¹ The Legal Committee, generally referred to as the Sixth Committee, is the primary forum for the consideration of legal questions in the General Assembly. All of the UN member states are entitled to representation on the Sixth Committee as one of the seven main committees of the General Assembly. Rules 98 and 100, Rules of Procedure of the General Assembly, UN Doc. A/520/Rev.15 (1984).

² The Sixth Committee plays an important role in promoting the progressive development of international law and its codification by reviewing the annual reports of the ILC, UNCITRAL and the Charter Committee. The Sixth Committee can also play a more direct role in drafting legal instruments, as it did in the case of the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277, and, more recently, the 1989 Convention against the Recruitment, Use, Financing and Training of Mercenaries, GA Res. 44/34, UN GAOR, 44th Sess., Supp. No. 49, at 306, UN Doc. A/44/49 (1989).

³ Although the explanatory memorandum accompanying the request for the new agenda item, UN Doc. A/47/249, annex (1992), did not refer to the recent Supreme Court decision in United States v. Alvarez-Machain, 112 S.Ct. 2188 (1992), it was generally assumed that this decision prompted the request.

⁴ General Assembly Resolutions 47/29–38 and Decisions 47/414–16.

⁵ Report of the United Nations Commission on International Trade Law on the work of its twenty-fifth session, UN GAOR, 47th Sess., Supp. No. 17, UN Doc. A/47/17 (1992). The committee also had before it in connection with this item the report of the Secretary-General on granting travel assistance to developing countries that are members of UNCITRAL to enable them to participate in the work of the Commission. UN Doc. A/47/454 (1992).

⁶ For the summary records of the committee’s debate on this item, see UN Docs. A/C.6/47/SR.3-5 (1992).

⁷ The Sixth Committee had before it in connection with the item the report of the Secretary-General containing information on the topic submitted by ten states, as well as the list of the states parties to the Additional Protocols as of July 2, 1992, UN Doc. A/47/324 (1992).

⁸ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609.

⁹ Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

¹⁰ For the summary record of the committee’s debate on this item, see UN Doc. A/C.6/47/SR.6 (1992).

¹¹ UN Doc. A/C.6/47/SR.11 (1992).

¹² See 2 Official Records of the United Nations Conference on the Representation of States in Their Relations with International Organizations, Vienna, 4 February-14 March 1975, UN Doc. A/CONF.67/15, annex, UN Sales No. E.75.V.12 (1975).

¹³ UN Doc. A/C.6/47/SR.19 (1992).

¹⁴ UN Doc. A/47/328 (1992).

¹⁵ For the summary records of the committee’s debate on this item, see UN Docs. A/C.6/47/SR.8-9 (1992).

¹⁶ Jordan and the United States submitted a memorandum to the Sixth Committee in which they identified a number of such provisions. UN Doc. A/C.6/47/3 (1992).

¹⁷ This item was first included on the agenda of the General Assembly at its thirty-fifth session, in 1980, following the U.S. hostage crisis in Tehran.

¹⁸ UN Doc. A/47/325 and Adds. 1 & 2 (1992).

¹⁹ Under the reporting procedures, all states are asked promptly to provide information on serious violations of diplomatic and consular law; measures taken to bring the offender to justice, including the final outcome of the proceedings; and measures taken to prevent the recurrence of such violations. These procedures were established by the General Assembly in 1980 and subsequently revised on several occasions, most recently in 1988. GA Res. 35/168, UN GAOR, 35th Sess., Supp. No. 48, at 266, UN Doc. A/35/48 (1980); GA Res. 42/154, UN GAOR, 42d Sess., Supp. No. 49, at 294, UN Doc. A/42/49 (1988).

²⁰ For the summary records of the debate on this item, see UN Docs. A/C.6/47/SR.10-11 (1992).

²¹ Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261; and Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167.

²² In 1969 Colombia requested that the agenda of the twenty-fourth session of the General Assembly include a new item entitled “Establishment of a Special Committee to consider suggestions for revising the Charter of the United Nations.” In its request, Colombia drew attention to Article 109(3) of the Charter, which recognizes the possibility of convening a general conference of member states to review the Charter and provides for consideration of a proposal to call such a conference if one has not been held prior to the tenth session of the General Assembly. UN GAOR, 24th Sess., 2 Annexes, Agenda Item 107, at 1, UN Doc. A/7659 (1969). A few years later, in 1972, Romania requested that a new item be included on the agenda of the twenty-seventh session, “Strengthening of the role of the United Nations with regard to the maintenance and consolidation of international peace and security, the development of co-operation among all nations and the promotion of the rules of international law in relations between States.” UN GAOR, 27th Sess., Annexes, Agenda Item 24, UN Doc. A/8792 (1972). These two initiatives came together with the establishment of the Special Committee.

²³ Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN GAOR, 47th Sess., Supp. No. 33, UN Doc. A/47/33 (1992).

²⁴ The Russian Federation submitted a working paper on this topic at the 1992 session of the Special Committee. Id., para. 39.

²⁵ A number of countries that had suffered adverse effects due to the imposition of sanctions against Iraq in response to its invasion of Kuwait submitted a working paper on this topic at the 1992 session of the Special Committee. Id., paras. 109, 122.

²⁶ Guatemala had submitted a draft set of rules, which are reproduced in the report of the Special Committee. Id., para. 132.

²⁷ UN Doc. A/47/277-S/47111 (1992).

²⁸ For the summary records of the debate on this item, see UN Docs. A/C.6/47/SR.12–18 (1992).

²⁹ For clarification of this proposal, see the statements of the Legal Counsel in the Special Committee, supra note 23, para. 31, and in the Sixth Committee, UN Doc. A/C.6/47/SR.18 (1992).

³⁰ For example, the question was raised whether it is appropriate to grant such an authorization, which so far has only been granted to intergovernmental bodies, to an individual.

³¹ Because of its controversial nature, the question of authorization for the Secretary-General to request advisory opinions from the International Court of Justice is not expressly mentioned in the draft resolution, but is included under “other specific proposals relating to the question of the peaceful settlement of disputes between States under consideration in the Special Committee.”

³² This item was placed on the agenda of the forty-fifth session of the General Assembly, in 1990, at the request of Austria and Czechoslovakia, which considered that, although the Vienna Convention on Consular Relations, supra note 21, had proved to be of great value in regulating consular privileges and immunities, it failed to provide precise rules regarding consular functions. While recognizing that, in many cases, states had chosen to regulate these functions in greater detail by negotiating a series of bilateral agreements, the two states believed that these agreements “cannot be considered as a substitute for a universal convention, as they differ in content and are only in force between certain countries.” UN Doc. A/45/141, annex, para. 1 (1990). For these reasons, Austria and Czechoslovakia proposed the elaboration of an additional protocol to the Vienna Convention on Consular Relations to provide “specific rules on consular functions without, however, trying to regulate every detail.” Id., para. 2.

³³ For the report of the Chairman of the informal consultations, see UN Doc. A/C.6/47/L.7 (1992). For the summary record of the debate on this item, see UN Doc. A/C.6/47/SR.26 (1992).

³⁴ UN Doc. A/C.6/47/L.7, para. 7 (1992).

³⁵ Article 36 of the Vienna Convention, supra note 21, addresses this issue.

³⁶ UN Doc. A/C.6/47/L.7, paras. 12, 13 (1992).

³⁷ Report of the International Law Commission on the work of its forty-fourth session, UN GAOR, 47th Sess., Supp. No. 10, UN Doc. A/47/10 (1992).

³⁸ The Commission established a working group to analyze the main issues relating to such a court and to draft concrete recommendations thereon. The working group agreed on the following basic propositions, which formed the basis of its report to the Commission:

Id., para. 395.

³⁹ In its report, the Commission explained this decision as follows:

Id., para. 360.

⁴⁰ Id., para. 104.

⁴¹ UN Doc. A/C.6/47/SR.20 (1992).

⁴² For the summary records of the committee’s debate on this item, see UN Docs. A/C.6/47/ SR.20–30 (1992).

⁴³ The states constituting the first two groups believed that an international tribunal would have several advantages over the present system of universal jurisdiction for international crimes exercised by the national courts of different states, as follows: (1) the uniform application of international criminal law; (2) the objectivity and independence of an international tribunal; (3) the punishment of perpetrators of international crimes who would otherwise go unpunished in cases where states were reluctant to prosecute or extradite an individual to another state; (4) the deterrence of international crimes provided by the very existence of the court; and (5) the strengthening of the rule of law by ensuring the enforcement of the norms of international criminal law and the strengthening of the international legal system by providing an effective mechanism for the prosecution of persons who violate these norms.

⁴⁴ The questions identified by some delegations as requiring further consideration and comment included: (1) whether the court would enjoy the general support of the international community required for it to serve as a meaningful institution; (2) whether the court would have the unintended and undesirable effect of undermining, rather than complementing, the present system of universal jurisdiction exercised by the national courts; and (3) whether the international court would in fact be subject to many of the same practical limitations as the national courts, such as the difficulties in volved in bringing alleged perpetrators of international crimes before the court for trial.

⁴⁵ The difficulties mentioned by these delegations included: (1) the reluctance of states to relinquish their national criminal jurisdiction, an essential element of state sovereignty, over such cases; (2) the unlikelihood that states would hand over for trial by an international tribunal the senior civilian or military officials who were often the perpetrators of international crimes; and (3) the elaboration of universally acceptable uniform rules of criminal law and procedure in light of the divergent national criminal laws and underlying policies, for example with regard to the death penalty.

⁴⁶ UN Doc. A/C.6/47/SR.27 (1992).

⁴⁷ Id., para. 345.

⁴⁸ See UN Doc. A/C.6/47/SR.35 (1992).

⁴⁹ Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 11, UN Doe. A/46/10 (1991).

⁵⁰ At its forty-sixth session, in 1991, the General Assembly had decided to establish at the present session an open-ended working group of the Sixth Committee to examine, in light of the views expressed by governments in written comments or during the Sixth Committee’s debate, the following:

⁵¹ The Chairman’s proposals are reproduced in the report of the working group, together with a summary of the views expressed at several meetings. UN Doc. A/C.6/47/L.10 (1992). There are no summary records of the meetings of the working group, which were closed.

⁵² The Chairman proposed adding to Article 2, subparagraph 1(b)(ii) the following language, which is based on Article 28 of the European Convention on State Immunity, May 16, 1972, reprinted in 11 ILM 470 (1972): “(ii) constituent units of a federal State not covered by subparagraph (iii), provided that the federal State submit to the depositary of the present instrument a declaration signifying that they shall be entitled to invoke the immunity of the State.” UN Doc. A/C.6/47/L.10, para. 9 (1992).

⁵³ The Chairman’s proposal would include state agencies or instrumentalities in the definition of the state for purposes of invoking immunity to the extent that they were not only authorized to perform, as required by the present draft, but actually performed acts in the exercise of the sovereign authority of the state. The Chairman proposed that Article 2, subparagraph 1(b)(iv) be amended to read as follows: “(iv) agencies or instrumentalities of the State or other entities, whenever performing acts in the exercise of the sovereign authority of the State.” UN Doc. A/C.6/47/L.10, para. 11 (1992).

⁵⁴ The Chairman proposed the following language for Article 2, subparagraph 1(c)(i):

⁵⁵ The Chairman proposed the following alternatives for Article 2, paragraph 2:

Id., para. 15.

⁵⁶ Article 11, paragraph 1 provides that a state may not invoke immunity in a proceeding relating to an employment contract. This provision does not apply to certain types of proceedings set forth in paragraph 2, including those relating to wrongful dismissal. The Chairman’s proposal that such actions be allowed for the limited purpose of obtaining monetary compensation reads as follows: “2. Paragraph 1 does not apply if: … (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual without prejudice to the possible recourse available to the employee in the State of the forum for monetary compensation against wrongful dismissal. “Id., para. 29.

⁶⁷ The Chairman proposed the following language for Article 10(1): “A State cannot invoke immunity before a court of another State which is otherwise competent in a proceeding which relates to a commercial transaction between a State and a foreign national or juridical person.” Id., para. 27.

⁵⁸ The Chairman suggested replacing Article 10(3) concerning state enterprises with the following provision:

⁵⁹ The Chairman proposed deleting the connection required by Article 18, subparagraph 1(c), and adding the following new paragraph:

⁶⁰ The Chairman proposed the following new paragraph: “No measures of constraint shall be taken against the property of a State before that State is properly notified and given adequate opportunity to comply with the judgement.” Id., para. 23.

⁶¹ See Report of the International Law Commission on the work of its forty-first session, UN GAOR, 44th Sess., Supp. No. 10, at 26, UN Doc. A/44/10 (1989).

⁶² UN Doc. A/C.6/47/SR.31 (1992).

⁶³ Article 25 concerning the contents of the diplomatic bag provides that it “may contain only official correspondence, and documents or articles intended exclusively for official use.” It also provides that the sending state is obligated to take appropriate measures to prevent the dispatch of other items through the diplomatic bag. Report of the International Law Commission, supra note 61, at 101.

⁶⁴ Mr. Tomka provided the following text of his proposal:

⁶⁵ GA Res. 2819 (XXVI), UN GAOR, 26th Sess., Supp. No. 29, at 138, UN Doc. A/8429 (1971).

⁶⁶ Agreement regarding the Headquarters of the United Nations, June 26, 1947, UN-U.S., 61 Stat. 3416, 11 UNTS 11; Supplemental agreement regarding the headquarters of the United Nations, Feb. 9, 1966, 17 UST 74, 554 UNTS 308; Amendment, Dec. 8, 1966, 17 UST 2319, 581 UNTS 362; Second supplemental agreement regarding the headquarters of the United Nations, Aug. 28, 1969, 20 UST 2810, 687 UNTS 408; Third supplemental agreement regarding the headquarters of the United Nations, Dec. 10, 1980, 32 UST 4414.

⁶⁷ Feb. 13, 1946, 21 UST 1418, 1 UNTS 16. In recent years, the committee has considered such important matters as the U.S. refusal to grant an entry visa to Yasser Arafat, Chairman of the Executive Committee of the Palestine Liberation Organization (PLO), to participate in the work of the forty-third session of the General Assembly, in 1988, and U.S. efforts to close the PLO’s Permanent Observer Mission to the United Nations under the newly adopted Anti-Terrorism Act of 1987. See Report of the Committee on Relations with the Host Country, UN GAOR, 42d Sess., Supp. No. 26, at 13, UN Doc. A/42/26 (1987). See also United States v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988); and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 ICJ REP. 12 (Advisory Opinion of Apr. 26).

⁶⁸ For the summary record of the committee’s debate on this item, see UN Doc. A/C.6/47/SR.33 (1992).

⁶⁹ Report of the Committee on Relations with the Host Country, UN Doc. A/47/26 (1992).

⁷⁰ No travel restrictions were imposed on members of permanent missions and United Nations staff from the other former Soviet republics. Id., paras. 17, 19.

⁷¹ UN Doc. ST/IC/1192/33, Ann. I (1992).

⁷² It is worth mentioning that, recently, a federal district judge in Manhattan ordered the eviction of a mission for egregious nonpayment of rent, rejecting the arguments of the United States on inviolability of mission premises. United States Mission to the United Nations, Press Release No. USUN 27–(92) (Apr. 1992).

⁷³ At its forty-fourth session, in 1989, the General Assembly declared the period 1990–1999 as the United Nations Decade of International Law, outlining the main purposes of the decade as follows: first, to promote acceptance of and respect for the principles of international law; second, to promote means and methods for the peaceful settlement of disputes between states, including resort to and full respect for the International Court of Justice; third, to encourage the progressive development of international law and its codification; and fourth, to encourage the teaching, study, dissemination and wider appreciation of international law. GA Res. 44/23, UN GAOR, 44th Sess., Supp. No. 49, at 31, UN Doc. A/44/49 (1989).

For the summary records of the debate on this item at the forty-seventh session, see UN Docs. A/C.6/47/SR.34–37 (1992).

⁷⁴ For the report of the working group to the Sixth Committee, see UN Doc. A/C.6/47/L.12 (1992).

⁷⁵ The program outlines various activities to be undertaken by states, international organizations and bodies to further each of the four main purposes of the decade, as described in note 73 supra. GA Res. 45/40, UN GAOR, 45th Sess., Supp. No. 49, at 361, UN Doc. A/45/49 (1990).

⁷⁶ Program, UN Doc. A/47/583, sec. V, para. 3 (1992).

⁷⁷ See supra note 3.

⁷⁸ For the summary record of the Sixth Committee’s consideration of this item, see UN Doc. A/C.6/47/SR.38 (1992).

⁷⁹ Article 96 of the UN Charter authorizes the General Assembly to request that the International Court of Justice provide an advisory opinion on any legal question.