Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-05T04:07:16.206Z Has data issue: false hasContentIssue false
  • English
  • Français

The Work of the Sixth Committee at the Forty-seventh Session of the UN General Assembly

Published online by Cambridge University Press:  27 February 2017

Virginia Morris  and
M. Christiane Bourloyannis
M. Christiane Bourloyannis
Affiliation:
Codification Division, Office of Legal Affairs, United Nations
Get access Rights & Permissions [Opens in a new window]

Extract

At the forty-seventh session of the General Assembly, the Sixth Committee1reviewed the annual reports of the International Law Commission (ILC), the United Nations Commission on International Trade Law (UNCITRAL), the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (Charter Committee), and the Committee on Relations with the Host Country. The Sixth Committee also considered proposals for new legal instruments relating to some aspects of sovereign immunity, consular functions, the diplomatic courier and bag, and environmental protection in wartime; a proposal to request an advisory opinion from the International Court of Justice on questions relating to extraterritorial jurisdiction; and aspects of such other topics as national liberation movements, humanitarian law, protection of diplomats, and the United Nations Decade of International Law.

Type
Current Developments
Information
American Journal of International Law , Volume 87 , Issue 2 , April 1993 , pp. 306 - 323
Copyright
Copyright © American Society of International Law 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

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.

Since the 1970s the work of the Special Committee has led, in particular, to the adoption of the 1982 Manila Declaration on the Peaceful Settlement of International Disputes, GA Res. 37/10, UN GAOR, 37th Sess.,’ Supp. No. 51, at 261, UN Doc. A/37/51 (1982); the 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, GA Res. 43/51, UN GAOR, 43d Sess., Supp. No. 49, at 276, UN Doc. A/43/49 (1989); and the 1991 Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res. 46/59, UN GAOR, 46th Sess., Supp. No. 49, at 290, UN Doc. A/46/49 (1992).

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:

(i) Any international criminal court or other mechanism should be established by a Statute in the form of a treaty agreed to by States parties.

(ii) In the first phase of its operations, at least, a court or other mechanism should exercise jurisdiction only over private persons, as distinct from States.

(iii) The court’s jurisdiction should be limited to specified international treaties in force defining crimes of an international character. This should include the Code of Crimes against the Peace and Security of Mankind (upon its adoption and entry into force). But it should not be limited to the Code. A State should be able to become a party to the Statute without thereby becoming a party to the Code.

(iv) The court or other mechanism would be essentially a facility for States parties to its Statute (and also, on defined terms, other States). It should not have compulsory jurisdiction, in the sense of a general jurisdiction which a State party to the Statute is obliged to accept ipso facto and without further agreement.

(v) The court or other mechanism would not be a standing full-time body. On the other hand, its constituent instrument should not be a mere draft or proposal, which would have to be agreed on before the institution could operate. Thus the Statute should create an available legal mechanism which can be called into operation when and as soon as required.

(vi) Whatever the precise structure of the court or other mechanism, it must guarantee due process, independence and impartiality in its procedures.

Id., para. 395.

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

36. The Commission observed that the discussion of the first part of the topic, dealing with the status, privileges and immunities of representatives of States to international organizations had resulted in draft articles which had formed the basis of the 1975 Convention on the Representation of States in their Relations with International Organizations of a Universal Character. States had been slow to ratify the Convention or adhere to it and doubts had therefore arisen as to the advisability of continuing the work undertaken in 1976 on the second part of the topic, dealing with the status, privileges and immunities of international organizations and their personnel, a matter which seemed to a large extent covered by existing agreements.

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.

While some of these states also supported the creation of a court to ensure the effectiveness of the Draft Code of Crimes against the Peace and Security of Mankind, others believed it should be established independently of the code to enforce existing international conventions that enjoyed widespread acceptance, such as those relating to the law of war and genocide. This would permit the establishment of the court within a relatively short period of time without linking it to the code, which had been the subject of substantial controversy and delay for over four decades.

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:

(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;

(b) The question of the convening of an international conference, to be held in 1994 or subsequently, to conclude a convention on jurisdictional immunities of States and their property.

GA Res. 46/55, UN GAOR, 46th Sess., Supp. No. 49, at 287, UN Doc. A/46/49 (1992). As suggested by the Chairman, the working group agreed that it would be useful to determine the unresolved substantive questions and the likelihood of finding generally acceptable compromises on them before considering the procedural question of convening a conference to adopt a convention on the subject. It was generally agreed that it would be premature to schedule a codification conference before determining whether divergent views on fundamental aspects of the topic could be reconciled.

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):

(i) any contract or transaction of a commercial, industrial, or professional nature into which a State enters or in which it engages otherwise than in the exercise of the sovereign authority of the State, including a contract or transaction for the sale of goods or supply of services, but not including a contract of employment of persons.

Id., para. 13.

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

2. Notwithstanding the provisions of paragraph 1(c), a contract or transaction shall not be considered commercial if the parties have so agreed when entering into the contract or transaction.

2. Notwithstanding the provisions of paragraph 1(c), a court, in determining whether a contract or transaction is a “commercial transaction,” shall take into account the purpose of the contract or transaction if, at the time of its conclusion, the State which is a party to it has expressly reserved that possibility.

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:

Jurisdiction shall not be exercised over a State and its property by the courts of another State in a proceeding, not related to acts performed in the exercise of sovereign authority, involving a State enterprise or other entity established by the State which:

(a) has independent legal personality;

(b) is capable of suing or being sued; and

(c) is capable of owning, controlling, and disposing of property.

Id., para. 31.

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

No interim or pre-judgement measures of constraint, such as attachment and arrest, shall be taken against the property of a State mentioned in paragraph 1(c) unless the property has a connection with the claim which is the object of the proceeding or with the agency or instrumentality against which the proceeding was directed.

Id., para. 21.

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:

Article 28. Protection of the diplomatic bag

1. The diplomatic bag shall be inviolate wherever it may be; it shall not be opened. Subject to paragraph 2, it shall not be detained and shall be exempt from the examination through electronic or other technical devices.

2. If the competent authorities of the receiving state have serious reason to believe that the diplomatic bag contains something other than the correspondence, documents or articles referred to in paragraph 1 of article 25, they may request, as an exceptional measure, that the bag be examined through electronic or other technical devices routinely used at ports or airports for the examination of incoming or outgoing items, in the presence of an authorized representative of the sending state, provided that the examination does not affect the confidentiality of correspondence or documents. The sending state may refuse the examination, in which case the bag shall be returned to its place of origin.

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.