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Published online by Cambridge University Press: 20 March 2017
[Reproduced from the Report of the International Law Commission on the work of its twenty-third session (April 26-July 30, 1971), UN General Assembly, Official Records: Twenty-Sixth Session, Supplement No. 10 (A/8410/Rev.l).
[In the second part of UN General Assembly Resolution 2780 (XXVI) of December 3, 1971, the Assembly expressed its desire that an international convention on the question of representation of states in their relations with international organizations be concluded "expeditiously" on the basis of the draft articles completed by the Commission in 1971, and in the light of comments submitted by states and specialized agencies on the draft articles and the procedures to be adopted for the conclusion of a convention.]
34 Official Records of the United Nations Conference on the Law of Treaties, Documents of the Conference (United Nations publication, Sales No.: E.70.V.5), p. 289.
35 General Assembly resolution 2530 (XXIV), annex.
36 United Nations, Treaty Series, vol. 11, p. 11
37 Ibid., vol. 339, p. 152.
38 Ibid., vol. 317, p. 101.
39 United Nations, Legislative texts and treaty provisions concerning the legal status, privileges and immunities of international organizations, vol. II (United Nations publication, Sales No.: 61.V.3), p. 187.
40 United Nations, Treaty Series, vol. 500, p. 95.
41 Article 2 of the provisional draft.
42 United Nations, Treaty Series, vol. 33, p. 261.
43 For a list of such organizations see Repertory of Practice of United Nations Organs, vol. HI (United Nations publication, Sales No.: 1955.V2), p. 125. See also Amos J. Peaslee, International Governmental Organizations, Constitutional Documents, 2nd ed. rev. (The Hague, Nijhoff, 1961).
44 United Nations, Treaty Series, vol. 1, p. 15.
45 Article 3 of the provisional draft.
46 Articles 4, 5 and 79 of the provisional draft.
47 Articles 6 and 52 of the provisional draft.
48 The Headquarters Agreement of ECA with Ethiopia (see footnote 38 above) is, however, the only headquarters agreement concerning a United Nations regional economic commission which expressly envisages resident representatives.
49 See Official Records of the General Assembly, Part I of the Third Session, Plenary Meetings of the General Assembly, Annexes to the Summary Records of Meetings, document A/609. See also paragraph 2 of the commentary to article 6 of the provisional draft. (For the reference to the articles of the provisional draft, see foot-note 31 above.)
50 Article 7 of the provisional draft.
51 “The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat” (“hereinafter referred to as “Study of the Secretariat”), Yearbook of the International Law Commission, 1967, vol. II, p. 165, document A/CN.4/L.118 and Add.1 and 2, part one, A, para. 17.
52 Official Records of the General Assembly, Fourteenth Session, Supplement No. 1A (A/4132/Add.l), p. 2.
53 Article 53 of the provisional draft.
54 Official Records of the General Assembly, Twenty-second Session, Supplement No. 1A (A/6701/Add.1).
55 Articles 8 and 54 of the provisional draft.
56 Study of the Secretariat [see foot-note 51 above], op.cit., p. 169, para. 38.
57 Ibid., para. 39.
58 Articles 10 and 55 of theprovisional draft.
59 Official Records of the General Assembly, Twenty-second Session, Annexes, agenda item 98, document A/C.6/385, para. 4.
60 Articles 12 and 57 of the provisional draft.
61 Official Records of the General Assembly, Part I of the Third Session, Plenary Meetings of the General Assembly, Annexes to the Summary Records of Meetings, document A/609.
62 Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 125th meeting, pp. 624 and 625.
63 Ibid., pp. 626, 628 and 630.
64 Study of the Secretariat, op. cit., p. 190, para. 169.
65 Articles 13 and 57, para. 2, of the provisional draft.
66 Official Records of the General Assembly, Third Session, Supplement No. 10 (document A/606), paras. 67 and 68.
67 Articles 14 and 58 of the provisional draft.
68 The provisions in question read:
Article 7: Full powers
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
. . .
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
The term “full powers” is defined in article 2, paragraph 1 (c), of the same Convention as meaning a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.
69 Study of the Secretariat, op. cit., p. 169, para. 35.
70 Articles 15 and 59 of the provisional draft.
71 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859), p. 16 (Yearbook of the International Law Commission, 1958, vol. II, p. 94, document A/3859, para. 53).
72 Articles 16 and 60 of the provisional draft.
73 Emphasis supplied.
74 Study of the Secretariat, op. cit., p. 166, para. 18.
75 For the reference to the text of the Agreement, see foot-note 36 above.
76 Articles 17 and 61 of the provisional draft.
77 United Nations Legislative Series, Legislative texts and treaty provisions concerning the legal status, privileges and immunities of international organizations (United Nations publication, Sales No.: 60.V.2), p. 92. [Text in French].
78 Articles 18 and 62 of the provisional draft.
79 Article 19 of the provisional draft.
80 Articles 20 and 63 of the provisional draft.
81 Articles 21 and 64 of the provisional draft.
82 United Nations, Treaty Series, vol. 596, p. 261.
83 Articles 22 and 65 of the provisional draft.
84 Articles 23 and 66 of the provisional draft.
85 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859), p. 17 (Yearbook of the International Law Commission, 1958, vol. II, p. 95, document A/3859, para. 53).
86 Articles 24 and 66 of the provisional draft.
87 Official Records of the General Assembly, Twenty-second Session, Annexes, agenda, item 98, document A/6965, para. 14.
88 Ibid., document A/C.6/385, para. 8.
89 Articles 25 and 67 of the provisional draft.
90 Amendment adopted at the 1088th meeting of the Sixth Committee during the consideration of the item entitled “Draft Convention on Special Missions” at the twenty-third session (1968) of the General Assembly (See Official Records of the General Assembly, Twenty-third Session. Annexes, agenda item 85, document A/7375, paras. 190, 192, 194 and 195).
91 Study of the Secretariat, op. cit., p. 187, para. 154.
92 cf. article 22 of the Convention on Diplomatic Relations and article 25 of the Convention on Special Missions.
93 Articles 26 and 67 of the provisional draft.
94 Articles 27 and 67 of theprovisional draft.
95 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859), p. 18 (Yearbook of the International Law Commission, 1958, vol. II, p. 96, document A/3859, para. 53).
96 Articles 28 and 68 of the provisional draft.
97 Articles 29 and 67 of the provisional draft.
99 Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 10 (A/7610/Rev.l), p. 8 (Yearbook of the International Law Commission, 1969, vol. II, p. 211, document A/7610/Rev. 1, chap. II, B).
99 Articles 30 and 69 of the provisional draft.
100 Articles 31 and 69 of the provisional draft.
101 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859), p. 20 (Yearbook of the International Law Commission, vol. II, p. 98, document A/3859, para. 53).
102 Articles 32 and 69 of the provisional draft.
103 The formulation of provisional draft article 34 has been substantially modified by the Commission at the second reading (see commentary to article 31 of the present draft).
104 Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 10 (A/7610/Rev.l), pp. 9–10 (Yearbook of the International Law Commission, 1969, vol. II, pp. 212–213, document A/7610Rev.l, chap. II, B).
105 To be printed in Yearbook of the International Law Commission, 1971, vol. II, part II.
106 Articles 33, 34 and 71 of the provisional draft.
107 Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities, vol. II (United Nations publication Sales No.: 62.XI.1), p. 90.
108 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l), p. 21 (Yearbook of the International Law Commission, 1967, vol. II, p. 365, document A/6709/Rev.1, chap. II, D).
109 Articles. 35 and 69 of the provisional draft.
110 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l), p. 19 (Yearbook of the International Law Commission, 1967, vol. II, p. 362, document A/6709/Rev.1, chap. II, D).
111 Articles 36 and 69 of the provisional draft
112 Study of the Secretariat, op. cit., p. 201, document A/CN.4/L. 118 and Add.1 and 2, part one, B. para. 45.
113 Articles 37 and 69 of the provisional draft.
114 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A/3859), p. 22 (Yearbook of the International Law Commission, 1958, vol. II, p. 100, document A/3859, para. 53)
115 Study of the Secretariat, op. cit., p. 200, para. 37.
116 Articles 38, 67 and 69 of the provisional draft.
117 Study of the Secretariat, op. cit., document A/CN.4/L.118 and Add.1 and 2, part one, A, p. 183, para. 134. For details of the position in respect of the various federal and State taxes in New York, see ibid., pp. 183–186, paras. 132–148.
118 Ibid., p. 173, para. 62.
119 Ibid., p. 183, para. 136.
120 For the text of the Agreement, see United Nations, Treaty Series, vol. 357, p. 3.
121 Articles 40 and 69 of the provisional draft.
122 Articles 41 and 70 of the provisional draft.
123 United Nations, Legislative texts and treaty provisions concerning the legal status, privileges and immunities of international organizations, vol. II (United Nations publication, Sales No.: 61.V.3), p. 369.
124 Ibid., p. 390.
125 Ibid., p. 414.
126 Text published by the Secretariat of the Organization of African Unity, Addis Ababa.
127 United Nations, Legislative text and treaty provisions concerning the legal status, privileges and immunities of international organizations, vol. I (United Nations publication, Sales No.: 60.V.2), p. 113.
128 Ibid., vol. II (United Nations publication, Sales No.: 61.V.3), p. 20.
129 Articles 42 and 73 of the provisional draft.
130 Study of the Secretariat, op. cit., p. 176, para. 87.
131 Articles 46, 76 and 113 of the provisional draft. Article 113 was deleted at the present session.
132 A similar position was adopted by the Commission in connexion with its draft articles on special missions in paragraph 2 of the commentary on article 49 of that draft. See Official Records of the General Assembly, Twenty-second Session Supplement No. 9 (A/6709/Rev.l), p. 23 (Yearbook of the International Law Commission, 1967, vol. II, p. 367, document A/6709/Rev.l, chap. II, D). Draft article 49 was adopted without change by the General Assembly; it became article 48 of the Convention on Special Missions.
133 Articles 47 and 77 of the provisional draft.
134 Articles 49 and 77 of the provisional draft.
135 See paragraph 3 of the commentary to article 77 (Facilities for departure).
136 New article.
137 The following international conventions were cited [see below annex I, section A, Netherlands, part c, para. 23]:
The Universal Postal Union of 1874 (Berne Convention of 1874 revised in the Acts of the Union, Vienna 1964: article 101, paragraph 2, of the UPU General Regulations pertaining to the Convention provides for the possibility of double representation in the Congress of the Union).
The International Union for the Protection of Industrial Property (Convention of Paris 1883, revised at Stockholm 1967: article 13, paragraph 3 (b) contains a special regulation for group representation in the Assembly of the Union).
The International Telecommunication Union (Madrid Convention of 1932, revised at Montreux 1965: Chapter 5, margin No. 640–642, of the General Regulations annexed to the Convention provides for double representation in the Conference of the Union and also for the transference of votes up to a maximum of one extra vote).
The International Organization of Legal Metrology (1955 Paris Convention: article XVII provides for the possibility of transferring votes in the International Committee of Legal Metrology up to a maximum of two extra votes).
The European Economic Community (Treaty of Rome 1957: article 150 provides for the possibility of a member of the Council of the Community acting as proxy for not more than one other member in case of a vote).
In addition ITU pointed out [see below annex I, sect C, 11] that the terms of article 83 conflict with chapter 5, paragraphs 6, 7 and 8 of the General Regulations annexed to the Montreux Convention, the texts of which are as follows:
640 6. As a general rule, Members of the Union should endeavour to send their own delegations to conferences of the Union. However, if a Member is unable, for exceptional reasons, to send its own delegation, it may give the delegation of another Member of the Union powers to vote and sign on its behalf. Such powers must be conveyed by means of an instrument signed by one of the authorities mentioned in 629 or 630, as appropriate.
641 7. A delegation with the right to vote may give to another delegation with the right to vote a mandate to exercise its vote at one or more meetings at which it is unable to be present. In such a case it shall, in good time, notify the Chairman of the conference in writing.
642 8. A delegation may not exercise more than one proxy in any of the cases referred to in 640 and 641.
Finally, UPU pointed out [see below annex I, section C, 10] that the regulations in force in UPU allow a delegation to represent only one member country other than its own (article 101, paragraph 2, of the General Regulations of UPU). It therefore shared the reservations expressed by certain members of the Commission about article 83 and agreed with the reasoning advanced by them.
138 Article 84 of the provisional draft.
139 Article 87 of the provisional draft.
140 See below annex I, section C, 11.
141 That article read:
Full powers to represent the State in the conclusion of treaties
1. Heads of State, Heads of Government and Ministers for Foreign Affairs, in virtue of their functions and without having to produce full powers, are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty in a conference or in an organ.
2. A representative to an organ or in a delegation to a conference, in virtue of his functions and without having to produce full powers, is considered as representing his State for the purpose of adopting the text of a treaty in that organ or conference.
3. A representative to an organ or in a delegation to a conference is not considered in virtue of his functions as representing his State for the purpose of signing a treaty (wether in full or ad referendum) concluded in that organ or conference unless it appears from the circumstances that the intention of the Parties was to dispense with full powers.
142 Article 81 of the provisional draft.
143 See below annex I, section C, 2.
144 Article 82 of the provisional draft.
145 Article 89 of the provisional draft.
146 Article 86 of the provisional draft.
147 Article 90 of the provisional draft.
148 See annex I, section C below. In WHO, for example, precedence among delegations is determined by using English or French alphabetical order in alternate years, in accordance with the rules of procedure.
149 Article 91 of the provisional draft.
150 Statement approved in connexion with the question of initiating periodic meetings of the Security Council in accordance with article 28, paragraph 2, of the Charter. See Official Records of the Security Council, Twenty-fifth Year, 1544th meeting.
151 Article 92 of the provisional draft.
152 Article 93 of the provisional draft.
153 Article 92 of the provisional draft.
154 Article 94 of the provisional draft.
155 Article 95 of the provisional draft.
156 Article 92 of the provisional draft.
157 Article 96 of the provisional draft.
158 Article 97 of the provisional draft.
159 Article 98 of the provisional draft.
160 Article 99 of the provisional draft.
161 Article 100 of the provisional draft.
162 Alternative A:
1. The representatives in a delegation to an organ or to a conference and the members of its diplomatic staff shall enjoy immunity from the criminal jurisdiction of the host State.
2. They shall also enjoy immunity from the civil and administrative jurisdiction of the host State, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the host State, unless the person concerned holds it on behalf of the sending State for the purposes of the delegation;
(b) An action relating to succession in which the person concerned is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the person concerned in the host State outside his official functions;
(d) An action for damages arising out of an accident caused by a vehicle used outside the official functions of the person concerned.
3. The representatives in the delegation and the members of its diplomatic staff are not obliged to give evidence as witnesses.
4. No measures of execution may be taken in respect of a representative in the delegation or a member of its diplomatic staff except in the cases coming under sub-paragraphs a, b, c and d of paragraph 2 of this article and provided that the measures concerned can be taken without infringing the inviolability of his person or his accommodation.
5. The immunity from jurisdiction of the representatives in the delegation and of the members of its diplomatic staff does not exempt them from the jurisdiction of the sending State.
Alternative B:
1. The representatives in a delegation to an organ or to a conference and the members of its diplomatic staff shall enjoy immunity from the criminal jurisdiction of the host State.
2. (a) The representatives and members of the diplomatic staff of delegation shall enjoy immunity from the civil and administrative jurisdiction of the host State in respect of all acts performed in the exercise of their official functions.
(b) No measures of execution may be taken in respect of a representative or a member of the diplomatic staff of the delegation unless the measures concerned can be taken without infringing the inviolability of his person or his accommodation.
3. The representatives and members of the diplomatic staff of the delegation are not obliged to give evidence as witnesses.
4. The immunity from jurisdiction of the representatives and members of the diplomatic staff of the delegation does not exempt them from the jurisdiction of the sending State.
163 Official Records of the General Assembly, Twenty-fifth Session, Supplement No. 10 (A/8010/Rev.1), p. 25 (Yearbook of the International Law Commission, 1970, vol. II, document A/8010/Rev.1, chap. II, B).
164 Article 101 of the provisional draft.
165 Article 104 of the provisional draft.
166 Article 102 of the provisional draft.
167 Yearbook of the International Law Commission, 1970, vol. I, p. 201, 1077th meeting, paras. 134 et seq.
168 Article 104 of the provisional draft.
169 Article 103 of the provisional draft.
170 Article 105 of the provisional draft.
171 Article 106 of the provisional draft.
172 Articles 108 and 109 of the provisional draft.
173 Article 114 of the provisional draft.
174 Article 116 of the provisional draft.
175 Articles 11, 56 and 85 of the provisional draft.
176 Articles 39, 72 and 104 of the provisional draft.
177 Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities, vol. II (United Nations publication, Sales No.: 62.X.1.), p. 88.
178 Official Records of the United Nations Conference on Consular Relations, vol. II (United Nations publication, Sales No.: 64.X.1), p. 189.
179 Official Records of the General Assembly, Thirteenth Session, Supplement No. 9 (A 3859), p. 23 (Yearbook of the International Law Commission, 1958, vol. II, p. 101, document A/3859, para. 53).
180 Article 59, paragraph 2, and article 107 of the provisional draft.
181 11 Articles 45, 76 and 112 of the provisional draft.
182 New article.
183 Paragraph 2 of the commentary to article 48. See Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 10 (A/7610/Rev.l), p. 17 (Yearbook of the International Law Commission, 1969, vol. II, p. 221, document A/7620/Rev.1).
184 Commentary to article 115. See Official Records of the General Assembly, Twenty-fifth Session, Supplement No. 10 (A/8010/Rev.1), p. 29 (Yearbook of the International Law Commission, 1970, vol. II, document A/8010/Rev.1, chap. II, B).
185 To be printed in Yearbook of the International Law Commission, 1971, vol. II, part II.
186 See below annex I, section C, 1.
187 Ibid, section C, 13.
188 Articles 48, 77 and 115 of the provisional draft.
189 Articles 43, 74 and 110 of the provisional draft.
190 Study of the Secretariat, op. cit., p. 190, para. 168.
191 Paragraph 2 of the commentary to article 39 of thedraft articles on diplomatic intercourse and immunities [Official Records of the General Assembly, Thirteenth session. Supplement No. 9 (A/3859), p. 25; Yearbook of the International Law Commission, 1958, vol. II, p. 103, document A/3859, para. 53] and paragraph 2 of the commentary to article 43 of the draft articles on special missions [Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l), p. 22; Yearbook of the International Law Commission, 1967, vol. II, p. 365, document A/6709/Rev.l, chap. II, D].
192 New article.
193 To be printed in Yearbook of the International Law Commission, 1971, vol. II, part II.
194 Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 10 (A/7610/Rev.l), p. 3, para. 18 (Yearbook of the International Law Commission, 1969, vol. II, p. 206, document A/7610/Rev.1, para. 18).
196 Ibid., Twenty-fifth Session, Supplement No. 10 (A/8010/Rev.1), p. 5, para. 22 (Ibid. 1970, vol. II, document A/8010/Rev. 1, para. 22).
196 Ibid., Twenty-fourth Session, Annexes, agenda items 86 and 94 b, document A/7746, para. 22.
197 Ibid., Twenty-fifth Session, Annexes, agenda item 84, document A/8147, para. 17.
198 Official Records of the General Assembly, Twenty-second Session, Supplement No. 9 (A/6709/Rev.l), p. 7 (Yearbook of the International Law Commission, 1967, vol. II, p. 350, document A/6709/ Rev.1, chap. II, D).
199 Ibid., Twenty-first Session, Supplement No. 9 (A/6309/Rev.l), p. 88 (ibid., 1966, vol. II, p. 260, document A/6309/Rev.l, part II, chap. II).
200 Articles 44, 75 and 111 of the provisional draft.
201 Study of the Secretariat, op. cit., p. 178, para. 96.
202 Official Records of the General Assembly, Twenty-second Session, Annexes, agenda item 98, document A/C.6/385, para. 4.
203 Article 50 of the provisional draft.
204 New article.
205 United Nations, Treaty Series, vol. 21, p. 93. For other examples, see P. Guggenheim, Traité de droit international public (Geneva, Librairie de l’Université, Georg et Cle, 1954), t. II, pp. 198–200.
206 Official Records of the General Assembly, Twenty-sixth Session, Supplement No. 20 (A/8420), para. 31.
207 United Nations, Treaty Series, vol. 4, p. 275.
208 IAEA, Statute (as amended up to 31 January 1963), March 1967.
209 A/CN.4/L.151.
210 Official Records of the General Assembly, Twenty-fifth Session, Supplement No. 10 (A, 8010, Rev.1), p. 4, para. 14 (Yearbook of the International Law Commission, 1970, vol. II, document A/8010/Rev.1, para. 14).
211 To be printed in Yearbook of the International Law Commission, 1971, vol. II, part II.
212 See WHO, Basic Documents, 22nd ed. (Geneva, April 1971), p. 97.
213 Ibid., p. 1.
214 See FAO, Report of the Ninth Session of the Conference (2–23 November 1957), Rome, 1958, pp. 221–222.
215 International Labour Office, Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference (Geneva, 1968), p. 31.
216 ILO, Geneva, 1966.
217 To be printed in Yearbook of the International Law Commission, 1971, vol. II, part II.
218 Article 72 (Nationality of the members of the mission or the delegation) is one of the general provisions of the consolidated draft.