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The Forty-ninth Session of the International Law Commission
Published online by Cambridge University Press: 27 February 2017
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The International Law Commission of the United Nations held its forty-ninth session in Geneva from May 12 to July 18, 1997, under the chairmanship of Professor Alain Pellet of France. The Commission concluded its first reading of a draft declaration on nationality in relation to the succession of states; adopted preliminary conclusions on a key element of the topic of reservations to treaties; and appointed new special rapporteurs for state responsibility, international liability for injurious consequences of acts not prohibited by international law, unilateral acts of states, and diplomatic protection. The Commission also established working groups on each of these topics.
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References
1 The special rapporteurs are, respectively, James Crawford, P. S. Rao, Victor Rodriguez Cedeño, and Mohamed Bennouna.
2 Report of the International Law Commission on the work of its forty-ninth session, UN GAOR, 52d Sess., Supp. No. 10, at 148, para. 221, UN Doc. A/52/10 (1997) [hereinafter 1997 Report].
3 For example, two special rapporteurs retired in 1996 after the end of the previous quinquennium, and the 1997 session included 18 new members. Some have suggested that, instead of electing the entire Commission every five years, a system of staggered elections similar to that followed by the International Court of Justice should be instituted to make the changes in membership more gradual.
4 1997 Report, supra note 2, at 8, para. 26. Issues noted by the Commission on which comments would be particularly helpful were the draft declaration on nationality, the preliminary conclusion on reservations, and aspects of state responsibility (e.g., crimes, countermeasures, dispute settlement), as well as aspects of liability, diplomatic protection and unilateral acts.
5 As recognized in Nationality Decrees Issued in Tunis and Morocco, 1923 PCIJ (ser. B) No. 4, at 24, even where matters fall in the domain of national legislation, the freedom of discretion of the state could be restricted by its international obligations.
6 Part II follows the structure of the types of succession contained in the Convention on Succession of States in Respect of State Property, Archives and Debts, opened for signature Apr. 8, 1983, UN Doc. A/CONF.117/14 (1983), 22 ILM 306 (1983), i.e., transfer of part of the state’s territory, unification, dissolution and separation. The draft does not include separate treatment for “newly independent States,” “as it believed one of the above four sections would be applicable, mutatis mutandis, in any remaining case of decolonization in the future.” 1997 Report, supra note 2, at 73, Commentary to Art. 19.
7 Some members would have restricted the right of a person concerned to opt for the nationality of the predecessor state to circumstances in which the person had special ties to that state of an ethnic or linguistic nature. Americans who recognize the importance of our motto, “e pluribus unum,” may be glad to be free of the tribalism that lies behind a wish so to restrict the choice.
8 Second Report on reservations to treaties, UN Doc. A/CN.4/477 & Add.1 (1996). The Commission considered Alain Pellet’s first report, UN Doc. A/CN.4/470 & Corr.1 (1995), at its forty-seventh and forty-eighth sessions in 1995 and 1996.
9 1997 Report, supra note 2, at 100, para. 65, 103, para. 75, & 105, para. 78, respectively.
10 UN Doc. CCPR/C/21/Rev.1/Add.6 (1994).
11 The Legal Counsel’s advice, issued regarding the parallel situation of the Convention and Committee on the Elimination of Racial Discrimination, was as follows:
The Committee is not a representative organ of the States parties (which alone have general competence with regard to the implementation of the Convention). When a reservation has been accepted at the conclusion of the procedure expressly provided for by the Convention (article 20), a decision—even a unanimous decision—by the Committee that such a reservation is unacceptable could not have any legal effect.
1976 UN Jurid. Y.B. 219, 221, UN Doc. ST/LEG/SER.C/14.
12 1997 Report, supra note 2, at 125, para. 157.
13 See Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, Annex I, UN Doc. A/51/10 (1996).
14 UN Doc. A/CN.4/479, sec. C (1997).
15 UN Doc. A/CN.4/481 & Add.1 (1997).
16 As will be recalled, the Commission has struggled with this topic for years. It originated in the topic on state responsibility but was separated from it because the then special rapporteur, Professor (and later Judge) Roberto Ago, believed it would unduly complicate the work on state responsibility, which was to be restricted to secondary rules, the only exception being so-called crimes of states.
17 See the working group’s report to the Commission, UN Doc. A/CN.4/L.538 (1997), for a full discussion of its work during the 49th session.
18 See Report of the International Law Commission on the work of its forty-eighth session, supra note 13, at 230, 328–29.
19 1997 Report, supra note 2, at 141.
20 Id. at 143–44.
21 Id. at 9–10.
22 Id. at 134–35. See also Mavrommatis Palestine Concessions, 1924 PCIJ (ser. A) No. 2 (Aug. 30); Panevezys-Saldutiskis Railway, 1939 PCIJ (ser. A/B) No. 76 (Feb. 28).
* Member, International Law Commission. The views in this report are those of the author and do not necessarily represent those of the United States Government. The Note is based in part on a draft prepared by Jonathan Vessey.