No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 February 2017
The International Law Commission of the United Nations held its forty-seventh session from May 2 to July 20, 1995, under the chairmanship of Pemmaraju S. Rao of India. The Commission continued its work on existing topics and considered aspects of the Draft Code of Crimes against die Peace and Security of Mankind, state responsibility, and liability for injurious consequences arising out of acts not prohibited by international law. The Commission began work on the two new topics of “state succession and its impact on the nationality of natural and legal persons” (“nationality“) and “the law and practice relating to reservations to treaties” (“reservations“) and made a recommendation as to two additional topics for its future agenda.
The views in this report are those of the author and do not necessarily represent those of the United States Government.
1 UN Doc. A/CN.4/469 & Adds.l, 2, 3 (1995). He proposed specific consequences for “crimes” based on his conclusion at the 1994 session of the Commission that most members favored the retention of the notion of “crimes” and that this gave him a basis to elaborate concrete proposals. This conclusion was controversial. See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 48th Sess., Supp. No. 10, at 358–64, UN Doc. A/48/10 (1994) [hereinafter 1994 ILC Report].
2 Legal or substantive consequences are cessation, reparation, restitution in kind, compensation, satisfaction and assurances of nonrepetition.
3 Some members of the Commission maintained that even in the case of a “crime” it is possible and indeed necessary to distinguish between those who are direcdy injured and those who suffer a legal injury and to adjust the right to legal and instrumental consequences accordingly.
4 UN Doc. A/CN.4/469, Add.2 (1995).
5 UN Doc. A/CN.4/469, Add.1, Art. 20, at 4 (1995).
6 For Article 19, see my report on the Commission’s 1994 session, 89 AJIL 390, 393 n.19 (1995).
7 The suggested compromise would have involved requesting the Drafting Committee to propose alternative texts (1) based on the retention of the notion of “crime” as contained in Article 19 of part I, (2) based on a category of “exceptionally serious wrongful acts,” and (3) based on a single category for all wrongful acts.
8 Report of the International Law Commission on the work of its forty-seventh session, UN GAOR, 50th Sess., Supp. No. 10, at 192, UN Doc. A/50/10 (1995) [hereinafter 1995 ILC Report]. The proposal concerning challenges to the validity of the award and the provisions in the annex to the Commission’s draft articles are designed to avoid frustration of the intent of states in accepting arbitration as a result of imperfect or incomplete provisions. The Model Rules on Arbitral Procedure prepared by the ILC in 1958 were drawn upon in this context. See [1958] 2 Y.B. Int’l L. Comm’n 12, UN Doc. A/CN.4/SER.A/1958/Add.1.
9 Oscar Schachter, Dispute Settlement and Countermeasures in the International Law Commission, 88 AJIL 471 (1994).
10 For the texts of Articles 13 and 14, see 1995 ILC Report, supra note 8, at 154, 161. For Article 11, see 1994 ILC Report, supra note 1, at 365 n.362. For Article 12, see note 11 infra.
11 Article 11 was not adopted because some Commission members believed that it was not timely to adopt the commentary to that article. A draft of a commentary to Article 12, whose text was adopted by the Drafting Committee in 1994, has not yet been submitted to the plenary. Article 12 deals with the relationship between the right of a state to take countermeasures and its acceptance of dispute settlement. The text approved by die Drafting Committee reads:
Conditions relating to resort to countermeasures
1. An injured State may not take countermeasures unless:
(a) it has recourse to a (binding/third party) dispute settlement procedure which both the injured State and the State which has committed the internationally wrongful act are bound to use under any relevant treaty to which they are parties; or
(b) in the absence of such a treaty, it offers a (binding/third party) dispute settlement procedure to the State which has committed the internationally wrongful act.
2. The right of the injured State to take countermeasures is suspended when and to the extent that an agreed (binding) dispute settlement procedure is being implemented in good faith by the State which has committed the internationally wrongful act, provided that the internationally wrongful act has ceased.
3. A failure by the State which has committed the internationally wrongful act to honour a request or order emanating from the dispute settlement procedure shall terminate the suspension of the right of the injured State to take countermeasures.
12 Draft Code of Crimes against the Peace and Security of Mankind, [1991] 2 Y.B. Int’l L. Comm’n 198, UN Doc. A/CN.4/SER.A./1991/Add.1.
13 For comments of governments, see UN Doc. A/CN.4/448 & Add.1 (1993).
14 1995 ILC Report, supra note 8, at 70.
15 Thirteenth Report on the Draft Code of Crimes against the Peace and Security of Mankind, UN Doc. A/ CN.4/466, at 17, para. 62 (1995).
16 [1951] 2 Y.B. Int’l L. Comm’n 69, paras. 165, 166, UN Doc. A/CN.4/SER.A/1951/Add.1.
17 1994 ILC Report, supra note 1, at 85.
18 The use of armed force in violation of Charter Article 2(4) “of such gravity as to be of concern to the international community as a whole” was the modest alternative rejected by the Drafting Committee.
19 UN Doc. S/25704, annex (1993).
20 See note 12 supra.
21 Note 19 supra.
22 The articles read as follows:
Article A
Freedom of action and the limits thereto
The freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control is not unlimited. It is subject to the general obligation to prevent or minimize the risk of causing significant transboundary harm, as well as any specific obligations owed to other States in that regard.
Article B
Prevention
States shall take all appropriate measures to prevent or minimize the risk of significant transboundary harm.
Article C
Liability and reparation
In accordance with the present articles, liability arises from significant transboundary harm caused by an activity referred to in article 1 and shall give rise to reparation.
Article D
Cooperation
States concerned shall cooperate in good faith and as necessary seek the assistance of any international organization in preventing or minimizing the risk of significant transboundary harm, and, if such harm has occurred, in minimizing its effects both in affected States and in States of origin.
1995 ILC Report, supra note 8, at 214.
23 Id. at 244.
24 The Commission decided to consider the 11th report of the special rapporteur on harm to the environment together with his 10th report at its 1996 session. For these two reports, see, respectively, UN Docs. A/CN.4/459 (1994) and A/CN.4/468 (1995). See also the Secretariat study Survey of liability regimes relevant to the topic on liability for injurious consequences arising out of acts not prohibited by international law, UN Doc. A/CN.4/471 (1995).
25 UN Doc. A/CN.4/470 & Corr.1 (1995).
26 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.
27 Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, 3 United Nations Conference on Succession of States in Respect of Treaties: Official Documents, UN Sales No. F.79.U. 10 (1979), 17 ILM 1488 (1978).
28 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21, 1986, UN Doc. A/CONF.129/15 (1986), 25 ILM 543 (1986).
29 In the author’s view, while the reserving state remains bound by the customary rule, there seems little basis for requiring it to be bound by the convention as well, particularly if the latter includes procedural obligations.
30 UN Doc. A/CN.4/470 & Corr.1, supra note 25, at 78.
31 UN Doc. A/CN.4/467 (1995).
32 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 8, 1983, UN Doc. A/CONF.117/14 (1983), 22 ILM 306 (1983).
33 Aug. 30, 1961, 989 UNTS 175.
34 1995 ILC Report, supra note 8, annex, at 278.
35 1995 ILC Report, supra note 8, at 264.
36 Id. at 265.