NEXT STEPS IN FORMATION OF INTERNATIONAL CRIMINAL COURT APPROVED BY GENERAL ASSEMBLY’S LEGAL COMMITTEE

Fifty-seventh General Assembly
Sixth Committee
28 October 2002
20th Meeting (AM)




Election of Judges, Prosecutor, Other Officials Set for Next Year;
Committee also Begins Debate on International Law Commission Report



The Sixth Committee (Legal) this morning began its consideration of the International Law Commission’s report on its fifty-fourth session, and then approved a draft resolution related to the functioning of the International Criminal Court

By the draft, approved without a vote, the General Assembly would spell out the steps enabling the Assembly of States Parties to the Court’s Statute to resume its first session from 3 to 7 February and from 21 to 23 April 2003. The Assembly of States Parties was scheduled to elect judges, a prosecutor and other officials of the Court during its February session. The Court had come into being on 1 July this year.

Also by the text, the committee on budget and finance of the Assembly of States Parties would meet from 4 to 8 August 2003 on the finances for the Court’s first year of operation. A second session of the Assembly of States Parties would be held from 8 to 12 September 2003, according to the text. All the meetings would take place at Headquarters.

Speaking in explanation of vote before action on the text, the United States representative said he could not join the consensus on the draft because of his country’s well known position on the Court. However, in the desire for consensus, he would not call for a vote.

Before starting its debate on the International Law Commission’s report, the Committee held a moment of silence in memory of Valery Kuznetsov of the Russian Federation, who died recently. The Committee Chairman, Arpad Prandler of Hungary, noted that Mr. Kuznetsov was elected to the Commission last year and had served as its Rapporteur during the fifty-fourth session.

The report itself concerned the Commission’s work during that session, which had been held in two parts this year, from 29 April to 7 June and from 22 July to 16 August.

Introducing the report, the Chairman of the Commission, Robert Rosenstock, United States, said a substantial part of the session had been devoted to the topic of diplomatic protection. The first seven draft articles on it had been adopted on first reading. Work had also begun on four additional topics: international liability in case of loss from transboundary harm arising out of hazardous activities; responsibility of international organizations; fragmentation of international law, and shared natural resources.

The Committee Chairman noted that three Special Rapporteurs of the Commission were attending the debate. They were Christopher John Robert Dugard, Pemmaraju Sreenivasa Rao and Victor Rodriguez Cedeno.

The representative of Norway, speaking for the Nordic countries, said the work carried out by the Special Rapporteur on diplomatic protection represented a solid basis for codification on the topic. The Nordic countries fully supported the provisionally adopted draft articles on diplomatic protection, concerning refugees and stateless persons, as well as the requirements of continuous nationality which constituted useful and important clarifications.

The representatives of Australia, Germany and China also spoke this morning on the Commission’s report.

The Committee will meet again at 10 a.m. on Wednesday, 30 October, to continue its consideration of the International Law Commission’s report.


Background

The Sixth Committee met this morning to begin a two-week debate on the report of the International Law Commission, on its fifty-fourth session which was held in Geneva in two parts, from 29 April to 7 June and 22 July to 16 August this year. The Committee was first to examine the report’s introductory parts and the chapters covering the topic “diplomatic protection”.

Also this morning, the Sixth Committee was to take action on a draft resolution on the establishment of the International Criminal Court (document A/C.6/57/L.16/Rev.1).


International Law Commission report

According to the International Law Commission's 251-page report (document A/57/10), the highlights of its fifty-fourth session (2002) included the adoption of 11 draft guidelines on reservations to treaties dealing with formulation and communication of reservations and interpretative declarations. The Commission referred 15 draft guidelines on withdrawal and modification of reservations to its drafting Committee.

On the topic "diplomatic protection", the Commission examined the remaining portions of its Special Rapporteur's second report. These related to the exhaustion of local remedies rule (articles 12 and 13), as well as the third report on exceptions to that rule (draft articles 14 to 16), the question of the burden of proof. The Commission also undertook a general discussion, inter alia, on the scope of the text. It further adopted articles 1 to 7 covering the "nationality of claims".

(Under international law, a State is responsible for injury to an alien caused by its wrongful act or omission. Diplomatic protection is the procedure employed by the State of nationality of the injured person to secure protection of that person and to obtain reparation for the internationally wrongful act inflicted.)

On International Liability for Injurious Consequences arising out of Acts not Prohibited by International law (international liability), the Commission decided to resume the study of the second part of the subject and to establish a working group to consider its conceptual outline. A Special Rapporteur was appointed for the topic.

The Commission considered part of the fifth report of its Special Rapporteur on the topic "unilateral acts of States". This reviewed the progress made and presented a revised draft article (article 5 (a) to (h) on the invalidity of a unilateral act), as well as articles on interpretation.

It decided to include the topic "responsibility of international organizations" in its programme of work and agreed that the Secretariat approach international organizations for relevant materials on the subject. Also added to its work programme were the following topics: "fragmentation of international law: difficulties arising from the diversification and expansion of international law", and "shared natural resources".

The Commission indicated in its report specific issues on which it would like comments from Governments. These cover reservations to treaties, diplomatic protection, unilateral acts of States, international liability, and responsibility of international organizations.

According to the report, the Commission’s next session -- its fifty-fifth -- will take place at the United Nations Office in Geneva from 5 May to 6 June and from 7 July to 8 August, 2003.

The Commission noted that it was making every effort towards achieving the most cost-effective and economical way to conduct its work. The shortening of its current and next (fifty-fifth) sessions to 10 weeks represented a significant cost-saving measure, the report said. The Commission also intended, once it returned to its sessions of 12 weeks duration, to consider organizing its work in a manner similar to what it applied at its fifty-third session in 2001.

On 29 April 2002, the Commission elected Peter C.R. Kabatsi of Uganda, a former chairman of the Commission, to fill the casual vacancy following the death of Adegoke Ajibola Ige of Nigeria.


Officers Of The International Law Commission


On 29 April 2002, the Commission elected the following officers: Robert Rosenstock, Chairman; Enrique Candioti, First Vice-Chairman; James L. Kateka, Second Vice-Chairman; Chusei Yamada, Chairman of the Drafting Committee; and Valery Kuznetsov, Rapporteur.

The International Law Commission was established by the General Assembly at its second session, in 1947, to give effect to Article 13 (1a) of the United Nations Charter, namely, to promote international cooperation in the political field and encourage the progressive development of international law and its codification.


Draft Resolution on the International Criminal Court

The Sixth Committee also had before it today a draft resolution on Establishment of the International Criminal Court (document A/C.6/57/L.16/Rev.1). By that draft, the Assembly would call upon all States to consider ratifying the Rome Statute and becoming parties to the Agreement on the Privileges and Immunities of the International Criminal Court without delay. It would recognize the need to make available, on a provisional basis, the resources and secretariat services for the Assembly of States Parties to discharge its functions. It would request the Secretary-General to undertake preparations for that Assembly to resume its first session from 3 to 7 April 2003, to hold the meeting of the Committee on Budget and Finance from 4 to 8 August 2003 and a second session of the Assembly from 8 to 12 September 2003. All would be held at Headquarters.

Further by the draft, the Assembly would request the Secretary-General to make secretariat services available for those meetings, including both preparatory and follow-up work. It would request him to take steps to expand the mandate of the trust fund for voluntary contributions towards meeting the costs of least developed countries to participate in the meetings. Finally, the Assembly would decide that the costs of services rendered to the Assembly of States Parties shall be paid in advance to the Organization.


Committee Chairman’s Statement

ARPAD PRANDLER, Chairman of the Sixth Committee, acknowledged the exceptional contribution of the International Law Commission to the progressive development and codification of international law in accordance with Article 13 of the United Nations Charter. He said the Commission’s important works and achievements were recognized by Governments as well as by the academic community. Its reports had always been a high point in the Sixth Committee’s proceedings. Exchange of views on them was substantive, interesting and intellectually stimulating, he observed.


Introduction of Law Commission report

ROBERT ROSENSTOCK of the United States, Chairman of the International Law Commission, introducing its report, said this year’s fifty-fourth session was also the first of the Commission’s new term or quinquennium. The Commission decided to begin work on four additional topics: international liability in case of loss from transboundary harm arising out of hazardous activities; responsibility of international organizations; fragmentation of international law and shared natural resources.

The Commission devoted a substantial portion of its session to the topic of diplomatic protection. It continued its consideration of the second and third reports submitted by the Special Rapporteur, John Dugard, and referred several draft articles to its drafting committee. The Special Rapporteur also included in his third report a discussion on the scope of the draft articles. There was support for confining the draft articles to issues relating to the nationality of claims and the exhaustion of local remedies rule, especially in the light of the Commission’s intention to conclude the consideration of the topic during its present quinquennium.

The Commission adopted, on first reading, the first seven draft articles covering “nationality of claims” which were in two parts: the first contained general provisions, and the second, dealt with “natural persons”. He said the general provisions applied both to natural and legal persons. The key elements of article 1, entitled “definition and scope” related to diplomatic protection consisting of a resort to “diplomatic action” or “other means of peaceful settlement”.

He said article 2 affirmed the discretionary right of the State to exercise diplomatic protection. Draft article 3, entitled “State of nationality”, asserted the principle that it was the State of nationality of the injured person that was entitled, but not obliged, to exercise diplomatic protection on behalf of such a person. Draft article 4 was concerned with the continuous nationality rule, while draft article 5 dealt with the question of dual or multiple nationality.

Draft article 6 covered claims for diplomatic protection brought by a State of nationality against another State of nationality in the context of a dual or multiple nationality. Draft article 7 provided for exceptions to the traditional rule, reflected in article 1,that only nationals might benefit from the exercise of diplomatic protection. Two categories of persons were envisaged, namely, stateless persons and refugees. The Commission Chairman said that the Commission’s ability to produce worthwhile results was in large measure due to the quality and timeliness of the reports of Special Rapporteurs.

He paid tribute to the Special Rapporteur on the topic of diplomatic protection, and expressed confidence that under his able guidance, the Commission would be able to complete the draft articles on the subject by the end of the current term.

ROLF EINAR FIFE (Norway), speaking for the Nordic countries, said the work carried out by the Special Rapporteur on diplomatic protection represented a solid basis for codification on the topic. They fully supported the provisionally adopted draft articles on diplomatic protection concerning refugees and stateless persons as well as the requirements of continuous nationality which constituted useful and important clarifications.

He went on to provide the views of the Nordic countries on two issues requested by the International Law Commission. They were protection of vessels and their crews and passengers in the light of the Saiga case at the International Tribunal for the Law of the Sea; and the second, protection of shareholders’ interests in the light of the Barcelona Traction case at the International Court of Justice.

He said the Saiga judgement had given rise to a question as to the relationship between applicable principles and rules of the international law of the sea and other rules of diplomatic protection. Those rules and principles constituted the fundamental framework when issues of protection of foreigners onboard ships were considered. The point of departure would usually be to ensure full respect for the well-established principle of flag of State jurisdiction, particularly when the protection was related to issues concerning the vessel as an organic unit. The Nordic countries did not exclude the possibility of other bases for exercising diplomatic protection with regard to foreign crew or passengers.

The Nordic countries said the judgement of the International Court of Justice in the Barcelona Traction case, Second Phase, 1970, was clear on certain accounts. It provided one of the few elements of jurisprudence that clarified the scope of diplomatic protection regarding injuries inflicted on foreign shareholders. As a general rule, the Court rejected the view that States could exercise diplomatic remedies on behalf of their nationals who had suffered losses as shareholders merely as a result of injuries inflicted by another State on a foreign company. The Court recognized, at the same time, that there might be exceptions, significantly if the company went into liquidation. Moreover, if the injuries inflicted by another State were directed at shareholders as such, the Court did not exclude the possibility of diplomatic protection.

It was, in their opinion, questionable whether increased protection, rather than added confusion in practice, would result from overturning the general rule established by the Barcelona Traction case. Furthermore, inability to claim the protection from their own country was perhaps one of the commercial risks that shareholders undertook when buying shares in a foreign company. They drew attention to the case law of the Iran/United States claims tribunal, as well as decisions by the United Nations Compensation Commission, established by Security Council resolution 692, which needed to be taken fully into account when the issue was considered.

The Nordic countries therefore cautioned against the Commission attempting to codify that area of the law, if that should entail adding a considerable number of issues and opening up a debate on the protection of foreign investments, both direct and indirect. They saw very little added value in attempts to explore new rules of diplomatic protection that could not already be derived from the law of the sea and other relevant areas of the law. They were not convinced that further and potentially time-consuming studies should be carried out. They believed that the current work on diplomatic protection was ripe for finalization.

KYM TAYLOR (Australia) said she would make one comment on the Commission’s report, and that would relate to its work on diplomatic protection. She said Special Rapporteur Dugard had taken the correct position on the issue of protecting crews. The topic was adequately covered by the Convention on the Law of the Sea.

MICHAEL SCHAEFER (Germany) noted that the Commission had adopted a number of draft articles on the definition and scope of diplomatic protection and its exercise in the case of natural persons. He said the definition in draft article 1 provided a useful reminder that the concept of diplomatic protection exclusively referred to the peaceful settlement of disputes between States. Draft article 2 helped to clarify the autonomous role of diplomatic protection in modern international law, which had to be distinguished from other concepts dealing with the protection of individuals, namely human rights law, which stressed the State obligations in the field.

Turning to the draft articles on the diplomatic protection of natural persons, he said the Commission had drafted rules that were both practical and flexible. For good reason, it had defined nationality in a formal sense, appropriate for an increasingly globalized world where millions lived and worked outside their States of origin and did not possess the nationality of their host State. A much-needed element of flexibility had also been provided for in the application of the continuous nationality rule. The concept of exhaustion of local remedies had been clarified. But with regard to other possible exceptions to the local remedies rule, the implied waiver of the local remedies requirement should be approached with caution so that it could not be used by more “interventionist” States as a pretext to dispense with the principle altogether.

He called for careful consideration of whether to include rules on the protection of crew members. The provisions of the Law of the Sea Convention covered some aspects of the problem. The scope of the rules, however, was not clear. If the discussion on the protection of crew members was to continue, it should go beyond the Convention. Also, different rules seemed to apply to the treatment of the crew on one hand and the protection of passengers on the other. The problem was of great relevance to the field of air transport. On protection of shareholders, the current rules were unsatisfactory. Serious consideration should be given to the proposal covering instances in which an affected company was either unwilling or unable to exercise effective protection by itself.
Turning to other parts of the report, he said the task of considering reservations made to a multilateral treaty would become easier once consensus-based guidelines were available. The 11 new draft guidelines to be adopted by the Commission were acceptable. Common ground should be reached with regard to reservations aimed at depriving a treaty of its core value. The codification of unilateral acts of States had hardly begun, but progress had been made. The definition of such actions was of great significance. The Special Rapporteur should identify general rules applicable to all unilateral acts, but the Commission must limit itself on those acts or categories of them that were truly suited for codification.

The topic of international liability was an extremely complex one, he continued. While States had accepted the principle of strict liability for certain regimes such as in regard to damage caused by space objects, there was no evidence that it formed part of international customary law. The Commission should explore the issue further. It should, however, wait for major progress in the field of responsibility of international organizations before examining whether solutions adopted in respect of State actors could be extended to international organizations. On the question of shared natural resources, the role of the International Law Commission was to consolidate and develop the relevant international law for the benefit of all.

Finally, he said, the inclusion of the topic on the fragmentation of international law into the Commission's long-term programme marked a major development in the Commission's work. The Commission should go beyond a purely descriptive analysis of the fragmentation process; it should address some of the practical problems caused by fragmentation, and present proposals for their solution. A comprehensive survey of the rules and mechanisms dealing with possible conflicts of norms should be undertaken. In a second step, the rules of general international law should be examined.

XUE HANQIN (China) said that using nationality as a condition for diplomatic protection, while making refugees and stateless persons exceptions to the rule, not only conformed to customary international law but was also an important restriction to prevent diplomatic protection from being abused. Her delegation believed that nationality was the legal link that enabled a State to offer diplomatic protection for its nationals. If that protection was extended to cover some special groups and officials, its nature would inevitably be affected, and in some cases, the right of States to intervene over-extended.

On the rule on exhaustion of local remedies and its exceptions -- draft articles 10 and 14, respectively -- she said the International Law Commission should act with caution to strike a proper balance between the two. If the scope of application of the exceptions to the rule was expanded inappropriately, it would constitute an infringement on the domestic jurisdiction of the State where the foreigner was located. In certain cases, it would result in conflicts over jurisdiction between two States, thus affecting their relations. The exceptional circumstances should meet explicit criteria and their application should be well defined, she said.

The new topics identified by the International Law Commission for study would further the development of international law and better guide international practice, she said. She also spoke on the question of international liability for injurious consequences arising out of acts not prohibited by international law and the issue of responsibility of international organizations. Her delegation hoped that the Commission would strive for a balance between the rights and obligations of an operator, the beneficiary and the victim when formulating the draft articles on liability.

She said the study of responsibility of international organizations had assumed practical meaning because of the proliferation of international organizations and the expansion of their fields of activity. China also favoured the inclusion on the Commission’s agenda of the additional topic of fragmentation of international law.


Action on International Criminal Court Draft

The Committee took up the draft resolution on Establishment of the International Criminal Court (document A/C.6/57/L.16/Rev.1).

VACLAV MIKULA, Director of the Codification Division of the Office of Legal Affairs and Secretary of the Sixth Committee (Legal), presented a statement of administration and financial implications of the draft.

He said the requirements for servicing the meetings related to the Court mentioned in the draft resolution had been set out in the budget for the Court’s first financial period.

The amount needed for the February resumed session had been estimated at $1,571,800, including $157,200 for programme support costs and a reserve for contingency of $205,000. For the April resumed session, costs had been estimated at $746,200, including $74,700 for programme support costs and a reserve for contingency of $97,300. For the August resumed session, they were $187,700, including $118,800 for programme support costs and a $154,800 reserve for contingency. And finally, the needs for the meeting of the Committee on Budget and Finance had been estimated at $845,000, including $84,500 for programme support and a contingency reserve of $110,200.

He said the mechanism for paying to the United Nations the costs of services rendered to the Assembly of States Parties had been established in the form of a trust fund. If the General Assembly were to adopt the draft resolution, no additional appropriation would be required in the programme budget for the biennium 2002-2003. However, the Court would need to take action to ensure that sufficient funds were transferred to the Secretariat well in advance of the scheduled meetings.

Speaking in explanation of vote before the vote, the representative of the United States said he was unable to join the consensus because of his country’s well-known position on the matter. However, out of a desire for consensus, he would not call for a vote on the resolution.

The resolution was adopted without a vote.




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