on the basis of mutually acceptable solutions and that consensus will remain key to decision‑making.

The Committee also approved without a vote the draft resolutions on “Model Legislative Provisions on Public‑Private Partnerships of the United Nations Commission on International Trade Law” (document A/C.6/74/L.8).  By the terms of the text, the Assembly would recommend that all States give due consideration to the Provisions and the Legislative Guide when revising or adopting legislation relevant to public-private partnerships.

The draft resolution on “Model Law on Enterprise Group Insolvency of the United Nations Commission on International Trade Law” (document A/C.6/74/L.9) was also approved without a vote and would have the Assembly request the Secretary‑General to transmit the text of the Model Law, together with its guide to enactment, to Governments and interested bodies.

The Committee then took up the draft resolution on “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” and approved the text without a vote (document A/C.6/74/L.10).  By the terms of that text, the Assembly would commend once again the articles on prevention of transboundary harm from hazardous activities, and the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.  It would also invite Governments to submit further comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention.

The Committee then decided to send a letter to the President of the General Assembly by which the Chair would draw attention to certain specific issues relating to the legal aspects of the reports under the item “Administration of justice at the United Nations”.

Organization of Work

The Committee then turned to the remainder of the programme of work for the current session.

ALI NASIMFAR (Iran) said the founders of the United Nations could not have imagined the short‑sighted measures put in place by the host country to restrict the movements of some delegations.  The partial adoption of the work programme and the suspension of its two sessions is entirely due to the host country’s irresponsible behaviour.  Iran is an advocate of multilateralism, he said, adding that the “Sixth Committee is dear to our hearts”.  But the United Nations is facing the consequences of unilateralism, as the host country keeps insisting on its wrongful acts.  The restrictions on his delegation aim at undermining its substantive contributions.  However, the Iranian delegation has engaged in a meaningful way; it delivered 22 statements, including 6 group statements.  What remains is a growing scepticism about the ability of the United States to be a host of the United Nations.  Hosting is a privilege and should not be used as a means for exerting political pressure, he said, calling on the Secretary‑General to actively resolve the situation.

MARIA V. ZABOLOTSKAYA (Russian Federation) pointed out that the host country’s abuse of its host status has disrupted the work of the Sixth Committee, as well as the First (Disarmament and International Security) Committee.  More so, the host country has still not issued visas to 18 members of her country’s delegation.  Despite the extraordinary meeting of the Committee on Relations with the Host Country, at which the United Nations Legal Counsel stated that Member States’ delegations must be provided with entry visas to participate in United Nations events without exception, her delegation has still not received all visas and is therefore not able to fully participate in the Organization’s work.  She asked the Chair to tell the Sixth Committee what measures have been taken so far to resolve this situation, considering that neither the Sixth Committee nor the Host Country Committee have been able to so resolve.  Therefore, the agenda item on the Host Country Committee should be left open.

AMMAR AL ARSAN (Syria) added his support for the proposal by the Russian Federation’s delegate regarding the report of the Host Country Committee.  The clear recommendations in the report should have received a positive response from the Government of the United States but the political will in Washington, D.C. was lacking.  If the host country is not willing to grant entry visas to all delegations equally and lift movement restrictions, it will be necessary to take other steps, such as seeking an advisory opinion from the International Court of Justice or proceed with arbitration.

INDIRA GUARDIA GONZÁLEZ (Cuba) reaffirmed the right of all delegations to participate on an equal footing in the work of the General Assembly.  Rejecting the use by the United States of its status as host country and the selective implementation of the Headquarters Agreement, she condemned the interference by that country in the composition of delegations.  That is the sovereign prerogative of the Member States, she said, calling on the United States to put an end to the repeated breaches of the Headquarters Agreement.

ALINA JULIA ARGÜELLO GONZÁLEZ (Nicaragua) said that the host country’s failure to comply with the Headquarters Agreement makes it difficult for all Member States to enjoy full participation on an equal footing in the Organization’s work.  She called on the host country to not politicize or destabilize this work.  Emphasizing the importance of equality under law and the sovereign equality of all Member States, she expressed hope that a solution will be found that will guarantee equal participation for all Member States, particularly those most affected by the visa situation.

MICHAL MLYNÁR (Slovakia), Chair of the Sixth Committee, took note of the positions of the different delegations and said that the draft resolution on the topic is under “silence procedure” until 12:30 p.m. today.  Depending on the status of that text, the Committee will be reverting to it on 20 November, he noted, also adding that it has been possible to reach consensus on draft recommendations on most of the issues.  Outlining his own efforts, he noted that he has discussed the issues with the President of the General Assembly, the legal counsel of the United Nations and the Secretary‑General.  “All of them have taken this issue seriously,” he said, also referring to a conversation with the Secretary‑General who had confirmed that he would continue his efforts personally as well as through the legal counsel and the Host Country Committee.

The Sixth Committee then approved the remainder of the programme of work.

Revitalization of the work of the General Assembly

Mr. MLYNÁR recalled that this matter has been considered by past and present Bureaux of the Sixth Committee and that, over the years, a number of innovations in the Committee’s working methods have been introduced on the basis of, inter alia, recommendations made during the annual debate on this item.  A “lessons‑learned” paper was developed several years ago that is shared from Bureau to Bureau; it reflects the accumulated wisdom of many colleagues.  He said the Bureau again looks forward to any suggestions for improving the Committee’s working methods and, following the adjournment of the session, will convene to review the session and make its own contributions to the paper.

He noted the implementation of certain suggestions — such as the Chair of the International Law Commission making only one, consolidated intervention — and the length of statements made during the debate on the Commission’s report.  Overall, the Committee ran beyond the planned time for that debate by about an hour — in total, a “rather insignificant delay”.  Being conscious of statement length, he encouraged restraint.  In addition, the timely commencement of meetings seems the right approach for streamlining and organizing the daily work programme, he observed.

PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) thanked the Chair for his message concerning the length of the statements, particularly during the debate on the International Law Commission’s report.  Echoing the appeal for more succinct statements, he said that delegations must bear in mind the option of sending more detailed comments directly to the Commission and uploading longer statements to PaperSmart.  Reflecting on lessons learned, he proposed the possibility of revising the length and number of the working groups sessions, depending on their workloads.  That would enable more time to be allocated for the plenary debates as well as informal consultations.

DEKALEGA FINTAKPA LAMEGA (Togo), while observing that 34 minutes is too long for a statement before the Sixth Committee, underscored the importance of flexibility in the Committee’s approach to written and spoken statements during its debates.  The working language for his delegation is French, he pointed out, adding that he was not convinced that statements uploaded to PaperSmart in that language would be considered by the International Law Commission in the same way they would be if delivered orally.  It is important that delegations are allowed to express themselves during debate in the Sixth Committee, particularly during the consideration of the Commission’s report, he stressed.

For information media. Not an official record.