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The First Session of the International Law Commission: Review Of its Work by the General Assembly

Published online by Cambridge University Press:  20 April 2017

Yuen-Li Liang
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American Journal of International Law , Volume 44 , Issue 3 , July 1950 , pp. 527 - 542
Copyright
Copyright © American Society of International Law 1950

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References

1 [The text of the Statute is contained in TJ.N. Doe. A/CN.4/4 (reprinted in this JOURNAL, Supp., Vol. 42 (1948), pp. 1-8).

2 For list of members elected, see General Assembly, 3rd Sess., Pt. I, Official Eecords, Resolutions, p. 6. Of the fifteen members, thirteen took part in the first session of the Commission.

3 SXT.N. Doc. A/925 (reprinted in this JOURNAL, Supp., Vol. 44 (1950), pp. 1-21). In view of the fairly comprehensive character of this report, it is not intended, for the purpose of the present note, to recapitulate in detail the proceedings of the first sessionof the International Law Commission. An appraisal of its work is provided by Clyde Eagleton in his editorial comment, “First Session of the International Law Commission,'' this JOURNAL, Vol. 43 (1949), pp. 758-762. See a severe criticism of the work of the first session by Professor V. M. Koretsky, Member of the Commission, in his article published in the SovetsTcoye gosudarstvo i pravo (Soviet State and the Law), No. 8 (August, 1949), pp. 12-29, summarized and translated in the Current Digest of the Soviet Press, Vol. II, No. 1(Feb. 18, 1950), p. 20.

4 General Assembly resolutions 373 (IV), 374 (TV) and 375 (IV), adopted on Dec. 6,1949.

5 See Arts. 18, 19, 20, 21, 22 and 23 of the Statute. TJ.N. Doe. A/CN.4/4.

6 See Beport of the Commission. IT.N. Doc. A/925, pars. 9-12.

7 These included the representatives of Argentina, China, Czechoslovakia, Norway,Philippines, Poland, Ukraine, Soviet Union and Yugoslavia,

8 General Assembly, 4th Sess., Official Becords, Sixth Committee, p. 109.

9 Ibid., p. 113.

10 Ibid., p. 108.

11 Ibid., p. 130.

12 Ibid., p. 114.

13 Ibid., p. 109.

14 Ibid., p. 114.

15 Ibid., p. 123.

16 Ibid., p. 112.

17 These included the representatives of Brazil, Canada, Chile, Cuba, Dominican Republic, Ecuador, Egypt, Ethiopia, France, Greece, India, Iran, Lebanon, Mexico, Netherlands, New Zealand, Pakistan, Sweden, United Kingdom and United States.

18 General Assembly, 4th Sess., Official Eecords, Sixth Committee, pp. 105, 119.

19 Ibid., p. 124.

20 Ibid., pp. 118, 132, 119.

21 Ibid., p. 123.

22 Ibid., p. 124. For remarks of Professor Brierly, see U.N. Doe. A/CN.4/SE.2, p. 13.

23 See remarks of representative of France, General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 122; remarks of the representatives of the United States, ibid., p. 124; Canada, p. 107; Greece, p. 116; Iran, p. 121; Ethiopia, p. 131; Chile, p. 136.

24 U.N. Doe. A/C.6/L.39. The vote was 9 in the affirmative, 21 in the negative and 16 abstentions. General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 143. The Committee rejected also an amendment by the Philippines (U.N. Doc. A/C.6/L.35) to a French draft resolution (U.N. Doc. A/C.6/331/Eev.l), whichamendment provided that the General Assembly “authorizes the codification of the three topics recommended by the International Law Commission." The Committee considered that no authorization of the codification of the topics selected by theInternational Law Commission was necessary. See remarks of the representatives of the United Kingdom, Cuba and France,General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 144. The vote on the Philippine amendment was 10 for, 27 against, with 10 abstentions. Ibid., p. 145.

25 ‘ “To obtain a preliminary injunction, Mr. Awad must show that four factors weigh in his favor: ‘(1) [he] is sub stantially likely to succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.’” Id. at *28-29.

26 Eepresentatives who spoke in approval were those of Canada, China, Cuba, Ecuador, Egypt, Ethiopia, France, Iran, Lebanon, Mexico, Netherlands, Norway, Pakistan, Soviet Union, Venezuela and Yugoslavia.

27 General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 120.

28 Ibid., p. 107.

29 2t> Ibid., p. 113. The representatives of China and Canada took a similar position. ma., pp. 133,107.

30 so/«?., p. 117; General Assembly, 4th Sess., Official Becords, Plenary Meetings, p. 538. The representative of Yugoslavia suggested as topics for codification, diplomatic immunity and the recognition of states, see General Assembly, 4th Sess., Official Becords, Sixth Committee, p. 125. The representative of Venezuela regretted that the question of domestic jurisdiction had not been included in the provisional list of selected topics, Hid., p. 118.

31 U.N. Doc. A/C.6/L.37. General Assembly, 4th Sess., Official Becords, Sixth Committee, p. 134. The draft resolution of Iceland was adopted by 15 votes to 12, with 14 abstentions. Ibid., p. 145. Ata subsequent meeting of the Sixth Committee, the representative of the United Kingdom moved the reconsideration of this decision on the ground, among others, that the vote had been taken hastily when one-third of the members of the Committee were absent and that only one-fourth of the membership of the Committee voted for the draft resolution. When his motion was put to the vote there were 21 for, 13 against, with 14 abstentions. As, according to the rules of procedure, a proposal already adopted could not be reconsidered at the same session of the General Assembly unless the Committee, by a two-thirds majority, so decides, the motion of the United Kingdom was lost. Ibid., pp. 157-158. The resolution as adoptedby the Sixth Committee was submitted to the plenary meeting of the General Assembly and wasfinally adopted by 32 votes to 8, with 8 abstentions. General Assembly, 4th Sess., Official Becords, Plenary Meetings, p. 549.

32 Ibid., p. 136.

33 This was a revised text submitted by Pakistan. See General Assembly, 4th Sess., Official Records, Sixth Committee, p. 154. The original draft resolution was contained in U.N. Doc. A/C.6/L.42.

34 General Assembly, 4th Sess., Official Records, Sixth Committee, p. 156.

35 General Assembly resolution 178(11), adopted Nov. 21, 1947. See General Assembly, 2nd Sess., Official Records, Resolutions, p. 112. For Panamanian draft, see U.N. Docs. A/285 and A/285/Corr.l. The Secretary General submitted to the Commission a detailed memorandum on this subject. U.N. Doc. A/CN.4/2.

36 For text of the Draft Declaration, see Eeport of the Commission, TJ.N. Doe. A/925, pp. 7-9; this JOURNAL, Supp., Vol. 44 (1950), p. 15. See critical remarks by Kelsen,this JOURNAL, Vol. 44 (1950), pp. 259-276.

37 General Assembly, 4th Sess., Official Eecords, Sixth Committee, pp. 165, 166.

38 Ibid., pp. 168, 169.

39 Report of the Commission, TJ.N. Doc. A/925, p. 10; this JOURNAL, Supp., Vol. 44 (1950), p. 21.

40 General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 168.

41 Ibid., pp. 170, 172. The vote on the Iranian proposal was 15 for, 10 against, with 25 abstentions.

42 U.N. Doe. A/C.6/326.

43 43TJ.N. Doe. A/C.6/L.4. Also General Assembly, 4th Sess., Official Beeords, Sixth Committee, p. 188.

44 U.N. Doe. A/C.6/L.9. See also General Assembly, 4th Sess., Official Beeords, Sixth Committee, p. 199..

45 U.N. Doc. A/C.6/L.25. See also General Assembly, 4th Sess., Official Beeords, Sixth Committee, p. 202.

46 U.N. Doc. A/C.6/L.25. See also General Assembly, 4th Sess., Official Records, Sixth Committee, pp. 202, 203.

47 Byelorussian Soviet Socialist Republic, ibid., p. 165; Chile, ibid., p. 216; Mexico ibid., p. 180; Soviet Union, ibid., p. 229.

48 Ibid., pp. 180-183. See also comments by Kelsen, loo. cit.

49 Ibid., p. 196. Art. 4 relates to the duty to refrain from fomenting civil strife in the territory of another state; Art. 5 provides for the right of equality in law; and Art. 7 stipulates that every state has “the duty to ensure that conditions prevailing in its territory do not menace international peace and order."

50 trjST. Doc. A/C.6/330.

51 U.N. Doc. A/C.6/332.

52 U.N. Doc. A/C.6/L.50.

53 General Assembly, 4th Sess., Official Becords, Sixth Committee, p. 190.

54 Ibid., p. 167.

55 Ibid., p. 248.

56 Ibid., p. 181.

57 Ibid., p. 196.

58 Ibid., p. 246.

59 Ibid., p. 245.

60 Ibid., p. 250. This motion was made by the representative of Cuba in the form of an amendment (U.N. Doc. A/C.6/L.55) to the joint Argentine, Netherlands, United States draft resolution. The Cuban motion was rejected by 24 votes to 12, with 14 abstentions. At the 270th plenary meeting of the General Assembly, the Cuban Delegation again moved an amendment to commend the principles formulated in the Draft Declaration as a source of international law. This amendment was rejected by 22 votes to 11, with 15 abstentions. TJ.N. Doc. A/1213. See General Assembly, 4th Sess., Official Eecords, Plenary Meetings, pp. 537-549.

61 Ibid., p. 250. The original Polish amendment is in A/C.6/L.59. The vote was 38 to 11, with 4 abstentions.

62 U.N. Doc. A/C.6/L.50, 7th par.

63 See General Assembly, 4th Sess., Official Eecords, Sixth Committee, pp. 195, 251. The vote to adopt the Venezuelan motion was 20 to 16, with 14 abstentions, ibid., p. 264.

64 r., p. 263. The vote to reject was 26 to 12, with 8 abstentions. For text of amendment, see TT.N. Doc. A/C.6/L.56.

65 The vote was 34 to 11, with 5 abstentions. General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 264. The proposal adopted was U.N. Doc. A/C.6/IJ.64, being a revised version of an earlier amendment by the same delegation, A/C.6/L.58. The scope of comments under par. (b) may be visualized by referenceto the earlier amendment which further requested the Member States to specify whether the nature of the instrument should be ” ( a ) a restatement by experts of existing international law; (b) a convention; (c) a declaration to be proclaimed by the General Assembly as the standard of international conduct."

66 The vote for the amendment was 29 to 9, with 14 abstentions. The paragraphas amended was adopted by 36 votes to 3, with 12 abstentions. General Assembly, 4th Sess., Official Eecords, Sixth Committee, p. 270.

67 Ibid., Plenary Meetings, p. 549. The vote for the Danish amendment was 19 to 15, with 14 abstentions.

68 Ibid., Sixth Committee, p. 271. The vote was 48 to none, with 3 abstentions.

69 Ibid.

70 General Assembly, 4th Sess., Official Becords, Plenary Meetings, p. 549. The full text of the resolution may be found in General Assembly, 4th Sess., Official Becords, Resolutions, pp. 66, 67.

71 General Assembly, 4th Sess., Official Becords, Sixth Committee, p. 10S.