Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-15T02:27:33.547Z Has data issue: false hasContentIssue false
  • English
  • Français

The Forty-Second 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
Get access Rights & Permissions [Opens in a new window]

Extract

The International Law Commission of the United Nations held its forty-second session from May 1 to July 20, 1990, under the Chairmanship of Professor Shi Jiuyong. In the context of its work on the Draft Code of Crimes against the Peace and Security of Mankind, the Commission considered the establishment of an international criminal court and adopted three articles of the code. Also at the forty-second session, the Commission adopted six articles on the law of the non-navigational uses of international watercourses and discussed reports on state responsibility, relations between states and international organizations, international liability for injurious consequences arising out of acts not prohibited by international law and jurisdictional immunities of states and their property.

Type
Current Developments
Information
American Journal of International Law , Volume 84 , Issue 4 , October 1990 , pp. 930 - 943
Copyright
Copyright © American Society of International Law 1990

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 GA Res. 44/39, para. 1 (Dec. 4, 1989).

2 Perhaps the most outstanding example of a rapid response by the Commission to a request of the General Assembly is the set of twelve draft articles on the protection of diplomats prepared and adopted by the Commission at its 1972 session and submitted to the Assembly in that year. The draft articles formed the basis of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, Annex to GA Res. 3166 (XXVIII) (Dec. 14, 1973). See United Nations, The Work of the International Law Commission 72 (4th ed. 1988).

3 The report of the working group was adopted by the Commission without substantial change. Its work was based in part on a discussion in the Commission of part III of the eighth report of the special rapporteur on the draft code, Minister Doudou Thiam, entitled “Statute of an International Criminal Court.”

4 Report of the International Law Commission on the work of its forty-second session, ch. II, 45 UN GAOR Supp. (No. 10), UN Doc. A/45/10 (1990) (unpublished as of this writing).

5 The first effort within the context of the United Nations to examine the possibility of creating an international criminal court was made by the Commission itself. This project was undertaken pursuant to General Assembly Resolution 260 B (III) (Dec. 9, 1948), which invited the Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions.” The Commission concluded, after studying the matter at its first (1949) and second (1950) sessions, that the establishment of such an organ would be both desirable and possible. However, the Commission recommended against accomplishing this objective by establishing a criminal chamber of the International Court of Justice. Report of the Commission to the General Assembly, 1949 Y.B. Int’l L. Comm’n 277, paras. 32–34; and Report of the Commission to the General Assembly, [1950] 2 id. at 364, paras. 128–45, esp. paras. 140 and 145, UN Doc. A/CN.4/SER.A/1950/Add.1. After considering these reports, the General Assembly established a committee that prepared a draft statute for an international criminal court. A revised statute was subsequently prepared by a second committee, but the project became moribund, along with the draft code, purportedly because of the lack of a definition of aggression.

6 Principle I of the Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, text adopted by the International Law Commission at its second session in 1950 and submitted to the General Assembly, [1950] 2 Y.B. Int’l L. Comm’n, supra note 5, pt. 2 at 374, reproduced in The Work of the Interna Tional Law Commission, supra note 2, at 140.

7 The special rapporteur had proposed an Article 17 on the breach of a treaty designed to ensure international peace and security. The Commission’s Drafting Committee has been unsuccessful, during the 1989 and 1990 sessions, in reaching agreement on the text of such an article, or even on whether this subject should be dealt with in the code. These divergencies of views in the Drafting Committee, which appear irreconcilable, are indicative of the situation in the Commission as a whole. A decision on the fate of the draft article has been postponed to a future session.

8 Annex to GA Res. 44/34 (Dec. 4, 1989). Paragraph 1 of Article 18 is based upon Article 5, paragraph 2 of the Convention, whose wording it follows very closely. Paragraphs 2 and 3 of Article 18 are identical to paragraphs 1 and 2, respectively, of Article 1 of the Convention.

9 The brackets result from the Commission’s having deferred a decision on whether to base the draft articles on the concept of the international watercourse “system.” This decision will be taken at the Commission’s 1991 session.

10 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

11 Id., Art. 196, para. 1.

12 See, e.g., Convention on the Protection of the Rhine against Chemical Pollution, Dec. 3, 1976, Art. 11, 1124 UNTS 375.

13 Convention on the Law of the Sea, supra note 10, Art. 198.

14 Opened for signature Sept. 26, 1986, Art. 2, 25 ILM 1370, 1371 (1986).

15 UN Doc. A/CN.4/421/Add.2 (1989).

16 UN Docs. A/CN.4/427 and Corr.1, and A/CN.4/427/Add.1 (1990).

17 The titles of the articles are as follows (the numbering will be changed to correspond to their final place in the draft): Article 24, Relationship between navigational and non-navigational uses; absence of priority among uses; Article 25, Regulation of international water-courses; Article 26, Joint institutional management; Article 27, Protection of water resources and installations; and Article 28, Status of international watercourses and water installations in time of armed conflict.

18 Annex I is entitled “Implementation of the draft articles” and contains the following articles: Article 1, Definition (defining the term “watercourse State of origin”); Article 2, Non-discrimination; Article 3, Recourse under domestic law; Article 4, Equal right of access; Article 5, Provision of information; Article 6, Jurisdictional immunity; Article 7, Conference of the Parties; and Article 8, Amendment of the draft articles. Annex II is entitled “Fact-finding and settlement of disputes” and contains the following articles: Article 1, Fact-finding; Article 2, Obligation to settle disputes by peaceful means; Article 3, Consultations and negotiations; Article 4, Conciliation; and Article 5, Arbitration.

19 Award of Apr. 30, 1990, 19 R. Int’l Arb. Awards (forthcoming).

20 The articles currently before the Drafting Committee include, in addition to the 5 on state responsibility, 12 on jurisdictional immunities, 6 on the draft code, 8 on international water-courses, 9 on international liability, and 11 on relations between states and international organizations. The Commission has assigned priority to jurisdictional immunities, the code, and watercourses.

21 See note 20 supra.

22 One candidate, for example, is the special rapporteur system. The Commission’s progress is entirely dependent upon the pace at which its rapporteurs submit draft articles, and the ability of members to conceptualize topics similarly hinges upon the way they are presented by the rapporteurs. Various proposals have been made for streamlining and improving the system, such as appointing a small group of “friends of the special rapporteur” to assist in the preparation of reports and other functions performed by special rapporteurs.

23 The Commission was originally composed of 15 members. Its membership was enlarged to 21 in 1956, to 25 in 1961, and to the present 34 in 1981. The Work of the International Law Commission, supra note 2, at 7.