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The Forty-Fifth Session of the International Law Commission
Published online by Cambridge University Press: 27 February 2017
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The International Law Commission of the United Nations held its forty-fifth session from May 2 to July 23, 1993, under the chairmanship of Ambassador Julio Barboza of Argentina. The Commission elaborated a substantially complete draft statute of an international criminal court in a working group, considered aspects of state responsibility, commenced drafting articles on liability for injurious consequences arising out of acts not prohibited by international law, began its second reading on non-navigational uses of international watercourses, and made recommendations for its future work. The Commission continued its innovative use of working groups and subgroups to expedite its work and, consequently, had a highly productive session.
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References
1 The draft articles on countermeasures, liability for injurious consequences and non-navigational uses of watercourses are technically not part of the Commission’s report because their approval by the plenary awaits the elaboration of the commentaries.
2 Report of the International Law Commission on the work of its forty-fifth session, UN GAOR, 48th Sess., Supp. No. 10, at 255, UN Doc. A/48/10 (1993) [hereinafter 1993 ILC Report].
3 Annex to Report of the International Law Commission on the work of its forty-fourth session, UN GAOR, 47th Sess., Supp. No. 10, at 143, UN Doc. A/47/10 (1992), generally endorsed by General Assembly Res. 47/33, paras. 4–6, id., Supp. No. 49, at 287, UN Doc. A/47/49 (1992).
4 Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704 (1993), reprinted in 32 ILM 1159 (1993).
5 SC Res. 808 (Feb. 22, 1993); SC Res. 827 (May 25, 1993), reprinted in 32 ILM at 1203.
6 For a more detailed analysis, see James Crawford, The ILC’s Draft Statute for an International Criminal Tribunal, infra p. 140. The writer is in agreement with Professor Crawford except for the latter’s unexplained comment that the tribunal could and should be created as an organ of the United Nations without amending the UN Charter. While the tribunal could possibly be created as a subsidiary organ of the General Assembly or the Security Council, it could not be made a principal organ without raising questions of Charter revision. In the writer’s view, an agreement similar to that with the International Atomic Energy Agency is a more promising avenue for establishing the relationship between the tribunal and the United Nations. See Agreement concerning the Relationship between the United Nations and the International Atomic Energy Agency, filed Nov. 14, 1957, 281 UNTS 369.
7 Work on these articles had been completed in the Drafting Committee at the Commission’s forty-fourth session, but they were not formally adopted as the commentaries had not been completed.
8 UN Doc. A/CN.4/L.480 and Add.1 (1993).
9 As originally proposed by the special rapporteur, this article would have required exhaustion of all remedies of dispute settlement by the injured state prior to the taking of countermeasures. This requirement was objected to as unduly disadvantaging the injured state. The draft of Article 12 takes no position on whether dispute settlement must precede or accompany the taking of countermeasures. There was no agreement in the Drafting Committee as to whether the required dispute settlement should include the gamut of means covered by Article 33 of the UN Charter or was limited to third-party or binding dispute settlement, and this matter remains within brackets.
10 1993 ILC Report, supra note 2, at 80.
11 Fifth report on state responsibility by Roberto Ago, UN Doc. A/CN.4/291 and Adds.l & 2 (1976), [1976] 2 Y.B. Int’l L. Comm’n, pt. 1 at 3, UN Doc. A/CN.4/SER.A/1976/Add.1 (pt. 1).
12 Article 19 as drafted reads as follows:
International crimes and international delicts
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. 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. 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 serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;
(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) 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) 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. 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 twenty-eighth session, [1976] 2 Y.B. Int’l L. Comm’n, pt. 2 at 95–96, UN Doc. A/CN.4/SER.A/1976/Add.l (pt. 2).
13 UN Doc. A/CN.4/453/Add.3 (1993).
14 It should be noted that one of the consequences that flow from Article 19 as conceived by Roberto Ago and endorsed by the Commission in 1976 is that crimes, whatever they may be, are not, within the taxonomy the article seeks to impose on the text as a whole, delicts.
15 1993 ILC Report, supra note 2, at 116.
16 UN Doc. A/CN.4/450 (1993).
17 UN Doc. A/CN.4/L.487 (1993).
18 See UN Doc. A/CN.4/L.489 (1993).