YEARBOOK INTERNATIONAL LAW COMMISSION 1994 · of its forty-sixth session (2 May-22 July 1994) CONTENTS Page Abbreviations 6 Note concerning quotations 7 Multilateral instruments cited

A/CN.4/SER.A/1994/Add.l (Part 2)

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1994Volume II

Part Two

Report of the Commissionto the General Assembly

on the workof its forty-sixth session

UNITED NATIONS


YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1994Volume II

Part Two

Report of the Commissionto the General Assembly

on the workof its forty-sixth session

UNITED NATIONS

New York and Geneva, 1997

NOTE

Symbols of United Nations documents are composed of capital letters combinedwith figures. Mention of such a symbol indicates a reference to a United Nationsdocument.

References to the Yearbook of the International Law Commission are abbreviatedto Yearbook... , followed by the year (for example, Yearbook... 1991).

The Yearbook for each session of the International Law Commission comprisestwo volumes:

Volume I: summary records of the meetings of the session;Volume II (Part One): reports of special rapporteurs and other documents con-

sidered during the session;Volume II (Part Two): report of the Commission to the General Assembly.All references to these works and quotations from them relate to the final printed

texts of the volumes of the Yearbook issued as United Nations publications.

Copyright © United Nations, 1996All rights reserved

Printed at United Nations, Geneva, Switzerland

Applications for the right to reproduce this work or parts thereof are welcomed and shouldbe sent to the Secretary of the Publications Board, United Nations Headquarters, New York,NY 10017, United States of America. Member States and their governmental institutionsmay reproduce this work without application, but are requested to inform the United Nationsof such reproduction.


UNITED NATIONS PUBLICATION

Sales No. E.96.V.2 (Part 2)ISBN 92-1-133504-3

Complete set of two volumes:ISBN 92-1-133505-1

ISSN 0082-8289

CONTENTS

Page

Document A/49/10: Report of the International Law Commissionon the work of its forty-sixth session (2 May-22 July 1994) 1

Check-list of documents of the forty-sixth session 183

iii

DOCUMENT A/49/10*

Report of the International Law Commission on the workof its forty-sixth session (2 May-22 July 1994)

CONTENTS

Page

Abbreviations 6Note concerning quotations 7Multilateral instruments cited in the present volume 7

Chapter Paragraphs

I. ORGANIZATION OF THE SESSION 1-22 15

A. Membership 2-3 15

B. Officers 4-6 15

C. Drafting Committee 7-10 16

D. Working Group on a draft statute for an international criminal court 11-12 16

E. Secretariat 13 16

F. Agenda 14-15 16

G. General description of the work of the Commission at its forty-sixth session 16-22 16

II. DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND 23-209 18

A. Introduction 23-41 18

B. Consideration of the topic at the present session 42-209 20

1. Draft statute for an international criminal court 42-91 20(a) Consideration of the report of the Working Group established at the forty-fifth

session 42-76 20(i) General observations 45-48 21

(ii) Nature of the court 49-50 21(hi) Method of establishing the court 51-52 22(iv) Relationship to the United Nations 53-55 22(v) Law to be applied by the court 56-57 23

(vi) Jurisdiction 58-60 23a. Personal jurisdiction 58 23b. Subject-matter jurisdiction 59-60 23

(vii) State acceptance of jurisdiction 61 23(viii) Election of the judges 62 24

(ix) Structure of the court 63 24(x) Submission of cases to the court 64-66 24

(xi) State consent requirements for jurisdiction 67-68 24(xii) Prosecuting authority 69 . 24

(xiii) Handing over of an accused person to the court 70 24(xiv) Trial proceedings 71-73 25(xv) Penalties 74 25

(xvi) Rules of procedure 75 25(xvii) Financing the court 76 25

(b) Re-establishment of the Working Group on a draft statute for an international crimi-nal court 77-78 25

(c) Outcome of the work carried out by the Working Group on a draft statute for aninternational criminal court 79-88 25

id) Tribute to the Chairmen of the successive Working Groups 89 26(e) Recommendation of the Commission 90 26(/) Draft statute for an international criminal court 91 26

Commentary to the Preamble 91 27

* Initially distributed as Official Records of the General Assembly, Forty-ninth Session, Supplement No. 10.

Report of the International Law Commission on the work of its forty-sixth session

Page

PART ONE. ESTABLISHMENT OF THE COURT

Article 1. The Court 27Commentary 27

Article 2. Relationship of the Court to the United Nations 27Commentary 27

Article 3. Seat of the Court 28Commentary 28

Article 4. Status and legal capacity 29Commentary 29

PART TWO. COMPOSITION AND ADMINISTRATION OF THE COURT

Article 5. Organs of the Court 29Commentary 29

Article 6. Qualification and election of judges 29Commentary 30

Article 7. Judicial vacancies 30Commentary 30

Article 8. The Presidency 30Commentary 31

Article 9. Chambers 31Commentary 32

Article 10. Independence of the judges 32Commentary 32

Article 11. Excusing and disqualification of judges 33Commentary 33

Article 12. TheProcuracy 33Commentary 33

Article 13. The Registry 34Commentary 34

Article 14. Solemn undertaking 34Commentary 34

Article 15. Loss of office 34Commentary 34

Article 16. Privileges and immunities 34Commentary 35

Article 17. Allowances and expenses 35Commentary 35

Article 18. Working languages 35Commentary 35

Article 19. Rules of the Court 35Commentary 36

PART THREE. JURISDICTION OF THE COURT

Commentary 36Article 20. Crimes within the jurisdiction of the Court 38

Commentary 38Article 21. Preconditions to the exercise of jurisdiction 41

Commentary 41Article 22. Acceptance of the jurisdiction of the Court for the purposes of

article 21 42Commentary 43

Article 23. Action by the Security Council 43Commentary 44

Article 24. Duty of the Court as to jurisdiction 45Commentary 45

PART FOUR. INVESTIGATION AND PROSECUTION

Article 25. Complaint 45Commentary 45

Article 26. Investigation of alleged crimes 46Commentary 46

Article 27. Commencement of prosecution 47Commentary 48

Article 28. Arrest 49Commentary 49

Article 29. Pre-trial detention or release 49Commentary 49

Article 30. Notification of the indictment 50Commentary 50

Article 31. Persons made available to assist in a prosecution 50Commentary 51

PART FIVE. THE TRIAL

Article 32. Place of trial 51Commentary 51

Article 33. Applicable law 51Commentary 51

Contents 3

Page

Article 34. Challenges to jurisdiction 52Commentary 52

Article 35. Issues of admissibility 52Commentary 52

Article 36. Procedure under articles 34 and 35 52Commentary 53

Article 37. Trial in the presence of the accused 53Commentary 53

Article 38. Functions and powers of the Trial Chamber % 54Commentary 54

Article 39. Principle of legality {nullum crimen sine lege) 55Commentary 55

Article 40. Presumption of innocence 56Commentary 56

Article 41. Rights of the accused 56Commentary 56

Article 42. Non bis in idem 57Commentary 57

Article 43. Protection of the accused, victims and witnesses 58Commentary 58

Article 44. Evidence 58Commentary 58

Article 45. Quorum and judgement 59Commentary 59

Article 46. Sentencing 60Commentary 60

Article 47. Applicable penalties 60Commentary 60

PART SIX. APPEAL AND REVIEW

Article 48. Appeal against judgement or sentence 61Commentary 61

Article 49. Proceedings on appeal 61Commentary 61

Article 50. Revision 62Commentary 62

PART SEVEN. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

Article 51. Cooperation and judicial assistance 62Commentary 62

Article 52. Provisional measures 63Commentary 63

Article 53. Transfer of an accused to the Court 63Commentary 64

Article 54. Obligation to extradite or prosecute 65Commentary 65

Article 55. Rule of speciality 65Commentary 65

Article 56. Cooperation with States not parties to this Statute 65Commentary 66

Article 57. Communications and documentation 66Commentary 66

PART EIGHT. ENFORCEMENT

Article 58. Recognition of judgements 66Commentary 66

Article 59. Enforcement of sentences 66Commentary 66

Article 60. Pardon, parole and commutation of sentences 67Commentary 67

ANNEX. Crimes pursuant to treaties 67Commentary 68Appendix I. Possible clauses of a treaty to accompany the draft statute 69Appendix II. Relevant treaty provisions mentioned in the annex 70Appendix III. Outline of possible ways whereby a permanent international criminal court

may enter into relationship with the United Nations 73

Paragraphs

2. Draft Code of Crimes against the Peace and Security of Mankind 92-209 74

Chapter

III. THE LAW OF THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES 210-222 88

A. Introduction 210-218 88B. Recommendation of the Commission 219 88C. Tribute to the Special Rapporteur, Mr. Robert Rosenstock 220-221 89D. Draft articles on the law of the non-navigational uses of international watercourses and com-

mentaries thereto and resolution on transboundary confined groundwater 222 89


Page

PART ONE. INTRODUCTION

Article 1. Scope of the present articles 89Commentary 89

Article 2. Use of terms 90Commentary 90

Article 3. Watercourse agreements 92Commentary 92

Article 4. Parties to watercourse agreements 95Commentary 95

PART TWO. GENERAL PRINCIPLES

Article 5. Equitable and reasonable utilization and participation 96Commentary 96

Article 6. Factors relevant to equitable and reasonable utilization 101Commentary 101

Article 7. Obligation not to cause significant harm 102Commentary 103

Article 8. General obligation to cooperate 105Commentary 105

Article 9. Regular exchange of data and information 107Commentary 107

Article 10. Relationship between different kinds of uses 109Commentary 109

PART THREE. PLANNED MEASURES

Article 11. Information concerning planned measures 111Commentary I l l

Article 12. Notification concerning planned measures with possible adverse effects 111Commentary 111

Article 13. Period for reply to notification 113Commentary 113

Article 14. Obligations of the notifying State during the period for reply 114Commentary 114

Article 15. Reply to notification 114Commentary 114

Article 16. Absence of reply to notification 115Commentary 115

Article 17. Consultations and negotiations concerning planned measures 115Commentary 116

Article 18. Procedures in the absence of notification 116Commentary 117

Article 19. Urgent implementation of planned measures 117Commentary 117

PART FOUR. PROTECTION, PRESERVATION AND MANAGEMENT

Article 20. Protection and preservation of ecosystems 118Commentary 118

Article 21. Prevention, reduction and control of pollution 121Commentary 121

Article 22. Introduction of alien or new species 123Commentary 124

Article 23. Protection and preservation of the marine environment 124Commentary 124

Article 24. Management 125Commentary 125

Article 25. Regulation 126Commentary 126

Article 26. Installations 127Commentary 127

PART FIVE. HARMFUL CONDITIONS AND EMERGENCY SITUATIONS

Article 27. Prevention and mitigation of harmful conditions 128Commentary 128

Article 28. Emergency situations 129Commentary 129

PART SIX. MISCELLANEOUS PROVISIONS

Article 29. International watercourses and installations in time of armed conflict 131Commentary 131

Article 30. Indirect procedures 131Commentary 131

Article 31. Data and information vital to national defence or security 132Commentary 132

Article 32. Non-discrimination 132Commentary 132

Article 33. Settlement of disputes 133Commentary 134

Resolution on confined transboundary groundwater 135

Contents 5

ChapterParagraphs Page

IV. STATE RESPONSIBILITY 223-353 136

A. Introduction 223-228 136

B. Consideration of the topic at the present session 229-353 1371. The question of the consequences of acts characterized as crimes under article 19 of part

one of the draft 229-346 137(a) The distinction between crimes and delicts as embodied in article 19 of part one of

the draft 234-260 137(i) The concept of crime 234-236 137

(ii) The question of the legal and political basis of the concept of crime 237-238 137(iii) The type of responsibility entailed by breaches characterized as crimes in

article 19 of part one of the draft 239-245 138(iv) The need for the concept of crime—possible alternative approaches 246-251 139(v) The definition contained in article 19 of part one of the draft 252-260 140

(Jb) Issues raised and questions posed by the Special Rapporteur in his fifth and sixthreports as relevant to the elaboration of a regime of State responsibility for crimes 261 -321 141

(i) Who determines that a crime has been committed? 261-266 141(ii) The possible consequences of a determination of a crime 267-288 142

a. Substantive consequences 268-274 142b. The instrumental consequences (countermeasures) 275-288 142

(iii) The punitive implications of the concept of crime 289-295 144(iv) The role of the United Nations in determining the existence and the conse-

quences of a crime 296-314 145(v) Possible exclusion of crimes from the scope of application of the provisions

on circumstances precluding wrongfulness 315-316 147(vi) The general obligation of non-recognition of the consequences of a crime 317-318 147

(vii) The general obligation not to aid a "criminal" State 319 147(c) The courses of action open to the Commission 320-324 148id) Conclusions of the Special Rapporteur on the debate 325-343 148(e) Views expressed subsequent to the formulation by the Special Rapporteur of his

conclusions on the debate 344-346 1512. Pre-countermeasures dispute settlement procedures so far envisaged for the draft articles

on State responsibility 347-353 151

V. INTERNATIONAL LIABILITY FOR INJURIOUS CONSEQUENCES ARISING OUT OF ACTS NOTPROHIBITED BY INTERNATIONAL LAW 354-380 153

A. Introduction 354-359 153B. Consideration of the topic at the present session 360-379 154

1. Draft articles adopted by the Drafting Committee at the forty-fifth and forty-sixthsessions of the Commission 360-361 154

2. The tenth report of the Special Rapporteur 362-363 154(a) Prevention ex-post facto 364-365 154(b) State liability 366-379 155

(i) Relationship between State liability and civil liability 367-369 155(ii) Civil liability 370-378 156

a. Liability of the operator 371 156b. Obligation to purchase insurance 372 156c. Competent court 373 157d. Non-discrimination 374 157e. Causality 375 157f. Enforcement of judgements 376 157g. Exceptions to liability 377 157h. Statute of limitations 378 158

(c) Procedural channels 379 158C. Draft articles on international liability for injurious consequences arising out of acts not pro-

hibited by international law 380 1581. Text of the draft articles provisionally adopted so far by the Commission 1582. Text of draft articles 1, 2 (subparas. (a), (b) and (c)), 11 to 14 bis [20 bis], 15 to 16 bis

and 17 to 20 with commentaries thereto, provisionally adopted by the Commission at itsforty-sixth session 160

General commentary 160

[Chapter I. General provisions]Article 1. Scope of the present articles 161

Commentary 161Article 2. Use of terms 164

Commentary 164

[Chapter II. Prevention]Article 11. Prior authorization 166

Commentary 166Article 12. Risk assessment 166

Commentary 166Article 13. Pre-existing activities 168

Commentary 168

6 Report of the International Law Commission on the work of its forty-sixth session

Page

Article 14. Measures to prevent or minimize the risk 169Commentary 169

Article 14 bis [20 bis]. Non-transference of risk 170Commentary 170

Article 15. Notification and information 171Commentary 171

Article 16. Exchange of information 172Commentary 172

Article 16 bis. Information to the public 173Commentary 173

Article 17. National security and industrial secrets 174Commentary 174

Article 18. Consultations on preventive measures 174Commentary 174

Article 19. Rights of the State likely to be affected 176Commentary 176

Article 20. Factors involved in an equitable balance of interests 177Commentary 177

Chapter Paragraphs

VI. OTHER DECISIONS AND CONCLUSIONS OF THE COMMISSION

A. The law and practice relating to reservations to treaties 381 179B. State succession and its impact on the nationality of natural and legal persons 382 179C. Programme, procedures and working methods of the Commission, and its documentation 383-401 179

1. Planning of the activities for the remainder of the quinquennium 386-389 1792. Contribution of the Commission to the United Nations Decade of International Law 390-393 1803. Documentation of the Commission 394-398 1804. Methods of work 399-400 1815. Duration of the next session 401 181

D. Cooperation with other bodies 402-404 181E. Date and place of the forty-seventh session 405 181F. Representation at the forty-ninth session of the General Assembly and at the Congress of

Public International Law (New York, 13-17 March 1995) 406 181G. International Law Seminar 407-417 181

ABBREVIATIONS

ASEAN Association of South-East Asian NationsCSCE Conference on Security and Cooperation in EuropeECA Economic Commission for AfricaECE Economic Commission for EuropeFAO Food and Agricultural Organization of the United NationsGATT General Agreement on Tariffs and TradeIAEA International Atomic Energy AgencyIBRD International Bank for Reconstruction and DevelopmentICJ International Court of JusticeICRC International Committee of the Red CrossILA International Law AssociationITU International Telecommunication UnionIUCN International Union for Conservation of Nature and Natural ResourcesOAS Organization of American StatesOECD Organisation for Economic Co-operation and DevelopmentPCIJ Permanent Court of Internationa! JusticeUNDP United Nations Development ProgrammeUNEP United Nations Environment ProgrammeWMO World Meteorological Organization

Contents

A/509 "Legal problems relating to the utilization and use of internationalrivers", report by the Secretary-General, reproduced in Yearbook . . .1974, vol. II (Part Two), p. 33

A/CN.4/274 "Legal problems relating to the non-navigational uses of internationalwatercourses", supplementary report by the Secretary-General, repro-duced in Yearbook. .. 1974, vol. II (Part Two), p. 265

AJIL American Journal of International LawI.C.J. Reports ICJ, Reports of Judgments, Advisory Opinions and OrdersILM International Legal Materials (Washington, D.C.)ILR International Law ReportsLegislative Texts United Nations Legislative Series, Legislative Texts and Treaty Provi-

sions concerning the Utilization of International Rivers for OtherPurposes than Navigation (Sales No. 63.V.4), first part

RGDIP Revue generate de droit international publicUNRIAA United Nations, Reports of International Arbitral AwardsWhiteman, Digest M. M. Whiteman, Digest of International Law (Washington, D.C.)

NOTE CONCERNING QUOTATIONS

In quotations, words or passages in italics followed by an asterisk were not italicized in the originaltext.

Unless otherwise indicated, quotations from works in languages other than English have been trans-lated by the Secretariat.

MULTILATERAL INSTRUMENTS CITED IN THE PRESENT VOLUME

Source

HUMAN RIGHTS

Convention on the Prevention and Punishment of the Crime of United Nations, TreatyGenocide (New York, 9 December 1948) Series, vol. 78, p. 277.

Convention for the Protection of Human Rights and Fundamental Ibid., vol. 213, p. 221.Freedoms (Rome, 4 November 1950)

International Convention on the Elimination of All Forms of Racial Ibid., vol. 660, p. 195.Discrimination (New York, 21 December 1965)

International Covenant on Economic, Social and Cultural Rights Ibid., vol. 993, p. 3.(New York, 16 December 1966)

International Covenant on Civil and Political Rights (New York, Ibid., vol. 999, p. 171.16 December 1966)

Optional Protocol to the International Covenant on Civil and Ibid.Political Rights (23 March 1976)

Convention on the Non-Applicability of Statutory Limitations to Ibid., vol. 754, p. 73.War Crimes and Crimes against Humanity (New York, 26 No-vember 1968)


International Convention on the Suppression and Punishment ofthe Crime of Apartheid (New York, 30 November 1973)

Convention against Torture and Other Cruel, Inhuman or Degrad-ing Treatment or Punishment (New York, 10 December 1984)

Source

Ibid., vol. 1015, p. 243.

Official Records of theGeneral Assembly,Thirty-ninth Session,Supplement No. 51,resolution 39/46, annex.

PRIVILEGES AND IMMUNITIES, DIPLOMATIC RELATIONS

Vienna Convention on Diplomatic Relations (Vienna, 18 April1961)

Convention on the Prevention and Punishment of Crimes againstInternationally Protected Persons, including Diplomatic Agents(New York, 14 December 1973)

United Nations, TreatySeries, vol. 500, p. 95.

Ibid., vol. 1035, p. 167.

LAW OF TREATIES

Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) Ibid., vol. 1155, p. 331.

LAW APPLICABLE IN ARMED CONFLICT

Convention respecting the laws and Customs of War on Land(The Hague, 18 October 1907)

J. B. Scott, ed., The HagueConventions and Decla-rations of 1899 and1907, 3rd edition (NewYork, Oxford UniversityPress, 1918), p. 100.

Treaty of Versailles (Versailles, 28 June 1919)

Geneva Protocol for the Prohibition of the Use in War of Asphyxi-ating, Poisonous or Other Gases, and of Bacteriological Meth-ods of Warfare (Geneva, 17 June 1925)

Treaty of Peace with Italy (Paris, 19 February 1947)

Geneva Conventions for the protection of war victims (Geneva,12 August 1949)

Geneva Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field

G. F. de Martens, NouveauRecueil general de Trai-tes, 3rd series, vol. XI(Leipzig, Weicher, 1923),p. 323.

League of Nations, TreatySeries, vol. XCIV, p. 65.


Ibid., vol. 75, pp. 31 et seq.

Ibid., p. 31.

Geneva Convention for the Amelioration of the Condition ofWounded, Sick and Shipwrecked Members of Armed Forces atSea

Geneva Convention relative to the Treatment of Prisoners of War

Geneva Convention relative to the Protection of Civilian Personsin Time of War

Protocols additional to the Geneva Conventions of 12 August1949, and relating to the protection of victims of armed conflicts(Protocols I and II) (Geneva, 8 June 1977)

Convention for the Protection of Cultural Property in the Event ofArmed Conflict and Protocol (The Hague, 14 May 1954)

International Convention against the Recruitment, Use, Financingand Training of Mercenaries (New York, 4 December 1989)

Ibid., p. 85.

Ibid., p. 135.

Ibid., p. 287.

Ibid., vol. 1125, pp. 3 etseq.

Ibid., vol. 249, p. 215.

Official Records of theGeneral Assembly,Forty-fourth Session,Supplement No. 49, reso-lution 44/34,annex.

Contents

Source

PEACEFUL SETTLEMENT OF DISPUTES

Convention for the Pacific Settlement of International Disputes(The Hague, 29 July 1899 and 18 October 1907)

J. B. Scott, ed., The HagueConventions and Decla-rations of 1899 and1907, 3rd edition (NewYork, Oxford Univer-sity Press, 1918), p. 41.

DISARMAMENT

Convention on the Prohibition of the Development, Production andStockpiling of Bacteriological (Biological) and Toxin Weaponsand on Their Destruction (London, Moscow and Washington,D.C., 10 April 1972)

Convention on the Prohibition of Military or any Other HostileUse of Environmental Modification Techniques (New York,10 December 1976)

Convention on Prohibitions or Restrictions on the Use of CertainConventional Weapons which may be deemed to be Exces-sively Injurious or to have Indiscriminate Effects (Geneva,10 October 1980)

TERRORISM

International Convention against the Taking of Hostages (NewYork, 17 December 1979)


Ibid., vol. 1108, p. 151.

Ibid., p. 1342, p. 137.

Ibid., vol. 1316, p. 205.

ENVIRONMENT AND NATURAL RESOURCES

Convention with Protocol, between Switzerland, the Grand Duchyof Baden, and Alsace-Lorraine to establish uniform provisionsregarding fishing in the Rhine and its tributaries, including LakeConstance (Lucerne, 18 May 1887)

Convention and Statute on the Regime of Navigable Waterways ofInternational Concern (Barcelona, 20 April 1921)

Convention establishing the definitive Statute of the Danube(Paris, 23 July 1921)

Convention relating to the development of hydraulic power affect-ing more than one State (Geneva, 9 December 1923)

Convention on Nature Protection and Wild Life Preservation in theWestern Hemisphere (Washington, D.C., 12 October 1940)

Convention concluded by the Federal Republic of Germany, theFrench Republic and the Grand Duchy of Luxembourg concern-ing the canalization of the Moselle (Luxembourg, 27 October1956)

Agreement concerning the regulation of Lake Inari by means ofthe Kaitakoski hydroelectric power station and dam (Moscow,29 April 1959)

Switzerland, Federal Chan-cellery, Recueil systema-tique des lois et ordon-nances 1848-1947 (Bern,1953), vol. 14, p. 248[also United Nations,Legislative Series, Legis-lative Texts and TreatyProvisions concerningthe Utilization of Inter-national Rivers for OtherPurposes than Naviga-tion (Sales No. 63.V.4),No. 113, p. 397].

League of Nations, TreatySeries, vol. VII, p. 35.

Ibid., vol. XXVI, p. 173.

Ibid., vol. XXXVI, p. 75.


Federal Republic of Ger-many, Federal Ministryof Justice, Bundesge-setzblatt, 1956, part II,No. 36, p. 1838 [alsoUnited Nations, Legisla-tive Series, LegislativeTexts and Treaty Provi-sions concerning theUtilization of Interna-tional Rivers for OtherPurposes than Naviga-tion (Sales No. 63.V.4),No. 123, p. 424].



Source

Convention on the Protection of the Waters of Lake Constanceagainst Pollution (Steckborn, 27 October 1960)

Switzerland, Feuille fede-rate de la Confederationsuisse, 113th year, 1961(Bern, 1962), vol. I,p. 1171 [also UnitedNations, Legislative Se-ries, Legislative Texts andTreaty Provisions con-cerning the Utilizationof International Rivers forOther Purposes thanNavigation (Sales No.63.V.4), No. 127, p. 438).

Act regarding Navigation and Economic Cooperation between theStates of the Niger Basin (Niamey, 26 October 1963)

Convention and Statutes relating to the development of the ChadBasin (Fort Lamy, 22 May 1964)

Agreement concerning the Niger River Commission and the navi-gation and transport on the River Niger (Niamey, 25 November1964)

Agreement (with Final Protocol) regulating the withdrawal ofwater from Lake Constance (Bern, 30 April 1966)

African Convention on the Conservation of Nature and NaturalResources (Algiers, 15 September 1968)

Treaty of the River Plate Basin (Brasilia, 23 April 1969)


United Nations, Treatiesconcerning the Utilizationof International Water-courses for Other Pur-poses than Navigation:Africa, Natural Re-sources/Water SeriesNo. 13 (Sales No.E/F.84.II.A.7), p. 8.


Ibid., vol. 620, p. 191.

Ibid., vol. 1001, p. 3.

Ibid., vol. 875, p. 3.

Convention relating to the Status of the Senegal River, and Con-vention establishing the Organization for the Development ofthe Senegal River (Nouakchott, 11 March 1972)

Convention for the Protection of World Cultural and Natural Heri-tage (Paris, 16 November 1972)

Convention on the Prevention of Marine Pollution by Dumping ofWastes and Other Matter (London, Mexico City, Moscow andWashington, D.C., 29 December 1972)

Convention concerning the Creation of the Permanent Inter-StateCommittee for the Fight against Drought in the Sahel (Ouaga-dougou, 12 September 1973)

Convention on the Protection of the Environment and Protocol(Stockholm, 19 February 1974)

United Nations, Treatiesconcerning the Utili-zation of InternationalWatercourses for OtherPurposes than Naviga-tion: Africa, NaturalResources/Water SeriesNo. 13 (Sales No.E/F.84.II.A.7), pp. 16and 21.


Ibid., vol. 1046, p. 120.

Document A/9178.

United Nations, TreatySeries, vol. 1092; p. 279.

Convention on the Protection of the Marine Environment of theBaltic Sea Area (Helsinki, 22 March 1974)

Convention for the Prevention of Marine Pollution from Land-based Sources (Paris, 4 June 1974)

UNEP, Selected MultilateralTreaties in the Field ofthe Environment, Refer-ence Series 3 (Nairobi,1982), p. 405.

Ibid., p. 430.

Contents 11

Source

Convention for the Protection of the Mediterranean Sea againstPollution (Barcelona, 16 February 1976)

Agreement for the Protection of the Rhine against Chemical Pollu-tion (Bonn, 3 December 1976)


Ibid., vol. 1124, p. 375.

Agreement for the establishment of the Organization for the Man-agement and Development of the Kagera River Basin (Rusumo,24 August 1977)

Kuwait Regional Convention for Cooperation on the Protection ofthe Marine Environment from Pollution (Kuwait, 24 April 1978)

Ibid., vol. 1089, p. 165.

Ibid., vol. 1140, p. 133.

Convention relating to the status of the Gambia River, and Con-vention relating to the Creation of the Gambia River BasinDevelopment Organization (Kaolack, 30 June 1978)

Treaty for Amazonian Co-operation (Brasilia, 3 July 1978)

United Nations, Treatiesconcerning the Utiliza-tion of InternationalWatercourses for OtherPurposes than Naviga-tion: Africa, NaturalResources/Water SeriesNo. 13 (Sales No.E/F.84.II.A.7), pp. 39and 42.


Convention on the Conservation of European Wildlife and NaturalHabitats (Bern, 19 September 1979)

Convention on Long-Range Transboundary Air Pollution (Geneva,13 November 1979)

Protocol for the Protection of the Mediterranean Sea against Pollu-tion from Land-based Sources (Athens, 17 May 1980)

Convention creating the Niger Basin Authority (Faranah, 21 No-vember 1980)

Convention for Cooperation in the Protection and Development ofthe Marine and Coastal Environment of the West and CentralAfrican Region (Abidjan, 23 March 1981)

Regional Convention for the Conservation of the Red Sea and Gulfof Aden Environment (Jeddah, 14 February 1982)

Vienna Convention for the Protection of the Ozone Layer (Vienna,22 March 1985)

ASEAN Agreement on the Conservation of Nature and Natural Re-sources (Kuala Lumpur, 9 July 1983)

Convention for the Protection of the Natural Resources and Envi-ronment of the South Pacific Region (Noumea, 25 November1986)

Council of Europe, Euro-pean Treaty Series,No. 104.

Document E/ECE/1010[also UNEP, SelectedMultilateral Treaties inthe Field of the Environ-ment, Reference Series 3(Nairobi, 1983), p. 519].

UNEP, Selected Multilat-eral Treaties in the Fieldof the Environment(Cambridge, England,1991), vol. 2, p. 81.

United Nations, Treatiesconcerning the Utiliza-tion of InternationalWatercourses for OtherPurposes than Naviga-tion: Africa, Natural Re-sources/Water SeriesNo. 13 (Sales No.E/F.84.II.A.7),p.56.

International Legal Ma-terials (Washington,D.C.), vol. XX, No. 3(May 1981), p. 746.


Ibid., p. 301.

Ibid., p. 343.

International Legal Ma-terials (Washington,D.C.), vol. XXVI, No. 1(January 1987), p. 38.


Source

Montreal Protocol on Substances that Deplete the Ozone Layer(Montreal, 16 September 1987)

Convention on the Regulation of Antarctic Mineral ResourceActivities (Wellington, 2 June 1988)

Basel Convention on the Control of Transboundary Movements ofHazardous Wastes and Their Disposal (Basel, 22 March 1989)

International Convention on Oil Pollution Preparedness, Responseand Cooperation (London, 30 November 1990)

Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo, 25 February 1991)

Protocol to the Antarctic Treaty on Environmental Protection(Madrid, 4 October 1991)

Convention on the Protection and Use of Transboundary Water-courses and International Lakes (Helsinki, 17 March 1992)


International Legal Ma-terials (Washington, D.C.),vol. XXVII (1988),p. 868.


International Legal Ma-terials (Washington, D.C.),vol. XXX, No. 3 (May1991), p. 735.

ECE, Environmental Con-ventions, United Nationspublication, 1992, p. 95.

International Legal Ma-terials (Washington, D.C.),vol. XXX, No. 6 (Novem-ber 1991), p. 1461.

ECE, Environmental Con-ventions, United Nationspublication, 1992, p. 161.

Convention on the Transboundary Effects of Industrial Accidents(Helsinki, 17 March 1992)

United Nations Framework Convention on Climate Change (NewYork, 9 May 1992)

Convention on Biological Diversity (Rio de Janeiro, 5 June 1992)

Convention on Civil Liability for Damage Resulting from Activ-ities Dangerous to the Environment (21 June 1993)

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

Convention on Psychotropic Substances (Vienna, 21 February1971)

Single Convention on Narcotic Drugs, 1961, as amended by theProtocol amending the Single Convention on Narcotic Drugs,1961 (New York, 8 August 1975)

United Nations Convention against Illicit Traffic in Narcotic Drugsand Psychotropic Substances (Vienna, 20 December 1988)

Ibid., p. 1335.

Ibid., No. 4 (July 1992),p. 851.

Ibid., p. 822.

Council of Europe, Euro-pean Treaty Series,No. 150.


Ibid., vol. 976, p. 105.

Document E/CONF.82/15andCorr.l and 2.

CIVIL AVIATION

Convention on Offences and Certain Other Acts Committed onBoard Aircraft (Tokyo, 14 September 1963)

Convention for the Suppression of Unlawful Seizure of Aircraft(The Hague, 16 December 1970)

Convention for the Suppression of Unlawful Acts against theSafety of Civil Aviation (Montreal, 23 September 1971)


Ibid., vol. 860, p. 105.

Ibid., vol. 974, p. 177.

LAW OF THE SEA

Convention on the Territorial Sea and the Contiguous Zone(Geneva, 29 April 1958)

Convention on the High Seas (Geneva, 20 April 1958)

Ibid., vol. 516, p. 205.

Ibid., vol. 450, p. 11.

Contents 13

Convention on the Continental Shelf (Geneva, 29 April 1958)

Source

Ibid., vol. 499, p. 311.

Convention on Fishing and Conservation of the Living Resourcesof the High Seas (Geneva, 29 April 1958)

Ibid., vol. 559, p. 285.

United Nations Convention on the Law of the Sea (Montego Bay,10 December 1982)

Convention for the Suppression of Unlawful Acts against theSafety of Maritime Navigation (Rome, 10 March 1988)

Protocol for the Suppression of Unlawful Acts against the Safetyof Fixed Platforms located on the Continental Shelf (Rome,10 March 1988)

Official Records of theThird United NationsConference on the Lawof the Sea, vol. XVII(Sales No. E.84.V.3),p. 151, document A/CONF.62/122.

IMO, convention No. 18.1988.

Ibid.

LIABILITY

Convention on Third Party Liability in the Field of Nuclear Energy(Paris, 29 July 1960)

and Additional Protocol (Paris, 28 January 1964)


Ibid., p. 325.

Convention on the Liability of Operators of Nuclear Ships (Brus-sels, 25 May 1962)

Convention Supplementary to the Paris Convention of 29 July1960 on Third Party Liability in the Field of Nuclear Energy(Brussels, 31 January 1963)

Vienna Convention on Civil Liability for Nuclear Damage (Vienna,21 May 1963)

IAEA, International Con-ventions on Civil Liabil-ity for Nuclear Damage,Legal Series, No. 4, rev.ed. (Vienna, 1976),p. 34.

Ibid., p. 43.


Convention on International Liability for Damage Caused by SpaceObjects (London, Moscow and Washington, D.C., 29 March1972)

Convention on Civil Liability for Oil Pollution Damage Resultingfrom Exploration for and Exploitation of Seabed MineralResources (London, 17 December 1976)

Convention on Early Notification of a Nuclear Accident (Vienna,26 September 1986)

Convention on Civil Liability for Damage Caused during Carriageof Dangerous Goods by Road, Rail and Inland NavigationVessels (CRTD) (Geneva, 10 October 1989)

Ibid., vol. 961, p. 187.

UNEP, Selected Multilat-eral Treaties in the Fieldof the Environment, Ref-erence Series 3 (Nairobi,1983), p. 474.

IAEA, Legal Series, No. 14(Vienna, 1987).

United Nations publication(Sales No. E.90.II.E.39).

TELECOMMUNICATIONS

International Radiotelegraph Convention (Washington, D.C.,25 November 1927)

International Convention concerning the Use of Broadcasting inthe Cause of Peace (Geneva, 23 September 1936)

League of Nations, TreatySeries, vol. LXXXIV,p. 97.

Ibid., vol.p. 301.

CLXXXVI,

Chapter I

ORGANIZATION OF THE SESSION

1. The International Law Commission established inpursuance of General Assembly resolution 174 (II) of21 November 1947, in accordance with its statute annexedthereto, as subsequently amended, held its forty-sixthsession at its permanent seat at the United Nations Officeat Geneva from 2 May to 22 July 1994. The session wasopened by the Vice-Chairman of the forty-fourth session,Mr. Gudmundur Eiriksson.

A. Membership

2. The Commission consists of the following members:

Mr. Husain AL-BAHARNA (Bahrain);Mr. Awn AL-KHASAWNEH (Jordan);Mr. Gaetano ARANGIO-RUIZ (Italy);Mr. Julio BARBOZA (Argentina);Mr. Mohamed BENNOUNA (Morocco);Mr. Derek William BOWETT (United Kingdom of Great

Britain and Northern Ireland);Mr. Carlos CALERO RODRIGUES (Brazil);Mr. James CRAWFORD (Australia);Mr. John de SARAM (Sri Lanka);Mr. Gudmundur EIRIKSSON (Iceland);Mr. Nabil ELARABY (Egypt);Mr. Salifou FoMBA(Mali);Mr. Mehmet GUNEY (Turkey);Mr. Qizhi HE (China);Mr. Kamil IDRIS (Sudan);Mr. Andreas JACOVIDES (Cyprus);Mr. Peter KABATSI (Uganda);Mr. Mochtar KUSUMA-ATMADJA (Indonesia);Mr. Ahmed MAHIOU (Algeria);Mr. Vaclav MIKULKA (Czech Republic);Mr. Guillaume PAMBOU-TCHIVOUNDA (Gabon);Mr. Alain PELLET (France);Mr. Pemmaraju SREENIVASA RAO (India);Mr. Edilbert RAZAFINDRALAMBO (Madagascar);Mr. Patrick Lipton ROBINSON (Jamaica);Mr. Robert ROSENSTOCK (United States of America);Mr. Alberto SZEKELY (Mexico);Mr. Doudou THIAM (Senegal);Mr. Christian TOMUSCHAT (Germany);Mr. Edmundo VARGAS CARRENO (Chile);Mr. Vladlen VERESHCHETIN (Russian Federation);Mr. Francisco VILLAGRAN KRAMER (Guatemala);Mr. Chusei YAMADA (Japan);Mr. Alexander YANKOV (Bulgaria).

3. At its 2331st meeting, on 5 May 1994, the Commis-sion elected Mr. Nabil Elaraby (Egypt) and Mr. Qizhi He

(China) to fill the casual vacancies in the Commissioncreated by the election of Mr. Abdul Koroma and Mr.Jiuyong Shi to ICJ.

B. Officers

4. At its 2328th meeting, on 2 May 1994, the Commis-sion elected the following officers:

Chairman: Mr. Vladlen Vereshchetin;First Vice-Chairman: Mr. Chusei Yamada;Second Vice-Chairman: Mr. Francisco Villagran

Kramer;Chairman of the Drafting Committee: Mr. Derek Wil-

liam Bowett;Rapporteur: Mr. Peter Kabatsi.

5. The Enlarged Bureau of the Commission was com-posed of the officers of the present session, those mem-bers of the Commission who had previously served asChairman of the Commission,1 and the Special Rappor-teurs.2 The Chairman of the Enlarged Bureau was theChairman of the Commission. On the recommendation ofthe Enlarged Bureau, the Commission, at its 2330thmeeting, on 4 May 1994, set up for the present session aPlanning Group to consider the programme, proceduresand working methods of the Commission, and its docu-mentation, and to report thereon to the Enlarged Bureau.The Planning Group was composed of the followingmembers: Mr. Chusei Yamada (Chairman), Mr. Awn Al-Khasawneh, Mr. Mohamed Bennouna, Mr. Carlos CaleroRodrigues, Mr. John de Saram, Mr. Gudmundur Eiriks-son, Mr. Salifou Fomba, Mr. Mehmet Guney, Mr. An-dreas Jacovides, Mr. Mochtar Kusuma-Atmadja, Mr.Ahmed Mahiou, Mr. Pemmaraju Sreenivasa Rao,Mr. Edilbert Razafindralambo, Mr. Robert Rosenstock,Mr. Doudou Thiam, Mr. Edmundo Vargas Carreno,Mr. Vladlen Vereshchetin and Mr. Alexander Yankov.Mr. Alain Pellet served ex officio as Chairman of theWorking Group to consider the contribution of the Com-mission to the United Nations Decade of InternationalLaw.3

6. The group was open-ended and other members of theCommission were welcome to attend its meetings.

1 Namely, Mr. Julio Barboza, Mr. Christian Tomuschat, Mr. Dou-dou Thiam and Mr. Alexander Yankov,

2 Namely, Mr. Gaetano Arangio-Ruiz, Mr. Julio Barboza, Mr. Rob-ert Rosenstock and Mr. Doudou Thiam.

3 Proclaimed by the General Assembly in it resolution 44/23.

15


C. Drafting Committee

7. At its 2331st meeting, on 5 May 1994, the Commis-sion appointed for the topic "The law of the non-navigational uses of international watercourses", aDrafting Committee which was composed of the follow-ing members: Mr. Derek William Bowett (Chairman),Mr. Husain Al-Baharna, Mr. Carlos Calero Rodrigues,Mr. Salifou Fomba, Mr. Mehmet Giiney, Mr. KamilIdris, Mr. Peter Kabatsi, Mr. Guillaume Pambou-Tchivounda, Mr. Pemmaraju Sreenivasa Rao, Mr. Al-berto Szekely, Mr. Francisco Villagran Kramer, Mr.Chusei Yamada and Mr. Alexander Yankov. Mr. RobertRosenstock also took part in the Committee's work inhis capacity as Special Rapporteur for the topic.

8. The Drafting Committee had the same compositionfor the topic "International liability for injurious conse-quences arising out of acts not prohibited by interna-tional law". Mr. Julio Barboza also took part in theCommittee's work in his capacity as Special Rapporteurfor the topic.

9. Also at its 2331st meeting, the Commission ap-pointed for the topic "State responsibility", a DraftingCommittee which was composed of the following mem-bers: Mr. Derek William Bowett (Chairman), Mr. AwnAl-Khasawneh, Mr. Carlos Calero Rodrigues, Mr. JamesCrawford, Mr. John de Saram, Mr. Gudmundur Eiriks-son, Mr. Nabil Elaraby, Mr. Peter Kabatsi, Mr. MochtarKusuma-Atmadja, Mr. Vaclav Mikulka, Mr. GuillaumePambou-Tchivounda, Mr. Alain Pellet, Mr. Robert Ro-senstock and Mr. Christian Tomuschat. Mr. GaetanoArangio-Ruiz also took part in the Committee's work inhis capacity as Special Rapporteur for the topic.

10. Mr. Peter Kabatsi participated in the work of theDrafting Committee in his capacity as Rapporteur of theCommission.

D. Working Group on a draft statute for aninternational criminal court

11. At its 2331st meeting, on 5 May 1994, the Com-mission re-established its Working Group on a draft stat-ute for an international criminal court, bearing in mindthe request contained in paragraph 6 of General Assem-bly resolution 48/31, and appointed Mr. James Crawfordas Chairman of the Working Group.

12. At its 2332nd meeting, also on 5 May 1994, theCommission approved the following composition for theWorking Group: Mr. James Crawford (Chairman),Mr. Husain Al-Baharna, Mr. Awn Al-Khasawneh, Mr.Gaetano Arangio-Ruiz, Mr. Mohamed Bennouna, Mr.Derek William Bowett, Mr. Carlos Calero Rodrigues,Mr. John de Saram, Mr. Gudmundur Eiriksson, Mr. Sali-fou Fomba, Mr. Mehmet Giiney, Mr. Qizhi He, Mr. Ka-mil Idris, Mr. Pemmaraju Sreenivasa Rao, Mr. EdilbertRazafindralambo, Mr. Patrick Lipton Robinson, Mr.Robert Rosenstock, Mr. Christian Tomuschat, Mr. Vla-dlen Vereshchetin, Mr. Francisco Villagran Kramer andMr. Alexander Yankov. Mr. Doudou Thiam took part inthe work of the Working Group in his capacity as Spe-cial Rapporteur for the topic "Draft Code of Crimes

against the Peace and Security of Mankind". Mr. PeterKabatsi also took part in his capacity as Rapporteur ofthe Commission. The Working Group was open to everymember who wished to participate.

E. Secretariat

13. Mr. Hans Corell, Under-Secretary-General, theLegal Counsel, attended the session and represented theSecretary-General. Ms. Jacqueline Dauchy, Director ofthe Codification Division of the Office of Legal Affairs,acted as Secretary to the Commission and, in the absenceof the Legal Counsel, represented the Secretary-General.Mr. Manuel Rama-Montaldo, Senior Legal Officer,served as Senior Assistant Secretary to the Commission;Ms. Mahnoush H. Arsanjani and Mr. Mpazi Sinjela,Legal Officers, and Ms. Virginia Morris, Associate Le-gal Officer, served as Assistant Secretaries to the Com-mission.

F. Agenda

14. At its 2328th meeting, on 2 May 1994, the Com-mission adopted an agenda for its forty-sixth sessionconsisting of the following items:

1. Filling of casual vacancies (article 11 of the statute).2. Organization of work of the session.3. State responsibility.4. Draft Code of Crimes against the Peace and Security of Man-

kind.5. The law of the non-navigational uses of international water-

courses.6. International liability for injurious consequences arising out of

acts not prohibited by international law.7. Programme, procedures and working methods of the Commis-

sion, and its documentation.8. Cooperation with other bodies.9. Date and place of the forty-seventh session.

10. Other business.

15. The Commission considered all the items on itsagenda. It held 50 public meetings (2328th to 2377th)and, in addition, the Drafting Committee of the Commis-sion held 22 meetings, the Working Group on a draftstatute for an international criminal court held 27 meet-ings, the Enlarged Bureau held 3 meetings and the Plan-ning Group of the Enlarged Bureau held 3 meetings.

G. General description of the work of theCommission at its forty-sixth session

16. At its forty-sixth session, the Commissionachieved major progress on two topics on its agenda: itadopted a draft statute for an international criminal courtconsisting of 60 articles with commentaries (see chap-ter II) , and concluded the consideration of the topic"The law of the non-navigational uses of internationalwatercourses" by adopting on second reading a com-plete set of draft articles (see chapter III).

17. In the framework of the topic "Draft Code ofCrimes against the Peace and Security of Mankind" (seechapter II), the Commission re-established the WorkingGroup on a draft statute for an international criminalcourt and entrusted it with the task of reviewing the text

Organization of the session 17

drafted the previous year.4 The Commission receivedthree reports from the Working Group at the current ses-sion, the last of which contained the text of a draft stat-ute accompanied by commentaries (A/CN.4/L.491/Rev.2and Corr. 1 and Add.1-3).5 The Commission adopted thedraft statute and the commentaries thereto. It decided torecommend to the General Assembly that it convene aninternational conference of plenipotentiaries to study thedraft statute and to conclude a convention on the estab-lishment of an international criminal court.6

18. In the framework of the topic, the Commissionstarted the second reading of the draft Code of Crimesagainst the Peace and Security of Mankind adopted onfirst reading at its forty-third session.7 It had before it thetwelfth report of the Special Rapporteur, Mr. DoudouThiam (A/CN.4/460), which covered draft articles 1 to15.8 After considering these articles in plenary, the Com-mission referred them to the Drafting Committee.9

19. The Commission considered the topic "The law ofthe non-navigational uses of international watercourses"on the basis of the second report of the Special Rappor-teur, Mr. Robert Rosenstock (A/CN.4/462).10 The reportcontained, in addition to a few amendments to the draftarticles adopted on second reading by the Drafting Com-mittee at the previous session,11 new texts proposed bythe Special Rapporteur for the draft articles not yet con-sidered by the Drafting Committee, namely draft articles7 and 11 to 32, as well as a new draft article on the set-tlement of disputes. The Commission referred those draftarticles to the Drafting Committee. On the basis of therecommendations of the Drafting Committee, it adoptedon second reading a complete set of draft articles on thetopic and a draft resolution on transboundary confinedgroundwater.12 It also decided to recommend the draftarticles on the law of the non-navigational uses of inter-national watercourses and the resolution on transbound-ary confined groundwater to the General Assembly,13

and to recommend the elaboration of a convention by theAssembly or by an international conference of plenipo-tentiaries on the basis of the draft articles.14

20. As regards the topic "State responsibility", theCommission considered: (a) Chapter II of the fifth re-port (A/CN.4/453 and Add.1-3) and Chapter II of thesixth report of the Special Rapporteur, Mr. Gaetano

4 See Yearbook . . . 1993, vol. II (Part Two), document A/48/10,annex. The text was considered from the 2329th to 2334th meetings,held between 3 and 9 May 1994.

5 The final version of the Working Group's report was examined atthe 2374th to 2376th meetings, held on 21 and 22 July 1994.

6 See chapter II, section B.I below.7 For the text of the draft articles provisionally adopted on first

reading, see Yearbook. .. 1991, vol. II (Part Two), pp. 94-97.8 The report was examined at the 2344th to 2347th and 2349th to

2350th meetings, held between 27 May and 3 June and on 7 June1994.

9 See chapter II, section B.2 below.10 The report was examined at the 2334th to 2339th meetings, held

between 9 and 17 May 1994.11 See Yearbook . . . 1993, vol. II (Part Two), chap. V.12 The recommendations of the Drafting Committee were exam-

ined at the 2353rd to 2356th meetings, held between 21 and 24 June1994.

13 The decision was taken at the 2362nd meeting, on 8 July 1994.14 See chapter III below.

Arangio-Ruiz (A/CN.4/461 and Add.1-3)15, both devotedto the question of the consequences of internationallywrongful acts characterized as crimes under article 19 ofpart one of the draft articles16; and (b) Chapter I of theSpecial Rapporteur's sixth report which presented a re-appraisal of the pre-countermeasures dispute settlementprovisions so far envisaged for the draft on State respon-sibility17. On the basis of the recommendations of theDrafting Committee as submitted at the previous andcurrent sessions,18 the Commission provisionallyadopted articles 11 (Countermeasures by an injuredState), 13 (Proportionality) and 14 (Prohibited counter-measures).19 The Commission deferred action on article12 (Conditions relating to resort to countermeasures) atthis stage and decided that it may have to review article11 in the light of the text it will eventually adopt for arti-cle 12.20

21. As regards the topic "International liability for in-jurious consequences arising out of acts not prohibitedby international law", the Commission had before it thetenth report of the Special Rapporteur, Mr. Julio Barboza(A/CN.4/459). The report was introduced by the SpecialRapporteur21 but its consideration was deferred to nextyear. On the basis of the recommendations of the Draft-ing Committee as submitted by the Committee at theprevious and current sessions, the Commission provi-sionally adopted articles 1 (Scope of the present articles)and paragraphs (a), (b) and (c) of article 2 (Use of terms)as well as 12 articles constituting a complete set of pro-visions on prevention, that is: article 11 (Prior authoriza-tion), article 12 (Risk assessment), article 13 (Pre-existing activities), article 14 (Measures to prevent orminimize the risk), article 14 bis [20 bis] (Non-transference of risk), article 15 (Notification and infor-mation), article 16 (Exchange of information), article 16bis (Information to the public), article 17 (National secu-rity and industrial secrets), article 18 (Consultations onpreventive measures), article 19 (Rights of the Stateslikely to be affected) and article 20 (Factors involved inan equitable balance of interests).22'

22. Matters relating to the programme, procedures andworking methods of the Commission, and its documen-tation were discussed in the framework of the PlanningGroup of the Enlarged Bureau and in the Enlarged Bu-reau itself. The relevant recommendations of the Com-mission are to be found in chapter VI of the report whichalso deals with cooperation with other bodies and withcertain administrative and other matters.

15 See Yearbook . . . 1993, vol. II (Part One) .16 This aspect was considered at the 2338th to 2343rd and

2348th meetings, held between 16 and 26 May and on 2 June 1994.17 This aspect was considered at the 2353rd meeting on 21 June

1994.18 The recommendat ions of the Drafting Commit tee were consid-

ered at the 2366th and 2367th meetings, held on 13 and 15 July 1994.19 For the text of these articles, see footnote 454 below.2 0 See chapter IV below.2 1 The report was introduced at the 2351st meeting, held on

10 June 1994.2 2 The recommendat ions of the Drafting Commit tee were consid-

ered at the 2362nd to 2365th meeting, held between 8 and 13 July1994.

2 3 See chapter V below.

Chapter II

DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

A. Introduction

23. The General Assembly, by its resolution 177 (II) of21 November 1947, directed the Commission to: (a) for-mulate the principles of international law recognized inthe Charter of the Niirnberg Tribunal and in the Judg-ment of the Tribunal; and (b) prepare a draft code of of-fences against the peace and security of mankind, indi-cating clearly the place to be accorded to the principlesmentioned in (a) above. At its first session, in 1949, theCommission appointed Mr. Jean Spiropoulos SpecialRapporteur.

24. On the basis of the reports of the Special Rappor-teur, the Commission, at its second session, in 1950,adopted a formulation of the Principles of InternationalLaw recognized in the Charter of the Niirnberg Tribunaland in the Judgment of the Tribunal24 and submittedthose principles, with commentaries, to the General As-sembly; then at its sixth session, in 1954, the Commis-sion adopted a draft Code of Offences against the Peaceand Security of Mankind,25 and submitted them withcommentaries, to the General Assembly.26

25. By its resolution 897 (IX) of 4 December 1954, theGeneral Assembly, considering that the draft Code ofOffences against the Peace and Security of Mankind asformulated by the Commission raised problems closelyrelated to those of the definition of aggression, and thatthe General Assembly had entrusted a Special Commit-tee with the task of preparing a report on a draft defini-tion of aggression, decided to postpone consideration ofthe draft Code until the Special Committee had submit-ted its report.

26. On the basis of the recommendations of the Spe-cial Committee, the General Assembly, in resolution3314 (XXIX) of 14 December 1974, adopted the Defini-tion of Aggression by consensus.

27. By its resolution 36/106, the General Assembly in-vited the Commission to resume its work with a view toelaborating the draft Code of Offences against the Peaceand Security of Mankind and to examine it with the re-quired priority in order to review it, taking duly into ac-

count the results achieved by the process of the progres-sive development of international law.27

28. At its thirty-fourth session, in 1982, the Commis-sion appointed Mr. Doudou Thiam Special Rapporteurfor the topic.28 The Commission, from its thirty-fifth ses-sion, in 1983, to its forty-third session, in 1991, receivednine reports from the Special Rapporteur.29

29. At its forty-third session, in 1991, the Commissionprovisionally adopted on first reading the draft Code ofCrimes against the Peace and Security of Mankind.30 Atthe same session, the Commission decided, in accord-ance with articles 16 and 21 of its statute, to transmit thedraft articles, through the Secretary-General, to Govern-ments for their comments and observations, with a re-quest that such comments and observations should besubmitted to the Secretary-General by 1 January 1993.31

The Commission also noted that the draft it had com-pleted on first reading constituted the first part of theCommission's work on the topic of the draft Code ofCrimes against the Peace and Security of Mankind; andthat the Commission would continue at forthcoming ses-sions to fulfil the mandate the General Assembly had as-signed to it in paragraph 3 of resolution 45/41, which in-vited the Commission, in its work on the draft Code ofCrimes against the Peace and Security of Mankind, to

24 Hereinafter referred to as the "Niirnberg Principles" (Year-book .. . 1950, vol. II, pp. 374-378, document A/1316, paras. 95-127).

25 Yearbook... 1954, vol. II, pp. 150-152, document A/2693,paras. 49-54.

26 The texts of the 1954 draft Code and of the Nurnberg Principlesare reproduced in Yearbook . . . 1985, vol. II (Part Two), paras. 18and 45, respectively.

27 Subsequently, in its resolution 42/151, the General Assembly en-dorsed the Commission 's recommendation that the title of the topic inEnglish should be amended to read: "Draft Code of Crimes againstthe Peace and Security of Mank ind" .

28 For a detailed discussion of the historical background of thetopic, see Yearbook.. . 1983, vol. II (Part Two) , paras. 26 to 4 1 .

29 These reports are reproduced as follows:First report: Yearbook .. . 1983, vol. II (Part One), p. 137, docu-

ment A/CN.4/364;Second report: Yearbook ... 1984, vol. II (Part One), p. 89, docu-

ment A/CN.4/377;Third report: Yearbook ... 1985, vol. II (Part One), p. 63 , docu-

ment A/CN.4/387;Fourth report: Yearbook .. . 1986, vol. II, (Part One), p. 53 , docu-

ment A/CN.4/398;Fifth report: Yearbook ... 1987, vol. II (Part One), p. 1, document

A/CN.4/404;Sixth report: Yearbook ... 1988, vol. II (Part One), p. 197, docu-

ment A/CN.4/411;Seventh report: Yearbook .. . 1989, vol. II (Part One), p. 81 , docu-

ment A/CN.4/419 and Add . l ;Eighth report: Yearbook ... 1990, vol. II (Part One), p. 27, docu-

ment A/CN.4/430 and Add. 1;Ninth report: Yearbook ... 1991, vol. II (Part One), p. 37, docu-

ment A/CN.4/435 and Add . l .30 See footnote 7 above.31 Yearbook ... 1991, vol. II (Part Two), para. 174.

18

Draft Code of Crimes against the Peace and Security of Mankind 19

consider further and analyse the issues raised in its reportconcerning the question of an international criminal ju-risdiction, including the possibility of establishing an in-ternational criminal court or other international criminaltrial mechanism.32 The Commission further noted that ithad already started to discharge this mandate, and itswork on this aspect of the topic was reflected in thereport on its forty-third session.

30. By its resolution 46/54, the General Assembly in-vited the Commission,

. . . within the framework of the draft Code of Crimes against thePeace and Security of Mankind, to consider further and analyse the is-sues raised in its report on the work of its forty-second session[1990]34 concerning the question of an international criminal jurisdic-tion, including proposals for the establishment of an internationalcriminal court or other international criminal trial mechanism in orderto enable the General Assembly to provide guidance on the matter.

31. At its forty-fourth session, in 1992, the Commis-sion had before it the Special Rapporteur's tenth reporton the topic,35 which was entirely devoted to the ques-tion of the possible establishment of an internationalcriminal jurisdiction. After considering the Special Rap-porteur's tenth report, the Commission decided to set upa Working Group to consider further and analyse themain issues raised in the Commission's report on thework of its forty-second session in 1990 concerning thequestion of an international criminal jurisdiction, includ-ing proposals for the establishment of an internationalcourt or other international criminal trial mechanism. Inso doing, the Working Group would take into accountthe issues raised by the Special Rapporteur in part two ofhis ninth report and in his tenth report, in the light of thediscussions thereon at the Commission's previous andcurrent sessions. The Working Group would also draftconcrete recommendations with regard to the various is-sues it would consider and analyse within the frameworkof its terms of reference.336

32. At the same session, the Working Group prepareda report to the Commission containing a detailed accountof its consideration and analysis of a number of issuesrelated to the possible establishment of an internationalcriminal jurisdiction, as well as a summary of its delib-erations and specific recommendations, together with anappendix containing a table of selected proposals for theprosecution/complaints mechanism of an internationalcriminal court.3 The basic approach agreed on by theWorking Group, which formed the basis of its report,was that an international criminal court should be estab-lished by a statute in the form of a treaty agreed to byStates parties; in the first phase of its operations, at least,it should exercise jurisdiction only over private persons;its jurisdiction should be limited to crimes of an interna-tional character defined in specified international treaties

32 Ibid., para. 175.33 Ibid., paras. 106-165.34 Yearbook... 1990, vol. II (Part Two), paras. 93-157.35 Yearbook .. . 1992, vol. II (Part One), p. 51 , document A/CN.4/

442.36 Yearbook.. . 1992, vol. II (Part Two), document A/47/10,

para. 98.37 Ibid., para. 99, and annex.

in force, including the crimes defined in the Code ofCrimes against the Peace and Security of Mankind, uponits adoption and entry into force, but not limited thereto;a State should be able to become a party to the statutewithout thereby becoming a party to the Code; the courtwould be a facility for States parties (and also, on de-fined terms, other States); in the first phase of its opera-tion, at least, it should not have compulsory jurisdictionand would not be a standing full-time body; the statuteshould establish a legal mechanism which could becalled into operation as and when required; and whateverthe precise structure of the court or other mechanism, itmust guarantee due process, independence and impartial-ity in its procedures.

33. Also at the same session, the Commission notedthat, with its consideration of the Special Rapporteur'sninth and tenth reports and the report of the WorkingGroup, it had concluded the task of analysing the ques-tion of establishing an international criminal court orother international criminal trial mechanism, entrusted toit by the General Assembly in 1989;39 that a structurealong the lines suggested in the Working Group's reportcould provide a workable system; that further work onthe issue required a renewed mandate from the Assem-bly to draft a statute; and that it was now a matter for theAssembly to decide whether the Commission shouldundertake the project for an international criminal juris-diction, and on what basis.40

34. The General Assembly adopted resolution 47/33,paragraphs 4, 5 and 6 of which read:

[The General Assembly,}

4. Takes note with appreciation of chapter II of the report of theInternational Law Commission, entitled "Draft Code of Crimesagainst the Peace and Security of Mankind", which was devoted tothe question of the possible establishment of an international criminaljurisdiction;

5. Invites States to submit to the Secretary-General, if possiblebefore the forty-fifth session of the International Law Commission,written comments on the report of the Working Group on the questionof an international criminal jurisdiction;

6. Requests the International Law Commission to continue itswork on this question by undertaking the project for the elaboration ofa draft statute for an international criminal court as a matter of priorityas from its next session, beginning with an examination of the issuesidentified in the report of the Working Group and in the debate in theSixth Committee with a view to drafting a statute on the basis of thereport of the Working Group, taking into account the views expressedduring the debate in the Sixth Committee as well as any written com-ments received from States, and to submit a progress report to theGeneral Assembly at its forty-eighth session.

35. At its forty-fifth session, in 1993, the Commissionhad before it the Special Rapporteur's eleventh report onthe topic,41 which was entirely devoted to the question ofthe establishment of an international criminal court. TheCommission also had before it the comments and obser-vations received from Governments on the draft Code of

38 Ibid., para. 11, and annex, para. 4.39 See Yearbook .. . 1990, vol. II (Part Two), paras. 93-157, and

more particularly para. 100.4 0 See Yearbook ... 1992, vol. II (Part Two), pp. 6 and 16, docu-

ment A/47/10, paras. 11 and 104, respectively.41 Yearbook.. . 1993, vol. II (Part One), document A/CN.4/449.

20 Report of the Internationa] Law Commission on the work of its forty-sixth session

Crimes against the Peace and Security of Mankind,adopted on first reading by the International Law Com-mission at its forty-third session42'43 and the commentsof Governments on the report of the Working Group onthe question of an international criminal jurisdiction44'45

submitted pursuant to paragraph 5 of General Assemblyresolution 47/33.

36. After considering the Special Rapporteur's elev-enth report, the Commission decided to reconvene theWorking Group it had established at the previous ses-sion, and further decided that the Working Group on thequestion of an international criminal jurisdiction should,henceforth, be called "Working Group on a draft statutefor an international criminal court''. The terms of ref-erence given by the Commission to the Working Groupwere as provided in paragraphs 4, 5 and 6 of General As-sembly resolution 47/33. 7

37. The Working Group submitted a report which wasannexed to the report of the Commission.

38. The Commission considered that the report of theWorking Group represented a substantial advance overthat of the Working Group at the forty-fourth session ofthe Commission in 1992 on the same topic.49 The 1993report placed the emphasis on the elaboration of a com-prehensive and systematic set of draft articles with briefcommentaries thereto. Though the Commission was notable to examine the draft articles in detail at the forty-fifth session and to proceed with their adoption, it feltthat, in principle, the proposed draft articles provided abasis for examination by the General Assembly at itsforty-eighth session.50

39. The Commission stated that it would welcomecomments by the General Assembly and Member Stateson the specific questions referred to in the commentariesto the various articles, as well as on the draft articles as awhole. It furthermore decided that the draft articlesshould be transmitted, through the Secretary-General, toGovernments with a request that their comments be sub-mitted to the Secretary-General by 15 February 1994.Those comments were necessary to provide guidance forthe subsequent work of the Commission with a view tocompleting the elaboration of the draft statute at theforty-sixth session of the Commission in 1994, as con-templated in its plan of work.51

42 Ibid., document A/CN.4/448 and Add. l .43 See paragraph 29 above.44 Yearbook .. . 1993, vol. II (Part One), document A/CN.4/452

and Add. 1-3.45 See paragraphs 31-32 above.46 Yearbook ... 1993, vol. II (Part Two), document A/48/10,

para. 96.47 See paragraph 34 above.48 Yearbook ... 1993, vol. II (Part Two), document A/48/10,

annex.49 Yearbook .. . 1992, vol. II (Part Two), document A/47/10,

annex.50 Yearbook .. . 1993, vol. II (Part Two), document A/48/10,

para. 99.51 Ibid., para. 100.

40. The General Assembly adopted resolution 48/31,paragraphs 4, 5, 6 and 8 of which read:

[The General Assembly,]

4. Takes note with appreciation of chapter II of the report of theInternational Law Commission, entitled "Draft Code of Crimesagainst the Peace and Security of Mankind", which was devoted tothe question of a draft statute for an international criminal court;

5. Invites States to submit to the Secretary-General by 15 Febru-ary 1994, as requested by the International Law Commission, writtencomments on the draft articles proposed by the Working Group on adraft statute for an international criminal court;

6. Requests the International Law Commission to continue itswork as a matter of priority on this question with a view to elaboratinga draft statute, if possible at its forty-sixth session in 1994, taking intoaccount the views expressed during the debate in the Sixth Committeeas well as any written comments received from States;

8. . . . requests the Commission to resume at its forty-sixth sessionthe consideration of the draft Code of Crimes against the Peace andSecurity of Mankind. . ..

41. Pursuant to General Assembly resolution 48/31,the section of the present report dealing with the consid-eration of the topic at the present session will be dividedinto two subsections, one on the draft statute for an inter-national criminal court and the other on the draft Code ofCrimes against the Peace and Security of Mankind.

B. Consideration of the topic at the present session

1. DRAFT STATUTE FOR AN INTERNATIONALCRIMINAL COURT

(a) Consideration of the report of the Working Groupestablished at the forty-fifth session

42. The Commission, at its present session, had beforeit the report of the Working Group on a draft statute foran international criminal court annexed to the report ofthe Commission on the work of its forty-fifth session in1993;52 the comments by Governments on the report ofthe Working Group on a draft statute for an internationalcriminal court;53 and section B of the topical summary ofthe discussion held in the Sixth Committee of the Gen-eral Assembly during its forty-eighth session preparedby the Secretariat, on the report of the International LawCommission on the work of its forty-fifth session.54

43. The Commission considered the 1993 report of theWorking Group at its 2329th to 2334th meetings, heldfrom 3 to 9 May 1994.

44. A summary of the discussion in plenary session isgiven below.

52 See footnote 48 above.53 Reproduced in Yearbook .. . 1994, vol. II (Part One), document

A/CN.4/458andAdd. l -8 .54 Document A/CN.4/457.


(i) General observations

45. While some members noted that, notwithstandingcertain criticisms, the Commission's work had been wellreceived by Governments, as indicated in the debate inthe Sixth Committee and in the written comments, othermembers drew attention to the remaining obstacles to beovercome in order to complete the draft statute. Therewere various comments concerning the need to reconcilethe expeditious completion of the draft statute, given itspriority, with the care required to draft an instrument thatwould be generally acceptable to States and provide forthe establishment of a viable and effective institution.Attention was drawn to the responsibility of the Com-mission, as an expert body, to give careful considerationin its continuing work on the draft statute to the viewsexpressed by Governments, notwithstanding the sense ofurgency. The opinion was expressed that it would bepreferable to take more time, if necessary, to draft an in-strument for a better, more useful and permanent institu-tion bearing in mind the unlikelihood that the courtwould be established by States upon receipt of the draftstatute by the General Assembly.

46. While the priority assigned to the draft statute wasconsidered to be sufficiently flexible to envisage thecompletion of the work at this session or the next, it wasgenerally agreed that the Commission should endeavourto complete the draft statute at the present session, pro-vided this could be done without prejudice to the qualityof its work. It was hoped that the Working Group wouldcomplete its task in time to enable the Commission toconsider the definitive draft statute before the end of thesession and forward it with comments to the General As-sembly, thus proving its ability to meet the internationalcommunity's expectations.

47. There were various comments regarding the gen-eral approach to be taken by the Commission as it con-tinued its work on the draft statute, with some membersdrawing attention to the continuing relevance of the prin-ciples that had guided the Commission's work and theinstruments relating to the International Tribunal for theProsecution of Persons Responsible for Serious Viola-tions of International Humanitarian Law Committed inthe Territory of the Former Yugoslavia since 1991 (here-inafter referred to as the "International Tribunal"),55

other members calling for a more ambitious approachand still other members advising a more cautious step-by-step approach. While some members felt that thestatute and rules of procedure and evidence of theInternational Tribunal57 should receive particular atten-tion in addressing similar issues in relation to a perma-nent court, other members cautioned against placing toomuch emphasis on those instruments in the light of theessential differences between the two institutions.

55 See Security Council resolutions 808 (1993) of 22 February 1993and 827 (1993) of 25 May 1993.

56 Document S/25704, annex.57 Adopted at the end of the second session of the International Tri-

bunal in February 1994.

48. As regards the question of whether the Commis-sion should be more ambitious or more cautious in itsapproach, the members who favoured the former ap-proach felt that the present draft was not sufficientlyinternational or universal in its conception of the court,that it gave too much prominence to inter-State relationsrather than a direct relationship between the individualand the international community, that its reliance on thetraditional treaty approach might delay the establishmentof the court, and that a more cautious approach wouldnot sufficiently take into account the need for newmechanisms to address the recurring problem of ethnicviolence in internal as well as international armed con-flicts. Those who favoured the latter approach expressedthe view that an instrument providing for an interna-tional criminal jurisdiction must take into account cur-rent international realities, including the need to ensurecoordination with the existing system of national juris-diction and international cooperation, that the establish-ment and effectiveness of the court required the broadacceptance of the statute by States which might requirelimiting its scope, that the political aspects of the topicrequired a realistic approach in which those were left tothe decision of States, and that the preparation of thedraft statute was, anyway, an unprecedented exercise increative legislation for the Commission, one that neededto be tempered by a strong sense of practicality.

(ii) Nature of the court

49. As regards article 4 (Status and legal capacity),while some members felt that the provision struck theright balance in providing for a permanent court thatwould sit when required to consider a case submitted toit, other members believed that this approach fell shortof the task entrusted to the Commission in terms of pre-paring a statute for a permanent court with the necessaryobjectivity to try individuals accused of committing seri-ous crimes. Still other members considered that it wasfor States to decide between the more practical solutionof a non-standing permanent body or the more desirablealternative of a full-time organ from the point of view ofcriminal justice. It was suggested that the draft statutecould combine the two approaches by providing for thepresent realistic and pragmatic arrangement, while at thesame time envisaging the possibility of the court remain-ing permanently in session in the long term as a way ofencouraging uniformity and further development of thelaw.

50. There were different views as to whether the natureof the court in terms of its relationship to national courtswas adequately addressed in the present draft. Some en-visaged the court as a facility for States that would sup-plement rather than supersede national jurisdiction; oth-ers envisaged it as an option for prosecution when theStates concerned were unwilling or unable to do so, sub-ject to the necessary safeguards against misuse of thecourt for political purposes. Still other members sug-gested that it might be appropriate to provide the courtwith limited inherent jurisdiction for a core of the mostserious crimes. The view was expressed that further con-sideration should be given to existing treaty obligationsto try or extradite persons accused of serious crimes, theabsence of an implied waiver of national court jurisdic-


tion by virtue of the establishment of the court, the resid-ual nature of the court's jurisdiction as an additional el-ement to the existing regime based on the options oftrial, extradition or referral to the court, as well as thepossibility of advisory jurisdiction to assist nationalcourts in the interpretation of the relevant treaties, as inthe case of the Inter-American Court of Human Rights.There were also suggestions that the court should havediscretion to decline to exercise its jurisdiction if thecase was not of sufficient gravity or could be adequatelyhandled by a national court. This suggestion was ex-plained in terms of ensuring that the court would dealsolely with the most serious crimes, it would not en-croach on the functions of national courts, and it wouldadapt its caseload to the resources available. In this con-text, attention was drawn to the experience of the Euro-pean Court of Human Rights.

(iii) Method of establishing the court

51. As to the method of establishing the court, somemembers favoured an amendment to the Charter of theUnited Nations, while others favoured the conclusion ofa treaty. A view was also expressed in favour of theadoption of a resolution by the General Assembly and/orthe Security Council. While recognizing the practicaldifficulties of the first approach, some members were notprepared to rule out the possibility of an amendment tothe Charter which would make the draft statute an inte-gral part of the Charter, like the Statute of ICJ, withbinding effect on all Member States when the require-ments for its entry into force had been met. Those whopreferred the second approach believed that a treatywould provide a firm legal foundation for the judge-ments delivered against the perpetrators of internationalcrimes, enable States to decide whether or not to acceptthe draft statute and the jurisdiction of the court, particu-larly in view of the sensitive issue of national criminaljurisdiction, and avoid the practical difficulties ofamending the Charter as well as the possible challengesto the legitimacy of a body established by a resolution.The view was expressed that the treaty approach wouldrequire ensuring that the draft statute was widely ac-cepted by States before its entry into force and also ad-dressing the role of States parties in greater detail in thestatute. In favour of the third approach, the need wasstressed for ensuring the international or universal char-acter of the court as a judicial organ of the internationalcommunity rather than of a limited group of States par-ties, as well as the desirability of avoiding the delays inestablishing the court that might result from the adoptionof other approaches. The view was also expressed thatthe method of establishing a court, which would haveimplications in terms of its relationship to the UnitedNations, was a political question to be decided by States,and that both the statute and commentary should reflectthe various possibilities.

52. There were different views as to whether a perma-nent court could be established as a subsidiary organ ofthe General Assembly or the Security Council or pos-sibly as a joint subsidiary organ in view of their respec-tive areas of competence. As regards the Assembly,some members pointed out that the court could be estab-lished as a subsidiary organ under Article 22 of the

Charter of the United Nations, its authority to establish ajudicial organ having been confirmed by ICJ in its Advi-sory Opinion of 13 July 1954.58 However, other mem-bers questioned whether such a resolution of a recom-mendatory nature would provide a sound legal basis forthe establishment of a criminal court, and in particularfor its exercise of powers against individuals, andwhether such an institution could be viewed as a subsidi-ary organ performing the functions entrusted to theAssembly under the Charter. It was suggested that theAssembly could adopt a resolution recommending theadoption of the statute of the court as a treaty by States,to avoid any uncertainties concerning the legal effect ofthe resolution and any jurisdictional questions with re-spect to a State that had not voted in favour of the reso-lution. There was a further suggestion that the courtcould be established as both a treaty body and a subsidi-ary organ of the Council by means of concurrent resolu-tions of the Council and the Assembly later submitted toStates for ratification, with the Council having recourseto the court in response to situations under Chapter VIIof the Charter before the entry into force of the instru-ment. However, other members distinguished betweenthe authority of the Council to establish an ad hoc tribu-nal in response to a particular situation under ChapterVII of the Charter and the authority to establish a perma-nent institution with general powers and competence.Chapter VII of the Charter only envisaged action withrespect to a particular situation.

(iv) Relationship to the United Nations

53. There was general agreement on the importance ofestablishing a close relationship between the United Na-tions and the court to ensure its international characterand its moral authority. However, there were differentviews as to the appropriate means for achieving this endwhich were closely related to the question of the methodof establishing the court. While some members preferredthe first alternative in article 2 (Relationship of the Courtto the United Nations) as a means of ensuring that perpe-trators of serious crimes of international concern wouldbe prosecuted on behalf of the international communityrather than by a group of States parties, other membersfelt that the second alternative offered a more pragmaticand realistic approach in view of the difficulties involvedin amending the Charter of the United Nations.

54. While some members suggested that the characterof the court as an institution of the international commu-nity could also be achieved by means of its establish-ment by a resolution of the General Assembly or theSecurity Council, other members questioned the estab-lishment of a permanent judicial body by either the As-sembly or the Council because of the political characterof those organs. It was suggested that further considera-tion should be given to the possibility of bringing thecourt into relationship with the United Nations by meansof a special agreement.

58 Effect of awards of compensation made by the United NationsAdministrative Tribunal, Advisory Opinion, I.C.J. Reports 1954,p. 47.


55. The view was expressed that the relationship be-tween the proposed court and the United Nations shouldbe determined as a preliminary matter since this wouldhave implications for a number of unresolved issues,such as the financing of the court and the recruitment ofits personnel. However, it was also suggested that theCommission's primary task was to produce a defensiblestructure for a court and that the issue of its relationshipwith the United Nations could be resolved at a later stageon the basis of various models of relationship with theUnited Nations.

(v) Law to be applied by the court

56. The view was expressed that the relationship be-tween the substantive law to be applied by the court andthe procedural law represented by the statute had re-ceived insufficient attention. The problem of substantivelaw should not be confused with the procedural law cur-rently embodied in the statute, and the question of deter-mining the applicable law required consideration of sub-stantive law which could not be adequately addressed inthe statute because of the continuing vagueness of therules of substantive law to be applied. Some membersfelt that the problems of applicable law and subject-matter jurisdiction could be resolved by the completionof the draft Code of Crimes against the Peace and Secu-rity of Mankind and therefore suggested that work onthis draft should be accelerated. However, other mem-bers believed that the court should apply existing con-ventions and the relevant provisions of national lawadopted pursuant to those conventions, as envisioned inthe draft statute, at least in the initial stage of its work. Itwas suggested that the statute should be drafted in such away as not to foreclose the future application of theCode of Crimes against the Peace and Security of Man-kind.

57. Some members attributed particular importance tothe applicability of national law, not only in instanceswhere a treaty did not define a crime with the necessaryprecision, but also with respect to rules of evidence andpenalties. Other members attributed greater importanceto the application of customary law and jus cogens, par-ticularly in the light of the Niirnberg precedent. It waspointed out, however, that in the event of conflict, inter-national law would prevail over national law, and thatthe nullum crimen sine lege principle was itself a rule ofinternational law.

(vi) Jurisdiction

a. Personal jurisdiction

58. As regards personal jurisdiction, attention wasdrawn to the Judgment of the Niirnberg Tribunal59 af-firming that crimes against the law of nations were com-mitted by men, not by abstract entities. The remark wasmade that while the difficulty of bringing the perpetra-tors to justice should not be underestimated, it was im-

59 United Nations, The Charter and Judgment of the Niirnberg Tri-bunal. History and analysis (memorandum by the Secretary-General)(Sales No. 1949.V.

Documents

YEARBOOK INTERNATIONAL LAW COMMISSION 1994 · of its forty-sixth session (2 May-22 July 1994) CONTENTS Page Abbreviations 6 Note concerning quotations 7 Multilateral instruments cited