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The Twenty-Fifth Session of the International Law Commission

Published online by Cambridge University Press:  28 March 2017

Richard D. Kearney
Richard D. Kearney*
Affiliation:
International Law Commission
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Extract

At its Twenty-Fifth Session the International Law Commission determined to allot some of its limited time to each of the active subjects on its agenda. The decision was the child of necessity. The Draft Articles on the Representation of States in Their Relations with International Organizations had taken up most of the Commissions sessions in 1969, 1970, and 1971, and the Twenty-Fourth Session in 1972 had, under forced draft, produced the draft articles on the Succession of States to Treaties and on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons. The inevitable byproduct was a mounting pressure, both within the Commission and from the General Assembly, for intensive examination of the draft articles and commentaries on State Responsibility, Succession of States in Matters Other Than Treaties, the Most-Favored-Nation Clause, and the Report on Treaties Concluded Between States and International Organizations.

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 3 , July 1974 , pp. 454 - 474
Copyright
Copyright © American Society of International Law 1974

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References

1 [1969] 2 Y.B. ILC 203; [1970] 2 Y.B. ILC 271; ILC Report (1971), GAOR 26th Sess., SUPP. No. 10.

2 Kearney, , The Twenty-Fourth Session of the International Law Commission, 67 AJIL 89 et seq. (1973)CrossRefGoogle Scholar.

3 Cf. Report of the Sixth Committee, GAOR, 26th Sess. (1971). UN Doc. A/8537.

4 Roberto Ago, State Responsibility; Mohammed Bedjaoui, Succession of States in Matters Other Than Treaties; Endre Ustor, The Most-Favored-Nation Clause; Paul Reuter, Treaties and International Organizations.

5 The fate of Sir Gerald Fitzmaurice’s expository code on the law of treaties, based on a Commission decision in 1956 which was subsequently reversed in 1961 in favor of a draft convention, illustrates the problem. See Sinclair, , The Vienna Convention on the Law of Treaties, 4, 5 (1973)Google Scholar.

6 UN Doc. A/CN.4/245 (1970).

7 [1969] 2 Y.B. ILC 235.

8 Gen. Ass. Res. 2780 (XXVI) and 2926 (XXVII).

9 Jorge Castañeda was elected Chairman for 1973–1974; Mustafa Kamil Yassen, First Vice-Chairman and, ex officio, Chairman of the Drafting Committee; Milan Bartos, Second Vice-Chairman; Arnold J. P. Tammes, General Rapporteur. There were four vacancies on the Commission. One resulted from the untimely death of Mr. Gonzalo Alcivar. The other three arose from the election of José María Ruda, Nagendra Singh, and Sir Humphrey Waldock to the International Court of Justice. The four replacements selected by the Commission were Juan José Calle y Calle of Peru, Alfredo Martínez Morena of El Salvador, Christopher W. Pinto of Sri Lanka, and Sir Francis Vallat of the United Kingdom. Report of the International law Commission on the Work of its Twenty-Fifth Session, UN Doc. A/CN.4/L198, 2 (1973) (hereinafter 25th Report).

10 Ago, Third Report on State Responsibility, UN Doc. A/CN.4/246 and Adds. 1, 2 and 3 (1971) and Ago, Fourth Report on State Responsibility A/CN.4/264 and Add. 1 (1972–1973) (hereinafter 3rd Report, Responsibility, and 4th Report, Responsibility, respectively).

11 25th Report 21.

12 3rd Report, Responsibility, Add. 2, 81.

13 [1969] 2 Y.B. ILC 125 et seq. {hereinafter 1st Report, Responsibility).

14 Gen . Ass. Res. 799 (VIII).

15 The Work of the International Law Commission, UN Pub. E.72.1.17 Rev. Ed., 32–34, 41, 42, 43, 44 (1972).

16 1st Report, Responsibility, 28, 29.

17 Id. 24, 25, 27, 35.

18 Id. 2.

19 25th Report 28.

20 Id. 34.

21 Id. 35, 36; While the Corfu Channel case may be an “abnormal” one, it is interesting to speculate whether the application of the distinction drawn in the commentary would have any effect upon the Court’s conclusion that “. . . the victim of a breach of international law should be allowed a more liberal recourse to inferences of fact and circumstantial evidence . . .” because of the exclusive territorial control of the state where the breach occurred. ICJ Reports 18 (1949).

22 25th Report 38.

23 Id. 42.

24 Id. 38.

25 “Every State possesses capacity to conclude treaties.”

26 The Work of the International Law Commission, supra note 15, at 217; 25th Report 45.

27 Restatement (2nd) Foreign Relations Law of the United States, 499, 501, 502 (1965).

28 25th Report 50–51.

29 Id. 53.

30 Id. 55.

31 Id. 56.

32 Id. 60.

33 Supra note 27, at 507.

34 25th Report 60.

35 PCIJ Series A, No. 1, at 29–30 (1923).

36 PCIJ Series B, No. 17, at 29, 30 (1930).

37 PCIJ Series A, No. 24, at 12 (1930); and Series A/B, No. 46, at 167 (1932).

38 PCIJ Series A/B, No. 44 (1932).

39 25th Report 62–68.

40 The Work of the International Law Commission, supra note 15, at 223; 8 ILM 690 (1969).

41 25th Report 69.

42 Id. 71.

43 Id. 71, 72.

44 “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.” UN Doc. A/CONF 48/14 and Corr. 1; 11 ILM 1420 (1972).

45 25th Report 73.

46 Id. 74.

47 Id. 74–75.

48 Id. 77.

49 Id. 80.

50 Id. 84–90.

51 [1969] 2 Y.B. ILC 226–29.

52 UN Doc. A/CN.4/267 (1973) (hereinafter 6th Succession Report).

53 Draft Articles on Succession of States in Respect of Treaties, ILC Report, 24th Sess. 9–30 (1972) (hereinafter 24th Report).

54 6th Succession Report 32.

55 Ibid.

56 Id. 33.

57 25th Report 111–27.

58 Id. 111.

59 24th Report 9.

60 25th Report 112.

61 Ibid.

62 24th Report 15, 16.

63 25th Report 113.

64 24th Report 10.

65 6th Succession Report 28.

66 Id. 29.

67 25th Report 116.

68 Id. 114.

69 6th Succession Report 34–37.

70 25th Report 117.

71 6th Succession Report 34.

72 25th Report 117.

73 Annuaire Francais de Droit International 323 (1965).

74 25th Report 118.

75 Id. 121.

76 6th Succession Report 39.

77 25th Report 123.

78 PCIJ, Series A, No. 7 (1926).

79 PCIJ, Series B, No. 6 (1923).

80 6th Succession Report 41–49.

81 25th Report 125.

82 Id. 126.

83 Id. 127.

84 [1964] 2 Y.B. ILC 176.

85 [1966] 2 Y.B. ILC 177.

86 [1967] 2 Y.B. ILC 369.

87 [1969] 2 Y.B. ILC 157–86; [1970] 2 Y.B. ILC 199–241; UN Doc. A/CN.4/257 and Add. 1 (1972).

88 UN Doc. A/CN.4/2/266 (1973).

89 25th Report 135.

90 Id. 137.

91 Id. 138. (For the purpose of measuring equality, reference is made in footnote 295 to the famous Aristotelian definition in the Nichomachean Ethics. )

92 Id. 140; 142–44.

93 Id. 141.

94 Id. 144.

95 Id. 152.

96 The article proposed by the special rapporteur in his 3rd Report contained a paragraph clarifying this aspect and the consequence that in the case of a reciprocal clause each state party is both a granting and a beneficiary state. The Commission found the clarification to be unnecessary. UN Doc. A/CN.4/257, at 4, 5 (1972).

97 25th Report 145–48.

98 4 Bevans 641; 55 UNTS 201.

99 Treaty of Trade and Commerce between Czechoslovakia and the German Democratic Republic, 374 UNTS 116.

100 25th Report 150.

101 Id. 151.

102 Ibid.

103 Article XVII, para. 1, of the GATT. 4 Bevans 664; 55 UNTS 224. See also, Domke, and Hazard, , State Trading and the Most-Favored-Nation Clause, 52 AJIL 55 (1958)CrossRefGoogle Scholar; David, and Brierly, , Major Legal Systems in the World 224 et seq. (1968)Google Scholar.

104 3rd Report on the Most-Favored-Nation Clause 17 (1972).

105 25th Report 160.

106 Id. 161.

107 Id. 162.

108 United Kingdom v. Iran, ICJ Reports 93 at 110 (1952); the 2nd Report of Mr. Ustor (1970) contains an extensive analysis of the case beginning at 6.

109 25th Report 164.

110 [1966] 2 Y.B. ILC 187.

111 Kearney, and Dalton, , The Treaty on Treaties, 64 AJIL 502, 503 (1970)Google Scholar.

112 UN Doc. A/CN.4/258 (1972) (1st Reuter Report); UN Doc. A/CN.4/271 (1973) (2nd Reuter Report).

113 18th Report 11; 61 AJIL 263 (1967).

114 See, for example, the statement of Wilfred Jenks for the International Labor Organization at the seventh meeting of the Committee of the Whole, and that of Aron Broches for the International Bank for Reconstruction and Development at the eighth meeting. Official Records of UN Conference on the Law of Treaties, Summary Records, 1st Sess. 36–37 and 48–49 (1968).

115 The Work of the International Law Commission, supra note 15, at 217; 8 ILM 682 (1969).

116 2nd Reuter Report 5.

117 25th Report 170.

118 See the discussion in 1st Reuter Report, 4–11.

119 2nd Reuter Report 13.

120 25th Report 170–71.

121 UN Doc. A/CN.4/1/Rev.l (1949). This was the study, prepared by Sir Hersch Lauterpacht, to provide the basis for selection by the Commission of work items in drawing up its original agenda.

122 UN Doc. A/CN.4/245 (1971).

123 25th Report 185–86.

124 Id. 186, 187.

125 Id. 189.

126 Id. 188.