A/66/37 United Nations Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996 Fifteenth session (11 to 15 April 2011) General Assembly Official Records Sixty-sixth Session Supplement No. 37 General Assembly Official Records Sixty-sixth Session Supplement No. 37 Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996 Fifteenth session (11 to 15 April 2011) United Nations · New York, 2011 A/66/37 Note Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. Contents Chapter Page I. II. III. Annexes I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 4 Informal summary prepared by the Chair on the exchange of views during the informal consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. C. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Draft comprehensive convention on international terrorism . . . . . . . . . . . . . . . . . . . . . . . . Question of convening a high-level conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 6 9 11 11 13 II. Report on the informal discussions on the draft comprehensive convention on international terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. Value added of the draft convention as a law enforcement instrument. . . . . . . . . . . . . . . . Import of the 2007 elements of an overall package . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii A/66/37 Chapter I Introduction 1. The fifteenth session of the Ad Hoc Committee established by the General Assembly in its resolution 51/210 of 17 December 1996 was convened in accordance with paragraph 24 of Assembly resolution 65/34. The Committee met at Headquarters from 11 to 15 April 2011. 2. In accordance with paragraph 9 of General Assembly resolution 51/210, the Ad Hoc Committee was open to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency. 3. At its 47th meeting, on 11 April 2011, the Committee decided, on the basis of past practice, that members of the Bureau of the Committee at the previous session, to the extent of their availability, would continue to serve in their respective capacities. The Committee elected Dire David Tladi (South Africa) as Vice-Chair and Petr Válek (Czech Republic) as Rapporteur, to replace, respectively, Namira Nabil Negm (Egypt) and Andi Xhoi (Albania), who were no longer available to serve in those capacities. The Committee expressed appreciation for the valuable contributions of Ms. Negm and Mr. Xhoi to its work. The Bureau was thus constituted as follows: Chair: Rohan Perera (Sri Lanka) Vice-Chairs: Maria Telalian (Greece) Ana Cristina Rodríguez-Pineda (Guatemala) Dire David Tladi (South Africa) Rapporteur: Petr Válek (Czech Republic) 4. The Director of the Codification Division of the Office of Legal Affairs, Václav Mikulka, acted as Secretary of the Ad Hoc Committee, assisted by George Korontzis as Deputy Secretary. The Codification Division of the Office of Legal Affairs provided the substantive servicing for the Committee. 5. At the same meeting, the Ad Hoc Committee adopted the following agenda (A/AC.252/L.20): 1. 2. 3. 4. 5. Opening of the session. Election of officers. Adoption of the agenda. Organization of work. Consideration of the questions contained in the mandate of the Ad Hoc Committee as set out in paragraph 23 of General Assembly resolution 65/34. Adoption of the report. 6. 11-31164 1 A/66/37 6. The Ad Hoc Committee had before it the report on its fourteenth session as well as the report of the Working Group of the Sixth Committee of the sixty-fifth session of the General Assembly, the latter containing texts of the preamble and articles 1 and 2 and 4 to 27 of the draft comprehensive convention, prepared by the Friends of the Chair incorporating the various texts contained in annexes I, II and III to the report of the Ad Hoc Committee established by General Assembly resolution 51/210 at its sixth session, 1 for discussion, taking into account developments in recent years; and a list of written proposals in relation to the outstanding issues surrounding the draft comprehensive convention. 2 It also had before it two letters dated 1 and 30 September 2005 from the Permanent Representative of Egypt to the United Nations concerning the convening of a high-level special session of the General Assembly on cooperation against terrorism. 3 __________________ 1 2 3 A/57/37. A/65/37 and A/C.6/65/L.10. See also the reports of the Ad Hoc Committee on its sixth to thirteenth sessions (A/57/37 and Corr.1; A/58/37; A/59/37; A/60/37; A/61/37; A/62/37; A/63/37; and A/64/37). See also the reports of the Working Group established at the fifty-fifth to sixtieth sessions of the General Assembly (A/C.6/55/L.2, A/C.6/56/L.9, A/C.6/57/L.9, A/C.6/58/L.10, A/C.6/59/L.10 and A/C.6/60/L.6). The summaries of the oral reports of the Chair of the Working Group established at the sixty-first, sixty-second, sixty-third and sixty-fourth sessions are contained in documents A/C.6/61/SR.21, A/C.6/62/SR.16, A/C.6/63/SR.14 and A/C.6/64/SR.14. Letters dated 1 and 30 September 2005 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General and to the Chair of the Sixth Committee, respectively (A/60/329 and A/C.6/60/2). 2 11-31164 A/66/37 Chapter II Proceedings 7. The Ad Hoc Committee held two plenary meetings: the 47th on 11 April and the 48th on 15 April 2011. 8. At the 47th meeting, on 11 April, the Ad Hoc Committee adopted its programme of work and decided to proceed with its discussions in informal consultations and informal contacts. During the informal consultations on 11 and 12 April, the Committee held a general exchange of views on the draft comprehensive convention on international terrorism and on the question of convening a high-level conference. Further informal consultations regarding the draft comprehensive convention were held on 12 April and informal discussions were held on 12 and 13 April. An informal summary of those discussions, prepared by the Chair, appears in annex I (sects. A and B) to the present report. The informal summary is intended for reference purposes only and not as a record of the discussions. 9. At the 48th meeting, on 15 April, the Coordinator of the draft convention, Maria Telalian (Greece), made a statement briefing delegations on the informal contacts held during the current session. A summary of that report, which is for reference purposes only and does not constitute a record of discussions, is contained in annex II to the present report. 10. The informal consultations concerning the question of convening a high-level conference under the auspices of the United Nations to formulate a joint organized response of the international community to terrorism in all its forms and manifestations were held on 12 April. An informal summary of those discussions, prepared by the Chair, appears in annex I (sect. C) to the present report. The informal summary is intended for reference purposes only and does not constitute a record of the discussions. 11. Following the statement of the Coordinator of the draft comprehensive convention, at the 48th meeting, delegations made further statements (see annex I, sects. A, B and C). 12. At the 48th meeting, on 15 April, the Ad Hoc Committee adopted the report on its fifteenth session. 11-31164 3 A/66/37 Chapter III Recommendation 13. At its 48th meeting, the Ad Hoc Committee decided to recommend that the Sixth Committee, at the sixty-sixth session of the General Assembly, establish a working group with a view to finalizing the draft comprehensive convention on international terrorism and continue to discuss the item included in its agenda by Assembly resolution 54/110 concerning the question of convening a high-level conference under the auspices of the United Nations. 4 11-31164 A/66/37 Annex I Informal summary prepared by the Chair on the exchange of views during the informal consultations A. General 1. During the general exchange of views during the informal consultations on 11 and 12 April 2011, as well as in statements made at the 48th meeting of the Ad Committee on 15 April 2011, delegations, some drawing attention to particular incidents, unequivocally condemned all terrorist acts, regardless of their motivation, as criminal and unjustifiable, wherever, whenever and by whomsoever committed. It was stressed that terrorism posed a threat to international peace and security, endangered the territorial integrity and stability of States and threatened the full enjoyment of human rights. It was also emphasized that all measures taken to combat terrorism must be in conformity with international law, in particular the Charter of the United Nations, human rights law, international humanitarian law and refugee law, and that measures countering terrorism should also respect the rule of law. It was pointed out that terrorism should not be associated with any religion, culture, nationality, race, civilization or ethnic group, and that those attributions should not be employed as a justification for the commission of terrorist acts or the adoption of counter-terrorism measures. 2. Some delegations emphasized that terrorism should not be equated with the legitimate struggle of peoples under colonial or alien domination and foreign occupation for national liberation and self-determination. In that regard, reference was made to General Assembly resolution 46/51 and to other relevant United Nations resolutions. Delegations recalled particular examples, considered as constituting State terrorism, which some viewed as one of the most horrendous forms of terrorism. Some delegations also expressed concern over the application of what they referred to as double standards in combating terrorism, particularly in actions taken, including in the prosecution or extradition of alleged offenders of terrorist acts. 3. It was emphasized that terrorism was a multifaceted phenomenon, requiring multidimensional and coordinated approaches, as well as comprehensive counterterrorism strategies. In this regard, delegations expressed their support for the United Nations Global Counter-Terrorism Strategy and called for its full realization and transparent implementation by Member States, with some delegations drawing particular attention to pillars 1 and 4, stressing the need for a balanced implementation of the Strategy's four pillars. The review of the Strategy was welcomed by some delegations. Some delegations also expressed their support for the Counter-Terrorism Implementation Task Force and welcomed its institutionalization, stressing the need for it to be adequately resourced. 4. Delegations underlined the central role of the United Nations as the most appropriate framework for the coordination of global counter-terrorism efforts as well as the crucial role played by it system-wide. Delegations also emphasized the importance of full implementation of international counter-terrorism instruments, while drawing attention to the recommendations of the Twelfth United Nations Congress on Crime Prevention and Criminal Justice, held in Salvador, Brazil, in 2010. They called upon States that had not yet done so to consider becoming parties 11-31164 5 A/66/37 to these instruments. Outlining a range of measures taken at various levels, some delegations highlighted the importance of assistance to States in capacity-building and information-sharing in the field of combating terrorism. In this regard, delegations commended the assistance being provided to States by the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime, as well as the research, studies and other activities carried out by the United Nations Interregional Crime and Justice Research Institute. 5. Some delegations pointed out that the question of the financing of terrorism remained a matter of grave concern. Reference was made, in this regard, to the necessity of combating other related crimes, such as arms smuggling, drug trafficking and money-laundering, which had served to provide financial resources for some terrorist groups. In addition, attention was drawn to the challenges and dilemmas posed by the phenomenon of suicide bombings. 6. The approach taken by the Security Council, in its resolution 1904 (2009), to apply the obligation to freeze funds and assets to the payment of ransoms to terrorists was also welcomed by some delegations. The view was expressed that States should ban the payment of ransoms to terrorist groups. References were also made to Council resolution 1963 (2010), in which the Council expressed its concern over the increase in incidents of kidnapping and hostage-taking committed by terrorist groups for raising funds or for political gains. The General Assembly was invited to take further appropriate measures in this regard. The point was also made that the Security Council Sanctions Committee should address concerns pertaining to the due process in streamlining its procedures on listing and de-listing. 7. Some delegations expressed their support for the proposal made by Saudi Arabia to establish an international centre, under the auspices of the United Nations, to combat terrorism. Attention was also drawn to research centres established at the regional level focusing on combating terrorism and the need to strengthen collaborative efforts and assistance. B. Draft comprehensive convention on international terrorism 8. Comments on the draft comprehensive convention on international terrorism were made during the informal consultations held on 11 and 12 April 2011, as well as during the 48th meeting of the Ad Hoc Committee. 9. Delegations reiterated their attachment to the principle of concluding work on and adopting the draft comprehensive convention by consensus. Delegations noted that the draft convention would fill legal lacunae and supplement the existing sectoral conventions and thus effectively strengthen the international legal counterterrorism framework. In this context, several delegations expressed regret that there was still no consensus on the outstanding issues surrounding the draft convention and urged delegations to show the utmost flexibility and a constructive spirit in the negotiations. While emphasizing the need for an early conclusion of the draft convention, references were made to other prior calls, whose deadlines had since passed, including the 2005 World Summit Outcome, a which had called for the adoption of the convention by the General Assembly during its sixtieth session, as __________________ a Resolution 60/1. 6 11-31164 A/66/37 well as to the United Nations Global Counter-Terrorism Strategy, b its reviews by the General Assembly, c and to the statement made by the President of the Security Council on 27 September 2010 (S/PRST/2010/19). Some delegations also underlined the need for open and inclusive negotiations that would ensure full transparency in the multilateral process and in this regard the suggestion was made to revisit the working methods of the Committee. Several delegations considered that the consolidation in the report of the Working Group of the Sixth Committee (A/C.6/65/L.10) of the text of the draft articles of the convention and the various proposals, which reflected the current state of negotiations, constituted a positive step forward that would facilitate negotiations. 10. Concerning the outstanding issues surrounding the draft convention, several delegations reiterated that the convention should contain a definition of terrorism that would provide a clear distinction between acts of terrorism covered by the convention and the legitimate struggle of peoples in the exercise of their right to self-determination or under foreign occupation. Some delegations also reiterated their view that the convention should address terrorism in all its forms and manifestations, including State terrorism, and that activities undertaken by the armed forces of States not regulated by international humanitarian law should also fall within its scope. While referring to previous proposals, some delegations considered that it might be necessary to revisit the text of the definition of terrorism contained in draft article 2, in order to appropriately address these issues (see A/60/37, annex III, and A/65/37, annex I, sect. B, para. 11). 11. While some delegations reiterated their preference for the proposal relating to draft article 3 (former draft article 18) of the Organization of the Islamic Conference in 2002, d which they considered to have better addressed their concerns and was still viable, they remained willing to continue to consider the proposal presented by the Coordinator in 2007. e The point was also made that all groups had still not been able to endorse the 2007 proposal, and this was interpreted as constituting a serious challenge. The view was also expressed that the problems surrounding draft article 3 (former draft article 18) were substantive in nature and would not be resolved through the mere repackaging of the current texts. 12. Some delegations also stated that the 2007 proposal constituted a step in the right direction and should be further developed. It was also noted that the 2007 proposal lacked specific clarifications, which were of a conceptual rather than a semantics-related nature. In this connection, it was suggested that the high-level conference could serve as a good forum for making substantive progress on the outstanding issues. 13. Several delegations reiterated their support for the Coordinator's 2007 proposal, however, since in their view, it appropriately preserved other international legal regimes, including existing rules of international humanitarian law. They considered that the proposal constituted a legally sound compromise solution, which already took into account the various concerns expressed by delegations. It was highlighted that the 2007 proposal, particularly when considered in the context of the various explanations made by the Coordinator since its introduction, merited __________________ b c d e Resolution 60/288. Resolutions 62/272 and 64/297. A/57/37, annex IV. A/62/37, annex, para. 14. 11-31164 7 A/66/37 expeditious consideration. Moreover, some delegations cautioned against revisiting draft articles that had already been thoroughly addressed and which enjoyed general agreement. Some delegations also expressed support for the idea of addressing certain outstanding issues in an accompanying resolution as a way to move the process forward and suggested that work on such a text should commence as soon as possible, including during the intersessional period. The point was also made, however, that consideration of an accompanying resolution was premature. 14. Some delegations, notwithstanding their preference for the text proposed by the former Coordinator in 2002 with respect to draft article 3 (former draft article 18), f the language of which is reflected in several existing sectoral counterterrorism conventions, including recently adopted instruments, expressed their willingness to consider the Coordinator's 2007 proposal, without modifications, if that text would bring negotiations to a successful conclusion. It was also reiterated that any compromise text had to be based on the principle that no cause or grievance could justify terrorism in any form and that activities of the military forces of a State, which were already governed by other legal regimes, should not be covered by the draft convention. 15. Some delegations urged those States that were still not in a position to endorse the Coordinator's 2007 proposal to clarify their concerns so that they could be better addressed, and to propose alternative language. In that connection, questions were raised as to how to move the process forward if the current stalemate could not be overcome, with regard to both the procedural and the substantive framework, and whether States would be prepared to start anew. The point was made that the work of the Ad Hoc Committee and the Working Group of the Sixth Committee could not be prolonged indefinitely and that there might be a need to deal with the question of establishing an alternative forum to advance work on the issues before the Committee. 16. On 12 April 2011, in her statement to clarify certain aspects during the informal consultations, the Coordinator, Maria Telalian (Greece), noting that the negotiations on the draft convention had lasted for more than 10 years, observed that good progress had been made during the past few years on certain important aspects, including the compilation of a consolidated text of the draft articles of the convention during the last session of the Working Group of the Sixth Committee. That text, which, together with the annexes, represented the current stage of consideration, would facilitate discussions and inform decisions on the outstanding issues as it reflected the developments in the negotiations throughout the years. 17. The Coordinator also noted that the 2007 proposal had not met with an open objection from any delegation thus far, and she urged delegations to seriously consider whether it could serve as a basis for compromise. Delegations were strongly discouraged from attempting to pick and choose elements from the proposal, which would affect the overall balance that had been sought, as well as the integrity of the text. It was recalled that the 2007 proposal had been carefully drafted following intense negotiations and consultations among delegations. 18. The Coordinator recalled the main concerns raised by delegations during the negotiations, namely: (a) the right of peoples to self-determination under international law; (b) the activities of armed forces in armed conflict; and (c) the __________________ f A/57/37, annex IV. 8 11-31164 A/66/37 activities of military forces of a State in peacetime, also taking into account related concerns about State terrorism. These concerns had been properly addressed in the 2007 proposal in a manner that took into account existing international legal regimes, including international humanitarian law; the draft convention should not aim either to rewrite other fields of international law or to rectify any perceived flaws in these other fields of law. The 2007 proposal was legally sound and politically realistic. 19. The Coordinator further stated that the convention should reflect the principle that the use of force should not be indiscriminate and that civilians would under no circumstances constitute a legitimate target of the use of force, whether during armed conflict or during peacetime. While stressing that the convention was a law enforcement instrument, dealing with individual criminal responsibility, the Coordinator also emphasized that the convention was not indifferent to the obligations of States in this regard. These obligations tracked the provisions of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV)), which the International Court of Justice, in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), has stated are declaratory of customary international law. 20. Finally, the Coordinator reiterated that it would be necessary to capture a number of these elements in an accompanying resolution. C. Question of convening a high-level conference 21. The question of convening a high-level conference was discussed during the informal consultations on 11 and 12 April, as well as during the 48th meeting of the Ad Hoc Committee. 22. During the informal consultations, the sponsor delegation of Egypt reiterated its proposal made in 1999 concerning the convening of an international conference, under the auspices of the United Nations, to formulate a joint organized response of the international community to terrorism in all its forms and manifestations. The sponsor delegation pointed out that, despite all efforts made at the national, regional and international levels, there was still a dire need to set up an action plan within the United Nations, containing both legal and procedural aspects, which would guarantee active international cooperation to achieve the common aspiration of eliminating terrorism. The proposed conference would aim at adopting an action plan and providing a forum to address all issues related to the fight against terrorism, including the conditions conducive to its spread and a discussion on the definition of terrorism. It was recalled that the proposal had been supported by the Non-Aligned Movement, the Organization of the Islamic Conference, the African Union and the League of Arab States. It was stressed that the issue should be discussed on its own merits and, although not mutually exclusive, should not be linked to the discussions on the draft comprehensive convention. 23. Some delegations expressed support for the proposal, agreeing with the sentiments of the sponsor delegation, in particular that it should be considered without a linkage to the ongoing discussions on the draft comprehensive convention. It was also noted that such a conference could provide an opportunity for taking 11-31164 9 A/66/37 stock of all efforts made in the area of the fight against terrorism, including addressing its root causes. 24. Some other delegations, however, felt that the question of convening a highlevel conference should be considered after the completion of the negotiations on the draft comprehensive convention, with the view being expressed that such an approach would provide an excellent opportunity for stocktaking, including identifying needs and available resources for assistance in the implementation of the convention. Attention was also drawn to the suggestion for a two-track approach to finalize the draft convention on the understanding that the proposed conference would definitely be convened (see A/C.6/65/L.10, annex III, para. 14). 10 11-31164 A/66/37 Annex II Report on the informal discussions on the draft comprehensive convention on international terrorism 1. The Coordinator reported that formal bilateral discussions had been organized on 12 and 13 April 2011 and additional informal discussions with delegations had been held in the course of the Ad Hoc Committee session. Delegations had reiterated the importance that they attached to the conclusion of the draft convention. At the same time, they had shared their frustrations regarding the lack of progress, particularly as there did not seem to be any indication that some of the key delegations were ready to move forward with the process. The Coordinator was nevertheless encouraged that there was a renewed sense of urgency to finalize work during the early part of the sixty-sixth session of the General Assembly and an everincreasing number of delegations had voiced their willingness to proceed on that basis. In that regard, some delegations had offered to take up the issue at the highest levels in the context of their regional frameworks in a concerted attempt to lend political support to the efforts of the Ad Hoc Committee. 2. The Coordinator observed that in the discussions with delegations there had been a focus on two aspects, namely the value added of the draft convention as a law enforcement instrument and the import of the 2007 elements of an overall package. A. Value added of the draft convention as a law enforcement instrument 3. The Coordinator observed that the draft comprehensive convention did not have only a symbolic value. In addition to the robust prevention and cooperation provisions, the negotiating process had managed to elaborate, in draft article 2 of an instrument that would be legally binding, the inclusionary elements of a legal definition of international terrorism. Once adopted, it would be the first time that States would have, in a universal counter-terrorism instrument, a definition that would serve as the basis for taking counter-terrorism measures. The Coordinator also recalled that in elaborating draft article 2, the negotiating process sought to clarify the relationship between the draft convention and other fields of international law. As such, there was a linkage between the elements in draft article 2 and the exclusionary elements of draft article 3 [18]. In presenting the consolidated text of the draft articles in document A/C.6/65/L.10, and in placing the former draft article 18 closer to draft article 2 so that it became draft article 3, the Bureau had sought to accentuate this significant relationship. 4. The Coordinator also stressed that the nature of the incremental work, in the context of the Ad Hoc Committee's efforts over the years, should not be underestimated. Draft article 2, in its present form, represented a common understanding of efforts to provide a definition of what was understood as terrorism. What the Ad Hoc Committee had been doing was not only legally sound but also politically prudent. Draft article 2 contained a consistent definition of terrorist acts, which was also in line with the general practice of the General Assembly. Indeed, since its 1994 Declaration on Measures to Eliminate International Terrorism, the Assembly had condemned terrorist activities "wherever and by whomever 11-31164 11 A/66/37 committed" both in peacetime and in situations of armed conflict. It was also pointed out that, for an offence to be committed under the terms of draft article 2, it was explicitly required that a person acts "unlawfully and intentionally''. These words had been chosen carefully to denote the criminal nature of the activity. 5. Moreover, the negotiations had essentially been involved in a process that sought to preserve the acquis of the existing international legal framework that had been elaborated with the utmost deliberation, while bearing in mind the continuing application of other legal regimes. It was recalled that it had been stressed in the course of the work of the Ad Hoc Committee that the exclusionary elements had been framed as applicable law clauses because the present convention would operate against the background of an already existing legal framework in which a legion of rules already applied and would continue to apply. Indeed, the Geneva Conventions referred to "all measures of terrorism" being "prohibited" long before the United Nations had adopted its first counter-terrorism instrument. The interplay of these rules took different forms. Alluding to the 12 June 2002 judgement of the Appeals Chamber of the International Tribunal for the Former Yugoslavia, in the case of the Prosecutor v. Kunarac, and the 8 July 1996 advisory opinion of the International Court of Justice, on the Legality of the Threat or Use of Nuclear Weapons, and what they meant in relation to the exclusionary approach, it was noted that acts of terrorism could occur both in peacetime and wartime and there would be times when the laws regulating a wartime situation would, to use the Kunarac test case, "add elements requisite to the protection which needs to be afforded ... in a wartime situation". It might also be necessary to determine the meaning of the phrase "activities of armed forces during an armed conflict", and using the direction offered by the advisory opinion on the legality of nuclear weapons, the test of what constituted "activities", "armed forces" or "armed conflict" would be determined by the applicable lex specialis, namely, international humanitarian law, which would necessarily include situations to which, for instance, article 1, paragraph 4, of Protocol I related. Paragraph 2 of draft article 3 [18] provided language, which was carefully crafted and balanced to address these aspects. 6. The Coordinator also recalled that the other exclusion referred to in draft article 3 [18] related to "activities undertaken by the military forces of a State in the exercise of their official duties". These were not governed by the draft convention "inasmuch as they are governed by other rules of international law". 7. In the bilateral discussions, some delegations had enquired about the meaning of "official duties". Although the Coordinator had an idea what "official duties" were, as did other delegates, the issue was not so much to primarily define what "official duties" were but rather to provide a direction of principle that delineated the scope of the exclusion, bearing in mind the immunity of State officials based on the legal distinction between immunity ratione personae and immunity ratione materiae. In the final analysis, it would be up to the courts to determine, in each case, whether the activity was in the exercise of official duties. The Coordinator also hastened to add that it was equally important to acknowledge that the phrase "inasmuch as they are governed by other rules of international law" created a penumbra of possibilities, reflecting the practical interplay of norms between different legal regimes, which the more determinative "inasmuch as they are in conformity with international law" seemed to avoid. 12 11-31164 A/66/37 8. The Coordinator concluded her comments on this question by stressing that the various exclusions, framed as applicable law clauses, should be understood against the general background of paragraph 1 of draft article 3 [18], which safeguarded the full range of principles and obligations that the Charter of the United Nations contains, including the right of peoples to self-determination, as defined in General Assembly resolution 2625 (XXV) concerning the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations. The significance of draft article 3 [18] lay in the fact that it preserved the integrity and operation of such other laws, and did not seek to alter their scope by the elaboration of the draft convention. B. Import of the 2007 elements of an overall package 9. The Coordinator recalled that the 2007 elements had been presented after protracted informal consultations, in which delegations had offered proposals and ideas, and had shared with the Coordinator the principles that they wanted to see reflected. It was on the basis of such consultations that the elements had been presented; a stage had therefore been reached where the Coordinator felt comfortable to present a text. The elements were an outcome of a collective effort. As Coordinator, she considered that slicing the elements at this late stage would detract from the efforts of the many delegations that had assiduously participated in the consultations to find a compromise. Not only would such a course of action unbalance the text but it would also signal that delegations were not ready to compromise. 10. The Coordinator concluded her statement by observing that some delegations, in order to have any chance of concluding work in the last quarter of 2011, had highlighted the need to remain engaged intersessionally. In that connection, it was stressed that work should begin in earnest to put into resolution-type language the various elements identified for possible inclusion in an accompanying resolution (see A/C.6/65/L.10, annex III, paras. 23-24). It was also stressed that such a process should not be carried out in parallel, but should be organized under the guidance of the Chair and the Coordinator. *1131164* 11-31164 11-31164 (E) 160511 13