United Nations

GA/L/3219
28 October 2002

LEGAL COMMITTEE CALLS FOR MEMBERSHIP OF UNITED
NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
TO BE INCREASED

NEW YORK, 24 October (UN Headquarters) -- Membership in the United Nations Commission on International Trade Law (UNCITRAL) would increase from 36 to 60 States by a recommendation to the General Assembly approved by the Sixth Committee (Legal) this morning without a vote. Also this morning, the Committee concluded its substantive debate on a convention on jurisdictional immunities of States and their property.

By the Secretariat-sponsored draft on UNCITRAL, the General Assembly would decide that the 24 additional Commission members would be elected during the Assembly’s fifty-eighth session next year, for a term of six years. However, 13 members would be elected for three-year terms to expire in 2007.

By the draft, the Assembly would take note that the increase would have no financial implications, and that it was not a precedent for enlarging other bodies in the United Nations system.

On the issue of the jurisdictional immunities of States, the Committee had before it the text of 22 draft articles adopted by the International Law Commission in 1991. The scope of the articles applies to the immunity of a State and its property from the jurisdiction of the courts of another State.

Speakers generally welcomed the progress achieved by the Ad Hoc Committee on the subject. It was said that the divergence of views had narrowed on the remaining substantive issues concerning the draft articles. There were calls for the reconvening of the Ad Hoc Committee early next year to enable it to complete its work. As in the earlier debate, views differed on the form the future instrument should take.

The representative of the United States said the question must await the outcome of negotiations on substance. In light of doubts about the wisdom of striving for a binding convention at this juncture, the "two-step" proposal was worth careful consideration.

Hungary’s representative endorsed that two-step approach. He said a General Assembly resolution could endorse the draft articles. The issue of form could be revisited after reflection on current practice and the evolving customary international law.

The representative of Myanmar said a reasonable and appropriate approach to such a complex subject would be to adopt general rules of State immunity, followed by a list of justifiable exceptions to those rules.

A number of representatives said they favoured the adoption of a model law to serve as a compromise. That approach also presented certain advantages. It was flexible and could provide guidance to national legislatures and judicial organs.

Indonesia’s representative, however, said the momentum existed to create a legally binding instrument. For developing countries, the formulation of a uniform international treaty was preferred as a way of creating legal order in the field.

Also speaking this morning were the representatives of Morocco, Slovakia, Russian Federation and Nepal.

The Committee will meet again at 10 a.m. on Monday, 28 October, to begin its debate on the report of the International Law Commission.

Background

The Sixth Committee (Legal) met this morning to continue its debate on a convention on jurisdictional immunities of States and their property, based on a text of 22 draft articles adopted by the International Law Commission in 1991. The scope of the articles applies to the immunity of a State and its property from the jurisdiction of the courts of another State. (For further background, see Press Release GA/L/3218 of 22 October.).

The Committee was also expected to act upon a Secretariat-sponsored draft for enlargement of the membership of the United Nations Commission on International Trade Law (document A/C.6/57/L.15). By that draft, the General Assembly would increase the Commission’s membership from 36 to 60 States. The Assembly would also decide that the 24 additional Commission members would be elected during the Assembly’s fifty-eighth session next year, for a term of six years, except for

13 members who would be selected by lot for three-year terms that would expire before the Commission’s fortieth session in 2007.

In addition, by the draft, the Assembly would decide to set out the geographical distribution of the additional members. Therefore, the representation of the African group would rise by five, from 9 to 14 members, and the group's ratio of membership in the Commission would decrease from 25 to 23.3 per cent. Asian group membership would increase by seven, from seven to 14 members; ratio of representation would increase from 19.4 to 23.3 per cent. The Eastern European group would gain by three, going from five to eight seats, with ratio of representation decreasing from 13.9 to 13.3 per cent. Latin American and Caribbean States would gain four seats, the percentage representation remaining at 16.7. And finally, the Western group would pick up five seats, with percentage representation going down from 25 to 23.3 per cent.

By the draft, the Assembly would take note that the impact on the Secretariat of an increase in the Commission’s membership was not material enough to quantify and, therefore, the increase had no financial implications. The decision for the increase had been made in view of the Commission being a technical body whose composition reflects the specific requirements of the subject matter. The regional representation resulting from the increase took those requirements into account. It was not a precedent for enlarging other bodies in the United Nations system.

Finally, the Assembly would appeal to governments, and the United Nations system as well as others, to contribute to the Trust Fund providing travel assistance Commission members from developing countries to ensure their full participation.

Statements

DAVID STEWART (United States) said he supported the proposal to authorize convening a meeting of the Ad Hoc Committee for one week in February or March. A generally acceptable text of the draft articles appeared within reach. A final effort to achieve agreement was worthwhile.

The issue of State immunities was an increasingly important area of international law and practice, he continued. It was a rapidly developing area and there was a growing consensus that States and State enterprises could no longer claim absolute, unlimited immunity in foreign courts, especially for their commercial activities. The outstanding substantive issues would be addressed at the final meeting of the Ad Hoc Committee. Among those, his view was that the nature and not the purpose of a given transaction must be the determining factor in deciding whether it was commercial or not. States should not be allowed to hide behind nominally separate State enterprises to shield themselves from liability. Jurisdiction over contracts of employment should not let local authorities intrude into the work of embassies and consulates.

And finally, the form of the agreed articles must await the outcome of the negotiations on their substance. In light of doubts about the wisdom of striving for a binding convention at this juncture, the "two-step" proposal was worth of careful consideration.

KARIM MEDREK (Morocco) said a binding instrument on jurisdictional immunities of States and their property was needed now more than ever in the era of globalization. It was high time action was taken on the draft articles on the subject which had been adopted by the International Law Commission more than 10 years ago. He noted the progress the Ad Hoc Committee had made on the five outstanding substantive issues, as well as the narrowing of divergent views on them.

He observed that it was the first time that the draft articles had been considered in their totality by the Ad Hoc Committee; an agreement on an instrument seemed to be within grasp. He said he appealed for a consensus on the outstanding questions as soon as possible. His delegation supported Japan’s proposal for a reconvening of the Ad Hoc Committee early next year.

His delegation would accept a model law on a provisional basis, and urged that the Ad Hoc Committee should come up with a generally acceptable instrument at its next session.

DRAHOSLAV STEFANEK (Slovakia) said the discussion of the topic should focus on the swift resolution of substantive issues, rather than fruitless discussion on the form of a future legal instrument. Although his delegation reiterated its support for a legally binding instrument such as an international convention, he said attention should be on the substance of the debate.

Slovakia supported the reconvening of the Ad Hoc Committee to continue its work. It was pleased that the Ad Hoc Committee had made progress on the five outstanding substantive issues of the draft articles. It hoped the next session of the Ad Hoc Committee, which should cover two weeks, would be the last, and a successful one.

GYORGY SZENASI (Hungary) said he supported the proposal for the Ad Hoc Committee to meet early next year for a week. It had made much progress in consolidating areas of agreement and resolving outstanding issues. The working group had made substantial progress as well. While he had no firm stand on the form the instrument should take, the suggestion for the two-stage formula adopted in the "State responsibility" issue of last year was acceptable. A General Assembly resolution would have to endorse the draft articles. The issue could be revisited after reflection on current practice and the evolving customary international law.

As a member of the Council of Europe, he said, his country was actively promoting the preparation of a document presenting the law and practice of States for the Council’s Committee of Legal Advisers in international public law. Once finalized, the document would contribute to the work of the Sixth Committee. The deadline for submissions of information on State practice and legislation was the year’s end. Hungary had submitted a preliminary contribution and intended to submit a comprehensive report shortly.

IGOR PANEVKIN (Russian Federation) said his delegation attached great importance to the work on the draft articles, and noted with satisfaction progress made by the Ad Hoc Committee on the text. The Russian Federation believed that with a constructive approach, it would be possible for a consensus to be reached on the unresolved issues. He went on to outline his delegation’s position on a number of those issues. Work on the draft articles must be continued, he said, adding that his delegation supported the reconvening of the Ad Hoc Committee early next year. The Russian Federation would prefer the elaboration of the draft articles in the form of a convention, but was prepared to support other alternatives such as a model law as an immediate interim step.

DANILA ANWAR (Indonesia) noted that the deliberations were taking place against the backdrop of developments in international relations in which cooperation among States was a prerequisite for attaining durable prosperity for mankind. The just and fair treatment of States and their properties was one of the most important concerns for many countries. The Ad Hoc Committee’s work was pertinent for the work of producing an international code that was pivotal for the future relationship among States for two reasons.

The Ad Hoc Committee had forged a common understanding from divergent views and had generated momentum for possibly concluding the draft texts in the near future. All States should redouble efforts to the development of generally acceptable legal principles, to guarantee the cardinal precepts governing immunities of States and properties.

He said he supported the recommendation that the Ad Hoc Committee’s mandate be extended with a view to finalizing deliberation of the draft articles, and recommending the form of the instrument. The issue of the criteria for determining the commercial character of a contract or transaction should be concluded; the difference in views was not as great as it appeared. For developing countries, the formulation of a uniform international treaty was preferred for creating legal order in this field.

RAM BABU DHAKAL (Nepal) said the Ad Hoc Committee should meet for a week early next year. Reviewing the substantive issues still to be finalized, he said the number of contentious issues had decreased but the wide divergence of views on those still outstanding was of concern. So was the lack of harmony between the national laws in the field. It was imperative for the Ad Hoc Committee to find consensus on all the remaining issues, to meet the needs of the modern world for legislation. The issues were sensitive; some States would be critically impacted by the way they were resolved.

KHIN MAUNG OO (Myanmar) said it was important that an instrument that could facilitate application, enforcement and dispute settlement be elaborated. A reasonable and appropriate approach to dealing with such a complex subject would be for general rules of State immunity to be laid down, followed by a list of justifiable exceptions to those rules. He commended the International Law Commission for following that approach in its elaboration of the draft articles.

His delegation agreed with the formulation of draft article 3 which upheld the sanctity of diplomatic and consular privileges and immunities. While welcoming the drafting of article 14 on intellectual and industrial property, his delegation would like its provisions to be supplemented and refined to reflect latest developments. He said the Ad Hoc Committee had made substantial progress, but much more work needed to be done for an effective international legal instrument to be produced.

Action on Draft to Enlarge UNCITRAL

The Committee took up the draft resolution on enlarging the membership of the United Nations Commission on International Trade Law (document A/C.6/57/L.15). Sierra Leone’s representative spoke in explanation of vote before the vote, to say he supported the resolution on the Commission as a technical and expert body.

The resolution was adopted without a vote.

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