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Part 8

Legal
Developments

Significant legal issues arise frequently in connection with U.S. participation in UN activities and in activities of international organizations affiliated with the United Nations. Many of these legal matters are discussed in other parts of this report in the context of the issues or particular international organizations to which they relate. The following deals with activities of an exclusively legal character.

International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It decides cases submitted by states and gives advisory opinions on legal questions at the request of international organizations authorized to request such opinions pursuant to the Statute of the Court and the UN Charter. The Court is composed of 15 judges, no two of whom may be nationals of the same state. They are elected by the UN General Assembly and the Security Council, voting independently, from a list of persons nominated by national groups on the Permanent Court of Arbitration. The electors consider the qualifications of the candidates and representation of the main forms of civilization and the principal legal systems of the world. Court members are elected for 9-year terms, with one third of the total number of judges elected every 3 years.

The Court submitted to the General Assembly a brief report on its activities from August 1, 1990, to July 31, 1991. The report contained information on the Court's composition, jurisdiction, judicial work, administration and publications. The General Assembly took note of the report on November 8. (Decision 46/ 405.)

On December 5 the General Assembly elected Bola Ajibola of Nigeria to fill the unexpired term of deceased Judge Taslim Olawale Elias of Nigeria.

Nicaragua v. United States of America

The United States continued to maintain that the Court's decision that it had jurisdiction in this case was "clearly and manifestly erroneous as to both fact and law," and that the Court was without jurisdiction to hear the dispute. On September 12 Nicaragua requested the Court discontinue proceedings relating to damages, in which it renounced all further right of action on the case. On September 25 the United States welcomed the Nicaraguan request and on September 26 the Court discontinued the case and removed it from its list of cases.

Iran v. United States of America

On July 24, 1990, Iran filed its Memorial in this case against the United States regarding the shooting down of a civilian Iranian airliner by U.S. military forces protecting U.S. merchant vessels in the Persian Gulf during hostilities between Iran and Iraq. By Order of June 12, 1990, the Court provided that the United States file its Counter-Memorial by March 4, 1991. On March 4 the United States filed preliminary objection to the jurisdiction of the Court. On April 9 the Court fixed December 9, 1991, as the time limit within which Iran may present its observations and submissions. On December 18 the Court extended Iran's time limit to June 9, 1992.

International Law Commission

Pursuant to General Assembly resolution 174 (II) of November 21, 1947, the International Law Commission (ILC) was established in 1948 to promote the codification and progressive development of international law. Its membership consists of 34 legal experts serving in their individual capacities and elected by the General Assembly for 5-year terms. The current ILC includes a U.S. citizen expert.

The ILC studies topics determined suitable for codification or that other UN bodies refer to it. Its normal procedure is to select one of its members (designated a special rapporteur) to prepare reports on each topic and draft articles which are acted on by the fuil Commission. The Commission reports to the General Assembly on articles it has adopted during that year's session. It reconsiders articles in light of government comments and then adopts final texts, which it forwards to the General Assembly. When the Assembly receives a set of draft articles, it may convene a diplomatic conference to consider adoption of a convention, review the articles itself, note them, or remand them to the Commission for further study.

Work of the Commission's 43rd Session

The ILC held its 43rd session in Geneva from April 29 to July 19. Ambassador Abdul Koroma (Sierra Leone) was elected chairman. The Commission adopted full sets of draft articles on three subjects. It completed the second reading, or final adoption, of the draft of Jurisdictional Immunities of States and their Property; approved on first reading its articles on the Law of the Non-Navigational Uses of International Watercourses; and adopted the Draft Code of Crimes Against the Peace and Security of Mankind.

The Commission recommended in its report to the General Assembly on jurisdictional immunities that the Assembly convene a diplomatic conference to conclude a convention based on the Commission's articles. The drafts on watercourses and crimes were sent to governments for their comments by January 1, 1993. The Commission will then give each of those drafts a second reading, taking into account the observations received from states.

The Commission also considered establishing an international criminal court and reports on International Liability for Injurious Consequences arising out of Acts Not Prohibited by International Law, Relations between States and International Organizations, and State Responsibility.

Sixth Committee Debate on an International
Criminal Court

The most controversial issue during the Sixth Committee's debate on the ILC's work was the issue of establishing an international criminal court.

Most countries that spoke on establishing an international criminal court generally supported the concept, but stated that more study was needed. There was widespread disagreement, however, on many fundamental issues, including the relationship between the jurisdiction of such a court and that of national courts, whether consent of countries with a prosecutorial interest should be required, and the types of crimes to be included in the court's jurisdiction. The U.S. Representative stated that

the creation of a permanent international criminal court cannot be viewed as a "quick fix," but is rather an enormously complex and farreaching endeavor, raising profound legal, political and practical questions .... The United States is not suggesting that these problems are insurmountable. They are, however, complex, and their successful resolution requires a fair degree of real international consensus. At present, there seems to be international consensus primarily on the questions and concerns .... In summary, as a majority of other countries have remarked, the United States believes the question of establishing an international criminal court requires further study. We

encourage the International Law Commission to return in earnest to

the task. There was general consensus that the ILC should return to the task of preparing a detailed analysis of the issues associated with the establishment of an international criminal court.

General Assembly Action

The Sixth Committee approved a resolution on the ILC's report recommending, inter alia, that the Commission continue its work on all topics on its agenda. The resolution also asked the Commission to consider further and analyze the issues raised in its 1990 report on an international criminal court to enable the General Assembly to provide guidance.

The Sixth Committee also approved a resolution on the draft articles on Jurisdictional Immunities of States and their Property. The resolution, inter alia, invited states to provide written comments and observations on the draft articles by July 1, 1992, and established a working group of the Sixth Committee at the 47th General Assembly. The working group is to examine issues arising out of the draft articles and the question of convening an international conference to conclude a convention based on the draft articles. The Committee approved these resolutions by consensus and forwarded them to the General Assembly, which adopted them on December 9, also by consensus (Resolution 46/ 54; Resolution 46/55.)

UN Commission on International
Trade Law

The UN Commission on International Trade Law (UNCITRAL), established by the General Assembly in 1966 and headquartered in Vienna, has as its principal mandate the progressive codification of international trade law and the coordination of such efforts within the UN system. The General Assembly in resolution 46/56 A on December 9 reaffirmed UNCITRAL as the “core legal body in the UN system" in this field. The Commission at its 24th plenary session in Vienna in June and in the meetings of its three specialized working groups continued to conduct its work in a technically focused and nonpoliticized manner, without North-South divisions impairing its effectiveness.

The Commission is composed of 36 member states, including the United States, elected by the General Assembly for terms of 6 years. Its tradition is to work by consensus and avoid regional or bloc positions. The General Assembly elected Austria, Ecuador, Poland, Saudi Arabia, Sudan, Thailand, Uganda and Tanzania as new members (Decision 46/309.)

International Law Conventions

1991 UN Convention on Transport Terminals

The convention, dealing with a key link between international and domestic transportation of goods, was completed at a UN diplomatic conference in April in Vienna and opened for signature; the United States joined consensus on the text. The convention covers gaps between international conventions primarily on ocean and air transportation and national transportation laws, balancing the rights of shippers, cargo handlers and owners.

UN Convention on International Sales of Goods

Bulgaria, Canada, Chile, Czechoslovakia, Germany, Guinea, Iraq, Romania, Spain, Switzerland, the Ukraine and the Russian Federation became parties to or ratified the convention in 1991, bringing to 32 the total member states parties; the UNCITRALprepared convention is the first multilateral treaty by which the United States has adopted substantive commercial law on international transactions.

Model Uniform Law on International Credit Transfers

The Commission at its 24th plenary session in May (chaired by K. Sono of Japan) endeavored to reach consensus on a UN Model Law but was unable to do so. Nevertheless, a number of issues were decided along lines long sought by the United States, which recognized the need for new UN legal approaches to accommodate the growth of computer-assisted bank transfers and clearing systems, thus raising the possibility that the United States could join consensus in the future. The United States has been urging rules that are market-oriented, support new electronic methods of completing funds transfers, and limit liabilities to promote international use of new computer banking methods.

Model Law on Bank Guarantees and Standby Letters of Credit

UNCITRAL held two working group meetings in an effort to reach agreement on common international standards; the United States has recommended instead that a convention be prepared recognizing both the law and the market for the two major types of commercial guarantee instruments since 1945: European style bank guarantees and American standby letters of credit.

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