ASIAN.AFRICAN LEGAL

CONSULTATIVE COMMITTEE

REPORT OF THE SEVENTEENTH,EIGHTEENTH AND NINETEENTH SESSIONSHELD IN KUALA LUMPUR (1976), BAGHDAD

(1977) AND DOHA (1978)

Prepared and Published by :THE SECRETARIAT OF THE COMMITTEE

27, Ring Road, Lajpat, Nagar - IV,New Delhi - 110024 (India).

Published by :THE SECRETARIAT OF THE COMMITTEE27, Ring Road, Lajpat Nagar - IVNew Delhi-ll0024 (India).

Printed by Anil Ahuja at :IMPRESSIONSNew Delhi - 110003.

CONTENTSPages

1. INTRODUCTION

II. LAW OF THE SEA

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Introductory 19

Issues before First Committee of 24UNCLOS III

Issues before Second Committee of 51UNCLOS III

Issues before Third Committee of 58UNCLOS III and Settlement of Disputes

III. SUCCESSION OF STATES INRESPECT OF TREATIES

IV. ENVIRONMENTAL LAW 73

V. RECIPROCAL ASSISTANCE IN REGARD 95TO PREVENTION AND INVESTIGATIONOF ECONOMIC OFFENCES AND PROSE-CUTION OF OFFENDERS

VI. TERRITORIAL ASYLUM 113

VII. INTERNATIONAL TRADE LAW MATTERS

Standard/Model Contracts suited to the needs 123of the Region

International Commercial Arbitration 131

International Legislation on Shipping 155

Law relating to the International Sale of Goods 162

1. INTRODUCTION

The Asian-African Legal Consultative Committee, origi-nally established in 1956 by seven Asian states, serves as aforum for consultation and co-operation between its membergovernments in the field of international law and economicrelations and more particularly in matters which are underconsideration of the United Nations, its various organs andagencies. The Committee has at present thirty-seven parti-cipating states within its membership and a large numberof other states from all parts of the world enjoying observerstatus at the Committee's annual sessions and specialmeetings. The Committee also maintains official relationswith the United Nations and other major internationalorganisations.

Historical perspective

With over one hundred states regammg their indepen-dence in the two decades following the Second World Warand the establishment of the United Nations Organisation,these countries in the Asian-African region began to playan important role in international affairs, in an effort toredress the imbalances which had taken firm root duringsuccessive centuries of colonial rule. This could only beachieved through a collective effort in which the newlyindependent states co-operated closely and acted together inthe pursuit of this goal. The first effective step towardssuch fruitful co-operation among Asian-African states wasthe convening of the Bandung Conference in 1955 which ledto the evolution of the five principles of peaceful co-exis-tence which were to govern their relations with their neigh-bours. The success of the Bandung Conference inspired thecountries of the region to take effective measures for regio-nal co-operation in various fields of activity including theprogressive development and codifica.tion of internationalla.w. Much had to be done in this field especially in view

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of the fact that international law was primarily a productof the colonial powers of Western Europe of the sixteenth,seventeenth and eighteenth oenturies. These norms andprinciples, in the creation of whioh over a hundred ne~lyindependent states of Asia and Afrioa and Latin Americahad no say, whatsoever, had to be examined, reviewed andreformulated to meet the requirements of the social, scono-mio and politioal framework of the seoond half of the twen-tieth oentury. It was against this backdrop that in Novem-ber 1956, following the reoommendations of the meetingof the Heads of Delegations of Asian-Afrioan oountries heldin Bandung, seven Asian states (Burma, Ceylon, India,Indonesia, Iraq, Japan and Syria) took the initiative offorming a Consultative Committee, to be known as theAsian Legal Consultative Committee, to assist the Govern-ments of the region in formulating a oommon approach anda oommon polioy towards the progressive development andoodification of international law which had been undertakenby the various agencies of the United Nations.

The Committee held its first session in New Delhi in1957. The then Prime Minister of India, Pandit Jawahar LalNehru, in the course of his inaugural address expressed hissentiments for the future funotioning of the Committee asan effeotive forum for regional co-operation and suggestedthat its membership should embrace partioipation of notonly Asian states, but African states as well. The sugges-tion of the Indian Prime Minister was accepted and as from19 April 1958 the Statute of the Committee was amendedaccordingly and it was renamed as the" Asian-African LegalConsultative Committee." Since then, the membershipof the Committee has oontinued to iuorease and at presentthirty seven Asian and African Governments partioipatein the work of the Committee. They are as under :-

Full members,' Arab Republic of Egypt, Bangladesh,Demooratio People's Republic of Korea, Gambia, Ghana,India, Indonesia, Iran, Iraq, Japan, Jordan, Kenya, Kuwait,Libyan Arab Jamahiriya, Malaysia, Mauritius, Nepal, Nigeria,

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Oman, Pakistan, Philippines, Qatar, Republio of Korea,Sierra Leone, Singapore, Somali Democratic Republio,Sri Lanka, Syria, Tanzania, Thailand, Turkey, UgandaUnited Arab Emirates and Yemen Arab Republic.

Associate members,' Botswana, Ethiopia and Saudi Arabia.

Functions

The functions of the Committee and the scope of workof its Seoretariat are governed by Artiole 3 of the Com-mittee's Statutes and the direotions given by the Committeefrom time to time at its various sessions. In the light of this,the work of the Committee and its Seoretariat broadly fallsunder the following heads:

(a} Consideration of speoiflo legal problems referred byany member government;

(b) Examination of matters which are before the Inter-national Law Commission and other U.N. agenciesin the fields of international law and trade law,such as UNEP, UNCITRAL and UNCTAD with a viewto making recommendations thereon to assist membergovernments;

(c) Preparation of background material and arrangingexchange of views on matters of common interest andon important questions which are to oome up beforediplomatic conferenoes;

(d) Colleotion of material and rendering of advice onoonfidential basis by the Secretariat on any questionof interest to a member government upon request;

(e) Undertaking of publications on matters of commoninterest which may be authorised by the Committee.

(f) Preparation of standard/model oontracts suited to theneeds of the region and promotion of their use aswidely as possible;

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(g) Promotion of the institution of arbitration as aneffective means for the settlement of internationalcommercial disputes and to establish regional centresof commercial arbitration in the various parts of theAsian-African region towards that end;

(h) Training of officers of member governments in thetechnique of research and handling of internationallegal questions.

Sessions of the Committee and the Secretariat

The Committee meets once annually by rotation in thevarious member countries. The Sub-Committees andWorking Groups appointed by the Committee meet duringthe inter-sessional periods also, whenever necessary. So farthe Committee has met in nineteen sessions. Its first sessionwas held in New Delhi (1957), second in Cairo (1958), thirdin Colombo (1960), fourth in Tokyo (1961), fifth in Rangoon(1962), sixth in Cairo (1964), seventh in Baghdad (1965),eighth in Bangkok (1966), ninth in New Delhi (1967), tenthin Karach i (l969), eleventh in Accra (1970), twelfth inColombo (1971), thirteenth in Lagos (1972), fourteenth inNew Del hi (1973), fifteenth in Tokyo (1974), sixteenth inTeheran (1975), seventeenth in Kuala Lumpur (1976), eigh-teenth in Baghdad (1977), and the nineteenth in Doha (Stateof Qatar) in January 1978. At the. essions member countriesare represented by high level delegations which have in-cluded Chief Justices, Cabinet Ministers, Attorneys-General,Judges and senior officials of the Ministries of Foreign Affairsand of Law and Justice. A large number of non-member Asianand African countries, countries from outside the A ian-African region, and inter-governmental organisations areusunlly represented by their legal experts in the capacity ofobservers at the sessions of the Committee.

The Commit tee maintains its permanent Secretariat inNew Delhi for day to day work and for implementation ofthe decision" taken by it at its sessions. The Secretariatis headed hy the Secretary-General which is an elective post.

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The Deputy Secretary-General and Assistant Secretaries-General are the other principal officers who are assisted byadministrative and technical personnel. Each mem ber Statea8credit!'>a Liaison Officer to the Secretariat and all decisionon policy matters are taken by the Secretary-General inconsultation with the Liaison Officers.

Relationship with other organisations

As early as in 1960 the Committee had entered into offi-cial relations with the International Law Commission whichmaintains such links only with two other regional organisa-tions, namely the European Committee on Legal Cooperationand the Inter-American Juridical Committee. The Committeealso maintains official relationships with various UnitedNations organisations and agencies, such as the UnitedNations Secretariat, UNCTAD, UNCITRAL, ECE, ECA,ESCAP, UNEP, IMCO, FAO and UNHCR. As a result ofthese arrangements, the Committee is invited to be represen-ted at all conferences and meetings convened by the nitedNations or its agencies in the field of law. The repres enta-tives of these bodies also attend the Committee's sessionsfrom time to time.

Apart from the United .1 ations and its agencies, theCommittee also maintains official relations with variousregional organisations and certain specialised inter-govern-mental organisations. This includes the League of ArabStates, the Commonwealth Secretariat, the Hague Conferenceon Private International Law, the International Institutefor the Unification of Private Law (UNIDROIT), the Inter-American Juridical Committee of the OAS and the EuropeanCommittee on Legal Co-operation of the Council of Europe.

Membership and finance

Membership in the Committee, which falls into two cate-gories, nalllely Full Members and Associate Members, is opento all Asia.n and Mrican Governments As set out in theStatutory Rules of the Committee, membership is obtained

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by a government's acceptance of the Statutes and Statu-tory Rules of the Committee by a communication addresss-ed to the Secretary-General of the Committee. Associatemembers do not participate in the management of the or-ganisation but they can fully participate in the discussionsin the Committee and are entitled to receive all documen-tation.

Each member government contributes towards the ex-penses of the Secretariat whilst the major portion of theexpenses in connection with the holding of the sessions isborne by t.he country in which the session is held. A full mem-ber government pays a contribution according to a formulaadopted by the Committee. Associate members pay a fixedcountribution.

Resume of work done by the Committee

One of the functions assigned to the Committee at itsinception was the examination of questions that were underconsideration of the International Law Commission and toarrange for the views of the Committee to be placed beforethe Commission. The International Law Commission,which was set up in 1948 by the U. . General Assemblyfor the purpose of promoting the progressive developmentand codification of international law, had a large numberof topics included in its programme of work embracing avariety of issue. It was considered important to place be-fore that body the Asian-African viewpoint so that suchviews could be taken into account in the course of delibera-tions of the Commission which would ultimately lead to thecodification and progressive development of internationallaw.

An equally important task, which was entrusted to theCommittee, was to consider legal problems referred to it byany of the member governments and to make such recom-mendations to governments as it thought fit. This advisoryrole of the Committee was particularly important in its early

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years as the newly independent states in the Asian-Africanregion were faced with many difficult problems having aninternational legal content and were anxious to take a con-certed approach to tbese issues and for this purpose werekeen to be guided by the views of an expert body com posedof the leading jurists of the region. As a result, at its in-ception there were as many as twelve different subjectswhich the member governments wanted the Committee toconsider. These included questions concerning Restrictionson the Immunity of States in respect of Commercial Trans-actions; Extradition of Fugitive Offenders; Status and Treat-ment of Aliens inoluding the question of Diplomatic Protec-tion and State Responsibility; Dual Nationality; Law of theSea; Reciprocal Recognition and Enforcement of ForeignJudgments in Matrimonial Matters; and Legal Aid.

By the time the Committee held its third session inColombo in 1960, it was already in a position to make itsrecommendations on the question of Diplomatic Immunitiesand Privileges on which a United Nations Conference ofPlenipotentiaries was due to convene the following year.The Committee's recommendations on this subject not onlydealt with the draft articles' prepared by the InternationalLaw Commission, but included certain draft formulationsof its own. At the United Nations Conference on DiplomaticRelations held in Vienna in 1961, the Committee's recom-mendations on the subject were officially circulated as a con-ference document, and some of its recommendations wereincorporated in the Convention that was adopted at thatConference.

For the next seven or eight years beginning with itsTokyo Session held in 1961, the Committee's programmeof work followed a uniform pattern. It continued to meetannually for a period of two weeks with the participation ofeminent jurists from member countries and was able tomake substantial progress on the subjects referred to itby the member governments. The Committee's recommen-dations on several of these subjects were finalized and

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reports submitted. Among the various subjects dealt withby the Committee during this period, particular mentionmay be made of its recommendations on the question of theLegality of Nuclear Tests, adopted at its Cairo Sessionheld in 1964; the Principles concerning the Status andTreatment of Aliens, finaIised at the Tokyo Session in1961; and the Principles concerning the Rights of Refu-gees, adopted at its Bangkok Session in 1966, which pavedthe way for the U. N. Declaration on Territorial Asylumthe following year. The Committee's recommendationson nuclear tests, which were in the nature of pioneeringwork, attracted the attention of the United Nations andlater of the World Court in the complaint filed before itby Australia and New Zealand against France. Recommen-da.tions were also finalised on the question of Immunityof States in respect of Commercial Transactions; Principlesfor Extradition of Fugitive Offenders; Free Legal Aid;Arbitral Procedure; Dual Nationality; Reciprocal Enforce-ment of Foreign Judgments, the Service of Process andthe Recording of Evidence among States both in Civil andCriminal Cases; and Relief against Double Taxation. Inaddition, the Committee at its New Delhi session held in1967 discussed the merits of the judgment of the WorldCourt in the South West Africa Cases and the status ofSouth West Africa. The Committee also examined theInternational Law Commission's work on the Law ofTreaties, the Law of International Rivers, the Revision ofthe U. N. Charter, Codification of the Principles of Peace-ful Co-existence, and the Law of Outer Space.

major change in the Committee's programme of workand the method of its functioning came in 1969 when itwas decided that the Committee should, in addition toits advisory role to its member governments, assist itsmember states in the preparations for international con-ferences of plenipotentiaries convened by the UnitedNations. The initiative in this respect came from Dr.T. O. Elias, the then Minister of Justice and now a Judgeof the Interna.tional Oourt of Justice, during the Vienna

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Conference on the Law of Treaties. That was the firstmajor law-making conference which was attended by alarge number of delegations from the newly independentstates of Asia and Africa. Dr. T. O. Elias, who was theChairman of the Committee of the Whole at that Confe-rence and also the Chairman of the Afro-Asian Groupsuggested that the Committee should prepare a study onsome of the important questions and arrange for a meetingwhich would enable the Asian and African delegations tohave full and frank exchange of views on the crucial issueson this subject. The Karachi Session of the Committeeheld in 1969, on the eve of the second session of the ViennaConference on the Law of Treaties, was~utilised for thispurpose and these discussions paved the way for the settle-ment of the outstanding issues at that session and thesuccessful conclusion of the Convention on the Law ofTreaties.

In December 1970, the U.N. General Assembly decidedto convene the Third Conference on the Law of the Sea.A suggestion was made that the Committee should take upthis subject with a view to assisting its member govern-ments and other governments of the region in the prepara-tions for the proposed conference, having regard to thesignificant role played by the Committee in connectionwith the Conference on the Law of the Treaties. From thenon" ards, the Law of Sea has continued to remain apriority item on the Committee's programme of workas well as the agenda of its annual sessions beginningwith the twelfth session held in Colombo in 1971. TheCommittee's Secretariat has assisted its member govern-ments and other governments in the region by preparinguseful studies and discussion papers. Apart from this, inter-sessional consultations on a regular basis have been carriedon through meetings of its sub-committees and workinggroups.

Almost at the same time as the Committee addresseditself to the consideration of the Law of the Sea, it was