L/3073
2 July 2004
Negotiations Continue at Headquarters on Two Anti-Terrorism Treaties, with Disagreement Reported on Key Provisions of Each
NEW YORK, 1 July (UN Headquarters) -- With negotiations continuing during the week-long session of the Ad Hoc Committee on Terrorism on two anti-terrorism treaties -- one, a comprehensive text on terrorism, and the other on the suppression of nuclear terrorism -- the Chairman concluded, following two briefings today on informal talks, that more time was needed to resolve the outstanding issues before either treaty could be adopted.
The 1996 General Assembly body has negotiated several texts resulting in the adoption of two treaties: the International Convention for the Suppression of Terrorist Bombings; and the International Convention for the Suppression of the Financing of Terrorism. Under renewed and revised General Assembly mandates, the Committee has been asked to further develop a comprehensive legal framework of conventions dealing with international terrorism.
The Coordinators generally reported continuing divergent views on certain key provisions of each draft convention. On the first, the comprehensive terrorism treaty, differences remained largely on defining exemptions from the scope of application of the convention. On the second, although there was general agreement about the “serious and urgent” need to address the suppression of nuclear terrorism without delay, differences had similarly persisted on defining exemptions to any future treaty on the subject. The question had been raised not only about how to proceed with future negotiations, but whether or not to do so.
Reporting on his informal consultations during the week, the Coordinator of the draft comprehensive convention on international terrorism, Carlos Fernando Diaz Paniagua (Costa Rica), said that while agreement on the main outstanding issues had not yet been found, the talks had helped to clarify positions on the fundamental issues. Article 18, which concerns exemptions under the convention of persons -- whether “parties” or “armed forces” -- in armed conflict, remained a key provision on which differences remained. He had been encouraged, however, by the “growing flexibility” of delegations during the bilateral contacts.
In the oral report on the draft convention on the suppression of nuclear terrorism, the Coordinator, Albert Hoffman (South Africa), said that during the consultations, which had focused on the outstanding issues and ways to resolve the differences, it had been emphasized that the threat of use of nuclear material by terrorists was “serious and urgent” and needed to be addressed “without delay”.
He said that divergent views persisted, however, including on how or whether to proceed with the negotiations. On the one hand, the view was expressed that continued consideration of that item without a clear prospect of finalizing the draft convention in the near future would send a wrong signal to the international community; that would demonstrate the inability of the United Nations to resolve differences on an important issue of common concern.
The opposing view held that new proposals were being made in the course of consultations and that the negotiations, therefore, should continue, with a view to arriving at a generally acceptable solution to the outstanding issues. The Coordinator felt that the differences were “not irreconcilable” and that delegations should build on the progress achieved thus far, bearing in mind the common objective of adoption of the nuclear terrorism convention.
Highlights of Comprehensive Terrorism Draft Treaty
The Coordinator for the draft comprehensive terrorism convention explained that the basis of the consultations had concerned two texts relating to article 18 of the treaty -- one circulated by the former coordinator and the other proposed by member States of the Organization of Islamic Conference (OIC), as well as the informal text of article 2 bis, prepared by the former coordinator. The latter refers to the proposed amendment to article 2, which defines the scope of offences to be covered under the convention. (All of the proposals are contained in Annex IV of the 2002 Committee Report, document A/57/37).
Highlighting the main positions, he said that delegations recognized that article 18 was a critical provision, and that broad agreement on it was crucial for the treaty’s adoption as a whole. Support was expressed for each of the two versions. Divergent views remained on paragraphs 2 and 3 of article 18. (See below for the two proposed versions of those paragraphs.)
Delegations in favour of the former coordinator’s text felt that the 1999 International Convention for the Suppression of Terrorist Bombings served to precisely define the terms “armed forces” and “armed conflict”, he said. Those delegations had also noted that paragraph 2 had been a choice of law provision, which had simply pointed to international humanitarian law as the applicable law with respect to the activities of armed forces in an armed conflict.
Those delegations favouring the OIC text noted that the proposed language had been the outcome of a negotiated process. That had been built, by way of amendment, upon earlier proposals. It had also been stated that paragraph 2 should be perceived as extending the savings clause contained in paragraph 1, which was identical in both texts, namely, that nothing in the draft convention should affect other rights, obligations and responsibilities of States, peoples and individuals under international law.
To exclude “peoples and individuals” from paragraph 2 would create a “lacuna”, which would leave peoples fighting in the exercise of their right to self-determination or against foreign occupation without the protection that those enjoyed under international humanitarian law. From that perspective, paragraph 2 of the OIC language sought to avoid any ambiguity that might be created by the possible exclusion of “peoples and individuals” and of “foreign occupation” from the text of the paragraph.
Moreover, he said it had been noted that the term “parties” employed in the OIC proposal was a well defined and understood term under international humanitarian law and one which had always been applied to groups participating in armed conflict. The laws, rights and duties of war applied not only to States, but also to groups and individuals.
On the other hand, it was counter-argued, the term “parties”, as used in the OIC text, was overly broad and vague, he recalled. While there had been certainty as to the definition of “parties” at the time that the various international humanitarian law instruments had been negotiated, when armed conflict essentially involved States, in contemporary times that situation had changed. Now the term “parties” could potentially exempt any number of individuals and groups from the scope of the draft convention.
The view had also been expressed that a civilian who exercised his or her rights under international law and international humanitarian law, such as the right to self-determination, was not a terrorist as long as he or she exercised that right within the limits prescribed by international humanitarian law, in particular, by not targeting or terrorizing other civilians. Thus, a civilian who forfeited his or her protection under international humanitarian law should not necessarily be considered a terrorist under the draft convention.
Regarding paragraph 3, he said that some delegations in support of the OIC text noted that they had initially sought the deletion of the entire paragraph, but they had been persuaded to change position in view of other texts proposed during the 2000 session of the Working Group of the Sixth Committee (Legal). They stressed that activities of military forces should be in conformity with international law. Moreover, it had been noted that paragraph 3 was concerned with individual responsibility and not the responsibility of the State. As such, there did not seem to be any compelling reason to exempt such persons from the scope of application of the draft convention.
He said that those delegations in favour of the former coordinator’s text of paragraph 3 said that that was a choice of law provision based on the one incorporated in the International Convention on the Suppression of Terrorist Bombings. Clearly, paragraph 3 was not intended to grant impunity, they said. Concerns that had initially prompted the proposal now contained in the OIC text had been accommodated in paragraph 4, common to both proposals. It had also been pointed out that while the reference in the OIC text to “in conformity with” appeared attractive at first glance, it had its own limitations. It did not encompass other activities governed by other rules of international law, and, thus, that provision would render such activities terrorist acts for purposes of the draft convention.
During bilateral contacts, he noted that several delegations had suggested to bridge the gap by defining the concept of “parties” in the draft convention or by adding a new clause to article 2, paragraph 1, specifying the circumstances in which leading military commanders would commit crimes within the scope of the draft comprehensive convention. He had encouraged those delegations to continue inter-sessional contacts, in order to find creative solutions to the differences.
Regarding article 2 bis, he said that some delegations had favoured retaining it, emphasizing that that would provide legal clarity in the event of a conflict between a sectoral anti-terrorism convention and the comprehensive one. Others favoured deleting draft article 2 bis since the relationship between the draft comprehensive convention and sectoral anti-terrorism conventions could be resolved by the law of treaties, as codified in the 1969 Vienna Convention on the Law of Treaties.
[Paragraph 2 of the former Coordinator’s text reads as follows:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.
Paragraph 3 of that draft reads:
“The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
Paragraph 2 of the OIC draft reads:
“The activities of the parties during an armed conflict, including in situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.”
Paragraph 3 of that draft reads:
“The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention.”]
Highlights of Nuclear Terrorism Suppression Draft
The Coordinator of the informal discussions on the second draft convention explained that there was general agreement that suppression of acts of nuclear terrorism was a distinct issue, which should be considered on its own merits, and that outstanding issues on the draft should be resolved separately from the outstanding issues relating to the draft comprehensive convention.
As in the previous sessions, he said, consultations had focused on the key outstanding issue, namely, article 4 of the draft convention, which concerns exemptions (or persons and issues) under the convention. In the context of the widespread support for the text contained in document A/AC.252/L.13 and the addition of paragraph 4 as proposed by Mexico, the point had been made that the draft convention was a law enforcement instrument, which should not address the question of the legality of the use or threat of use of nuclear weapons.
It had been argued that that was an issue covered by other conventions and, therefore, fell outside the Committee’s mandate, he said. Several delegations had expressed the view that the Mexican proposal offered a suitable counterbalance to paragraphs 2 and 3 and, thus, constituted a possible compromise in addressing the concerns relating to the exclusion of “armed forces of a State” from the convention’s scope.
(Paragraph 2 of article IV of the draft convention concerns the activities of armed forces during an armed conflict. Paragraph 3 states that the provisions of paragraph 2 should not be interpreted as condoning or making lawful otherwise unlawful acts, or precluding prosecution under other laws.)
On the other hand, he said, some delegations had reiterated their concern over the current wording of article 4, stating that the Mexican proposal had not addressed all concerns previously expressed with regard to paragraphs 2 and 3. A proposal was, thus, made to delete paragraphs 2 and 3. It was further pointed out that, with the deletion of those two paragraphs, paragraph 4 became unnecessary.
He said that other delegations, however, had opposed the deletion of those two paragraphs and had stated that it was a balanced text based on the International Convention for the Suppression of Terrorist Bombings of 1997. Suggestions ranged from amending the article to deleting it entirely. The view had also been expressed that a definition of nuclear weapons in article 1 should include radioactive material and devices. Among the other outstanding issues was one related to a proposal concerning the inclusion of the dumping of toxic waste.
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