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United Nations Report of the International Law Commission: On the Work of its Twenty-First Session, June 2-August 8, 1969*

Published online by Cambridge University Press:  28 March 2017

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Official Documents
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American Journal of International Law , Volume 64 , Issue 3 , July 1970 , pp. 741 - 806
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Copyright © American Society of International Law 1970

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Footnotes

*

U. N. General Assembly, 24th Sess., Official Records, Supp. No. 10 (A/7610/ Rev. 1). 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; Vol. 53 (1959), p. 230; Vol. 54 (1960), p. 229; Vol. 55 (1961), p. 223; Vol. 56 (1962), p. 286; Vol. 57 (1963), p. 190; Vol. 58 (1964), p. 241; Vol. 59 (1965), pp. 203, 434; Vol. 60 (1966), p. 155; Vol. 61 (1967), p. 248; Vol. 62 (1968), p. 244; and 8 Int. Legal Materials 144 (1969).

For convenience of reference to the Report, the page numbers of the U. N. document containing the Report are inserted in italics in brackets at the beginning of each page of the original document as here printed.

References

1 An account of the historical background of the topic is contained in the report of the International Law Commission on the work of its twentieth session (Official Records of the General Assembly, Twenty-third Session, Supplement No. 9) (A/7209/Rev.l), pars. 9-20; Yearbook of the International Law Commission, 1968, Vol. II. [For text of the Report see also 8 Int. Legal Materials 144 (1969). Draft Arts. 1-21 appear at pp. 151-168 thereof.—ED.]

2 Ibid., par. 21.

3 Ibid., par. 22.

4 Official Records of the General Assembly, Twenty-third Session, Sixth Committee, 1029tk to 1039th meetings.

5 Ibid., 1039th to 1059th, 1061st to 1072nd and 1087th to 1090th meetings.

6 United Nations, Treaty Series, Vol. 11, p. 12.

7 United Nations Legislative Series, Legislative texts and treaty provisions concerning the legal status, privileges and immunities of international organizations, Vol. II (ST/LEG/SER.B/11), p. 187.

8 United Nations, Treaty Series, Vol. 181, p. 148.

9 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. II, pp. 94 and 95.

10 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), pp. 8 and 9; Yearbook of the International Law Commission, 1968, Vol. II.

11 United Nations, Treaty Series, Vol. 500, p. 96.

12 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. IL p. 95.

13 Official Records of the General Assembly, Twenty-second Session, Annexes, agenda item 98, document A/6965, par. 14.

14 Ibid., document A/C.6/385, par. 8.

15 “The practice of the United Nations, the specialized agencies and the International Atomic Energy [Agency! concerning their status, privileges and immunities: study prepared by the Secretariat” (hereinafter referred to as “Study of the Secretariat“), Yearbook of the International Law Commission, 1967, Vol. II, documents A/CN.4/L.118 and Add.l and 2, p. 187, par. 154.

16 United Nations, Treaty Series, Vol. 33, p. 262.

17 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), pp. 4 and 5; Yearbook of the International Law Commission, 1968, Vol. II.

18 Official Records of the General Assembly, Twenty-third Session, Annexes, agenda item 85, document A/7375, pars. 190, 192, 194 and 195.

19 United Nations, Treaty Series, Vol. 339, p. 152.

20 Ibid., Vol. 596, p. 262.

21 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. II, p. 96.

22 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l); Yearbook of the International Law Commission, 1967, Vol. II, p. 360.

23 United Nations, Treaty Series, Vol. I, p. 16.

24 Official Records of the United Nations, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l); Yearbook of the International Law Commission, 1967, Vol. II, p. 361.

25 Ibid.

26 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. II, p. 98.

27 Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities (1961), Vol. II, document A/Conf.20/10/Add.l, p. 90.

28 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l), pp. 21, 24; Yearbook of the International Law Commission, 1967, Vol. II, pp. 365, 367, 368.

29 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l), p. 19; Yearbook of the International Law Commission, 1967, Vol. II, p. 362.

30 Study of the Secretariat, Yearbook of the International Law Commission, 1967, documents A/CN.4/L.118 and Add.l and 2, p. 201, par. 45.

31 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. II, p. 100.

32 Study of the Secretariat, Yearbook of the International Law Commission, 1967, documents A/CN.4/L.118 and Add.l and 2, p. 200, par. 37.

33 Ibid., p. 183, par. 134. For details of the position in respect of the various Federal and State taxes in New York, ibid., pp. 183-186, sees. 17 and 18.

34 Ibid., p. 173, par. 62.

35 Ibid., p. 183, par. 136.

36 Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities (1961), Vol. II, document A/Conf.20/11, p. 88.

37 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859); Yearbook of the International Law Commission, 1958, Vol. II, p. 101.

38 Study of the Secretariat, Yearbook of the International Law Commission, 1967, Vol. II, documents A/CN.4/L.118 and Add.l and 2, p. 176, par. 87.

39 Ibid., p. 190, par. 168.

40 Ibid., p. 178, par. 96.

41 Official Records of the General Assembly, Twenty-second Session, Annexes, agenda item 98, document A/C.6/385, par. 4.

42 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l), p. 23; Yearbook of the International Law Commission, 1967, Vol. II, p. 367.

43 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), p. 11; Yearbook of the International Law Commission, 1968, Vol. II.

44 Article 50 was put provisionally at the end of the group of articles adopted by the Commission at its twenty-first session. Its place in the draft as a whole will be determined by the Commission at a later stage.

45 Paragraph (8) of the commentary on Article 16 in the report of the International Law Commission on the work of its twentieth session (Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l); Yearbook of the International Law Commission, 1968, Vol. II) and paragraph 5 of the Introduction to the Special Rapporteur's fourth report on relations between states and international organizations (A/CN.4/218 and Add.l).

46 United Nations, Treaty Series, Vol. 11, p. 12 and ibid., Vol. 21, p. 92. For other examples see Paul Guggenheim, Traité de droit international public, Vol. II, 1954, pp. 198-200.

47 A/CN.4/218/Add.l.

48 Official Records of the General Assembly, Fourth Session, Supplement No. 10 (A/925), par. 16; Yearbook of the International Law Commission, 1949, p. 281.

49 Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), par. 60; Yearbook of the International Law Commission, 1962, Vol. II, p. 190.

50 Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), pars. 54, 55, 70 to 72 and 74; Yearbook of the International Law Commission, 1962, Vol. II, pp. 189-192.

51 Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), par. 73; Yearbook of the International Law Commission, 1962, Vol. II, p. 192.

52 Official Records of the General Assembly, Eighteenth Session, Supplement No. 9 (A/5509), annex II; Yearbook of the International Law Commission, 1963, Vol. II, pp. 260-300.

53 Official Records of the General Assembly, Eighteenth Session, Supplement No. 9 (A/5509), pars. 56-61; Yearbook of the International Law Commission, 1963, Vol. II, pp. 224 and 225.

54 The final draft articles on the law of treaties adopted by the Commission in 1966 did not contain provisions concerning “the succession of States in respect of treaties, which the Commission considers can be more appropriately dealt with under the item of its agenda relating to succession of States and Governments” (Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.l), part II, par. 30 of the report and par. 6 of the commentary on Article 58 of the draft; Yearbook of the International Law Commission, 1966, Vol. IL pp. 177 and 256). Article 69 of the draft articles on the law of treaties embodied a reservation on this matter. The position of the Commission was in accordance with the decision of principle which it had adopted in 1963 in the context of the topic “Succession of States and Governments” (see paragraph 24 above). However, in the process of codifying the law of treaties reference was made to the succession of states and governments, in 1963, in connexion with the extinction of the international personality of a state and the termination of treaties and, in 1964, with regard to the territorial scope of treaties and the effects of treaties on third states.

55 Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.l), part II, par. 74; Yearbook of the International Law Commission, 1966, Vol. II, p. 278.

56 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l), pars. 38-41; Yearbook of the International Law Commission, 1967, Vol II, p. 368.

57 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), pars. 45-79; Yearbook of the International Law Commission, 1968, Vol. II.

58 Ibid., pars. 80-91.

59 Ibid., pars. 100, 101, 103 and 104.

60 As recorded in paragraph 43 of the Commission's Report on the work of its twentieth session, the Secretariat had previously prepared and distributed, in accordance with the Commission's requests, the following documents and publication relating to succession of states and governments: (a) a memorandum on “The succession of States in relation to membership in the United Nations” (Yearbook of the International Law Commission, 1962, Vol. II, documents A/CN.4/149 and Add.l, p. 101); (b) a memorandum on “Succession of States in relation to general multilateral treaties of which tke Secretary-General is the depositary” (ibid., document A/CN.4/150, p. 106); (c) a'study entitled “Digest of the decisions of international tribunals relating to State Succession” (ibid., document A/CN.4/151, p. 131; (d) a study entitled “Digest of decisions of national courts relating to succession of States and Governments” (Yearbook of the International Law Commission, 1963, Vol. II, document A/CN.4/157, p. 95); (e) five studies in the series “Succession of States to multilateral treaties,” entitled respectively “International Union for the Protection of Literary and Artistic Work: Berne Convention of 1886 and subsequent Acts of revision” (Study I), “Permanent Court of Arbitration and The Hague Conventions of 1889 and 1907” (Study II), “The Geneva Humanitarian Conventions and the International Red Cross” (Study III), “International Union for the Protection of Industrial Property: Paris Convention of 1883 and subsequent Acts of revision and special agreements” (Study IV) and ‘The General Agreement on Tariffs and Trade and its subsidiary instruments” (Study V) (Yearbook of the International Law Commission, 1968, Vol. II, documents A/CN.4/200 and Add.l and 2); (/) a volume of the United Nations Legislative Series entitled “Material on Succession of States” (ST/LEG/SER.B/14), containing the information provided or indicated by governments of Member States in response to the Secretary-General's request referred to in paragraphs 21 and 23 above,

61 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), par. 79; Yearbook of the International Law Commission. 1968, Vol. II.

62 Official Records of the General Assembly, Fourth Session, Supplement No. 10 (A/925), par. 16; Yearbook of the International Law Commission, 1949, p. 281. The Commission made the selection after undertaking a survey of t i e whole field of international law, in accordance with Article 18, paragraph 1, of its Statute. In this connexion, the Commission used as a basis of discussion a memorandum by the Secretary-General entitled “Survey of International Law in relation to the work of Codification of the International Law Commission” (A/CN.4/1/Rev.l).

63 Official Records of the General Assembly, Ninth Session, Supplement No. 9 (A/2693), par. 74; Yearbook of the International Law Commission, 1954, Vol. II, p. 162.

64 Yearbook of the International Law Commission, 1954, Vol. II, p. 21.

65 Official Records of the General Assembly, Tenth Session, Supplement No. 9 (A/2934), par. 33; Yearbook of the International Law Commission, 1955, Vol. II, p. 42.

66 Yearbook of the International Law Commission, 1956, Vol. II, p. 173.

67 Yearbook of the International Law Commission, 1957, Vol. II, p. 104.

68 Yearbook of the International Law Commission, 1958, Vol. II, p. 47.

69 Yearbook of the International Law Commission, 1959, Vol. II, p. 1.

70 Yearbook of the International Law Commission, 1960, Vol. II, p. 41.

71 Yearbook of the International Law Commission, 1961, Vol. II, p. 1. Although the sixth report was among the documents prepared for the Commission's thirteenth session, it was only submitted in December 1961, that is after the closure of the session. As the term of office of the Commission's members ended at 31 December 1961 and Mr. Garcia-Amador was not re-elected, he submitted that report to the Commission, so that his contribution to the work of codification in the field of state responsibility should not remain incomplete.

72 Official Records of the General Assembly, Eleventh Session, Supplement No. 9 (A/3159), par. 35; Yearbook of the International Law Commission, 1956, Vol. II, p. 301. The discussion took place at the 370th to 373rd meetings of the Commission.

73 Official Records of the General Assembly, Twelfth Session, Supplement No. 9 (A/3623), par. 17; Yearbook of the International Law Commission, 1957, Vol. II, p. 143. The discussion took place at its 413th to 416th meetings.

74 Official Records of the General Assembly, Eleventh Session, Supplement No. 9 (A/4169), par. 7; Yearbook of the International Law Commission, 1959, Vol. II, p. 88. The discussion took place at its 512th and 513th meetings. In connexion with the preliminary work of the Commission for the study of the principles governing state responsibility, the Harvard Law School Research Center had decided, at the request of the Commission's Secretariat, to revise and bring up to date the “Draft Convention on responsibility of states for damages done in their territory to the person or property of foreigners” prepared by the Center in 1929. The Commission, at its eighth session (1956), confirmed the request of the Secretariat (Yearbook of the International Law Commission, 1956, Vol. I, 370th meeting, pars. 16-18, p. 228).

75 Official Records of the General Assembly, Fifteenth Session, Supplement No. 9 (A/4425), pars. 7 and 44; Yearbook of the International Law Commission, 1960, Vol. II, pp. 144 and 181. The Commission considered the statements at its 566th and 568th meetings. The Inter-American Council of Jurists and its permanent committee, the Inter- American Juridical Committee, had been requested by the Tenth Inter-American Conference (1954) to prepare a study or report on the contribution of the American Continent to the principles of international law that govern the responsibility of the state. The Inter-American Juridical Committee adopted, in 1961, a report setting out the principles which the Latin American countries considered to be applicable in the matter. The Inter-American Council of Jurists, at its fifth session held at San Salvador in 1965, adopted a resolution on the subject recalling the principles stated in the Committee's report and declaring that they presented the Latin American contribution to the principles of international law that govern the responsibility of the state. The resolution requested the Committee to prepare a supplementary report on the contribution of the United States of America. In 1965, the Inter-American Juridical Committee prepared a second report setting out the principles of international law that govern the responsibility of the state in the opinion of the United States of America.

76 Official Records of the General Assembly, Sixteenth Session, Supplement No. 9 (A/4843), par. 46; Yearbook of the International Law Commission, 1961, Vol. II, p. 129. The Commission heard the statement at its 613th meeting.

77 Official Records of the General Assembly, Sixteenth Session, Supplement No. 9 (A/4843), pars. 40 and 41; Yearbook of the International Law Commission, 1961, Vol. I, pp. 206-223, and Vol. II, pp. 128 and 129. The general debate took place at the 614th to 616th meetings of the Commission.

78 Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), pars. 57-63; Yearbook of the International Law Commission, 1962, Vol. II, pp. 190 and 191.

79 Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), pars. 33-56 and 67-69; Yearbook of the International Law Commission, 1962, Vol. II, pp. 188, 189 and 191.

80 This recommendation followed the request contained in a passage of operative paragraph 8 of Resolution I A annexed to the report submitted in 1961 by the “Commission on Permanent Sovereignty over Natural Resources.” This report is printed in a publication (A/AC.97/5/Rev.2; E/3511; A/AC.97/13) (United Nations publication, Sales No.: 62.V.6), which also contains the Secretariat study on “The status of permanent sovereignty over natural wealth and resources,” of which Chapter III gives a useful survey of international jurisprudence and codification drafts on the responsibility of the state for the property of aliens and contracts concluded by them (pars. 1-179).

81 The Report (A/CN.4/152) by Mr. Ago, Chairman of the Sub-Committee on State Responsibility, approved by the Sub-Committee, was appended as annex I to the report of the International Law Commission on the work of its fifteenth session (1963) (Official Records of the General Assembly, Eighteenth Session, Supplement No. 9 (A/5509); Yearbook of the International Law Commission, 1963, Vol. II, pp. 227 and 228). The Yearbook of the International Law Commission, 1963, Vol. II, reproduced also, in pages 228 to 259, the summary records of the second to fifth meetings of the Sub-Committee as well as the memoranda submitted by the members of the Sub- Committee.

82 Official Records of the General Assembly, Eighteenth Session, Supplement No. 9 (A/5509), pars. 51-55; Yearbook of the International Law Commission, 1963, Vol. II, pp. 223 and 224.

83 Official Records of the General Assembly, Nineteenth Session, Supplement No. 9 (A/5809), par. 36; Yearbook of the International Law Commission, 1964, Vol. II, p. 226.

84 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l), par. 42; Yearbook of the International Law Commission, 1967, Vol. II, p. 368. The Commission considered the note at its 934th and 935th meetings. The note is reproduced in Yearbook of the International Law Commission, 1967, Vol. II, p. 325.

85 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l), par. 101.

86 Yearbook of the International Law Commission, 1964, Vol. II, pp. 125-171.

87 Yearbook of the International Law Commission, 1964, Vol. I, 752nd meeting par. 2.

88 Official Records of the General Assembly, Nineteenth Session, Supplement No. 9 (A/5809), par. 21; Yearbook of the International Law Commission, 1964, Vol. II, p. 176.

89 Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.l), part II, par. 32; Yearbook of the International Law Commission, 1966, Vol. II, p. 177.

90 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l and Rev.l/Corr.l), par. 48; Yearbook of the International Law Commission, 1967, Vol. II, p. 369.

91 Yearbook of the International Law Commission, 1968, Vol. II, document A/CN.4/ L.127.

92 Anglo-Iranian Oil Company Case (Jurisdiction), ICJ Reports, 1952, p. 93; Case concerning rights of nationals of United States of America in Morocco, ICJ Reports, 1952, p. 176; Ambatielos Case (Merits: obligation to arbitrate), ICJ Reports, 1953, p. 10.

93 Official Records of the General Assembly, Twenty-third Session, Supplement No. 9 (A/7209/Rev.l); Yearbook of the International Law Commission, 1968, Vol. II.

94 Ibid., par. 103.