EU Presidency Statement - Convention on Jurisdictional Immunities of States and their Property

Mr. Chairman,

I have the honour to speak on behalf of the European Union. The Acceding Countries, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, the candidate countries, Bulgaria, Romania and the countries of the Stabilisation and Association Process and potential candidates Albania, Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Serbia and Montenegro and the EFTA counties Liechtenstein, Iceland and Norway members of the European Economic Area, align themselves with this statement.

Mr. Chairman,

The European Union would like, firstly, to express its sincere gratitude to the Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property, Professor Gerhard Hafner, for the exceptional manner in which he has conducted the work of the Committee. We will continue to depend upon your very able guidance and advice in the week ahead of us.

One year ago, the Ad Hoc Committee accomplished the difficult task of reaching agreement on, and adopting, a set of draft articles and understandings on jurisdictional immunities of States and their property. This was a significant achievement.

Following further discussions held during October and November of last year, the Sixth Committee recommended to the General Assembly the adoption of a resolution which, inter alia, decided that this Ad Hoc Committee would be reconvened from 1 to 5 March 2004, with the mandate to formulate a preamble and final clauses, with a view to completing a Convention on Jurisdictional Immunities of States and their property and which will contain the results already adopted by the Ad Hoc Committee.

Mr. Chairman,

The European Union believes that a genuine opportunity now presents itself to reach agreement on the formulation of a Convention on Jurisdictional Immunities of States and their Property. Having agreed on the draft Articles and Understandings last year, the groundwork has already been firmly laid. We believe it to be important to take advantage of this opportunity and to reach agreement on the final text of a Convention itself. In this connection, we have attached to our statement some sample language elements for the consideration of delegations.

In reaching agreement on the text of a Convention, Mr. Chairman, the EU adheres strongly to the view that the text of the draft Articles and Understandings, agreed last year, should not be re-opened.

I turn now, Mr. Chairman, to the work that remains to be done.

The European Union favours a short and non-controversial Preamble. The Preamble could note, inter alia, the desirability of a Convention to the extent it enhances the rule of law and legal certainty. It might also usefully refer to the fact that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the Convention.

Provision will be needed to ensure that the Understandings are an integral part of the Convention. This is an essential element of an acceptable overall package. In this regard we have set out some possible language which you will see in the sample elements of text attached to the written copy of this statement.

Insofar as dispute settlement is concerned, the European Union has a strong preference for a robust provision governing this area. We would note in this regard that the sample language that we have attached concerning dispute settlement is taken from the UN Convention against Corruption and allows for a number of options in this area. At the same time, however, we wish to signal some flexibility and we are willing to engage positively vis-à-vis alternative suggestions that other delegations might wish to make.

On the subject matter of reservations, the EU has a preference for a provision prohibiting reservations being made to the Convention. The alternative would be no provision concerning reservations in the Convention thereby deferring to the relevant provisions of the Vienna Convention on the Law of Treaties.

On the more technical issue of the number of ratifications which would be sufficient to ensure the entry into force of the Convention, the EU believes that thirty ratifications would be adequate.

Mr. Chairman,

The European Union looks forward to working closely and in a constructive manner with you and all other Member States represented in this room in the coming days.

Thank you, Mr. Chairman.


Possible Sample Elements of Text

Convention on Jurisdictional Immunities of States and their Property

Preamble

The States Parties to the present Convention,

Considering that the jurisdictional immunities of States and their property are widely accepted in customary international law,

Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of the universal respect for, and observance of, human rights and fundamental freedoms for all,

Believing that an international convention on the jurisdictional immunities of States and their property would enhance the rule of law and legal certainty, particularly in dealings of States with private persons,

Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,

Have agreed as follows:

[Articles 1-24 (Identical to Articles 1-24 in Annex I to the Report of the Ad Hoc Committee from February 2003)]

Annex (containing Understandings)

The Annex to the present Convention forms an integral part of the Convention and a reference to this Convention includes a reference to the Annex.

Dispute Settlement

1. States Parties shall endeavour to settle disputes concerning the interpretation or application of the present Convention through negotiation.

2. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, within six months from the date of the request for arbitration, those States Parties are unable to agree on the organisation of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

3. Each State Party may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be bound by paragraph 2 with respect to any State Party which has made such a declaration.

4. Any State Party which has made a declaration in accordance with paragraph 3 may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.

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