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The Forty-First Session of the International Law Commission

Published online by Cambridge University Press:  27 February 2017

Stephen C. McCaffrey
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Extract

The International Law Commission of the United Nations held its 41st session from May 2 to July 21, 1989, under the Chairmanship of Professor Bernhard Graefrath. The most noteworthy achievement of the session was the completion of work on the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. The Commission referred this draft to the General Assembly with the recommendation that the Assembly convoke a diplomatic conference for the purpose of concluding a convention on the basis of the articles. Also at the 41st session, the Commission adopted three articles of the Draft Code of Crimes against the Peace and Security of Mankind and discussed reports on state responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, jurisdictional immunities of states and their property, and the law of the non-navigational uses of international watercourses. A report on relations between states and international organizations was presented to the Commission but was not discussed for lack of time. Finally, the Commission once again devoted a number of meetings to reviewing its procedures and methods of work.

Type
Current Developments
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 937 - 945
Copyright
Copyright © American Society of International Law 1989

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References

1 For a more detailed history of the Commission’s work on this topic, as well as references to the relevant documents, see the introduction to chapter II of the Report of the International Law Commission on the work of its forty-first session. 44 UN GAOR Supp. (No. 10), UN Doc. A/44/10 (1989) (unpublished as of this writing).

2 Id., ch. II. The texts of the articles will also be reproduced in a forthcoming issue of International Legal Materials.

3 Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95.

4 Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261.

5 Mar. 14, 1975, UN Doc. A/CONF.67/16, reprinted in 69 AJIL 730 (1975).

6 GA Res. 2530 (XXIV) (Dec. 8, 1969), reprinted in 9 ILM 127 (1970).

7 Article 2 of the draft defines “diplomatic bag” to include diplomatic and consular bags, as well as bags of a permanent mission, a permanent observer mission, a delegation and an observer delegation.

8 For the text, see the Note on the Commission’s 38th session, 81 AJIL 668,676 n.31 (1987).

9 Article 27(3) of the Convention, supra note 3, provides simply: “The diplomatic bag shall not be opened or detained.”

10 Supra note 4.

11 There were even alternative combinations of these new procedures. One would have allowed a receiving or transit state having serious reason to believe that the bag contained other than permitted items to request permission to examine the bag “through electronic or other technical devices.” If this examination did not satisfy the requesting state, it could request that the bag be opened. If the latter request were refused, the sending state would have to return the bag to its place of origin. The other main alternative would have permitted the receiving state to request only the opening of the bag, not that it be electronically screened, but would have allowed this procedure to be applied to all kinds of bags.

12 See Art. 27, para. 3 of the Vienna Convention on Diplomatic Relations, supra note 3; Art. 35, para. 3 of the Vienna Convention on Consular Relations, supra note 4; Art. 28, para. 4 of the Convention on Special Missions, supra note 6; and Art. 27, para. 3, as well as Art. 57, para. 4, of the Vienna Convention on the Representation of States, supra note 5.

13 Following Article 27, paragraph 4 of the Vienna Diplomatic Convention, supra note 3, Article 35, paragraph 4 of the Consular Convention, supra note 4, and the relevant provisions of the other three Conventions on diplomatic and consular law, Article 25, paragraph 1 of the Commission’s draft provides that the “diplomatic bag may contain only official correspond ence, and documents or articles intended exclusively for official use.”

14 The addition of the “inviolability” concept and the express prohibition of direct and remote examination have already been mentioned with regard to the bag. The courier, however, may be the biggest beneficiary of the draft. He has practically been assimilated to a diplomatic agent as far as privileges, immunities and inviolability are concerned. For example, the commentary to Article 16, Personal protection and inviolability, states that “the personal inviolability of the diplomatic courier comes very close in its scope and legal implications to that of a diplomatic agent” (para. (2)). Even the temporary accommodation of the courier is inviolable under Article 17, and the commentary to that article suggests that this status may extend as far as the courier’s individual means of transport.

15 Recent incidents include the apparent removal from the United Kingdom of the weapon used in the fatal shooting of a London policewoman (see Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 AJIL 641, especially 643–44 (1985)); the attempt to “export” to Nigeria, in a “diplomatic” crate, the former Nigerian Minister of Transport, again from the United Kingdom (see id. at 645 n. 14); and the sealing and impoundment by Swiss and West German authorities, respectively, of a Soviet “diplomatic” truck.

16 Possibilities range from vesting jurisdiction over cases arising under the code in an existing tribunal (e.g., the ICJ) to making provision for the establishment of ad hoc tribunals, possibly consisting of nationals of the “victim,” or accusing, state, the state of which the accused is a citizen, and a neutral state.

17 Resolution on Principles of International Law concerning Friendly Relations and Cooperation among States, GA Res. 2625 (XXV) (Oct. 24, 1970).

18 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

19 There was no significant dispute about “terrorist” activities.

20 Included in the proposed article on crimes against humanity were the following: genocide; apartheid; slavery; expulsion or forcible transfer of populations from their territory; all other inhuman acts against a population or individuals on social, political, racial, religious or cultural grounds, including murder, deportation, extermination, persecution and the mass destruction of their property; and serious and intentional harm to a vital human asset, such as the human environment.

21 The distinction between international “delicts” and “crimes” was made in Article 19 of part I of the Commission’s draft articles on state responsibility.

22 [1976] 2 Y.B. Int’l L. Comm’n, pt. 2 at 164, para. 173, UN Doc. A/CN.4/SER.A/ 1976/Add.1.

* Member, International Law Commission; Professor of Law, University of the Pacific, McGeorge School of Law.