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The Work of the Sixth Committee at the Forty-eighth Session of the UN General Assembly
Published online by Cambridge University Press: 27 February 2017
Extract
At the forty-eighth session of the General Assembly, the Sixth (Legal) Committee reviewed 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 (Special Committee), and the Committee on Relations with the Host Country (Host Country Committee). The Sixth Committee also considered proposals for two new legal instruments relating to (1) the jurisdictional immunities of states and their property, and (2) the safety and security of United Nations personnel. Other items covered by the committee included a proposal to request an advisory opinion from the International Court of Justice on questions regarding extraterritorial jurisdiction, as well as topics concerning international terrorism, economic relations, procedural aspects of the United Nations Administrative Tribunal and the United Nations Decade of International Law (Decade).
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References
1 For a general description of the Sixth Committee and its role in the progressive development and codification of international law, see Virginia Morris & M.-Christiane Bourloyannis, The Work of the Sixth Committee at the Forty-seventh Session of the UN General Assembly, 87 AJIL 306, 306 nn. 1, 2 (1993).
2 For an extensive summary of the debate and the action taken by the committee with respect to the various items, see the summary records to be published in UN Docs. A/C.6/48/SR.1-39 (1993). The statements quoted in this article were taken from the speeches delivered in the committee and therefore may vary slightly from the summary records, which were not available at the time.
3 For the draft resolutions and decisions on the various items, see UN Docs. A/48/608–19 (1993).
4 GA Res. 48/29–37 and Decisions 48/411–15 (1993).
5 Report of the United Nations Commission on International Trade Law on the work of its twenty-sixth session, UN GAOR, 48th Sess., Supp. No. 17, UN Doc. A/48/17 (1993) [hereinafter UNCITRAL Report]. The committee also had before it in connection with this item the report of the Secretary-General on the implementation of General Assembly Resolution 47/34 with respect to rationalizing the work of UNCITRAL and granting travel assistance to delegates of developing countries to enable them to participate in the Commission's work. UN Doc. A/48/296 (1993).
6 Mar. 30, 1978, UN Doc. A/CONF.89/13.
7 Aug. 25, 1924, 51 Stat. 233, 120 LNTS 155. The chairman explained the consequences of this anomalous situation, as follows:
The applicable regime therefore depended on whether or not the goods had been loaded or discharged in a State party to the Hamburg Rules or whether or not the transport document had been issued in such a State. That undesirable diversity in liability regimes impeded harmonization of law in that area and created obstacles to international trade.
UN Doc. A/C.6/48/SR.3 (1993).
8 See UN Docs. A/C.6/48/SR.3–4 and 33 (1993).
9 See UN Doc. A/C.6/48/SR.4 (1993). For the text of the Model Law, see UNCITRAL Report, supra note 5, Ann. I, at 67.
10 Before the adoption of this draft resolution, the Director of the Codification Division, Jacqueline Dauchy, serving as Secretary of the Sixth Committee, stated that, if the resolution was adopted, the Assembly would be authorizing an exception to the principle that members of UN bodies should be reimbursed for travel expenses only when serving in their personal capacity. UN Doc. A/C.6/48/SR.33 (1993).
11 Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN GAOR, 48th Sess., Supp. No. 33, UN Doc. A/48/33 (1993).
12 The Russian Federation had submitted a revised working paper on this topic at the 1993 session of the Special Committee. Id., para. 28. The revision takes into account the relevant paragraphs of the report of the Secretary-General, An Agenda for Peace, UN Doc. A/47/277–S/24111, paras. 63–65 (1992), reprinted in 31 ILM 953, 970–71 (1992), as well as the corresponding statement made by the President of the Security Council on January 28, 1993, UN Doc. S/25184.
13 Countries affected by sanctions imposed by the Security Council had submitted two proposals at the 1993 session of the Special Committee providing for the establishment of a trust fund to alleviate the economic losses of states. The proposals differ as to whether the fund would be established by the General Assembly or the Security Council. UN Doc. A/48/33, supra note 11, paras. 98–99.
14 Guatemala had submitted a revised set of draft rules to the 1993 session of the Special Committee. Id., para. 122.
15 Cuba and Libya had submitted revised proposals on this question to the 1993 session of the Special Committee, calling for, inter alia, enlargement of the Council, review of the right of veto, and enhancement of the role of the General Assembly in the maintenance of international peace and security. Id., paras. 90–94. See also the general debate, paras. 14–18.
16 Id., para. 20.
17 See UN Docs. A/C.6/48/SR.5–11 and 38 (1993).
18 GA Res. 47/62, UN GAOR, 47th Sess., Supp. No. 49, at 25, UN Doc. A/47/49 (1992).
19 UN Doc. A/48/264 and Adds. 1–5 (1993). This report was considered in the plenary of the General Assembly at the forty-eighth session.
20 The General Assembly has also been addressing this question throughout the year in the framework of the working group established to consider An Agenda for Peace, supra note 12.
21 See UN Docs. A/C.6/48/SR.11–14 and 39 (1993). The Sixth Committee had before it in connection with the item the report of the Secretary-General containing the views of member states on international terrorism in all its aspects and on ways and means of combating it, as well as information received from organizations within the United Nations system on activities undertaken by them in this field, UN Doc. A/48/267 and Corr.l and Add.l (1993). The report also contains the list of states parties to multilateral conventions relating to various aspects of the problem of international terrorism and concluded under the auspices of the United Nations and its specialized agencies.
22 This proposal was made by Syria in 1987. See UN Doc. A/42/193 (1987).
23 See UN Doc. A/C.6/48/SR.12 (1993).
24 See UN Doc. A/C.6/48/SR.11 (1993).
25 GA Res. 46/51, UN GAOR, 46th Sess., Supp. No. 49, at 283, UN Doc. A/46/49 (1991). Paragraph 12 refers to the proposal to convene an international conference to deal with international terrorism.
26 See the explanatory memorandum accompanying the request for the inclusion of the item on the agenda of the forty-eighth session. UN Doc. A/48/144 (1993).
27 UN Doc. A/C.6/48/1 (1993).
28 UN Doc. A/C.6/48/L.2 (1993).
29 Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167 [hereinafter IPP Convention].
30 UN Doc. A/C.6/48/L.3 (1993).
31 See Ukraine's introduction of its proposal, UN Doc. A/C:6/48/SR.13 (1993).
32 See UN Docs. A/C.6/48/SR.13-16, 29 and 38 (1993).
33 For the oral report of the chairman of the working group, Philippe Kirsch (Canada), see UN Doc. A/C.6/48/SR.29 (1993).
34 In this connection, the working group considered whether, instead of elaborating an independent legal instrument along the lines of the IPP Convention, supra note 29, it would be simpler to adopt a protocol thereto, aimed at enlarging its scope. However, this suggestion ultimately did not commend itself to the working group for several reasons: in particular, that the adoption of a separate instrument would send a clear political signal as to the position of the international community regarding the safety of UN personnel; that the diplomatic-law perspective of the IPP was not suited to the present objective; and that participation of nonparties to the IPP Convention in a protocol thereto raised various difficulties.
35 Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, UN Doc. A/48/10 (1993) [hereinafter 1993 ILC Report].
36 The draft code was provisionally adopted by the Commission on first reading at its forty-third session, in 1991. See Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 238, UN Doc. A/46/10 (1991) [hereinafter 1991 ILC Report]. The Commission is expected to begin the second reading of the draft articles, in the light of the views expressed by governments, at its 1994 session.
37 GA Res. 47/33, UN GAOR, 47th Sess., Supp. No. 49, at 287, UN Doc. A/47/49 (1992).
38 The draft statute envisages an international criminal tribunal consisting of a judicial organ, a prosecutorial organ and an administrative organ. For details, see James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AJIL 140 (1994).
39 Report of the Working Group on the draft statute for an international criminal court [and commentary thereto], Annex to 1993 ILC Report, supra note 35, at 255.
40 See UN Docs. A/C.6/48/SR. 17–28 and 37–38 (1993).
41 See UN Doc. A/C.6/48/SR.18 (1993).
42 By Resolution 827 (May 25, 1993), the Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.
43 “The principle that conduct does not constitute crime unless it has previously been declared to be so by the law.” A Concise Dictionary of Law 246 (1983).
44 “The principle that a person can only be punished for a crime if the punishment is prescribed by law” (asterisk omitted). Id. at 245.
45 Articles 7 and 92 of the United Nations Charter established the principal organs of the United Nations, the International Court of Justice as the principal judicial organ of the Organization and the Statute of the Court as an integral part of the Charter.
46 There were references to Article 14 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, which recognizes the right of a person charged with a criminal offense “[t]o be tried in his presence.”
47 The General Assembly is entrusted with promoting universal respect for and observance of human rights and fundamental freedoms. See UN Charter Arts. 13, 55, 60.
48 For the text of Article 19, which defines international crimes and international delicts, see Report of the International Law Commission on the work of its thirty-second session, UN GAOR, 35th Sess., Supp. No. 10, at 64, UN Doc. A/35/10 (1980).
49 For the position of the United States, see UN Doc. A/C.6/48/SR.27 (1993).
50 See id.
51 See 1991 ILC Report, supra note 36, at 161.
52 The United States was “intrigued by the idea” and noted:
[M]ost contemporary hydrologists would certainly support a unified approach that would treat confined underground water in the same way it would treat an above ground lake. It would seem less than efficient to do in two steps what can be done in one—that is, one draft excluding unrelated confined ground water and then another applying the same principles to such confined ground water.
UN Doc. A/C.6/48/SR.27 (1993).
53 1991 ILC Report, supra note 36, at 11.
54 UN Doc. A/C.6/47/L.10 (1992).
55 GA Dec. 47/414, UN GAOR, 47th Sess., Supp. No. 49, at 318, UN Doc. A/47/49 (1992).
56 For a summary of the views expressed and the texts of the various proposals, see the Report of the Working Group, UN Doc. A/C.6/48/L.4 (1993).
57 See UN Doc. A/C.6/48/SR.29 (1993).
58 See UN Docs. A/C.6/48/SR.30, 35, 37 and 38 (1993).
59 The chairman of the working group, Ali Thani Al-Suwaidi (United Arab Emirates), presented an oral report to the Sixth Committee on the work of the working group, UN Doc. A/C.6/48/SR.35 (1993).
60 See UN Docs. A/C.6/48/SR.31-32 and 38 (1993). The report of the working group, chaired by Sani L. Mohammed (Nigeria), is contained in UN Doc. A/C.6/48/L.9 (1993).
61 The program for the second term of the Decade was adopted by the General Assembly in 1992, Annex to GA Res. 47/32, UN GAOR, 47th Sess., Supp. No. 49, at 285, UN Doc. A/47/49 (1992). The report of the Secretary-General contains an analysis of the replies received from states and international governmental and nongovernmental organizations on the implementation of the program, as well as information on activities of the United Nations relevant to the progressive development of international law and its codification. UN Doc. A/48/312 (1993).
62 The proposal to hold a UN congress on public international law within the framework of the Decade had been made at the forty-seventh session of the General Assembly. Under the terms of paragraph 7 of Resolution 47/32, supra note 61, the Secretary-General was requested to draw up a preliminary operational plan for such a congress, on the basis of which the Assembly would take a decision on the matter.
63 UN Doc. A/48/269 (1993).
64 Id., para. 110.
65 GA Res. 2099 (XX), UN GAOR, 20th Sess., Supp. No. 14, at 89, UN Doc. A/6014 (1965). The program was first established as the “Programme of assistance and exchange in international law.” Its title was changed to the present one in 1966. GA Res. 2204 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 98, UN Doc. A/6316 (1966). The General Assembly also established an Advisory Committee on the Programme, to assist the Secretary-General in the performance of his functions under the program. GA Res. 2099 (XX), supra.
66 GA Res. 44/23, UN GAOR, 44th Sess., Supp. No. 49, at 31, UN Doc. A/44/49 (1989).
67 Annex to GA Res. 47/32, sec. IV, UN GAOR, 47th Sess., Supp. No. 49, at 285, UN Doc. A/47/49 (1992).
68 See UN Docs. A/48/SR.33 and 38 (1993). For its consideration of the item, the committee had before it the biennial report of the Secretary-General, containing, in particular, a description of the implementation of the program during the biennium 1992–1993 and guidelines and recommendations regarding the execution of the program in the biennium 1994–1995, within the context of the UN Decade of Internationa] Law. UN Doc. A/48/540 (1993).
69 The committee had before it the final document of the third Ibero-American Summit of Heads of State and Government, which recalled the organization's decision to request- the inclusion of the present item on the agenda of the General Assembly. UN Doc. A/48/291–S/26242, at 8 (1993).
70 112 S.Ct. 2188(1992).
71 The states participating in the debate included three members of the Ibero-American Conference, Brazil, Colombia and Mexico, as well as China and Iran. See UN Docs. A/C.6/48/SR.34 and 38 (1993).
72 The General Assembly is authorized to request that the International Court of Justice provide an advisory opinion on any legal question pursuant to Article 96 of the UN Charter.
73 For the legal questions that it was proposed that the Court be asked to consider, see Morris & Bourloyannis, supra note 1, at 322.
74 The committee's report describes its consideration of various topics during the past year, including security of missions and the safety of their personnel; the implementation of the Headquarters Agreement between the United Nations and the United States, including travel regulations, immigration and customs procedures, and security arrangements; the responsibilities of permanent missions and their personnel, particularly with respect to financial indebtedness; and transportation matters such as parking arrangements. UN GAOR, 48th Sess., Supp. No. 26, UN Doc. A/48/26 (1993).
75 See UN Doc. A/C.6/48/SR.35 (1993).
76 See UN Doc. A/C.6/48/SR.37 (1993).
77 The request for the new agenda item and the accompanying explanatory memorandum are contained in UN Doc. A/48/232 (1993).
78 Statute of the Administrative Tribunal, Art. 2, UN Doc. AT/11/Rev.4, at 1, UN Sales No. E.73.X.1 (1972). UN employees, as international civil servants, are not entitled to the protection of national labor laws or to have recourse to national procedures for addressing employee grievances.
79 Id., Art. 11, at 4.
80 See Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, 1973 ICJ Rep. 166 (Advisory Opinion of July 12) (Fasla); Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, 1982 ICJ Rep. 325 (Advisory Opinion of July 20) (Mortished); Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, 1987 ICJ Rep. 18 (Advisory Opinion of May 27) (Yakimetz).
81 See UN Doc. A/C.6/48/SR.36 (1993).
82 GA Res. 47/226 (Apr. 30, 1993). The president of the Coordinating Committee of International Staff Unions and Associations, which represents UN staff members throughout the world, indicated the committee's preference for considering this issue in the context of the comprehensive review next year. This view was expressed in a letter read during the debate on this item. Jerome Ackerman, Vice-President of the Administrative Tribunal, attended the debate and expressed the hope that the Tribunal would continue to be represented in any future discussions of this question.