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Review of International Law Commission Report Concludes
The Committee on Relations with the Host Country provided an open environment where members and interested delegations could raise any relevant concerns, the Sixth Committee (Legal) heard today during its consideration of that body’s report.
Introducing the report (document A/71/26), Nicholas Emiliou (Cyprus) noted that it was a forum for constructive discussion within the framework of the relevant international law, including the Headquarters Agreement between the United Nations and the Host Country.
Noting matters relating to the issuance of entry visas to Member State representatives and the related timeliness, he said he anticipated that such concerns would be duly addressed in accordance with the applicable international law and in a spirit of cooperation. The Committee also anticipated that the host country would continue to assist permanent missions accredited to the United Nations and their staff in obtaining appropriate banking services, he said, adding his thanks to the Host Country Section of the United States Mission.
However, some delegates expressed concerns regarding the report and called for changes. The representative of Cuba called for the lifting of the restriction that prevented Cuban diplomats from moving 25 miles beyond Columbus Circle. That policy of applying restriction of movement on United Nations Cuban diplomats and officials was politically motivated and violated the obligations of the host country. Furthermore, the host country must continue training its border control officials to ensure fair treatment for all diplomatic staff of all Member states.
Iran’s delegate also expressed concern about the application of discriminatory airport screening procedures towards his country’s diplomats. Secondary intrusive search and questioning by immigration officers ran counter to the Headquarters Agreement, he stressed.
The representative of the United States, however, noted that the Host Country Section had worked hard to assist Member States during the past year. Between 1 January and 28 October, more than 4,500 visas had been issued to members of the United Nations diplomatic community. In addition, the United States Mission had assisted Member States in resolving banking and financial services issues. He underscored the role played by the Host Country Committee as a valuable forum in which to discuss relevant issues.
The Committee also concluded its consideration of the report of the International Law Commission (ILC), with delegates encouraging the Commission to continue its work while pointing out areas where prudence was necessary.
Indonesia’s delegate, speaking on “Protection of the environment in relation to armed conflicts”, noted that his Government made regular determinations of areas that had significant environmental dimensions in order to ensure the protection of such “eco-regions”. The Commission must observe other relevant State practices in the field, he said.
The representative of Ukraine commended the Commission for examining the existing legal framework and welcomed draft principle 16 on remnants of war. However, he proposed that the first paragraph be amended to highlight that toxic and hazardous remnants of war not only caused or posed a risk of causing damage to the environment, but clearly threatened human health.
The representative for the International Committee of the Red Cross (ICRC) stressed that ensuring better legal protection for the environment during armed conflict required better dissemination, implementation and enforcement of existing rules of international humanitarian law. She also highlighted the need for greater clarity about how other bodies of international law might provide complementary protection to the environment.
“The views expressed orally and in writing by States are extremely precious for the Commission,” said Pedro Commisario Afonso, Chairperson of the Commission in his closing remarks to the Sixth committee, during which he thanked delegations for their active participation in the productive debate.
Reiterating the Commission’s request to Governments to submit their comments and observations on various draft conclusions, he emphasized that since the International Law Commission was a collegial organ, “it is not for me to react or answer to the various observations, suggestions or criticisms expressed by delegations.” The Secretariat would prepare a topical summary of the debate that would be submitted to the Commission’s attention.
Three draft resolutions were introduced today, concerning the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law; Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives; and the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Also speaking today were representatives of Peru, Sri Lanka, Republic of Korea, India and Syria, as well the European Union.
The Special Rapporteur of “Immunity of State officials from foreign criminal jurisdiction” also spoke today.
The Sixth Committee will next meet at 10 a.m. on Friday, 4 November to hear the reports of the Working Groups and to take action on requests for Observer status.
Statements on Cluster III
IGOR BONDIUK (Ukraine), addressing “Protection of the environment during armed conflict”, commended the Commission for examining the effectiveness of the existing legal framework and identifying the gaps and barriers to its enforcement. He also noted that draft principle 4 on measures to enhance such protection went in line with the General Assembly resolution on protection of the environment in areas affected by armed conflict, which had been initiated by Ukraine. Welcoming draft principle 16 on remnants of war, he proposed that the first paragraph should be amended to highlight that toxic and hazardous remnants of war not only caused or posed a risk of causing damage to the environment, but clearly threatened human health as the discharges from damaged industrial facilities, military wastes and explosive ordnances caused direct harm to the civilian population.
JUAN JOSA� RUDA SANTOLARIA (Peru) said of “Crimes against humanity” that the ultimate goal of discussions was a possible future convention on that topic. Since there was already a legal framework for such crimes comprised of, inter alia, various conventions and the statutes of various international courts and tribunals, it was important to highlight that the draft articles were not seeking to replace or compete with that framework.
Turning to “Protection of the atmosphere”, he stressed that there should be a sustainable utilization of the atmosphere. It was also important that the draft articles not interfere with other mechanisms dealing with climate change.
On “Protection of the environment in relation to armed conflict”, he said it was vital to protect the environment before, during and after armed conflict. He underscored the necessity of draft measures to minimize damage during conflict, as well as the protection of zones of environmental and cultural importance.
FERRY ADAMHAR (Indonesia), speaking on “Protection of the environment in relation to armed conflicts”, said that under international law, parties to armed conflict were under the obligation to make a broad distinction between civilian and military objects. Stressing that it was the “burden and responsibility” of the conflicting parties to make proper and prudent distinctions, he noted that his Government made regular determinations of areas that had significant environmental dimensions. The establishment of such “eco-regions” ensured that they were protected. The Commission must observe other relevant State practices in the field.
SONALI SAMARASINGHE (Sri Lanka) said of “Immunity of State officials from foreign criminal jurisdiction” that it should be approached prudently and with sufficient caution. Draft article 7, which was based on the conclusion that immunity did not apply to State officials in the context of immunity ratione materiae, was unclear as to whether customary international law recognized the existence of an exception to immunity ratione materiae before a foreign criminal jurisdiction. In that regard, the report had not sufficiently followed the analytical process of identification of customary international law.
She also said that there should be a balance between the principle of sovereignty of States and the maintenance of stability of relations among States, on the one hand, and the fight against impunity and the need for accountability, on the other. The stability of inter?State relations should not be undermined, nor should normal diplomatic relations between States be so disturbed that it would defeat the course of international justice.
SHIN SEOUNG HO (Republic of Korea), on “Protection of the environment in armed conflict”, commended the Drafting Committee for including preventive and remedial measures in the overall architecture of measures to counter environmental degradation in relation to armed conflicts. However, it would be desirable for the Commission to clarify whether it should simply be “environment” or “natural environment.”
Turning to “Immunity of State officials from foreign criminal jurisdiction”, he said that the limitations of and exceptions to immunity were important from a legal perspective and were also politically sensitive. He welcomed the commentary attached to draft articles 2(f) and 6 that the Commission had provisionally adopted. The definition of the core terminologies contained in the aforementioned draft articles could be further clarified, thereby allowing States to have a better understanding of their meaning in the interpretation and application of relevant international legal instruments.
On “Provisional application of treaties”, he said of draft guideline 10 that he believed it might serve as a useful point of reference in the domestic application of a treaty. However, the guideline could be amended with reference to articles 27 and 46 of the 1969 Vienna Convention on the Law of Treaties as much as possible.
KOTESWARA RAO MADIMI (India), commenting on “Immunity of State officials from foreign criminal jurisdiction”, said of draft 7 on “limitations and exceptions” that, given the normative implications of that phrase, he agreed with the methodology used by the Special Rapporteur. In addition, the inclusion of “crimes of corruption” referred to in paragraph 1 of subparagraph b) of that draft article must be supported by sufficient State practice. A determination should also be made as to whether those acts of corruption fell within the “acts performed in an official capacity” and therefore within the scope of immunity ratione materiae.
FEDERICA DU PASQUIER, representative for the International Committee of the Red Cross (ICRC), noted the urgent need to find better ways to address the immediate and long-term consequences of natural environment damage in relation to armed conflict. Ensuring better legal protection during armed conflict required better dissemination, implementation and enforcement of existing rules of international humanitarian law. However, it was also necessary at times to address normative weaknesses through reinforcing the law, which would benefit from further clarification and development in that area. Greater clarity about how other bodies of international law might provide complementary protection to the environment remained important. It was also important to ensure that the Commission’s work on the topic remained in line with existing rules of international humanitarian law.
CONCEPCIA�N ESCOBAR HERNA�NDEZ, Special Rapporteur of “Immunity of State officials from foreign criminal jurisdiction”, said that despite the provisional nature of the commentaries made by most delegations, she saw they held different views on the topic regarding the scope and content, particularly with regard to “exceptions and limitations to immunity.” On the question of exceptions and ratione materiae, the difference in the views of delegations confirmed the need for the Commission to look at that matter without any pre-established views so that it could be resolved. She also took note of the point made by many speakers on the procedural aspects of immunity, including the need to make sure that the rules of due process were respected and that any suggestions would avoid politically motivated requests or actions against a State official.
PEDRO COMMISA�RIO AFONSO, Chairperson of the International Law Commission (ILC), said that the Commission relied on the Sixth Committee to benefit from the views and comments of Governments on the general orientations of its work and on the numerous specific topics on its agenda. “The views expressed orally and in writing by States are extremely precious for the Commission,” he said.
He reiterated the Commission’s request to Governments to submit to the Secretary-General by 1 January 2018 their comments and observations on the draft conclusions on “Identification of customary international law” and the draft conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, which were both adopted in 2016 on first reading. Those comments would give the Commission invaluable assistance for the second readings of both sets of draft conclusions.
He also strongly encouraged Governments to submit to the Commission by 31 January 2017 information on questions listed in Chapter III of the ILC report on the work of the sixty-eighth session. He recalled the Secretariat had invited Governments to respond to the questionnaire on “Ways and means for making the evidence of customary international law more readily available” by 1 May 2017.
“Since the International Law Commission was a collegial organ, it is not for me to react or answer to the various observations, suggestions or criticisms expressed by delegations,” he said. The Secretariat would prepare a topical summary of the debate that would be submitted to the Commission’s attention. “I can assure you that the Commission will take into account each one of these observations, suggestions and criticisms,” he added. He again expressed the Commission’s “deepest appreciation and gratitude” to the Sixth Committee for its active participation in the productive debate.
Introduction to Report on Host Country
NICHOLAS EMILIOU (Cyprus) introduced the report of the Committee on Relations with the Host Country (document A/71/26), which included the organization of the Committee’s work, discussion summaries, and recommendations and conclusions. The Committee continued to provide an open environment where members and interested delegations, participating as observers, could follow its work and raise any concerns that fell within the Committee’s purview. As such, it provided a forum where discussion could take place in a constructive manner, within the framework of the relevant international law, including the Headquarters Agreement between the United Nations and the Host Country.
Noting matters relating to the issuance of entry visas and the timeliness of the issuance of entry visas to representatives of Member States, he said he anticipated that such issues would be duly addressed in accordance with the applicable international law and in a spirit of cooperation. The report also expressed the Committee’s anticipation that the host country would continue to assist the permanent missions accredited to the United Nations and their staff in obtaining appropriate banking services. Noting that currently there were no outstanding issues regarding that, he thanked the members of the Committee and the Host Country Section of the United States Mission to the United Nations.
Statements on Report of Host Country
ERIC CHABOUREAU (European Union) said observance of privileges and immunities of diplomatic personnel was of great importance and based on solid legal principles. It was vital to safeguard the integrity of the relevant body of international law, particularly the Headquarters Agreement between the United Nations and the Host Country, the Vienna Convention on Diplomatic Relations and the Convention on the Privileges and Immunities of the United Nations.
On implementation of the Agreement between the United Nations and the United States regarding the Organization’s Headquarters, he expressed his appreciation to the host country for its continued efforts to timely issue entry visas for representatives of Member States and observers. The host country’s commitment to help accommodate the needs, interests and requirements of the diplomatic community had also been shown in providing suitable banking services to all permanent missions. Noting that there were no outstanding issues in obtaining appropriate banking services, he reiterated the Committee’s anticipation that the host country would continue to assist permanent missions and their staff in that regard.
ANET PINO RIVERO (Cuba) said that her delegation was committed to enhancing the work of the Host Country Committee through discussion, consultation, negotiation and cooperation among members. However, the policy of applying restriction of movement on Cuban diplomats and officials accredited to the United Nations was unjust and politically motivated. It was also a clear violation of the obligations of the host country. The host country had not taken any steps to lift the restriction which prevented Cubans from moving 25 miles beyond Columbus Circle, she pointed out, calling for the restriction to be lifted immediately.
Turning to the matter of accelerating immigration and customs procedures, she said it was necessary to ensure fair treatment for all diplomatic staff of all Member states. While urging the host country to continue training its border control officials to ensure continued respect for the privileges of diplomats, she also acknowledged efforts in that regard. In regards to the parking programme for diplomatic vehicles, she underscored that the programme should be applied in a fair manner. She stressed that she was committed to working with all Host Country Committee members to ensure respect for all relevant agreements and Conventions.
AMMAR AL ARSAN (Syria) reiterated his esteem for the efforts made by the host country to settle certain concerns and complaints sent to the Host Country Committee, which affected the ability of delegates to enjoy the rights accorded to diplomats and their families to enjoy a normal life. However, he noted there had been difficulties in the provision of banking services to missions. The denial of bank accounts to certain accredited diplomats violated United States law and the United Nations Charter. He condemned any unilateral measures that were unjustly imposed by the United States Government against the Syrian Government. The host country should submit explanations and solutions immediately for such problems.
ALI NASIMFAR (Iran) recalled that the Committee on Host Relations had a unique responsibility, as mandated by General Assembly resolution 2819, which had led to its founding. Stressing that the Committee’s working methods should be improved, he added that it had a certain potential that should be used constructively in the spirit of cooperation. It was also advisable to consider the report at the beginning of the Sixth Committee’s work.
While appreciating the efforts of the host country, he said that he wished to place on record serious concern about the application of discriminatory airport screening procedures towards Iranian diplomats. Secondary intrusive search and questioning by immigration officers ran counter to the Headquarters Agreement, he stressed.
MARK A. SIMONOFF (United States) said that the Host Country Committee was a valuable forum in which to discuss relevant issues, and he greatly appreciated the cooperation and the constructive spirit of its members in its work. He noted that the Host Country Section of the United States Mission had worked hard to assist Member States during the past year. Between 1 January and 28 October of 2016, more than 4,500 visas had been issued to members of the United Nations diplomatic community. In addition, the Mission had been pleased to assist States in resolving banking and financial services issues.
Introduction of Draft Resolutions
The representative of Ghana introduced a resolution on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (document A/C.6/71/L.17).
Following that, the representative of Finland introduced a resolution, Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/71/L.18).
The representative of Zambia then introduced a draft resolution on the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (document A/C.6/71/L.16).
Source: United Nations