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United Nations Report of the International Law Commission
Published online by Cambridge University Press: 28 March 2017
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- Copyright © American Society of International Law 1959
References
* U.N. General Assembly, 13th Sess., Official Becords, Supp. No. 9 (A/3859). For reports of the International Law Commission covering its previous sessions, see Supplements to this JOURNAL, VOL 44 (1950), pp. 1, 105; Vol. 45 (1951), p. 103; Vol. 47 (1953), p. 1; Vol. 48 (1954), p. 1; Vol. 49 (1955), p. 1; and Official Documents, Vol. 50 (1956), p. 190; Vol. 51 (1957), p. 154; Vol. 52 (1958), p. 177.
1 Official Records of the General Assembly, 8th Sess., Supp. No. 9 (A/2456), Cli. II.
2 Ibid., 7th Sess., Supp. No. 9 (A/2163), pars. 11-14.
3 ma., par. 24.
4 ibid., 8th Sess., Supp. No. 9 (A/2456).
5 See Yearbook of the International Law Commission, 1957, Vol. II (A/CN.4/SER.A/ 1957/Add. 1), Doe. A/CN.4/109, par. 7.
6 Official Records of the General Assembly, 8th Sess., Supp. No. 9 (A/2456), par. 57.
7 Ibid., 10th Seas., Annexes, agenda item 52, docs. A/2899 and Add.l and 2.
8 Ibid., 12th Sess., Supp. No. 9 (A/3623).
9 See, passim, the summary record of the 419th meeting of the Commission in Vol. I of the Yearbook of the International Law Commission, 1957 (A/CN.4/SEB.A/1957), pp. 181-185.
10 A/CN.4/113 of 6 March 1958.
11 Official Records of the General Assembly, 7th Sess., Supp. No. 9 (A/2163), Ch. II.
12 Ibid., 8th Sess., Supp. No. 9 (A/2456).
13 This decision was taken despite the fact that the valuable printed Commentary on the Draft Convention on Arbitral Procedure (A/CN.4/92) to the original mimeographed version of which the Commission referred in paragraph 13 of its 1953 report, contained an annex of about 130 pages devoted to this type of provision.
14 A/CN.4/109, par. 7. See Yearbook of the International Law Commission, 1957, Vol. II (A/CN.4/SEB.A/1957/Add.l).
15 A/CN.4/113 of 6 March 1958.
16 The present draft is of course intended to apply to arbitrations between states. The Commission discussed the question how far it might also be applicable to other types of arbitration, such as arbitrations between international organizations, or between states and international organizations, or between states and foreign private corporations or other juridical entities. The Commission decided not to proceed with these aspects of the matter. Nevertheless, now that the draft is no longer presented in the form of a potential general treaty of arbitration, it may be useful to draw attention to the fact that, if the parties so desired, its provisions would, with the necessary adaptations, also be capable of utilization for the purposes of arbitrations between states and international organizations or between international organizations. In the case of arbitrations between states and foreign private corporations or other juridical entities, different legal considerations arise. However, some of the articles of the draft, if adapted, might be capable of use for this purpose also.
17 Official Records of the General Assembly, 8th Sess., Supp. No. 9 (A/2456), Ch. II, pars. 18-29 and 48-52.
18 The present numbers of the articles are followed by numbers in brackets which indicate the article in the 1953 draft (A/2456, par. 57) on which the present article is broadly based. Where the present article had no equivalent in 1953, this fact is indicated by the.word “new” in brackets after the number of the article. Preamble (1 and 14), Article 1 (2), Article 2 (9), Article 3 (3 and 4), Article 4 (5) Article 5 (6), Article 6 (8), Article 7 (new), Article 8 (10), Article 9 (11), Article 10 (12, par. 1), Article 11 (12, par. 2), Article 12 (13), Article 13 (new), Article 14 (new), Article 15 (new), Article 16 (new), Article 17 (new), Article 18 (15), Article 19 (16), Article 20 (17), Article 21 (18), Article 22 (21), Article 23 (22), Article 24 (23), Article 25 (20), Article 26 (19), Article 27 (19, 7 and part new), Article 28 (24, 25), Article 29 (24, par. 2), Article 30 (26), Article 31 (27), Article 32 (new), Article 33 (28), Article 34 (new), Article 35 (30), Article 36 (31), Article 37 (32), Article 38 (29 and part new).
19 The forms taken by arbitral agreements may of course be of very diverse characters.
20 See Official Records of the General Assembly, 8th Sess., Supp. No. 9 (A/2456), pars. 18-25.
21 Ibid., pars. 48-52.
22 See Yearbook of the International Law Commission, 1957, Vol. II (A/CN.4/SER.A/ 1957/Add.l), Doe. A/CN.4/109.
23 A/CN.4/113 of 6 March 1958.
24 The term “intercourse” (in the English text) has traditionally been employed by the Commission in relation to this subject. The term used in the French text is “Eelations (diplomatiques etc.).” There is no reason why in English the title “Diplomatic relations and immunities” should not also be employed.
25 See Official Records of the General Assembly, 4th Sess., Supp. No. 10 (A/925), pars. 16 and 20.
26 ibid., 8th Sess., Supp. No. 9 (A/2456), par. 170.
27 Ibid., 9th Sess., Supp. No. 9 (A/2693), par. 73.
28 Ibid., 12th Sess., Supp. No. 9 (A/3623), par. 16.
29 The text of the Regulation of Vienna on the classification of diplomatic agents is as follows: “In order to avoid the difficulties which have often arisen and which might occur again by reason of claims to precedence between various diplomatic agents, the Plenipotentiaries of the Powers which have signed the Treaty of Paris have agreed to the following articles and feel it their duty to invite representatives of other crowned heads to adopt the same regulations. “Article 1. Diplomatic officials shall be divided into three classes: that of ambassadors, legates or nuncios; that of envoys, whethe* styled ministers or otherwise, accredited to sovereigns; that of chargis d'affaires accredited to Ministers of Foreign Affairs. “Article 2. Only ambassadors, legates or nuncios shall possess the representative character. “Article 3. Diplomatic officials on extraordinary missions shall not by this fact be entitled to any superiority of rank. “Article 4. Diplomatic officials shall rank in each class according to the date on which their arrival was officially notified. ” T h e present regulation shall not in any way modify the position of the Papal representatives. “Article 5. A uniform method shall be established in each State for the reception of diplomatic officials of each class. “Article 6. Ties of relationship or family alliances between Courts shall not confer any rank on their diplomatic officials. The same shall be the case with political alliances. “Article 7. In acts or treaties between several Powers which admit the alternate the order in which the ministers shall sign shall be decided by lot. ” The present Regulation was inserted in the Protocol concluded by the Plenipotentiaries of the eight Powers which have signed the Treaty of Paris at their meeting on 19 March 1815.“ (The Regulation was signed by the following countries: Austria, Spain, France, Great Britain, Portugal, Prussia, Russia and Sweden. Translation taken from the report of a sub-committee of the League of Nations Committee of Experts for the Progressive Codification of International Law, C.203.M.77.1927.V, p. 2.)
30 Official Records of the General Assembly, 12th Sess., Supp. No. 9 (A/3623).
31 At the eleventh session of the General Assembly in 1956, the membership of the Commission was increased from fifteen to twenty-one. The ninth session of the Commission in 1957 was the first to be held with this increased membership; the present session the second.
32 A/CN.4/L.76 of 21 May 1958. As implied in paragraph 17 of this paper, however, the great majority of delegations in the Assembly did not seek to criticize the Commission's methods.
33 ’ With a view to speeding up the work of the International Law Commission, while keeping it on a high scientific level, the following changes in the Commission's organization and methods of work might be considered in the light of past experience: ” (a) In the absence of a contrary decision by the Commission, any draft prepared by the special rapporteurs would be the subject of a general discussion in plenary meeting. “(b) When the general discussion was concluded, the Commission would review the articles of the draft and the amendments submitted by members, so that they could have an opportunity of presenting their views. Votes would not be taken at that stage of the work unless the circumstances made it necessary to take a vote on a question of principle in order to simplify and facilitate the work. ” (c) After this preliminary discussion, the draft would be referred to a sub-commission so constituted as to include representatives of all the world's principal legal systems. The sub-commission, of which the special rapporteur would automatically be a. member, should not consist of more than ten members. ’ ‘ (d) The sub-commission would fully discuss the special rapporteur's proposals and the amendments thereto, and would prepare draft articles for the full Commission. In view of the importance of this work for the Commission itself, for the Governments of States Members of the United Nations and for academic circles, the meetings of the sub-commissions would be conducted in the same way as plenary meetings, i.e., with simultaneous interpretation and summary records. ’ ‘ (e) The drafts prepared by the sub-commissions would be submitted to the full Commission for possible discussion and adoption. ’ ‘ (/) The Commission would always be entitled to reserve a particularly important or urgent draft for discussion in plenary meeting only.“
33 However, while retarding the presentation of any individual draft, it need not, after a certain initial delay, hold up the orderly flow of drafts to the Assembly year by year, in so far as it is otherwise possible to achieve that. 1959]
35 A/CN.4/108.
36 See footnote 32 above. As regards the idea of the Commission's working in two main sections, paragraph 23 of this paper stated ‘’ The suggestion that the International Law Commission should be split up into two or more sub-committees working on different subjects along parallel lines does not provide an adequate solution. If that suggestion were accepted, the Commission would cease to exist as a single organ and would be replaced by two or more sub-commissions working independently. Unity of views would not be assured and the sub-commissions might reach conflicting results. Moreover, such a reform would be contrary to the Commission's present Statute.“
37 The Commission did not however accept the view that the 40 percent increase; the membership of the Commission effected by the Assembly's decision in 1956 had resulted in a 40 percent increase in the time taken up by its proceedings.
38 These were: 1. Draft Declaration on Bights and Duties of States. 2. Ways and means for making the evidence of customary international law more readily available. 3. Formulation of the Nurnberg Principles. 4. Question of international criminal jurisdiction. 5. Draft Code of Offences against the Peace and Security of Mankind. 6. Question of defining aggression. 7. Reservations to multilateral conventions. 8. Draft on arbitral procedure. 9. Draft Convention on the Elimination of Future Statelessness. 10. Draft Convention on the Reduction of Future Statelessness. 11-14. Articles concerning the law of the sea comprising: Régime of territorial waters; Régime of the high seas; Fisheries: Conservation of the living resources of the high seas; The continental shelf. 15. Draft on diplomatic intercourse and immunities. The above list takes into account the fact that the Conference on the Law of the Sea adopted four distinct Conventions as comprising the law of the sea. Each is an independent subject.
40 Sixteen, if account is taken of the fact that the draft on arbitral procedure presented to the Assembly in 1953 was, so far as the Commission was concerned, a final and completed text. In effect the Commission has presented two final texts on this subject.
41 The report of the Commission on its first session contains, in Chapter I I , paragraph 16, the following list of topics selected by the Commission for codification: 1. Recognition of States and Governments; 2. Succession of States and Governments; 3. Jurisdictional immunities of States and their property; 4. Jurisdiction with regard to crimes committed outside national territory; 5. Régime of the high seas; 6. Régime of territorial waters; 7. Nationality, including statelessness; 8. Treatment of aliens; 9. Right of asylum; 10. Law of treaties; 11. Diplomatic intercourse and immunities; 12. Consular intercourse and immunities; 13. State responsibility; 14. Arbitral procedure. See Official Records of the General Assembly, 4th Sess., Supp. No. 10 (A/925), Ch. II, par. 16.
42 Draft Code of Offences against the Peace and Security of Mankind (one); Law of the sea: Régime of territorial waters, Régime of the high seas, Fisheries: Conservation of the living resources of the high seas, The continental shelf (four); Elimination of future statelessness; Reduction of future statelessness (two); Arbitral procedure (one) ; Diplomatic intercourse and immunities (one).
43 I.e., all but the Draft Code of Offences against the Peace and Security of Mankind.
44 The régime of the high seas; fisheries; the continental shelf; and arbitral procedure.
45 As in footnote 44, plus the law of treaties.
46 I.e., those covering the law of the sea.
47 Draft Convention on the Elimination of Future Statelessness and Draft Convention on the Reduction of Future Statelessness.
48 I.e, the Draft Code of Offences against the Peace and Security of Mankind