NEW YORK, 22 OCTOBER 2002
STATEMENT BY Ms. PATRÍCIA GALVÃO TELES, REPRESENTATIVE OF PORTUGAL, TO THE SIXTH COMMITTEE OF THE UNITED NATIONS GENERAL ASSEMBLY (Agenda Item 154: Convention on Jurisdictional Immunities of States and their Property)

Mr. Chairman,

Since it is the first time my delegation is taking the floor, let me begin by congratulating you and the other members of the Bureau for your election. Let me also extend my compliments to the Chairman of the Ad Hoc Committee, Professor Gerhard Hafner, and thank him for his presentation of the report of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property.

It is clear that real progress was made last February towards reaching a final agreement on a text of draft articles on Jurisdictional Immunities of States and their Property.

For the first time since their adoption by the International Law Commission, a second reading of the entire draft text was made. This second reading enabled the Ad Hoc Committee to narrow down considerably the divergences concerning the draft, so as to reduce the options concerning drafting alternatives.

Mr. Chairman,

Portugal is strongly of the view that all States would benefit from the approval of a universal convention on Jurisdictional Immunities of States and their Property. Therefore, special effort must be placed upon reaching a consensus regarding the most significant alternatives left open on the draft articles.

My delegation is ready to work constructively for that consensus. Mr. Chairman, let me briefly outline our position as to the key outstanding issues of the draft articles.

Concerning the definition of a commercial transaction (article 2, paragraph 2 of the draft articles), Portugal - even tough recognizing that some legal systems may favour the “purpose” test - favours the “nature” test, insofar as it gives more legal certainty, as opposed to the strict reliance on the “purpose” test, which may bring an element of subjectivity that would cause difficulties for domestic courts. The simple deletion of article 2, paragraph 2 would not prejudge the option between one of the two tests used to characterise a commercial transaction, leaving this matter to the domestic court, in accordance to its national legal system. Thus, Portugal defends alternative B in the draft articles, i.e., the deletion of article 2, paragraph 2.

Regarding the options in article 10, paragraph 3 (commercial transactions involving a State enterprise), Portugal prefers alternative B, that is, the deletion of the said paragraph. Concerning alternative A, either the proposal for paragraph 3 does not improve on the concepts of State and commercial transaction, proposed in article 2, paragraph 1, b) and c), thus being unnecessary. Otherwise, it creates a new ground for immunity outside the ones already identified in the draft articles.

As to article 11, paragraph 2 a) bis), Portugal is of the view that the scope of the contracts of employment by a State subject to immunity should be reduced to a minimum, in order to assure proper legal defense, mainly in cases concerning nationals of a receiving State in the employment of Diplomatic or Consular Mission that is located on that State. Portugal would therefore, prefer alternative B in the draft articles, since it represents the more restrictive approach, opening more legal avenues insofar as it confers added legal protection to persons employed by the said Missions.

Finally, concerning article 18, paragraph c), relating to post-judgment measures of constraint, Portugal shares the view expressed by those who want to delete the phrase in square brackets, at the end of article 18, paragraph c. The said sentence contains two nexus requirements, the first one (“a connection with the claim that is object of the proceeding”) much too restrictive; the second one (a connection “with the agency or instrumentality against which the proceeding was directed”) because, subject to national rules of liability, its elimination would enable the development of a national jurisprudence to deal with the problem of under-capitalization of State enterprises. Therefore, by deleting these two extra requirements, private parties would be in an easier position to bring legal proceedings against a State.

Mr. Chairman,

Looking towards the future, Portugal deems fit that the Sixth Committee should convene an inter-session working group, preferably in the beginning of 2003. This working group should be mandated to eliminate the present divergent views, so as to finalize the draft articles.

As stated before, Portugal strongly prefers the adoption of the articles under the form of an International Convention. However, if that alternative shall not find the necessary consensus, Portugal would accept that the draft articles serve as a model law or a declaration, to be attached to a resolution adopted by the United Nations General Assembly.

Thank you, Mr. Chairman.