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The Thirty-Fourth Session of the International Law Commission

Published online by Cambridge University Press:  27 February 2017

Stephen C. McCaffrey
Stephen C. McCaffrey*
Affiliation:
International Law Commission; University of the Pacific, McGeorge School of Law
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Extract

The 34th session of the international Law Commission was held in Geneva from May 3 to July 23, 1982, and was chaired by the Commission’s dean, Professor Paul Reuter of France. This was the first meeting of the Commission in its new and enlarged composition. Its composition was new in the sense that all of its members were beginning a new 5-year term of office, the term of the former Commission having expired at the end of 1981. It was enlarged as a result of a decision taken by the General Assembly at its session in the fall of 1981 to expand the membership of the ILC from 25 to 34.

Type
Current Developments
Information
American Journal of International Law , Volume 77 , Issue 2 , April 1983 , pp. 323 - 338
Copyright
Copyright © American Society of International Law 1983

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References

1 UNGA Res. 36/39 (Nov. 18, 1981).

2 This sentiment was echoed in the Sixth Committee. See, e.g., the summary of the statement of Mr. Jagota of India:

With its recently increased membership, the Commission reflected a wider range of experience and expertise and was more representative of the different regions of the world and the principal legal systems. The quality of its work was sure to improve and the compromises at which it arrived to become more widely acceptable as a result.

UN Doc. A/C.6/37/SR.46, at 18 (1982).

3 For summaries of the work of the 32d and 33d sessions, see the Current Developments Notes by Schwebel, Stephen M. and Aldrich, George H. in 74 AJIL 961 (1980)Google Scholar, and 75 id. at 992 (1981), respectively.

4 UNGA Res. 36/106, para. 1 (Dec. 10, 1981). For background, see Ferencz, , Current Developments Note, 75 AJIL 674 (1981)Google Scholar.

5 Report of the International Law Commission on the Work of its Thirty–fourth Session, 37 UN GAOR Supp. (No. 10) at 88–89, UN Doc. A/37/10 (1982) (emphasis in original) [hereinafter referred to as 1982 Report].

6 This version had actually been prepared during the previous session. After discussion in plenary, it had been referred to the Drafting Committee, but that body unfortunately did not have time to consider it. In view of the new and enlarged composition of the Commission in its 1982 session, the special rapporteur considered it fitting to “re-submit” this version in order to give new members an opportunity to comment upon it in plenary.

7 P. Reuter, Eleventh Report on the Question of Treaties Concluded between States and International Organizations or between Two or More International Organizations, UN Doc. A/CN.4/353, at 12(1982).

8 Draft articles on the law of treaties between States and international organizations or between international organizations, Art. 2, para. 1(j), 1982 Report, supra note 5, at 27.

9 1982 Report, supra note 5, at 87.

10 As explained in the Commission’s 1982 Report, this difference in treatment of the two classes of disputes was “justified purely by the fact that the notion of peremptory norms appeared to certain States to call for specially effective procedural safeguards owing to the radical nature of its consequences, the relative scarcity of fully conclusive precedents and the developments that article 64 [which provides that any treaty that conflicts with a newly emerged peremptory norm of international law becomes void] appeared to foreshadow.” Id. at 137.

11 See Annexes V and VII, Convention on the Law of the Sea, Working Paper 1 of the Drafting Committee, June 7, 1982, No. 82–16124, at 194 and 211.

12

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of [the Act].

Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1604 (emphasis added). See also sec. 1, para. 1 of the UK State Immunity Act of 1978, ch. 33, reprinted in 17 ILM 1123 (1978) (“A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of . . . this Act”); sec. 3, para. 1 of the Act to Provide for State Immunity in Canadian Courts, 1982, ch. 95, reprinted in 21 ILM 798 (1982) (“Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada”); and Art. 15 of the 1972 European Convention on State Immunity, 1972 ETS 74 (“A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14. . .”).

13 This, notwithstanding the rather astonishing claim made in the Sixth Committee during the discussion of the Commission’s Report on its 34th Session that absolute jurisdictional immunity was a rule of jus cogens. See statement of Mr. Lukyanovich of the USSR, UN Doc. A/C.6/37/SR.39, at 9–10 (1982). See the response of the special rapporteur, speaking in his capacity as representative of Thailand, UN Doc. A/C.6/37/SR.44, at 4–5 (1982).

14 1982 Report, supra note 5, at 222 n.231. See also Schwebel, supra note 3, at 967.

15 Sucharitkul, S., Fourth Report on Jurisdictional Immunities of States and their Property, UN Doc. A/CN.4/357 and Corr.1 (1982)Google Scholar.

16 This list is reprinted in 1982 Report, supra note 5, at 213.

17 This article is reprinted in id. at 209 n.210.

18 Id. at 218.

19 This is Article 3, “Interpretative Provisions,” which is set forth in id. at 210–11 n.214.

20 [1970] 2 Y.B. Int’l L. Comm’n 178, UN Doc. A/CN.4/SER.A/1970/Add. 1.

21 The Commission stated in 1970 that the articles on state responsibility would not undertake to define

the rules of international law which . . . impose particular obligations on States, and which may, in a certain sense, be termed “primary”, as opposed to the other rules—precisely those covering the field of responsibility—which may be termed “secondary”, inasmuch as they are concerned with determining the consequences of failure to fulfil obligations established by the primary rules.

Id. at 179.

22 This was spelled out in the Third Report of the Special Rapporteur, Professor Willem Riphagen, UN Docs. A/CN.4/354 and Corr.1 and A/CN.4/354/Add.1 and Add.l/Corr.1 (Chinese only) and Corr.2. See also 1982 Report, supra note 5, at 172, paras. 81 and 82.

23 1982 Report, supra note 5, at 172.

24 Article 19 reads as follows:

  • 1.

    1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.

  • 2.

    2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime.

  • 3.

    3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

    • (a)

      (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

    • (b)

      (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;

    • (c)

      (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

    • (d)

      (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.

  • 4.

    4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.

Report of the International Law Commission on the Work of its Thirty-first Session, UN Doc. A/34/10 (1979), reprinted in [1979] 2 Y.B. Int’l L. Comm’n 1, 92, UN Doc. A/CN.4/SER.A/1979/Add. 1(pt. 2).

25 These articles are reprinted in 1982 Report, supra note 5, at 168–69.

26 These articles are reprinted in id, at 173–74.

27 [1970] 2 Y.B. Int’l L. Comm’n, supra note 20, at 178.

28 Quoted in Report of the International Law Commission on the Work of its Thirty-second Session, 35 UN GAOR Supp. (No. 10) at 365, UN Doc. A/35/10 (1980).

29 Reprinted in 1982 Report, supra note 5, at 179–80.

30 Quentin-Baxter, R., Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/360, at 20 (1982)Google Scholar.

31 Id. at 21.

32 Ibid.

33 UN Doc. A/C.6/37/SR.52, at 8 (1982) (summary of the statement of Ms. Schwab of the United States).

34 UN Doc. A/C.6/37/SR.46, at 12 (1982) (summary of the statement of Mr. Siblesz of the Netherlands).

55 Ibid. Cf. the statement of the U.S. representative:

The effect of the regime contained in the schematic outline would be to compel every State to exercise supervision and control over activities of private individuals, even in areas where it had not previously done so and where it was precluded from exercising control by its own domestic constitution.

Summary of the statement of Ms. Schwab, supra note 32.

36

In a way one might say that, in dealing with “state responsibility”, we are in search of “secondary” rules fitting the great variety of “primary” rules, which are taken for granted, whereas, in dealing with the other topic [i.e., liability for acts not prohibited by international law], we take the “secondary” rule of liability for injurious consequences for granted, and are in search of “primary” rules of prevention and of procedure, which fit the great variety of “transboundary” situations.

Text of statement of Mr. Siblesz of the Netherlands in the Sixth Committee, Nov. 16, 1982, at 2 (copy supplied by the Netherlands delegation).

37 The 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95, 23 UST 3227, TIAS No. 7502, entered into force Apr. 24, 1964; the 1963 Vienna Convention on Consular Relations, 596 UNTS 261,21 UST 77, TIAS No. 6820, entered into force Mar. 19,1967; the 1969 Convention on Special Missions, UNGA Res. 2530 (XXIV) (Dec. 8, 1969), annex; and the 1975 Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, done at Vienna, Mar. 14, 1975.

38 See, e.g., the summary of the statement of the U.S. representative, supra note 32, at 10:

[T]he status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier, seemed to be one of the areas of international law least in need of immediate attention or codification. Relatively few legal questions had arisen regarding the status of the diplomatic bag or of diplomatic couriers. The law in that regard was already reasonably settled and understood. The time devoted to that topic would be more productively expended on other topics.

39 This and other charges have been most recently expressed in a study conducted under the auspices of UNITAR. “The one problem which is cited most often as a reason for bypassing the Commission is the slow pace of its work. . . . There has been an average of seven to ten years between the ILC’s investigation of a topic and the production of a final set of draft articles.” Elbaradei, M., Franck, T., & Trachtenberg, R., The International Law Commission: The Need for a New Direction 15 (UNITAR 1981)Google Scholar [hereinafter cited as UNITAR Study]. See also the summary of this study by two of its authors, Franck & Elbaradei, as a Current Developments Note, 76 AJIL 630 (1982).

40 E.g., state immunity, state responsibility, and international watercourses. And this is to say nothing of the fact that allowing this topic to take precedence over others would only add fuel to the fire of another criticism leveled at the Commission, to wit, that it currently deals only with topics that are relatively insignificant and noncontroversial. See UNITAR Study, supra note 38, at 4–15, passim.

41 See paragraph 263 of the Commission’s 1982 Report, supra note 5, for a general discussion of the work it hopes to accomplish by the end of the 5–year term that began in 1982.

42 Id., para. 255.

43 See note 4 supra.