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Certain Issues of the Work of the Sixth Committee at the Fifty-sixth General Assembly

Published online by Cambridge University Press:  27 February 2017

Gerhard Hafner
Gerhard Hafner*
Affiliation:
Vienna University
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Current Developments
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American Journal of International Law , Volume 97 , Issue 1 , January 2003 , pp. 147 - 162
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Copyright © American Society of International Law 2003

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References

1 These sixteen items were Report of the United Nations Commission on International Trade Law on the work of its thirty-fourth session (agenda item [a.i.] 161); Scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel (a.i. 167); Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (a.i. 165); Measures to eliminate international terrorism (a.i. 166);Report of the International Law Commission on the work of its fifty-third session (a.i. 162);Establishment of the International Criminal Court (a.i. 164); Convention on jurisdictional immunities of States and their property (a.i. 160); Observer status in the General Assembly for the International Institute for Democracy and Electoral Assistance, the International Development Law Institute, the International Hydrographic Organization, the Community of Sahelo-Saharan States, and Partners in Population and Development (a.i. 168, 170, 172, 173, 176); International convention against the reproductive cloning of human beings (a.i. 174); United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (a.i. 159); and Report of the Committee on Relations with the Host Country (a.i. 163). UN Doc. A/C.6/56/1 (2001).

2 Report of the United Nations Commission on International Trade Law, UN GAOR, 56th Sess., Supp. No. 17, UN Doc. A/56/17 (2001) [hereinafter UNCITRAL Report].

3 For the text, see id. at 82.

4 For the text, see id. at 99. Of the other substantive work of UNCITRAL, the main emphasis was put on the issues of the carriage of goods by sea, id. at 60, conciliation, id. at 58, and insolvency law, id. at 56.

5 See id. at 39.

6 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9* (1998), 37 ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES–5, available at <http://www.un.org/law/icc> (entered into force July 1,2002). On the elaboration of the Rome Statute, see Kirsch, Philippe, The Development of the Rome Statute, in The International Criminal Court 451 (Lee, Roy S. ed., 1999)Google Scholar.

7 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31, 1155 UNTS 331 (referring to the travaux préparatoires as supplementary means of interpretation) [hereinafter Vienna Convention].

8 The main difference lies in the fact that UNCITRAL is composed of state representatives even though they act as experts, whereas the ILC consists of independent experts.

9 GA Res. 2205 (XXI) (Dec. 17,1966); GA Res. 3108 (XXVIII) (Dec. 12, 1973).

10 GA Res. 55/151, op. para. 13 (Dec. 12, 2000).

11 UNCITRAL Report, supra note 2, at 69.

12 Pinto, Christopher, Democratization of International Relations and Its Implications for the Development and Application of International Law, in United Nations, International Law as a Language for International Relations: Proceedings of the United Nations Congress on Public International Law 250, 255 (1996)Google Scholar.

13 Franck, Thomas M., Fairness in International Law and Institutions 83 (1995)Google Scholar.

14 For information on the Group of 77, see its Web site, <http://www.g77.org/main/main.htm>.

15 Deutsch, Karl, The Analysis of International Relations 52 (1968)Google Scholar.

16 See Oxman, Bernard H., La Troisième Conférence des Nations Unies sur le Droit de la Mer, in Traité du nouveau droit de la mer 143, 149 (Dupuy, René-Jean & Vignes, Daniel eds., 1985)Google Scholar.

17 On the participation of this group in elaborating the Statute, see, for example, John T. Holmes, The Principle of Complementarity, in The International Criminal Court, supra note 6, at 41, 66.

18 GA Res. 50/52 (Dec. 11, 1995).

19 Cf., e.g., Rules of Procedure of the Rome Conference on the International Criminal Court, Rule 34, UN Doc. A/CONF.183/2/Add.2 (1998) (rule entitled “General agreement,” requiring the conference to “make its best endeavours to ensure that the work of the Conference is accomplished by general agreement”).

20 UN Press Release GA/L/3179, at 7 (Oct. 8, 2001) (delegate of Chile on behalf of other Latin American countries).

21 See the draft resolution proposed to the Sixth Committee, UN Doc. A/C.6/56/L.10 (2001).

22 Id.

23 UN Doc. A/C.6/56/L.26 (2001); see also UN Doc. A/56/588 (2001) (report of the Sixth Committee concerning this topic).

24 Scope of Legal Protection Under the Convention on the Safety of UN and Associated Personnel, UN Doc. A/55/637 (2000), available at <http://www.un.org/Docs> [hereinafter Safety Report].

25 GA Res. 55/175 (Dec. 19, 2000).

26 GA Res. 49/59, annex (Dec. 9, 1994), 34 ILM 482 (1995) [hereinafter Safety Convention].

27 See UN Press Release GA/L/3182, at 3 (Oct. 9, 2001) (delegate of Japan). As of December 12, 2002, there were sixty-three parties to the Safety Convention.

28 UN Doc. A/54/619–S/1999/957, at 12.

29 Safety Report, supra note 24, at 3, 7. As to the inadequacies, see also Bourloyannis-Vrailas, M.-Christiane, The Convention on the Safety of United Nations and Associated Personnel, 44 Int’l & Comp. L.Q. 560 (1995)CrossRefGoogle Scholar.

30 Safety Report, supra note 24, at 6.

31 GA Res. 56/89 (Dec. 12, 2001).

32 This category is defined in Article 1(a) of the Safety Convention, supra note 26, as

  • (i)

    (i) Persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a United Nations operation;

  • (ii)

    (ii) Other officials and experts on mission of the United Nations or its specialized agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a United Nations operation is being conducted.

33 The second category, id., Art. 1 (b), comprises

  • (i)

    (i) Persons assigned by a Government or an intergovernmental organization with the agreement of the competent organ of the United Nations;

  • (ii)

    (ii) Persons engaged by the Secretary-General of the United Nations or by a specialized agency or by die International Atomic Energy Agency;

  • (iii)

    (iii) Persons deployed by a humanitarian non-governmental organization or agency under an agreement with die Secretary-General of the United Nations or with a specialized agency or with die International Atomic Energy Agency,

    to carry out activities in support of the fulfilment of the mandate of a United Nations operation.

34 Safety Report, supra note 24, at 5.

35 UN Press Release GA/L/3181, at 7 (Oct. 9, 2001) (delegate of New Zealand); id. at 10 (delegate of Ukraine); UN Press Release GA/L/3183, at 6 (Oct. 9, 2001) (delegate of Argentina).

36 Safety Convention, supra note 26, Art. 1(c).

37 Id., Art. 2(2).

38 Safety Report, supra note 24, at 6.

39 See, e.g., UN Press Release GA/L/3181, supra note 35, at 8 (delegate of Costa Rica); id. at 11 (delegate of Mali); UN Press Release GA/L/3182, supra note 27, at 3 (delegate of China); id. at 4 (delegate of Canada); id. at 8 (delegate of Thailand).

40 Fiedler, Wilfried, Artikel 99, in Charta der Vereinten Nationen, 991, 994 (Simmaed, Bruno, 1991)Google Scholar; see also An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping, para. 25, UN Doc. A/47/277–S/ 24111 (1992), UN Sales No. E.95.I.15 (1995).

41 UN Press Release GA/L/3183, supra note 35, at 4 (delegate of Liechtenstein).

42 Id. at 7 (delegate of India); UN Press Release GA/L/3182, supra note 27, at 6 (delegate of South Africa).

43 UN Press Release GA/L/3181, supra note 35, at 9 (delegate of the Russian Federation).

44 See supra note 40.

45 See Repertoire of the Practice of the Security Council 1959-1963, ch. 12, at 313, UN Doc. ST/DPA/1/ ADD.3; Repertoire of the Practice of the Security Council 1964-1965, ch. 12, at 215, UN Doc. ST/DPA/1/ ADD.4, available at <http://www.un.org/Depts/dpa/repertoire/index.html>.

46 SC Res. 678, UN SCOR, 45th Sess., Res. & Dec, at 27, op. para. 2, UN Doc. S/INF/46 (1990), reprinted in 29 ILM 1565 (1990).

47 SC Res. 1088 (Dec. 12, 1996) (re Bosnia-Herzegovina).

48 SC Res. 794, UN SCOR, 47th Sess., Res. & Dec, at 63, UN Doc. S/INF/48 (1992).

49 SC Res. 940 (July 31, 1994).

50 SC Res. 929 (June 22, 1994).

51 SC Res. 1080 (Nov. 15, 1996).

52 SC Res. 1101 (Mar. 28, 1997), 1114 (June 19, 1997).

53 E. g., SC Res. 1125 (Aug. 6, 1997).

54 SC Res. 1132 (Oct. 8,1997).

55 SC Res. 1216 (Dec. 21, 1998).

56 SC Res. 1264 (Sept. 15, 1999).

57 SC Res. 1386 (Dec. 20, 2001).

58 Blokker, Niels, Is the Authorization Authorized ? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing,’ 11 Eur. J. Int’l L. 541, 543–44 (2000)Google Scholar; see also Agora: The Gulf Crisis in International and Foreign Relations Law, Continued, 85 AJIL 506 (1991) (discussion on legitimacy of Security Council Resolution 678, supra note 45).

59 See text at note 37 supra.

60 See text at note 62 infra.

61 See note 32 supra.

62 SC Res. 1386, supra note 57, op. para. 1. For the Bonn Agreement, see Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, Dec. 5, 2001, at <http://www.uno.de/frieden/afghanistan/talks/agreement.htm>.

63 See text at note 31 supra.

64 Safety Report, supra note 24, at 6.

65 UN Press Release GA/L/3181, supra note 35, at 8 (delegate of Costa Rica); id. at 9 (delegate of Australia); id. (delegate of Belgium on behalf of the EU members and associated states); UN Press Release GA/L/3183, supra note 35, at 4 (delegate of Liechtenstein); UN Press Release GA/L/3182, supra note 27, a t5 (delegate of Brazil).

66 See text at note 27 supra.

67 Safety Report, supra note 24, at 7.

68 Report of the Ad Hoc Committee on the Elaboration of an International Convention Dealing with the Safety and Security of United Nations and Associated Personnel, UN Doc. A/49/22, at 7 (1994).

69 See note 65 supra.

70 Measures to Eliminate International Terrorism: Report of the Working Group, UN Doc. A/C.6/56/L.9 (2001) [hereinafter WG Report].

71 This draft was based on a proposal submitted by India. See Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210, UN Doc. A/56/37 (2001) [hereinafter Ad Hoc Report].

72 WG Report, supra note 70, at 4.

73 Mat 5, 7.

74 The restriction of the scope of application ratione materiae to international terrorist acts derives from the exclusion of offenses committed within a single state and in relation to which no other state has any grounds to exercise jurisdiction under the future convention.

75 Mar. 10, 1988,1678 UNTS 221, 27 ILM 668 (1988), reprinted in United Nations, International Instruments Related to the Prevention and Suppression of International Terrorism, UN Sales No. 01 .V.3 (2001) [hereinafter International Instruments]. UN Conventions on terrorism are also available online at <http://untreaty.un.org/English/Terrorism.asp>.

76 GA Res. 54/109, annex (Dec. 9, 1999), 39 ILM 270 (2000).

77 Id., Article 2(1) reads:

Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

  • (a)

    (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

  • (b)

    (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

78 Convention on Combating International Terrorism, July 1, 1999, Organization of the Islamic Conference, Res. 59/26–P, annex, available at <http://untreaty.un.org/English/Terrorism.asp> [hereinafter Islamic Conference Convention].

79 July 14, 1999, reprinted in International Instruments, supra note 75, at 210.

80 June 4, 1999, reprinted in id. at 174.

81 Apr. 22, 1998, reprinted in id. at 152.

82 Further discussions in the Security Council even failed in this regard.

83 OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion That Are of International Significance, Feb. 2, 1971, available at <http://untreaty.un.org/English/Terrorism.asp>

84 Opened for signature Jan. 27, 1977, 1137 UNTS 94.

85 The intent of

terrorizing people or threatening to harm them or imperiling their lives, honour, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent States.

Islamic Conference Convention, supra note 78, Art. 1 (2).

86 E.g., Declaration on Measures to Eliminate International Terrorism, GA Res. 49/60, annex (Dec. 9, 1994); Declaration to Supplement the Declaration on Measures to Eliminate International Terrorism, GA Res. 51/210, annex (Dec. 17, 1996).

87 WG Report, supra note 70, at 16.

88 This draft article, for which the chairman did not propose a formulation, is to contain an exemption clause relating, inter alia, to activities covered by humanitarian law.

89 Ad Hoc Report, supra note 71, at 12; WG Report, supra note 70, at 34.

90 Islamic Conference Convention, supra note 78, Art. 2.

91 Ad Hoc Report, supra note 71, at 12.

92 See also the commentary on Article 3 prepared by the ICRC, available at <http://www.icrc.org/ihl.nsf/> (visited Dec. 12,2002).

93 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609, reprinted in 16 ILM 1442 (1977).

94 See note 6 supra.

95 See Vienna Convention, supra note 7, Art. 30; Mus, Jan B., Conflicts Between Treaties in International Law, 45 Neth. Int’l L. Rev. 208, 213 (1998)Google Scholar.

96 UN Doc. A/C.6/53/WG.1/INF/1 (1998).

97 The following conventions are normally cited in this context: Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2491, 704 UNTS 219; Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), Dec. 16, 1970, 22 UST 1641, 860 UNTS 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 UST 564, 974 UNTS 177; and its Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Sept. 23, 1971,1589 UNTS 473; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167; Convention on the Physical Protection of Nuclear Materials, Oct. 26, 1979, TIAS No. 11,080, 1456 UNTS 125; International Convention Against the Taking of Hostages, Dec. 17,1979, TIAS No. 11,081,1316 UNTS 205; Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, supra note 75; and its Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, Mar. 10,1988,1678 UNTS 303; Convention on the Marking of Plastic Explosives for the Purpose of Identification, Mar. 1, 1991, UN Doc. S/22393 (1991); International Convention for the Suppression of Terrorist Bombings, GA Res. 52/164, annex (Dec. 15, 1997); International Convention for the Suppression of the Financing of Terrorism, supra note 76. These Conventions are available online at the UN terrorism Web site, supra note 75.

98 Ad Hoc Report, supra note 71, at 14.

99 Vienna Convention, supra note 7, Art. 30.

100 See note 95 supra and corresponding text.

101 Lowe, Vaughan, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing? in The Role of Law in International Politics 207, 209 (Byers, Michael ed., 2000)Google Scholar [hereinafter Role of Law].

102 GA Res. 56/88, op. para. 1 (Dec. 12, 2001).

103 Id., op. para. 2 (quoting GA Res. 49/60, supra note 86, annex, sec. I, para. 3).

104 UN Press Release GA/L/3200, at 5 (Nov. 21, 2001).

105 Id.

106 Id. at 6.

107 The best example is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205, which was based on General Assembly Resolution 1962 (XVIII), containing the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UN GAOR, 18th Sess., Supp. No. 15, at 15, UN Doc. A/5515 (1963).

108 Andrew Hurrell, Conclusion: International Law and the Changing Constitution of International Society, in Role of Law, supra note 101, at 327, 346.

109 As to the general consensus in this field and a pessimistic view on the possibility of overcoming the remaining legal divergencies, see Obote-Odora, Alex, Defining International Terrorism, para. 81 (Mar. 1999)Google Scholar (formerly published on Internet, on file with author).

110 Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001) [hereinafter ILC 2001 Report].

111 The result was that twenty-one members were reelected and thirteen new members were elected. For the first time in its history, the International Law Commission will have two female members, Paula Escarameia (Portugal) and Hanqin Xue (China).

112 ILC 2001 Report, supra note 110, at 43; see also Crawford, James, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 1 (2002)Google Scholar.

113 ILC 2001 Report, supra note 110, at 437.

114 For these guidelines, see id. at 462-64.

115 The relevant guidelines provisionally adopted so far by the Commission read as follows:

2.3.1 Late formulation of a reservation

Unless the treaty provides otherwise, a State or an international organization may not formulate a reservation to a treaty after expressing its consent to be bound by the treaty except if none of the other contracting parties objects to the late formulation of the reservation.

2.3.2 Acceptance of late formulation of a reservation

Unless the treaty provides otherwise or the well-established practice followed by the depositary differs, late formulation of a reservation shall be deemed to have been accepted by a contracting party if it has made no objections to such formulation after the expiry of the 12-month period following the date on which notification was received.

2.3.3 Objection to late formulation of a reservation

If a contracting Party to a treaty objects to late formulation of a reservation, the treaty shall enter into or remain in force in respect of the reserving State or international organization without the reservation being established.

Id. at 462-63.

116 UN Press Release GA/L/3193, at 3 (Nov. 6, 2001) (delegate of Hungary).

117 UN Press Release GA/L/3194, at 6 (Nov. 7, 2001) (representative of Japan).

118 UN Press Release GA/L/3192, at 3 (Nov. 5, 2001) (delegate of United Kingdom).

119 Id. at 10 (delegate of Italy); UN Press Release GA/L/3193, supra note 116, at 2 (delegate of Mali); UN Press Release GA/L/3192, supra note 118, at 2 (delegate of Hungary).

120 See note 115 supra.

121 Hurrell, supra note 108, at 337.