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The Fortieth Session of the International Law Commission

Published online by Cambridge University Press:  27 February 2017

Stephen C. Mccaffrey
Stephen C. Mccaffrey*
Affiliation:
United Nations International Law Commission University of the Pacific, McGeorge School of Law
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Extract

The International Law Commission of the United Nations held its 40th session from May 9 to July 29, 1988, under the Chairmanship of Ambassador Leonardo Díaz-González. The Commission adopted 6 articles of the Draft Code of Crimes against the Peace and Security of Mankind and 14 articles on the law of non-navigational uses of international watercourses. Substantial time was devoted to both international liability for injurious consequences arising out of acts not prohibited by international law and the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. Reports on jurisdictional immunities of states and their property and state responsibility were introduced by the special rapporteurs for those topics but were not discussed by the Commission owing to lack of time. The remaining substantive item on the Commission’s agenda, relations between states and international organizations (second part of the topic), was not considered at this session. Finally, the Commission once again devoted substantial time to reviewing its procedures and methods of work.

Type
Current Developments
Information
American Journal of International Law , Volume 83 , Issue 1 , January 1989 , pp. 153 - 171
Copyright
Copyright © American Society of International Law 1989

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References

The author wishes to thank for their comments Mr. E. Møse, Legal Adviser, Norwegian Ministry of Justice, who in 1985–1986 chaired one of the committees that drafted the Convention, as well as Prof. P. Imbert, Deputy Director, Directorate for Human Rights, Council of Europe. The outstanding help of Susan Marks in the preparation of this paper is also gratefully acknowledged.

1 At its 39th session, the Commission provisionally adopted Part I, Definition and characterization, containing Article 1, Definition, and Article 2, Characterization; and the following articles of part II: Article 3, Responsibility and punishment; Article 5, Non-applicability of statutory limitations; and Article 6, Judicial guarantees. See the Note on the Commission’s 39th session, 82 AJIL 144, 145–46 (1988).

2 This article appears to be out of numerical order because intervening articles were adopted at the Commission’s 39th session, as explained in note 1 supra.

3 This article appears to be out of numerical order because an intervening article was adopted at the Commission’s 39th session, as explained in note 1 supra.

4 Report of the International Law Commission on the work of its fortieth session, 43 UN GAOR Supp. (No. 10), UN Doc. A/43/10 (1988) (unpublished as of this writing) [hereinafter Report]. Draft articles quoted in this Note are taken from the draft report, UN Doc. A/CN.4/L.426/Add.1 (1988); their texts will not be changed.

5 The Commission has twice asked the General Assembly whether its mandate to prepare the code includes the drafting of a statute of an international criminal court, but has to date received no definitive response. In the view of some members of the Commission, the Assembly’s request that the ILC prepare the code is sufficient to give it discretion to decide whether such a statute should accompany the code, and a separate instruction concerning a court is not necessary.

6 See, e.g., Art. 14, para. 7, International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), which provides: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

7 See, e.g., Universal Declaration of Human Rights, GA Res. 217A, UN Doc. A/810, at 71 (1948) (Art. 11(2)); International Covenant on Civil and Political Rights, supra note 6 (Art. 15(1)); and European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221 (Art. 7(1)) [hereinafter European Convention].

8 Cf. European Convention, supra note 7, Art. 7(2), which provides: “This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949, at 3 (1977).

10 See, e.g., In re Yamashita, 327 U.S. 1, 14–15 (1946); and decisions of the Tokyo Tribunal, 15 Law Reports of Trials of War Criminals 73 (1947–49); and 11 Trials of War Criminals, Case No. 7, at 1303 (1948).

11 See Charter of the Nuremberg International Military Tribunal, Art. 7, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279; and Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, amended Apr. 26, 1946, TIAS No. 1589, Art. 6.

12 [1950] 2 Y.B. Iint’l L. Comm’n, pt. 2 at 374, UN Doc. A/CN.4/SER.A/1950/Add. 1.

18 UN Doc. A/CN.4/85 (1954), 9 UN GAOR Supp. (No. 9) at 9, UN Doc. A/2693 (1954), reprinted in [1954] 2 Y.B. Int’l L. Comm’n 112, UN Doc. A/CN.4/SER.A/1954/Add.2.

14 See the Note on the Commission’s 35th session in 1983, 78 AJIL 457, 472–73 (1984).

15 GA Res. 3314, 29 UN GAOR Supp. (No. 31) at 142, UN Doc. A/9631 (1974).

16 For the text of these articles, see the Note on the Commission’s 39th session, supra note 1, at 148–50.

17 At its 39th session, the Commission agreed to leave aside for the time being the question of Article 1, Use of Terms, and that of the use of the term “system,” and to continue its work on the basis of the provisional working hypothesis accepted by the Commission at its 32d (1980) session. See the Note on the Commission’s 35th session, supra note 14, at 476. The word “system” therefore appears in brackets throughout the text.

18 See Report, supra note 4.

19 See, e.g., Report of the International Law Commission on the work of its twenty-fifth session, 28 UN GAOR Supp. (No. 10) at 3, 17–23, UN Doc. A/9010/Rev.1 (1974).

20 The comments are contained in UN Doc. A/CN.4/409 and Corrs.1-2 and Adds.1-5 (1988).

21 For the text, see Report of the Internationa] Law Commission on the work of its thirty-eighth session, [1986] 2 Y.B. Int’l L. comm’n, pt. 2 at 24, UN Doc. A/CN.4/SER.A/1986/Add.1 [hereinafter 1986 Report].

22 The 1975 Convention defines “international organizations of a universal character” in its Article 1 as “the United Nations, its specialized agencies, the International Atomic Energy Agency and any similar organization whose membership and responsibilities are on a worldwide scale.” Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, opened for signature Mar. 14, 1975, UN Doc. A/CONF.67/16, reprinted in 69 AJIL 730 (1975).

23 Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261.

24 For the text, see the Commission’s 1986 Report, supra note 21, at 8.

25 The Commission’s report reiterates intentions expressed in 1987 concerning work on the draft code and international watercourses, namely, that it would endeavor to complete the first reading of both drafts by 1991.

26 These proposed articles are set forth in chapter II of the Commission’s Report, supra note 4.