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The Forty-third Session of the International Law Commission

Published online by Cambridge University Press:  27 February 2017

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

The forty-third session of the United Nations International Law Commission (ILC) was held in Geneva from April 29 to July 19, 1991, and was chaired by Ambassador Abdul Koroma of Sierra Leone. During the session, the last of the ILC’s current five-year term of office, the Commission adopted full sets of draft articles on three of the subjects on its agenda. It completed the second reading, or final adoption, of the draft on jurisdictional immunities of states and their property, and approved on first reading its articles on the law of the non-navigational uses of international watercourses, and the Draft Code of Crimes against the Peace and Security of Mankind. In its report to the General Assembly, the Commission recommended that the Assembly convene a diplomatic conference charged with concluding a convention on the basis of the draft articles on jurisdictional immunities. The drafts on watercourses and crimes were sent to governments for their comments, which the Commission requested they submit by January 1, 1993. The ILC will then give each of those drafts a second reading, taking into account the observations received from states. In addition to the progress made on these topics, the Commission considered reports on the three remaining subjects on its agenda: international liability for injurious consequences arising out of acts not prohibited by international law, relations between states and international organizations (second part of the topic) and state responsibility.

Type
Current Developments
Information
American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 703 - 709
Copyright
Copyright © American Society of International Law 1991

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References

1 Report of the International Law Commission on the work of its forty-third session, 46 UN GAOR Supp. (No. 10), UN Doc. A/46/10 (1991) (not published as of this writing) [hereinafter ILC Report].

2 See [1986] 2 Y.B. Int’l L. Comm’n, pt. 2 at 7–22, UN Doc. A/CN.4/SER.A/1991/Add.1. The articles are reprinted in 26 ILM 625 (1987).

3 ILC Report, supra note 1, ch. II, pt. D. “Contracts of employment of persons” are dealt with as a separate exception in Article 11.

4 The other exceptions in the draft concern contracts of employment (Article 11); personal injuries and damage to property (Article 12); ownership, possession and use of property (Article 13); intellectual and industrial property (Article 14); participation in companies or other collective bodies (Article 15); ships owned or operated by a state (Article 16); and effect of an arbitration agreement (Article 17).

5 ILC Report, supra note 1, ch. II, pt. C.

6 ILC Report, supra note 1, ch. II, para. 9 of commentary to Art. 10.

7 See [1986] 2 Y.B. Int’l L. Comm’n, supra note 2, pt. 2 at 11 (former Article 16). The Drafting Committee presented the following version of the article to the Commission at the 1991 session:

Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the fiscal obligations for which it may be liable under the law of that other State, such as duties, taxes or other similar charges.

UN Doc. A/CN.4/L.457, at 7 (1991).

8 ILC Report, supra note 1, ch. II, para. 12 of commentary to Art. 10.

9 The General Assembly, most recently in Resolution 45/43 (Nov. 28, 1990), has confined itself to expressing satisfaction at the informal consultations that have been held about the Commission’s draft articles on the diplomatic courier and bag, and how to deal further with those articles. The above-mentioned resolution also indicates that the informal consultations will be resumed at the Assembly’s forty-sixth session.

10 For the texts of the articles and accompanying commentary, see ILC Report, supra note 1, ch. III, pt. C.

11 Id.

12 The Commission had in fact adopted six articles in 1980, but these were reopened by a previous special rapporteur. See the reports on the ILC’s 32d and 35th sessions in 74 AJIL 961,965–67 (1980), and 78 AJIL 457, 475–78 (1984).

13 That article provides, in essence, that states sharing an international watercourse system are not to discriminate on the basis of nationality or residence in granting access to judicial and administrative procedures to persons who have been injured by a watercourse-related activity in the forum state or who are exposed to the threat of such an injury.

14 The most obvious example is the article on equitable utilization. It is certainly conceivable that the relative “indeterminacy” of this and certain other obligations under the articles may undermine the effectiveness of the draft unless some mechanism for their implementation is incorporated into it. See generally Franck, Legitimacy in the International System, 82 AJIL 705 (1988).

15 Article 14 does not enumerate available defenses or extenuating circumstances but simply leaves it to the court to determine whether a defense is admissible or any extenuating circumstances should be taken into account. The commentary to the article admits that the Commission was not in a position to draft a detailed provision on which all members could agree.

16 These issues were the nature of the instrument to be elaborated, the title of the topic, the scope of the topic, the principles important to the topic, the prevention of transboundary harm, liability for transboundary harm, and harm to the “global commons.”

17 One of the issues the special rapporteur put to the Commission at the 1991 session was whether the title should refer to “acts” or “activities” not prohibited by international law. The weight of opinion in the Commission seemed to be that the word “activities” was more appropriate, since it was the activity (such as a nuclear or chemical plant), not the act of causing harm, that was not prohibited.

18 The ILC did not have enough time to take up the fifth report at the 1990 session.

19 ILC Report, supra note 1, ch. VII.

20 Id., ch. VIII.A. The following items are contained in the list: the law of confined international ground waters, the extraterritorial application of national legislation, the law concerning international movement of populations, extradition and judicial assistance, the legal effect of resolutions of the United Nations, international legal regulation of foreign indebtedness, the legal conditions of capital investment and agreements pertaining to it, institutional arrangements concerning trade in commodities, legal aspects of the protection of the environment of areas not subject to national jurisdiction (global commons), the rights of national minorities, international commissions of inquiry (fact finding), and the legal aspects of disarmament. Id., para. 8.

21 There were six topics on the ILC’s agenda at the 1991 session. Of these, one (jurisdictional immunities) was completed on second reading, and two (the code of crimes and watercourses) were sent to governments for comments; one of the latter (watercourses) will not be taken up until 1993 at the earliest. The special rapporteur for a fourth topic (international organizations) is not a candidate for the next term of office, which means at the very least that the Commission will have no report on the topic to discuss at its next session. This leaves international liability, state responsibility and the matter of an international criminal court (which has been considered in the context of the draft code) to be taken up at the 1992 session.

22 However, there were awkward aspects to this arrangement. For example, since it was necessary to constitute a new Drafting Committee at the 43d session, most of the members of the Commission present in Geneva during the first two weeks attended the meetings of the Drafting Committee. For additional comment on the ILC’s methods of work, see Graefrath, The International Law Commission Tomorrow: Improving Its Organization and Methods of Work, supra p. 595.

23 The ILC’s sessions are normally 12 weeks in duration. Less than half of the 34 members are able to be away from their regular positions for the entire session. In part for this reason, average attendance at Commission meetings is about 22 members.