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Published online by Cambridge University Press: 27 February 2017
[The draft articles appear in the Report of the InternationaT Law Commission on the work of its thirty-eighth session, May 5 –July 11, 1986, U.N. General Assembly, Official Records, Forty–First Session, Supplement No. 10 (A/41/10), Chapter II, pp. 5–23. The Introductory Note was prepared for International Legal Materials by Stephen C. McCaffrey, Member of the International Law Commission, Professor of Law, the University of the Pacific, McGeorge School of Law, Sacramento, California. The U.N. General Assembly adopted without a vote the Report of the International Law Commission in Resolution 41/81 of December 3, 1986 which expresses satisfaction with the Commission's work, emphasizes the need for the progressive development of international law and its codification and calls upon governments to give full and prompt attention to the ILC's requests for comments and observations on the draft articles on jurisdictional immunities of states and their property.]
1/ Yearbook … 1979, vol. II (Part One), p. 227, document A/CN.4/32.
2/ Materials on Jurisdictional immunities of States and their property (United Nations publication, Sales No. E/F.81.V.10.
3/ For the reports of the Special Rapporteur, see Yearbook … 1980, vol. II (Part One), p. 199, document A/CN.4/331 and Add. 1” Yearbook … 1981, vol. II (Part One), p. 125, document A/CN.4/340 and Add. 1, Yearbook … 1982, vol. II (Part One), p. 199, document A/CN.4/357| Yearbook … 1983, vol. II (Part One), p.25, document A/CN.4/363 and Add. 1” Yearbook … 1984, vol. II (Part One), p.5, document A/CN.4/376 and Add. 1 and 2i and, for 1985, document A/CN.4/388 and Corr.1 (English only) and Corr. 2 (French onl.
4/ For a fuller statement of the historical background of this topic, see Official Records of the General Assembly, fortieth session, Supplement No.10, document A/40/10, paras. 205-24.
5/ The texts of these draft articles are set out in the Special Rapporteur's eighth report (A/CN.4/396 and Corr. 1.
6/ The Commission provisionally adopted this article at its thirty-fourth session. For the commentary thereto, see Yearbook … 1982, vol. II (Part Two), pp. 99-100, document A/37/10, chap. V..
7/ The Commission provisionally adopted subparagraph 1 (a) at its thirty-fourth session in the course of its discussion of article 7, dealing with the modalities for giving effect to State immunity. For the commentary to that text, see ibid., p. 100. The Commission provisionally adopted subparagraph (b) at its thirty-fifth session in the course of its discussion of article II,(then article 12),dealing with commercial contracts. For the commentary thereto, see Yearbook … 1983, vol. II, (Part Two), document A/38/10, chap. III.B.2. The Commission provisionally adopted paragraph 2 of this article at its thirty-eighth session. For the commentary thereto, see below section 2 of the present chapter of this repor.
8/ The Commission provisionally adopted paragraph 1 of this article at its thirty-eighth session. For the commentary thereto,see below section 2 of the present chapter of this report. The Commission provisionally adopted paragraph 2 of this article during its thirty-fifth session in the course of its discussion of article II (then article 12), dealing with commercial contracts. For the commentary thereto,see Yearbook … 1983, vol.II (Part Two), document A/38/10, chap. III.B..
9/ The Commission provisionally adopted this article at its thirty-eighth session. For the commentary thereto, see below section 2 of the present chapter of this repor.
10/ Ib.
11/ Ib.
12/ The Commission provisionally adopted this article at its thirty-fourth session. For the commentary thereto, see Yearbook … 1982, vol. II (Part Two), pp. 100-107, document A/37/10, chap. V..
13/ Ibid., pp 107-1.
14/ Ibid., pp. 109-111. A suggestion was made that the word “sole”in paragraph 2 might be deleted. However, in the practice of some States, steps taken in the merits of the case would be considered as a waiver of immunity. Thus, the Commission decided to keep the word “sole” which could be re-examined at the second readin.
15/ The Commission provisionally adopted this article at its thirty-fifth session. For the commentary thereto, see Yearbook … 1983, vol. II (Part Two), document A/38/10, chap.III.B.
16/ The Commission provisionally adopted the title of this Part at its thirty-eighth session. For the contary thereto, see below section 2 of the present chapter of this repor.
17/ The Commission provisionally adopted this article (then article 12) at its thirty-fifth session. For the commentary thereto, see Yearbook … 1983, vol. II, (Part Two), document A/38/10, chap. III.B.2. A suggestion was made in the course of the debate in the Sixth Committee that in order to exercise jurisdiction a link should be established under article II between the State of the forum and the State against which a proceeding is instituted, such as the existence in the territory of the State of the forum of an office or bureau to conduct the business or commercial transactions on behalf of the foreign State concerned. Reference to the applicable rules of private international law regulating the question of jurisdiction of the courts of the territorial State has been regarded generally as providing adequate assurance of an existing connection which could be territorial or else jurisdiction could be established by mutual consent of the parties to the contract. Another view has since been expressed to the effect that apart from consent in the case of forum prorogatum, there “should also be a genuine territorial connection to enable the court to exercise jurisdiction in regard to the commercial contract in question. The possibility of further improvement of the text of article II will be re-examined on second reading. See topical summary of the discussion held in the Sixth Committee of the General Assembly during its thirty-eighth session prepared by the Secretariat, document A/CN.4/L.369, paras. 200-20.
18/ The Commission provisionally adopted this article (then article 13) at its thirty-sixth session. For the commentary thereto, see Official Records of the General Assembly, Thirty-ninth Session, Supplement No. 10 (A/39/10), chap. IV.B.2. In the course of the debate in the Sixth Committee, a suggestion was made with gathering support from developing countries that the requirement in paragraph 1 that the employee is “covered by the social security provisions which may be in force in that other State” is not necessary. It might unduly discriminate between countries with social security systems and those which have no such systems. The wording may be altered so as to provide an additional indication of the intention or consent of the State which has employed a local staff abroad in a particular case not to invoke its immunity in respect of that contract of employment. See topical summary or the discussion held in the Sixth Committee of the General Assembly during its fortieth session, prepared by the Secretariat, document A/CN.4/L.398, para. 38.
19/ Ibid. This article was originally adopted as article 1.
20/ The Commission provisionally adopted this article (then article 15) at its thirty-fifth session. For the commentary thereto, see Yearbook … 1983, vol. II (Part Two), document A/38/10, chap. III.B.2. Paragraph 3 of the article when originally adopted appeared necessary and useful to ensure the integrity of State immunities in respect of the “premises of a diplomatic or special or other official mission or consular premises” as well as “the jurisdictional immunity enjoyed by a diplomatic agent in respect of private immovable property held on behalf of the sending State for the purposes of the mission”. These provisions are no longer necessary in view of the adoption of articles 21 and 22 and particularly of article 4, paragraph 1, which reserves in fact the applicability of existing rSgimes under the various conventions currently in force, especially article 31(1) (a) of the Vienna Convention on Diplomatic Relations, 19.
21/ The Commission provisionally adopted this article (then article 16) at its thirty-sixth session. For the commentary thereto, see Official Records of the General Assembly, Thirty-ninth Session, Supplement No. 10 (A/39/10), chap. IV.B..
22/ Ibid. This article was originally adopted as article 1.
23/ Ibid. This article was originally adopted as article 1.
24/ The Commission provisionally adopted this article (then article 19) at its thirty-seventh session. For the commentary thereto, see Official Records of the General Assembly, Fortieth Session, Supplement No. 10 (A/40/10),chap. V.B..
25/ Ibid. This article was originally adopted as article 2.
26/ The Commission provisionally adopted this article at its thirty-eighth session. For the commentary thereto see below section 2 of the present chapter of this repor.
27/ Ibid.
28/ Ibid.
29/ Ibid.
30/ Ibid.
31/ Ibid.
32/ Ibid.
33/ Ibid.
34/ Ibid.