NOTE. Mention of such a symbol indicates a reference to a United Nations document.

Transcription

1

2 NOTE Mention of such a symbol indicates a reference to a United Nations document. References to the Yearbook of the International Law Commission are abbreviated to Yearbook..., followed by the year (for example, Yearbook ). The Yearbook for each session of the International Law Commission comprises two volumes: Volume II (Part Two): report of the Commission to the General Assembly. volumes of the Yearbook issued as United Nations publications. A/CN.4/SER.A/2006/Add.l (Part 2) UNITED NATIONS PUBLICATION Sales No.: 12.V.13 (Part 2) ISBN eisbn ISSN

3 CONTENTS Document A/61/10 iii

4

5 CONTENTS Abbreviations Multilateral instruments cited in the present volume... 8 I. ORGANIZATION OF THE SESSION A. Membership E. Secretariat II. SUMMARY OF THE WORK OF THE COMMISSION AT ITS FIFTY-EIGHTH SESSION III. SPECIFIC ISSUES ON WHICH COMMENTS WOULD BE OF PARTICULAR INTEREST TO THE COMMISSION A. Shared natural resources C. Reservations to treaties ) E. Other decisions and conclusions of the Commission IV. DIPLOMATIC PROTECTION A. Introduction B. Consideration of the topic at the present session C. Recommendation of the Commission D. Tribute to the Special Rapporteur E. Text of the draft articles on diplomatic protection Text of the draft articles Text of the draft articles with commentaries thereto PART ONE. GENERAL PROVISIONS PART TWO. NATIONALITY CHAPTER I. GENERAL PRINCIPLES Article 3. Protection by the State of nationality CHAPTER II. NATURAL PERSONS Article 4. State of nationality of a natural person Article 5. Continuous nationality of a natural person CHAPTER III. LEGAL PERSONS Article 9. State of nationality of a corporation Article 10. Continuous nationality of a corporation Article 11. Protection of shareholders Article 12. Direct injury to shareholders * Initially distributed as 1

6 PART THREE. LOCAL REMEDIES Article 14. Exhaustion of local remedies Article 15. Exceptions to the local remedies rule PART FOUR. MISCELLANEOUS PROVISIONS Article 16. Actions or procedures other than diplomatic protection Article 17. Special rules of international law Article 18. Protection of ships crews Article 19. Recommended practice V. INTERNATIONAL LIABILITY FOR INJURIOUS CONSEQUENCES ARISING OUT OF ACTS NOT PROHIBITED BY INTERNATIONAL LAW (INTERNATIONAL LIABILITY IN CASE OF LOSS FROM TRANSBOUNDARY HARM ARISING OUT OF HAZARDOUS ACTIVITIES) A. Introduction B. Consideration of the topic at the present session C. Recommendation of the Commission D. Tribute to the Special Rapporteur activities Text of the draft principles Text of the draft principles and commentaries thereto DRAFT PRINCIPLES OF THE ALLOCATION OF LOSS IN THE CASE OF TRANSBOUNDARY HARM ARISING OUT OF HAZARDOUS ACTIVITIES.. 59 Preamble Principle 1. Scope of application Principle 2. Use of terms Principle 3. Purposes Principle 4. Prompt and adequate compensation Principle 5. Reponse measures Principle 6. International and domestic remedies Principle 8. Implementation VI. SHARED NATURAL RESOURCES A. Introduction B. Consideration of the topic at the present session Text of the draft articles Text of the draft articles with commentaries thereto THE LAW OF TRANSBOUNDARY AQUIFERS PART I. INTRODUCTION Article 1. Scope Article 2. Use of terms PART II. GENERAL PRINCIPLES PART III. PROTECTION, PRESERVATION AND MANAGEMENT Article 9. Protection and preservation of ecosystems Article 11. Prevention, reduction and control of pollution PART IV. ACTIVITIES AFFECTING OTHER STATES Article 14. Planned activities PART V. MISCELLANEOUS PROVISIONS

7 Contents VII. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS A. Introduction B. Consideration of the topic at the present session Commission Text of the draft articles CHAPTER V. CIRCUMSTANCES PRECLUDING WRONGFULNESS Article 17. Consent Article 18. Self-defence Article 19. Countermeasures Article Article 21. Distress Article 22. Necessity Article 23. Compliance with peremptory norms CHAPTER (x). RESPONSIBILITY OF A STATE IN CONNECTION WITH THE ACT OF AN INTERNATIONAL ORGANIZATION Article 30. Effect of this chapter VIII. RESERVATIONS TO TREATIES A. Introduction B. Consideration of the topic at the present session Introduction by the Special Rapporteur of the second part of his tenth report Summary of the debate Validity of reservations and interpretative declarations Permissible reservations Reservations expressly prohibited by the treaty Permissibility of reservations not prohibited by the treaty [2.1.7 bis] Procedure in case of manifestly invalid reservations IX. UNILATERAL ACTS OF STATES A. Introduction B. Consideration of the topic at the present session C. Tribute to the Special Rapporteur session Principle Principle Principle Principle Principle Principle

8 Principle Principle Principle Principle X. EFFECTS OF ARMED CONFLICTS ON TREATIES A. Introduction B. Consideration of the topic at the present session General remarks on the topic (a) Introduction by the Special Rapporteur (b) Summary of the debate ( Article 1. Scope (a) Introduction by the Special Rapporteur (b) Summary of the debate ( Article 2. Use of terms (a) Introduction by the Special Rapporteur (b) Summary of the debate ( Article 3. termination or suspension (a) Introduction by the Special Rapporteur (b) Summary of the debate Article 4. The indicia of susceptibility to termination or suspension of treaties in case of an armed (a) Introduction by the Special Rapporteur (b) Summary of the debate ( Article 5. Express provisions on the operation of treaties (a) Introduction by the Special Rapporteur (b) Summary of the debate (a) Introduction by the Special Rapporteur (b) Summary of the debate Article 7. The operation of treaties on the basis of necessary implication from their object and purpose (a) Introduction by the Special Rapporteur (b) Summary of the debate ( XI. THE OBLIGATION TO EXTRADITE OR PROSECUTE (AUT DEDERE AUT JUDICARE) A. Introduction B. Consideration of the topic at the present session Introduction by the Special Rapporteur Summary of the debate XII. FRAGMENTATION OF INTERNATIONAL LAW: DIFFICULTIES ARISING FROM THE DIVERSIFICATION AND EXPANSION OF INTERNATIONAL LAW A. Introduction B. Consideration of the topic at the present session C. Tribute to the Study Group and its Chairperson D. Report of the Study Group Conclusions of the work of the Study Group (a) General (b) The maxim ( ( ) Article 31 (3) ( ) of the Vienna Convention on the Law of Treaties (e (f) Hierarchy in international law:, Article 103 of the Charter of the United Nations

9 Contents 5 XIII. OTHER DECISIONS AND CONCLUSIONS OF THE COMMISSION ANNEXES A. Expulsion of aliens Documentation and publications Honoraria D. Cooperation with other bodies F. International Law Seminar I. IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION II. JURISDICTIONAL IMMUNITY OF INTERNATIONAL ORGANIZATIONS III. PROTECTION OF PERSONS IN THE EVENT OF DISASTERS IV. PROTECTION OF PERSONAL DATA IN TRANSBORDER FLOW OF INFORMATION V. EXTRATERRITORIAL JURISDICTION

10 BIT DNA ECOWAS EIA GEF ICC ICJ ICRC ICSID IGRAC IFRC IOPC ITC ITLOS ITU IUCN PCIJ SADC UNAT UNCC UNCITRAL UNECE UNMIK UNRIAA WSIS bilateral investment treaty deoxyribonucleic acid Economic Community of West Africa environmental impact assessment Global Environment Facility International Criminal Court International Court of Justice International Committee of the Red Cross International Centre for Settlement of Investment Disputes International Groundwater Resources Assessment Centre International Federation of Red Cross and Red Crescent Societies International Oil Pollution Compensation (Funds) International Tin Council International Tribunal for the Law of the Sea International Telecommunication Union International Union for Conservation of Nature Permanent Court of International Justice Southern African Development Community United Nations Administrative Tribunal United Nations Compensation Commission United Nations Commission on International Trade Law United Nations Economic Commission for Europe United Nations Interim Administration Mission in Kosovo United Nations Reports of International Arbitral Awards World Summit on the Information Society * * *

11 7 AJIL BYBIL ILM ILR UNRIAA The British Year Book of International Law ICJ, International Law Reports PCIJ, PCIJ, United Nations, * * * Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law * * * * * * The Internet address of the International Law Commission is.

12 (Geneva, 26 September 1928), No. 1, February 1920, p. 3., Treaty Series, vol. XCIII, No. 2123, p Law, vol. 5, Issue 2 (June 2000), pp February 1946) United Nations, Treaty Series, vol. 1, No. 4, p. 15 and vol. 90, p Vienna Convention on Diplomatic Relations (Vienna, 18 April 1961) vol. 500, No. 7310, p. 95. Vienna Convention on Consular Relations (Vienna, 24 April 1963) vol. 596, No. 8638, p the Compulsory Settlement of Disputes (Vienna, 24 April 1963) No. 8640, p Convention on special missions (New York, 8 December 1969) vol. 1400, No , p Vienna Convention on the Representation of States in Their Relations with International United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, 2 December 2004) vol. 1035, No , p (Sales No. E.77.V.3), p. 87. See also A/CONF.67/16, p (A/59/49), vol. I, resolution 59/38, annex (A/RES/59/38). Rights Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 December 1948) 28 April 1983) United Nations, Treaty Series, vol. 78, No. 1021, p. 277., vol. 213, No. 2889, p vol. 1496, No. 2889, p vol. 2061, No. 2889, p. 7. vol. 193, No. 2613, p Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Geneva, 7 September 1956) vol. 266, No. 3822, p. 3. vol. 429, No. 6193, p. 93.

13 International Convention on the Elimination of All Forms of Racial Discrimination (New York, 7 March 1966) vol. 660, No. 9464, p vol. 999, No , p (New York, 16 December 1966) 16 December 1966) vol. 993, No , p. 3. vol. 634, No. 9067, p Costa Rica, 22 November 1969) (New York, 18 December 1979) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination vol. 1144, No , p vol. 1249, No , p. 13. vol. 2131, No , p. 83. vol. 1496, No , p. 65. vol. 2297, No , p vol. 1520, No , p (New York, 10 December 1984) vol. 1465, No , p. 85. vol. 1561, No , p vol. 1577, No , p. 3. (Oviedo, 4 April 1997) E/CN.4/2004/WG.21/5, p See also OAU, document CAB/LEG/24.9/49 (1990). United Nations, Treaty Series, vol. 2137, No , p vol. 2177, No. A-37266, p April 1930) Treaty Series, vol. CLXXIX, No. 4137, p. 89. United Nations, Treaty Series, vol. 189, No. 2545, p. 137., vol. 606, No. 8791, p Convention on territorial asylum (Caracas, 28 March 1954), vol. 1438, No , p. 127., vol. 360, No. 5158, p. 117.

14 Convention on the nationality of married women (New York, 20 February 1957)., vol. 309, No. 4468, p. 65., vol. 989, No , p (Addis Ababa, 10 September 1969), vol. 1001, No , p. 45., vol. 2135, No , p equipment for use on free loan in hospitals and other medical institutions for purposes of United Nations, Treaty Series, vol. 376, No. 5377, p European Convention on International Commercial Arbitration (Geneva, 21 April 1961), vol. 484, No. 7041, p Convention on the settlement of investment disputes between States and nationals of other, vol. 575, No. 8359, p. 159., vol. 950, No , p. 269, and vol. 2370, p. 27., vol. 1064, No , p Convention on temporary admission (Istanbul, 26 June 1990), vol. 1762, No , p United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 23 November 2005), vols , No (A/60/49), resolution 60/21, Annex. United Nations, Treaty Series, vol. 15, No. 102, p (Rome, 7 October 1952), vol. 310, No. 4493, p Convention on offences and certain other acts committed on board aircraft (Tokyo, 14 September 1963), vol. 704, No , p. 219., vol. 1397, No , p. 2. United Nations publication (Sales No. E.90.II.E.39). Convention) (Constantinople, 29 October 1888) AJIL, Supplement, vol. 3, p United Nations, Treaty Series, vol. 439, No. 6332, p. 233., vol. 591, No. 8564, p. 265.

15 11 International Convention for Safe Containers (CSC) (Geneva, 2 December 1972), vol. 1064, No , p. 3. Treaty on International Penal Law (Montevideo, 19 March 1940) Treaty Series, vol. 34, p. 71. European Convention on Extradition (Paris, 13 December 1957) United Nations, Treaty Series, vol. 359, No. 5146, p commercial matters (Brussels, 27 September 1968) Awards (Montevideo, 8 May 1979), vol. 1262, No , p See the consolidated and updated version in ILM, vol. 29 (1990), p , vol. 1299, No , p. 3. ILM, vol. 18 (1979), p United Nations, Treaty Series, vol. 1316, No , p November 1983) Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Convention on the Safety of United Nations and Associated Personnel (New York, 9 December 1994) Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (New York, 8 December 2005), vol. 1525, No , p. 37. ILM, vol. 24 (1985), p United Nations, Treaty Series, vol. 1659, No , p. 13., vol. 2051, No , p (A/60/49), resolution 60/42, Annex. Rome Statute of the International Criminal Court (Rome, 17 July 1998) United Nations, Treaty Series, vol. 2187, No , p. 3. Convention on cybercrime (Budapest, 23 November 2001), vol. 2296, No , p Law of the Sea Geneva Conventions on the Law of the Sea (Geneva, 29 April 1958) United Nations, Treaty Series, vol. 516, No. 7477, p Convention on the Continental Shelf, vol. 499, No. 7302, p. 311., vol. 450, No. 6465, p. 11., vol. 1833, No , p. 3., vol. 2167, No , p. 3.

16 , J. B. Scott (ed.), New York, Oxford University Press, Conventions II and IV of 1899 and 1907), J. B. Scott (ed.), New York, Oxford University Press, Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles) (Versailles, 28 June 1919), vol. CXII, London, HM Stationery (Trianon, 4 June 1920), vol. CXIII, London, HM Stationery United Nations, Treaty Series, vol. 75, Nos , pp. 31 et seq. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in, No. 970, pp. 31 et seq. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 1949), No. 971, pp. 85 et seq. Geneva Convention relative to the Treatment of Prisoners of War (Convention III), No. 972, pp. 135 et seq. Geneva Convention relative to the Protection of Civilian Persons in Time of War, No. 973, pp. 287 et seq., vol. 1125, No , p June 1977), No , p. 609., vol. 249, No. 3511, p Law of Treaties Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) United Nations, Treaty Series, vol. 1155, No , p. 331., vol. 1946, No , p. 3. A/CONF.129/ January 1967) United Nations, Treaty Series, vol. 610, No. 8843, p. 205.

17 United Nations, Treaty Series, vol. 1966, No , p and Relief Operations (Tampere, 18 June 1998), vol. 2296, No , p. 5. United Nations, Treaty Series, vol. 956, No , p of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 (Paris, 16 November 1982) of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and the Protocol of 16 November 1982 (Paris, 12 February 2004) Convention on the Liability of Operators of Nuclear Ships (Brussels, 25 May 1962) p. 325., vol. 1519, Annex A, No , p. 329., No. L 97, 1 April 2004, p. 55. IAEA,, 1976, p. 34. United Nations, Treaty Series, vol. 1063, No , p September 1997) 29 November 1969) (London, 27 November 1992) 14 May 1973) Exploration for and Exploitation of Seabed Mineral Resources (London, 1 May 1977) 3 May 1996) 23 March 2001), vol. 2241, No , p. 270., vol. 973, No , p. 3., vol. 1956, No , p. 255., vol. 961, No , p Council of Europe, Series, No. 79. ILM, vol. 16 (1977), p United Nations publication (Sales No. E.90.II.E.39). Council of Europe, Series, No. 150., publication of the (Sales No. IMO-479E). UNEP/CHW.5/29, Annex III. United Nations, (Sales No.: E.04.V.12), p. 310.

18 Disarmament 1 July 1968) United Nations, Treaty Series, vol. 729, No , p International Convention on the establishment of an international fund for compensation for oil Protocol of 1992 to amend the International Convention on the establishment of an 27 November 1992) Wastes and Other Matter (London, 7 November 1996) United Nations, Treaty Series, vol. 1110, No , p. 57., vol. 1953, No , p. 330., vol. 1046, No , p ILM, vol. 36 (1997), p. 7. Convention on the protection of the environment (Stockholm, 19 February 1974) United Nations, Treaty Series, vol. 1092, No , p ) chlorides (Brussels, 25 September 1991), vol. 1404, No , p. 59., vol. 1840, No p. 372., vol. 1513, No , p July 1985) UNEP,, vol. 2, United Nations, Treaty Series, vol. 1439, No , p disposal (Basel, 22 March 1989) International Convention on oil pollution preparedness, response and cooperation (London, 30 November 1990) Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary 30 January 1991) Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991) UNEP,, vol. 2, See also ILM, vol. 26 (1987), p. 41., vol. 93 (1989/1), p See also ILM, vol. 27 (1988), p United Nations, Treaty Series, vol. 1673, No , p. 57., vol. 1891, No , p. 51., vol. 2101, No , p. 177., vol. 1989, No , p Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992), vol. 2105, No , p Effects of Industrial Accidents on Transboundary Waters (Kiev, 21 May 2003) ECE/MP.WAT/11.

19 15 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992) Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (London, 17 June 1999) Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki, 9 April 1992) United Nations, Treaty Series, vol. 1936, No , p. 269., vol. 2331, No , p. 202., vol. 2099, No , p. 195., vol. 1764, No , p. 3., vol. 1771, No , p. 107., vol. 1760, No , p January 2000) Convention for the protection of the marine environment of the North-East Atlantic (OSPAR Convention) (Paris, 22 September 1992) 29 June 1994) Mediterranean (Barcelona, 10 June 1995) (New York, 21 May 1997) 12 September 1997) to Justice in Environmental Matters (Aarhus, 25 June 1998) Convention for the Protection of the Rhine (Bern, 12 April 1999) Revised Protocol on Shared Watercourses in the Southern African Development Community of Groundwater Information of the Nubian Sandstone Aquifer System (Tripoli, 5 October 2000) Sustainable Utilisation of the Water Resources of the Incomati and Maputo Watercourses, vol. 2226, No , p. 208., vol. 2354, No , p. 67. Communities, No. L 342, 12 December 1997, p. 19. United Nations, Treaty Series, vol. 1954, No , p. 3. UNEP,, vol. 2, (A/51/49), vol. III, resolution 51/229, Annex. IAEA, doc. GOV/INF/822-GC(41)/ INF/13 and Corr. (N5-52 Circ. ILM, vol. 36 (November 1997), p United Nations, Treaty Series, vol. 2161, No , p Communities, No. L 289, 16 November 2000, p. 31. S. Burchi and K. Mechlem, in International Law: Compilation of, Rome, FAO/UNESCO, 2005, p See also ILM, vol. 40, No. 2 (March 2001), p S. Burchi and K. Mechlem, in International Law: Compilation of, Rome, FAO/UNESCO, 2005, p. 4., p. 158.

20 United Nations, Treaty Series, vol. 2366, No , p Framework Convention on the Protection and Sustainable Development of the Carpathians (Kiev, 22 May 2003) S. Burchi and K. Mechlem, in International Law: Compilation of, Rome, FAO/UNESCO, 2005, p United Nations, Treaty Series, vol. 2338, No , p. 43. African Convention on the Conservation of Nature and Natural Resources (Maputo, 11 July 2003) Protocol for Sustainable Development of Lake Victoria Basin (Arusha, 29 November 2003), W. E. Burhenne International, vol. IX, p. 52. S. Burchi and K. Mechlem, in International Law: Compilation of, Rome, FAO/UNESCO, 2005, p December 1945) Treaty Series, vol. CXXXV ( ), No. 3115, p United Nations, Treaty Series, vol. 2, No. 20, p. 39., vol. 294, No. 4300, p. 3. See also the consolidated version of the Treaty, No. C 340, 10 November 1997, p United Nations, Treaty Series, vol. 402, No. 5778, p. 71. Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991, and Stockholm, 17 June 2005 (Annex VI)) ownership of cultural property (Paris, 14 November 1970) 1972) (Vienna, 26 September 1986) ILM, vol. 30 (November 1991), p. 1461, and vol. 45 (January 2006), No. 1, p. 5. United Nations, Treaty Series, vol. 823, No , p. 231., vol. 1037, No , p. 151., vol. 1457, No , p OAS,, OEA/Ser.A/49 (SEPF). United Nations, Treaty Series, vol. 2368, No , p July 2005) ASEAN,, Jakarta, ASEAN Secretariat, 2006, p. 157.

21 Chapter I Mr. Emmanuel Akwei ADDO (Ghana) Mr. Husain AL-BAHARNA (Bahrain) Mr. Ali Mohsen Fetais AL-MARRI (Qatar) Mr. João Clemente BAENA SOARES Mr. Ian BROWNLIE and Northern Ireland) Mr. Enrique CANDIOTI CHEE (Republic of Korea) Mr. Pedro COMISSÁRIO AFONSO Mr. Riad DAOUDI (Syrian Arab Republic) Mr. Christopher John Robert DUGARD (South Africa) Mr. Constantin ECONOMIDES (Greece) Ms. Paula ESCARAMEIA Mr. Salifou FOMBA (Mali) GAJA (Italy) GALICKI (Poland) Mr. Peter KABATSI Mr. Maurice KAMTO (Cameroon) KATEKA (United Republic Mr. Fathi KEMICHA (Tunisia) Mr. Roman Anatolyevitch KOLODKIN (Russian Federation) Mr. Martti KOSKENNIEMI (Finland) Mr. William MANSFIELD Mr. Michael MATHESON (United States of America) Mr. Teodor Viorel MELESCANU (Romania) Mr. Djamchid MOMTAZ (Islamic Republic of Iran) Mr. Bernd NIEHAUS (Costa Rica) Mr. Didier OPERTTI BADAN Mr. Guillaume PAMBOU-TCHIVOUNDA (Gabon) Mr. Alain PELLET (France) Mr. Pemmaraju Sreenivasa RAO (India) Mr. Víctor RODRÍGUEZ CEDEÑO (Bolivarian Republic Mr. Eduardo VALENCIA-OSPINA (Colombia) (see para. 3 below) Ms. Hanqin XUE (China) Mr. Chusei YAMADA (Japan) sion elected Mr. Eduardo Valencia-Ospina (Colombia) to nardo Sepúlveda to the ICJ. - Chairperson: Mr. Guillaume Pambou-Tchivounda : Mr. Roman A. Kolodkin Rapporteur: Ms. Hanqin Xue sons of the Commission 1 and the Special Rapporteurs. 2 son), Mr. Emmanuel Akwei Addo, Mr. Enrique Candioti, Mr. Pedro Comissário Afonso, Mr. Riad Daoudi, Ms. Paula Mr. Peter Kabatsi, Mr. Maurice Kamto, Mr. James Lutaban- Kolodkin, Mr. Teodor Viorel Melescanu, Mr. Djamchid maraju Sreenivasa Rao, Mr. Eduardo Valencia-Ospina, Mr. Chusei Yamada and Ms. Hanqin Xue ( ). C. Drafting Committee 5, 11, 23 and 30 May 2006 respectively, the Commission - 1 Mr. João Clemente Baena Soares, Mr. Enrique Candioti, Mr. Alain Pellet, Mr. Pemmaraju.Sreenivasa Rao and Mr. Chusei Yamada. 2 - Mr. Chusei Yamada. 17

22 18 (a) Diplomatic protection: Mr. Roman Anatolyevitch Kolodkin (Chairperson), Mr. Christopher John Robert and Ms. Hanqin Xue ( ). (b) International liability for injurious consequences (international liability in the case of loss from transbound- Anatolyevitch Kolodkin (Chairperson), Mr. Pemmaraju Sreenivasa Rao (Special Rapporteur), Mr. João Clemente Mr. Michael Matheson, Mr. Chusei Yamada and Ms. Hanqin Xue ( ). ( ) Reservations to treaties: Mr. Roman Anatolyevitch Kolodkin (Chairperson), Mr. Alain Pellet (Special Rapporteur), Ms. Paula Escarameia, Mr. Salifou Fomba, Matheson, Mr. Chusei Yamada and Ms. Hanqin Xue ( ). ( Mr. Roman Anatolyevitch Kolodkin (Chairperson), Economides, Ms. Paula Escarameia, Mr. William Yamada and Ms. Hanqin Xue ( ). (e) Shared natural resources: Mr. Roman Anatolyevitch Kolodkin (Chairperson), Mr. Chusei Yamada (Special Rapporteur), Mr. Enrique Candioti, Mr. Pedro Comissário Afonso, Mr. Riad Daoudi, Mr. Michael Matheson, Mr. Guillaume Pambou- Tchivounda and Ms. Hanqin Xue ( ). 17 May and 5 July 2006 respectively, the Commission Study Group: (a Mr. Enrique Candioti (Chairperson), Mr. Chusei Yamada (Special Rapporteur), Mr. João Clemente Baena Soares, Mr. Pedro Comissário Afonso, Mr. Riad Daoudi, Ms. Paula Badan, Mr. Pemmaraju Sreenivasa Rao and Ms. Hanqin Xue ( ). (b expansion of international law (open-ended) Chairperson: Mr. Martti Koskenniemi ( (open-ended) Chairperson: Mr. Alain Pellet work was re-established and was composed of the follow- rice Kamto, Mr. Martti Koskenniemi and Ms. Hanqin Xue ( ). E. Secretariat 11. Mr. Nicolas Michel, Under-Secretary-General, - retary to the Commission and, in the absence of the United cation Division, acted as Deputy Secretary to the Commis- as Principal Assistant Secretary. Mr. Trevor Chimimba, as Assistant Secretaries to the Commission Diplomatic protection. acts not prohibited by international law (International liability ous activities). 5. Shared natural resources. 6. Unilateral acts of States. 7. Reservations to treaties. 8. Expulsion of aliens. ). Commission and its documentation. 13. Cooperation with other bodies. 15. Other business.

23 Chapter II Commission considered the seventh report of the Special Rapporteur (A/CN.4/567). The Commission subsequently sion decided, in accordance with article 23 of its Statute, to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles on diplomatic protection (see chapter IV). by international law (International liability in case of loss ities), the Commission considered the third report of the Special Rapporteur (A/CN.4/566). The Commission sub- Commission decided, in accordance with article 23 of its Statute, to recommend that the General Assembly endorse national and international action to implement them (see chapter V). - the draft articles submitted by the Special Rapporteur in 3 referred 19 revised draft articles to the report of the Special Rapporteur (A/CN.4/564 and Add.1 and with the responsibility of a State in connection with the Commission considered the second part of the Special Rapporteur s tenth report 4 of the object and purpose of the treaty and the determination of the validity of reservations. The Commission of manifestly invalid reservations which were previously VIII). 3, vol. II (Part One), document A/CN.4/551 and Add.1. 4, document A/CN.4/558 and Add 1 2. the Commission considered the ninth report of the Special Rapporteur (A/CN.4/569 and Add.1) which contained 11 unilateral acts with the mandate to elaborate conclusions and principles on the topic. The Commission adopted principles to the attention of the General Assembly (see chapter IX). on treaties, the Commission considered the second report of the Special Rapporteur (A/CN.4/570) (see chapter X). or prosecute ( ), the Commission considered the preliminary report of the Special Rapporteur (A/CN.4/571) (see chapter XI). - and expansion of international law, the Commission considered the report of the Study Group (A/CN.4/L.682 and Corr.1 and Add.1) and took note of its 42 conclusions (see chapter XII), which it commended to the attention of the General Assembly. The report and its conclusions - - of the Study Group, as well as discussion within the Study Group itself. The Commission requested that the analytical study be made available on its website and be published in its Yearbook. methods (see chapter XIII, section B.2). The Commission reiterated its view that an a priori limitation cannot - enth edition of Work of the International Law Com- tions, Protection of persons in the event of disasters, information and Extraterritorial jurisdiction (see chapter XIII, section B.1). of information with the International Court of Justice,

24 - the Council of Europe, and the Inter-American Juridical Committee. Members of the Commission also held infor- ters of mutual interest (see chapter XIII, section D). different nationalities (see chapter XIII, section F). 25. The Commission decided that its next session be (see chapter XIII, section C).

25 Chapter III articles on the law of transboundary aquifers, the Commission would welcome from Governments: (a) their comments and observations on all aspects of (b) their comments and observations on the com- ( 27. The Commission would welcome comments and - - and to responsibility of a State member of an international 28. The Commission would also welcome views from report: (a - a position to do so? (b 5 an end? 29. The Commission recommended that the Secretariat, in consultation with the Special Rapporteur on reservations sion of the Commission with United Nations experts in Governments on adjustments that they would consider it necessary or useful to introduce in the Preliminary conclusions of the International Law Commission on reserva- ninth session. 6 aut dedere aut judicare) 30. The Commission would welcome any information larly more contemporary ones. If possible, such information should concern: (a) international treaties by which a State is bound, reservations made by that State to limit the application of (b ( - ( ) crimes or offences to which the principle of the tion or practice of a State. 31. The Commission would also welcome any further information that Governments may consider relevant to the topic. of the Commission the Commission would welcome the views of Govern- 6, vol. II (Part Two), pp , para. 157.

26 33. In 1978, the Commission adopted draft articles on most-favoured-nation clauses. 7 In view of the circumstances at the time, the General Assembly took no action with respect to this draft, which clearly is out of date in many aspects today. Some members of the Commission believe that the topic should not be reopened in the Commission at this time, in that the basic policy differences that caused the General Assembly to take no action on the 7, vol. II (Part Two), pp , para. 74. Commission s draft articles have not yet been resolved, have the necessary technical expertise and policy man- the international situation and the continued importance of the most-favoured-nation clause in contemporary trea- tional investments, the time has come to undertake further work on the question and therefore to include the topic in

27 34. At its forty-seventh session (1995), the Commis- topic, and decided, subject to the approval of the General 8-9 The General Assembly, in its resolution 51/160 of 16 December 1996, subsequently invited the Commission further to examine the in the Sixth Committee and any written comments that 10 mission appointed Mr. Mohamed Bennouna Special Rapporteur for the topic The General Assembly, in resolution 52/156 of 15 December 1997, endorsed the decision of the Com- protection. before it the preliminary report of the Special Rapporteur. 12 cial Rapporteur for the topic, 13 after Mr. Bennouna was - 8, vol. II (Part Two), p. 110, para The General Assembly, in resolution 50/45 of 11 December 1995, noted the 9, vol. II (Part Two), document A/51/10, p , para. 248 and annex II, addendum 1, p See A/51/358 and Add.1. Pursuant to General Assembly resolu- at its forty-ninth session (, vol. II (Part Two), p. 60, which was endorsed by the Commission ( para. 171). The Work- the Commission recommended be used as the basis for the submission of a preliminary report by the Special Rapporteur (., pp , paras ). 11, vol. II (Part Two), p. 63, para , vol. II (Part One), document A/CN.4/484, p At the same session, the Commission established an open- drawn on the basis of the discussion on the approach to the topic (see, vol. II (Part Two), p. 49, para. 108). 13, vol. II (Part Two), document A/54/10, p. 17, para. 19. reports 14 - commentaries. 15 At the same session, the Commission decided, in accordance with draft articles 16 and 21 of its General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January sion had before it the sixth report of the Special Rappor At the present session, the Commission had before it comments and observations received from Governments CN.4/561 and Add.1 2), 18 as well as the seventh report posals for the consideration of draft articles 1 to 19 on received from Governments. The Commission considered the report of the Special Rapporteur at its 2867th to 14 Preliminary report: Yearbook 2000, vol. II (Part One), docu- Year, vol. II (Part One), document A/CN.4/514 (draft articles Yearbook 2002, vol. II (Part One), document A/ Yearbook 2003, vol. II (Part One), document A/CN.4/530 and Add.1 (draft arti-, vol. II (Part One), Commission established three informal consultations: on draft arti- Yearbook 2000, vol. II (Part Two), pp , para. 495)), on draft article 9 (at its, vol. II (Part Two) matic protection of crews as well as that of corporations and sharehold- Yearbook , vol. II (Part Two), p. 50, para. 113). The Commission further established a - Yearbook , vol. II (Part Two), p. 27, paras ). 15, vol. II (Part Two), pp , paras , p. 18, para , vol. II (Part One), document A/CN.4/546. The Commission further considered several other issues related to the, vol, II (Part Two), paras ). 18 A set of comments and observations were also submitted by nity to consider these comments and observations as they were received ments and observations are contained in A/CN.4/575.

28 - of Governments, the proposals of the Special Rapporteur and the debate in the plenary on the Special Rapporteur s seventh report. The Commission further decided to refer posal for an additional draft article. 43. The Commission considered the report of the Draft- of draft articles on diplomatic protection, on second read- to the aforementioned draft articles. 45. In accordance with its Statute, the Commission sub- with the recommendation set out below. accordance with article 23 of its Statute, to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles on diplomatic protection. The International Law Commission, the draft articles on diplomatic protection, to the Special Rapporteur, Mr. Christopher John Robert - - achieved in the elaboration of draft articles on diplomatic protection. 48. The Commission also expressed its deep appreciation to the previous Special Rapporteur, Mr. Mohammed Bennouna, for his valuable contribution to the work on the topic. 1. TEXT OF THE DRAFT ARTICLES 49. The text of the draft articles adopted by the Com- PART ONE PART TWO CHAPTER I Article 3. Protection by the State of nationality CHAPTER II matic protection in respect of a person who is its national at the international law. entation of the claim. against a State of which that person is not a national. a State of nationality in respect of a person against a State of which that person is also a of the claim.

29 Diplomatic protection in that State. CHAPTER III the claim. of incorporation. (a (b respect of its nationals. than corporations. PART THREE (a (b (c (d (e PART FOUR (a (b

30 (c 2. TEXT OF THE DRAFT ARTICLES WITH COMMENTARIES THERETO 50. The text of the draft articles with commentaries sion are reproduced below. State responsibility, Mr. F. V. García-Amador, included a number of draft articles on this subject in his reports presented from 1956 to tion of State responsibility paid little attention to diplo- expressly state that the two topics central to diplomatic protection nationality of claims and the exhaustion of local remedies would be dealt with more extensively 20 Nevertheless, there is a close connection between the articles acts and the present draft articles. Many of the principles contained in the articles on responsibility of States for protection and are therefore not repeated in the present draft articles. This applies in particular to the provisions make full reparation for the injury caused by the interna- of restitution, compensation or satisfaction, either sin- the articles on responsibility of States for internationally 21 Treatment of aliens. No attempt is made, however, to deal with the primary rules on this subject that is, the the State of nationality of the injured person. Instead, only: the rules that relate to the conditions that must be of claims. Article 44 of the articles on responsibility of 19 Preliminary report:, vol. II, document A/, vol. II, docu-, vol. II,,, Yearbook, vol. II, document A/CN.4/134 and Add.1, pp (commentary to article 44, footnotes 683 and 687). 21 Articles 28, 30, 31 and (, pp and ). Much of the commentary on compensation (art. 36) is devoted to a con- protection. The responsibility of a State may not be invoked if: (a (b) The claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted. 22 claims and the exhaustion of local remedies. (3) The present draft articles do not deal with the pro- - there are similarities between functional protection and diplomatic protection, there are also important differences. Diplomatic protection is traditionally a mechanism a national is an injury to the State itself. Functional pro- ence. Differences of this kind have led the Commission diplomatic protection. The question whether a State may exercise diplomatic protection in respect of a national who by the ICJ in the case: In such the one or to the other, or which compels either the State tional claim. The Court sees no reason why the parties and common sense. 23 PART ONE Commentary (1) Draft article 1 makes no attempt to provide a com- tion. Instead it describes the salient features of diplomatic protection in the sense in which the term is used in the present draft articles. 22 para , p. 174 at pp

31 Diplomatic protection (2) Under international law, a State is responsible for Diplomatic protection is the procedure employed by the State of nationality of the injured persons to secure protection of that person and to obtain reparation for the interna- stances in which diplomatic protection may be exercised and the conditions that must be met before it may be exer- - of the State for injury to an alien. The draft articles, like those on the responsibility of States for internationally and secondary rules and deal only with the latter. 24 (3) Diplomatic protection has traditionally been seen as to a national is deemed to be an injury to the State itself. Swiss jurist Emmerich de Vattel in 1758 that [w]hoever 25 and, secondly in a dictum of the PCIJ in 1924 in the - rules of international law to say that an injury to a national is an injury to the State itself. Many of the rules of diplo- notably the rule of continuous nationality which requires a State to prove that the injured national remained its national after the injury itself and up to the date of the presentation of the claim. A State does not in reality to quote - (4) In the early years of international law the individual Consequently, if a national injured abroad was to be pro- that an injury to the national was an injury to the State matically. The individual is the subject of many primary rules of international law, both under custom and treaty, 24 See 25 E. de Vattel, 26, p. 12. This dictum was repeated by the PCIJ in, p. 4, at p See J. L. Brierly,, 6th edition edited by Sir Humphrey Waldock, Oxford, Clarendon Press, 1963, at pp and cases. 29 but remedies are few. Diplomatic protection conducted by a State at the inter-state level remains an important have been violated abroad. (5) Draft article 1 is formulated in such a way as to - the articles on responsibility of States for internationally 30 It describes diplomatic protection as the invocation of the responsibility of a State that has commit- of another State, by the State of which that person is a - national law. cover exceptions. Thus no mention is made of the state- this provision. Draft article 3 does, however, make it clear that diplomatic protection may be exercised in respect of such persons. (8) Diplomatic protection must be exercised by lawful and peaceful means. Several judicial decisions draw a distinction between diplomatic action and judicial pro- by a State when it resorts to diplomatic protection. 31 Draft - ful settlement. Diplomatic action covers all the lawful procedures employed by a State to inform another State of disputes. Other means of peaceful settlement embraces mediation and conciliation, to arbitral and judicial dispute settlement. The use of force, prohibited by Article 2, para- 28 v., p. 466, at pp , paras v., p. 12, at pp , para See Chapter I of Part Three entitled Invocation of the Responsibility of a State (articles 42 48),, vol. II (Part Implementation of the International Responsibility of a State. 31 (see footnote 26 above); ( v., p. 4, at p. 24.

32 - matic protection. Diplomatic protection does not include or other diplomatic action that do not involve such as informal requests for corrective action. diplomatic action or other means of peaceful settlement. It differs from consular assistance in that it is conducted whereas consular assistance is, in most instances, car- Convention on Consular Relations. Diplomatic protec- between diplomatic protection and consular assistance, requirement of the exhaustion of local remedies. Clearly there is no need to exhaust local remedies in the case of consular assistance, as this assistance takes place before cally, as diplomatic protection arises only after the com- that local remedies must always be exhausted, subject to the exceptions described in draft article 15. (11) In these circumstances, draft article 1 makes no consular assistance. The draft articles prescribe conditions for the exercise of diplomatic protection which are not applicable to consular assistance. This means that the circumstances of each case must be considered in order to decide whether it involves diplomatic protection or consular assistance. (12) Draft article 1 makes clear the point, already raised 32 that the present draft articles deal only with the exercise of diplomatic protection by a 33 (13) Diplomatic protection mainly covers the protection other rules of international law and instruments, such as the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of Where, however, diplomats or consuls are injured in respect of activities outside their functions, they are for instance, in the case of the expropriation without compensation of property privately owned by a diplomatic (see footnote 23 above). (14) In most circumstances, it is the link of nationality to the exercise of diplomatic protection, a matter that is dealt with in draft articles 4 and 9. The term national in the draft articles, a distinction is drawn between the rules sary, the two concepts are treated separately. Commentary (1) Draft article 2 is founded on the notion that diplomatic protection involves an invocation at the State level by a State of the responsibility of another State that it is the State that initiates and exercises diplomatic a claim vests. It is without prejudice to the question of behalf it acts. Like article 1, 34 it is neutral on this subject. extend diplomatic protection to a national, but international stated by the ICJ in the case: within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it tional law. All they can do is to resort to municipal law, if means are will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case and judicial decisions 37 for the view that there is some or international law, on the State to protect its nationals abroad when they have been subjected to serious 34 35, p. 3, at p See the preliminary report of the Special Rapporteur on diplomatic protection, Yearbook 2000, vol. II (Part One), document A/ CN.4/506 and Add.1, paras case, ILR v. v. (January 2005), p. 173).

33 Diplomatic protection article 19 declares that a State entitled to exercise diplomatic protection tection should therefore be read with draft article 19 which recommends to States that they should exercise exercise diplomatic protection. It makes no attempt to State to consider the assertion of diplomatic protection by a State in accordance with the present articles. This is to be implied, however. PART TWO CHAPTER I Article 3. Protection by the State of nationality article 8. Commentary article 3 asserts the principle that it is the State of nation- to exercise diplomatic protection on behalf of such a person. The emphasis in this draft article is on the bond of nationality between State and national which entitles the State to exercise diplomatic protection. This bond differs quently separate chapters are devoted to these different types of persons. draft article 8 which provides for diplomatic protection in CHAPTER II not inconsistent with international law. Commentary the purposes of diplomatic protection of natural persons. it is for the State of nationality to determine, in accordance with its municipal law, who is to qualify for its of nationality. (2) The principle that it is for each State to decide in accordance with its law who are its nationals is backed by both judicial decisions and treaties. In 1923, the PCIJ stated in the case that in the present state of international law, questions of nationality are in principle within this reserved domain determine under its own law who are its nationals. More recently it has been endorsed by the 1997 European Convention on Nationality (art. 3). nationality listed in draft article 4 are illustrative and not of nationality: birth ( ), descent ( ) per se is - a national automatically results in the acquisition by a spouse of the nationality of the other spouse, problems may arise in respect of the consistency of such an acquisition of nationality with international law. 39 Nationality may also be acquired as a result of the succession of States. 40 those most frequently used by States to establish nationality. In some countries, where there are no clear birth cases, residence could provide proof of nationality, A State may, however, confer nationality on such persons (5) Draft article 4 does not require a State to prove an 38,, 1923, p. 6, at p Convention on the nationality of married women, which prohibit the of this commentary below. 40 See the draft articles on nationality of natural persons in relation to the succession of States,, vol. II (Part Two), p. 20, para. 47.

34 case, 41 as an additional factor for the exercise of diplomatic protection, even where the national possesses only one nation- the case, the Commission took the view that there were certain factors that served to limit to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein (the applicant State) were extremely tenuous 42 compared with the close ties between Mr. Nottebohm and Guatemala (the respondent State) for a period of over 34 years, which led the ICJ to repeatedly assert that Liechtenstein was not entitled to extend its protection to Nottebohm Guatemala applicable to all ine link between itself and Mr. Nottebohm in order to whom he had extremely close ties. Moreover, it is nec- requirement proposed by was strictly applied, diplomatic protection. Indeed, in today s world of eco- of persons who have moved away from their State of nationality and made their lives in States whose nationality they never acquire, or have acquired nationality by birth or descent from States with which they have a tenuous connection. acquisition of nationality must not be inconsistent with - under its own law who are its nationals with the proviso as it is consistent with international conventions, interna Today, conventions, 41 In the tice of States, to arbitral and judicial decisions and to the opinions of said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the State. Conferred by a State, it only entitles that State to exercise protection another State, if it constitutes a translation into juridical terms of the individual s connection which has made him its national (see footnote 31 above) p , p , p This interpretation was placed on the case by the Italian United States Conciliation Commission in the case,, UNRIAA, vol. XIV (Sales ILR (1958-I), vol. 25 (1963), p. 91, at p Nationality. nationality. 46 Convention on the Elimination of All Forms of Discrimi- - the wife, render her stateless or force upon her the nationality of the husband. 47 or her nationality has been acquired contrary to international law. Draft article 4 requires that nationality should be acquired in a manner not inconsistent with interna- in violation of international law is upon the State chal and that there is a presumption in favour of the validity of a State s conferment of nationality. 49 (8) Where a person acquires nationality involuntarily in a manner inconsistent with international law, as where a woman automatically acquires the nationality of her allowed to be protected diplomatically by her or his former State of nationality. 50 If, however, the acquisition of nationality in such circumstances results in the loss of the individual s former nationality, equitable considerations require that the new State of nationality be entitled to exercise diplomatic protection. This would accord with 51 act on the part of the State with which the individual is associated. 46 in its advisory opinion on, in which it held that it was necessary to reconcile the principle that the conferral of nationality fall[s] within the domestic jurisdiction of [a] State with the further principle that international law imposes certain limits on the State s power, which limits are linked to the demands imposed by the ion OC-4/84 of 19 January 1984, Series A, No. 4, para. 38). 47 ( ) (iii) of the International and article 1 of the Convention on the nationality of married women. 48 See the advisory opinion of the Inter-American Court of Human (footnote 46 above), paras See Oppenheim s International Law, 9th edition, vol. I,, 50 See article 2 of the Convention on the nationality of married women. 51,,, p. 16, at p. 56, para. 125.