17 November 2005
Legal Committee, Recommending New Protocol, Seeks Broader Protection for United Nations, Associated Personnel Serving on Peace Missions
Aim Is to Expand Activities Covered by Convention, Delegates Differ on Details; International Law Commission Report for 2005 Also Approved
NEW YORK, 16 November (UN Headquarters) -- A new instrument, which will provide legal protection for United Nations and associated personnel in peacebuilding missions going beyond peacekeeping operations, was recommended to the General Assembly by one of two drafts approved without a vote, by the Sixth Committee (Legal) this afternoon.
The "Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel", was contained in a draft introduced by Christian Wenaweser ( Liechtenstein), Chairman of both the Ad Hoc Committee and the Working Group on the topic, which prepared the instrument. The other draft covered the report of the International Law Commission on the work of its fifty-eighth session, and it was introduced on behalf of the Bureau, by Mahmoud Hmoud ( Jordan), a Vice-Chairman of the Sixth Committee.
The Optional Protocol expands the scope of the 1994 Convention to cover United Nations and associated personnel involved in delivering humanitarian, political or development assistance in peacebuilding, or delivery of emergency humanitarian assistance. By a provision of the new instrument, a host State may make a declaration that it shall not apply the provisions of the Protocol with respect to the delivery of emergency humanitarian assistance conducted in response to a natural disaster.
According to a provision in the 8-Article instrument, the Optional Protocol shall be open for signature by all States at United Nations Headquarters for 12 months, from 16 January 2006 to 16 January 2007 (Article IV). It shall enter into force 30 days after 22 instruments of ratification, acceptance, approval or accession have been deposited with the Secretary-General (Article VI).
Speaking in explanation of position before the Committee's action, Syria's representative said the term "peacebuilding" in the text referred only to post-conflict situations and others entailing the element of exceptional risk. The representative of Venezuela said her country dissociated itself from the term "peacebuilding" operation in the instrument since it had not been legally defined and could be distorted. The term should apply only to post-conflict situations that could give rise to exceptional risk. Colombia's representative also said the term "peacekeeping" was a new concept
The representative of Cuba, also speaking in explanation, said that countries would define the term "peacebuilding" by national legislative measures. Costa Rica's representative said that international humanitarian law would prevail in the event of conflict between it and the provisions of the Optional Protocol. Jordan's representative said the Optional Protocol should serve as a deterrent to acts of aggression in the field.
A number of States, including the United Kingdom, for the European Union, said they would explain their positions when the General Assembly considered the reports of the Sixth Committee.
Also speaking on the Optional Protocol draft were the representatives of Syria, China, Sudan, Guatemala, New Zealand and Botswana.
The Sixth Committee Chairman Juan Antonio Yanez-Barnuevo ( Spain) commended the Chairman of the Ad Hoc Committee and the Working Group, as well as Committee members for their flexibility on achieving a consensus on the Optional Protocol that would contribute to the safety of United Nations and associated personnel.
By the text of the draft on the International Law Commission report, the General Assembly would take note of the report and decide that the Commission's next session be held at the United Nations Office in Geneva from 1 May to 9 June and from 3 July to 11 August 2006.
The Chairman of the Sixth Committee announced that at its next and final meeting, next week, the Committee would take action on the remaining draft resolution on measures to eliminate international terrorism. The Committee would also consider two agenda items on "Revitalization of the work of the General Assembly", and "Election of the officers of the main Committees".
The actual date of the Sixth Committee meeting will be announced in the Journal.
Draft on Optional Protocol
By the draft resolution on "Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel" (document A/C.6/60/L.11), the General Assembly would adopt the instrument (annexed to the draft text) and request the Secretary-General as depositary to open it for signature, which would be at United Nations Headquarters from 16 January 2006 to 16 January 2007. The Assembly would also invite States to become parties to the instrument.
The 8-Article Optional Protocol expands the scope of the 1994 Convention to cover United Nations and associated personnel involved in delivering humanitarian, political or development assistance in peacebuilding; or delivering emergency humanitarian assistance.
A provision of the new instrument (Article II (3)), states that a host State may make a declaration to the United Nations Secretary-General that it shall not apply the provisions of the Protocol with respect to delivery of emergency humanitarian assistance in response to a natural disaster (Article II (1) (b)). The declaration shall be made prior to the deployment of the operation.
The 1994 Convention, which entered into force on 15 January 1999, has been ratified or acceded to by 79 States. Its key provisions require Parties to take all appropriate measures to ensure the safety and security of United Nations and associated personnel and for the prompt release and return of captured or detained personnel. It also obliges parties either to prosecute or extradite offenders.
The Convention requires parties to establish as criminal offences, among others, the murder, kidnapping or any other attack upon the person or liberty of any United Nations or associated personnel; and a violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel, likely to endanger his or her person or liberty.
Action on Optional Protocol Draft
CHRISTIAN WENAWESER ( Liechtenstein), Chairman of both the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel and of the Working Group that prepared the instrument, introduced the draft resolution on the "Optional Protocol" (document A/C.6/60/L.11).
He said the term "peacebuilding" in Article 2 of the instrument was a subject of extensive discussion in the elaboration of the Optional Protocol, and it was critical to achieving a compromise on it. Attempts to define the term were finally abandoned, it being understood that there was no generally agreed definition thereof. It was also generally understood that the arrangements envisaged in paragraph 1 of Article II to effectuate the operation in question, together with relevant domestic legislation, would provide guidance on the intended scope of the meaning of the term in respect of the particular operation to which paragraph (1)(a) of article II related.
Explanations of Position on Optional Protocol Draft
The representative of Syria said he affirmed the role of the United Nations and related personnel, as well as the need to protect them. However, it should be noted that the term "peacebuilding" in the Optional Protocol referred only to post-conflict situations and others entailing the element of exceptional risk.
Venezuela's representative said she supported the resolution for the sake of consensus, but made an affirmative declaration that the Convention and protocol should have no effect in situations where the Government was bound by humanitarian law. She said the term "peacebuilding operations" had not been legally defined and seemed to be a new mechanism that could be distorted and applied to pre- and post-conflict situations. She would dissociate herself from the term and the protocol should apply only to post-conflict situations that could give rise to exceptional risk. Finally, natural disasters did not necessarily spawn exceptional risk and, therefore, the protocol would apply only to those natural disasters that did pose the possibility of exceptional risk. Also, the term "host country" in the protocol referred to States parties to the protocol.
The delegate of China said changes to be made in the Chinese translation of the text would be submitted in writing.
The Sudan's delegate said he supported the resolution out of a desire for consensus but was not certain the resolution had achieved its aim. The desire for consensus had been affirmed by Heads of States at the September Summit, but the result pointed to haste in the adoption of a text that was the very one on which differences had been based; from a juridical point of view, more attention should have been devoted to the text.
Colombia said the consensus was an achievement but it would have been preferable to define the term "peacebuilding", which was a new concept. His country was committed to protecting United Nations and associated persons both juridically and otherwise.
The representative of Iran said he joined consensus on the understanding that the element of exceptional risk was a term that needed to be identified in each particular situation. The host country referred to in the text was, of course, a State which was a State party to the additional protocol.
The delegate of United Kingdom said the European Union would explain its position during the presentation of the Committee's report to the General Assembly.
The draft was then approved without a vote.
Further Explanation of Position on Optional Protocol Draft
Cuba said the term peacebuilding would be defined by terms of the way countries applied the protocol through their own national legislation. In any event, the term did not apply to pre-conflict situations.
The representative of Costa Rica said international humanitarian law would apply in any situations where the protocol came into conflict with that law, just as it would in his country. Obligations and rights were spelled out in humanitarian law and conflicts between laws could end up eroding both laws. The important principle was to preserve the integrity of humanitarian law. However, he agreed with the need to expand the scope of protections under the Convention. He would express his reservations in the Assembly.
Guatemala's representative said he agreed with Venezuela. Had the opportunity been provided to study the protocol in more depth, the reservations may have warranted further consideration. The interpretive statements on the instrument should not be presumed to imply agreement.
New Zealand said her country had supported the addition of protections covered by the additional protocol to the Convention. By approving the protocol, the Committee had contributed to the protection of those at the forefront of the United Nations work.
Jordan's representative said he would have preferred to speak before adoption of the draft. The Optional Protocol attached to the resolution would be an effective means of extending protection to United Nations and related personnel. It would also be a deterrent to acts of aggression in the field. The fact that some States had explained their position must be viewed in line with the Vienna Convention on the Reservation to Treaties, even if those States were not party to that Convention since that view was now part of customary law.
Botswana asked for a technical clarification on the wording with regard to "consent to be bound". The clarification was made.
Draft on International Law Commission Report
By a draft resolution on the report of the International Law Commission on the work of its fifty-seventh session (document A/C.6/60/L.14), the General Assembly would take note of the report, and would decide that the Commission's next session shall be held at the United Nations Office in Geneva from 1 May to 9 June and from 3 July to 11 August 2006.
The Assembly would recommend that the Commission continue and complete its work on topics in its current work programme, taking into account the comments and observations of Governments. It would endorse the Commission's decision to include the topic "The obligation to extradite or prosecute (aut dedee aut judicare)" in its programme of work.
By the draft text, the attention of Governments would be drawn to the importance for the International Law Commission having their views on its draft articles and commentary on Diplomatic protection; and the draft principles on Allocation of loss in the case of transboundary harm arising out of hazardous activities.
The Assembly would request the Secretary-General to circulate to States, as soon as possible after the conclusion of the Commission's session, a summary of its work, and the specific issues on which the views of Governments would be of particular interest to it. Draft articles adopted on either first or second reading by the Commission during the session should also be circulated. He would also be requested to forward to the International Law Commission the records of the debate on the report of the Commission.
Action on Law Commission Draft
MAHMOUD HMOUD ( Jordan), a Vice-Chairman of the Sixth Committee, introduced the draft resolution on the report of the International Law Commission (document A/C.6/60/L.14) on behalf of the Bureau.
The draft was approved without a vote.
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