Yearbook of the International Law Commission 1994 Volume I · CONTENTS Page Members of the Commission viii Officers viii Agenda ix Abbreviations x Multilateral instruments cited in

A/CN.4/SER.A/1994

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1994Volume I

Summary recordsof the meetings

of the forty-sixth session2 May-22 July 1994

UNITED NATIONS

New York and Geneva, 1996

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. . . 1992).

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.

This volume contains the summary records of the meetings of the forty-fourthsession of the Commission (A/CN.4/SR.2328-A/CN.4/SR.2377), with the correctionsrequested by members of the Commission and such editorial changes as wereconsidered necessary.

A/CN.4/SER.A/1994

UNITED NATIONS PUBLICATION

Sales No. E.96.V.1ISBN 92-1-133502-7

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

ISSN 0082-8289

CONTENTS

Page

Members of the Commission viiiOfficers viii

Agenda ixAbbreviations xMultilateral instruments cited in the present volume xiCheck-list of documents of the forty-sixth session xv

SUMMARY RECORDS OF THE2328th TO 2377th MEETINGS

2328th meetingMonday, 2 May 1994, at 3.3.0p.m.Opening of the session 1Election of officers 1Adoption of the agenda 1Organization of work of the session 1

2329th meeting

Tuesday, 3 May 1994, at 10.10 a.m.Statement by the Legal Counsel 2Tribute to the memory of Mr. Eduardo Jime'nez de Ar6chagaOrganization of work of the session (continued) 2Draft Code of Crimes against the Peace and Security of

MankindDraft statute for an international criminal court 3

2330th meeting

Wednesday, 4 May 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)Draft statute for an international criminal court (continued) 1

Composition of the Planning Group 14

2331st meeting

Thursday, 5 May 1994, at 10.10 a.m.Filling of casual vacancies (article 11 of the statute) 14Draft Code of Crimes against the Peace and Security of


Organization of work of the session (continued) 19

2332nd meetingThursday, 5 May 1994, at 3.10 p.m.Draft Code of Crimes against the Peace and Security of


Organization of work of the session (continued) 29

2333rd meetingFriday, 6 May 1994, at 10.10 a.m.Welcome to Mr. Qizhi He 30Draft Code of Crimes against the Peace and Security of

Mankind (continued)Draft statute for an international criminal court (con-

tinued) 30

2334th meetingMonday, 9 May 1994, at 3.10p.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)

Draft statute for an international criminal court (continued)The law of the non-navigational uses of international

watercoursesSecond report of the Special Rapporteur

2335th meetingTuesday, 10 May 1994, at 11 a.m.The law of the non-navigational uses of international

watercourses (continued)Second report of the Special Rapporteur (continued)

Organization of work of the session (continued)

2336th meetingWednesday, 11 May 1994, at 10.10 a.m.The law of the non-navigational uses of international


2337th meetingFriday, 13 May 1994, at 10.10 a.m.The law of the non-navigational uses of international


2338th meetingMonday, 16 May 1994, at 3.10 p.m.The law of the non-navigational uses of international


State responsibilityFifth and sixth reports of the Special Rapporteur

2339th meetingTuesday, 17 May 1994, at 10.10 a.m.State responsibility (continued)

Fifth and sixth reports of the Special Rapporteur(continued)

The law of the non-navigational uses of internationalwatercourses (continued)Second report of the Special Rapporteur (concluded)

2340th meetingThursday, 19 May 1994, at 10.10 a.m.State responsibility (continued)

Fifth and sixth reports of the Special Rapporteur (con-tinued)

2341st meeting

Friday, 20 May 1994, at 10.05 a.m.State responsibility (continued)


2342nd meetingTuesday, 24 May 1994, at 10.10 a.m.State responsibility (continued)


2343rd meeting

Thursday, 26 May 1994, at 10.10 a.m.State responsibility (continued)


Page

37

38

4348

48

54

62

65

66

74

74

82

90

100

th meeting

Friday, 27 May 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)Twelfth report of the Special Rapporteur 109

2345th meeting

Tuesday, 31 May 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)Twelfth report of the Special Rapporteur (continued) 113

2346th meetingWednesday, 1 June 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of


Articles 1 to 4 120Articles 5 to 7 125

2347th meetingThursday, 2 June 1994, at 10.05 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)Draft statute for an international criminal court (con-

cluded) 126Twelfth report of the Special Rapporteur (continued) 127

Articles 5 to 7 (concluded) 127Articles 8 to 10 131

2348th meetingThursday, 2 June 1994, at 3.10 p.m.State responsibility (continued)

Fifth and sixth reports of the Special Rapporteur (con-tinued) 133

2349th meeting

Friday, 3 June 1994, at 10.40 a.m.Draft Code of Crimes against the Peace and Security of


2350th meetingTuesday, 7 June 1994, at 10.10 a.m. _Welcome to Mr. Nabil Elaraby 144Draft Code of Crimes against the Peace and Security of

Mankind (continued)Twelfth report of the Special Rapporteur (concluded) 144

Cooperation with other bodiesStatement by the Observer for the Asian-African

Legal Consultative Committee 149Organization of work of the session (continued) 153

2351st meeting

Friday, 10 June 1994, at 10.10 a.m.International liability for injurious consequences arising out

of acts not prohibited by international lawTenth report of the Special Rapporteur 153

Closure of the International Law Seminar 156

2352nd meetingTuesday, 14 June 1994, at 12.40 p.m.Organization of work of the session (concluded) 157

2353rd meeting

Tuesday, 21 June 1994, at 10.10 a.m.Tribute to the memory of Mr. Cesar Sepulveda Gutierrez.... 158State responsibility (continued)

Fifth and sixth reports of the Special Rapporteur (con-cluded) 158

Page

The law of the non-navigational uses of internationalwatercourses (continued)

Consideration of the draft articles on second reading 162Draft resolution proposed by the Drafting Committee 172

2354th meetingWednesday, 22 June 1994, at 10.15 a.m.

The law of the non-navigational uses of internationalwatercourses (continued)

Consideration of the draft articles on second reading(continued) 173Article 1 (Scope of the present articles) 173Article 2 (Use of terms) 173Article 3 (Watercourse agreements) 174Article 4 (Parties to watercourse agreements) 174Article 5 (Equitable and reasonable utilization and

participation) 174Article 6 (Factors relevant to equitable and reasonable

utilization) 176Article 7 (Obligation not to cause significant harm) .... 177

2355th meetingThursday, 23 June 1994, at 10.10 a.m.The law of the non-navigational uses of international

watercourses (continued)Consideration of the draft articles on second reading

(continued) 179Article 7 (Obligation not to cause significant harm)

(concluded) 179Articles 8 to 16 181Article 17 (Consultations and negotiations concerning

planned measures) 181Articles 18 to 21 181Article 22 (Introduction of alien or new species) 181Articles 23 to 26 181Title of part four 181Articles 27 to 31 181Article 32 (Non-discrimination) 181Article 33 (Settlement of disputes) 182

Draft resolution proposed by the Drafting Committee(continued) 183

2356th meetingFriday, 24 June 1994, at 10.05 a.m.The law of the non-navigational uses of international

watercourses (continued)Draft resolution proposed by the Drafting Committee

(continued) 185Consideration of the draft articles on second reading

(continued) 188Draft Code of Crimes against the Peace and Security of

Mankind (continued)Report of the Working Group on a draft statute for an

international criminal court 190

2357th meetingMonday, 27 June 1994, at 3.10 p.m.Draft Code of Crimes against the Peace and Security of


international criminal court (continued) 194

2358th meetingTuesday, 28 June 1994, at 10.10 a.m.Cooperation with other bodies (continued)

Statement by the Observer for the Inter-AmericanJuridical Committee 202

Draft Code of Crimes against the Peace and Security ofMankind (continued)Report of the Working Group on a draft statute for an


2359th meetingWednesday, 29 June 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (continued)

Report of the Working Group on a draft statute for aninternational criminal court (continued)

Other business

Page

211217

2360th meeting

Wednesday, 29 June 1994, at 3.10 p.m.Draft Code of Crimes against the Peace and Security of



2361st meeting

Tuesday, 5 July 1994, at 10.20 a.m.Cooperation with other bodies (concluded)

Statement by the Observer for European Committee forLegal Cooperation 222

Draft Code of Crimes against the Peace and Security ofMankind (continued)Report of the Working Group on a draft statute for an


2362nd meeting

Friday, 8 July 1994, at 10.10 a.m.International liability for injurious consequences arising out

of acts not prohibited by international law (continued)Consideration of the draft articles proposed by the

Drafting Committee at the forty-fifth and forty-sixthsessions 231Chapter I (General provisions)

Article 1 (Scope of the present articles) 231Article 2 (Use of terms) 234

Chapter II (Prevention)Article 11 (Prior authorization) 235Article 12 (Risk assessment) 235Article 13 (Pre-existing activities) 236

The law of the non-navigational uses of internationalwatercourses (continued)Consideration of the draft articles on second reading

and draft resolution proposed by the DraftingCommittee (concluded) 237

2363rd meeting

Tuesday, 12 July 1994, at 10.20 a.m.Tribute to the memory of Mr. Jose" Maria Ruda 238Statement by the Under-Secretary-General, Director-

General of the United Nations Office at Geneva 238International liability for injurious consequences arising out


Drafting Committee at the forty-fifth and forty-sixthsessions (continued)Chapter II (Prevention) (continued)

Article 13 (Pre-existing activities) (continued) 240Article 14 (Measures to prevent or minimize the

risk) 241Article 14 bis (Non-transference of risk) 243Article 15 (Notification and information) 243

2364th meetingTuesday, 12 July 1994, at 3.10 p.m.International liability for injurious consequences arising out


Drafting Committee at the forty-fifth and forty-sixthsessions (continued)Chapter II (Prevention) (continued)

Article 15 (Notification and information) (con-cluded) 246

Article 16 (Exchange of information) 246Article 16 bis (Information to the public) 249Article 17 (National security and industrial secrets) 252Article 18 (Consultations on preventive measures).. 252

Page

2365th meeting

Wednesday, 13 July 1994, at 10.10 a.m.International liability for injurious consequences arising out


Drafting Committee at the forty-fifth and forty-sixthsessions (continued)Chapter II (Prevention) (concluded)

Article 18 (Consultations on preventive measures)(concluded) 255

Article 19 (Rights of the State likely to be affected) 256Article 13 (Pre-existing activities) (concluded) 258Article 11 (Prior authorization) (concluded) 259Article 20 (Factors involved in a balance of interests) 259

2366th meeting

Wednesday, 13 July 1994, at 3.10 p.m.State responsibility (continued)

Draft articles proposed by the Drafting Committee 261Article 11 (Countermeasures by an injured State) 262Article 13 (Proportionality) 264Article 14 (Prohibited countermeasures) 264Article 12 (Conditions relating ta resort to counter-

measures) 265International liability for injurious consequences arising out

of acts not prohibited by international law (concluded)Consideration of the draft articles proposed by the

Drafting Committee at the forty-fifth and forty-sixthsessions (concluded) 269

2367th meeting

Friday, 15 July 1994, at 10.10 a.m.State responsibility (concluded)

Draft articles proposed by the Drafting Committee (con-cluded) 270

The law of the non-navigational uses of internationalwatercourses (continued)Draft articles and commentaries thereto adopted by the

Commission on second reading 272Commentaries to articles 8 to 20 272Commentaries to articles 21 to 23 272Commentaries to articles 24 and 25 272Commentary to article 26 272Commentary to article 27 273Commentary to article 28 273Commentaries to articles 29 to 31 273Commentary to article 32 273Commentary to article 33 273

2368th meetingMonday, 18 July 1994, at 10.10 a.m.The law of the non-navigational uses of international

watercourses (continued)Draft articles and commentaries thereto adopted by the

Commission on second reading (continued) 274Commentary to article 32 (concluded) 274Commentary to article 33 (concluded) 275

Draft report of the Commission on the work of its forty-sixth session 275Chapter IV. State responsibility 275

A. Introduction 275B. Consideration of the topic at the present session .. 275

1. The question of the consequences of actscharacterized as crimes under article 19 ofpart one of the draft 275(a) The distinction between crimes and de-

licts as embodied in article 19 of partone of the draft 276

(b) Issues considered by the Special Rap-porteur as relevant to the elaboration ofa regime of State responsibility forcrimes 276

th meeting

Monday, 18 July 1994, at 3.15 p.m.Tribute to the memory of Mr. Francisco Garcia Amador 278

Draft report of the Commission on the work of its forty-sixth session (continued)

Chapter IV. State responsibility (continued)B. Consideration of the topic at the present session

(continued)1. The question of the consequences of acts

characterized as crimes under article 19 ofpart one of the draft (continued)(b) Issues considered by the Special Rap-

porteur as relevant to the elaboration ofa regime of State responsibility forcrimes (continued) 278

(c) The courses of action open to the Com-mission 281

(d) Conclusions of the Special Rapporteuron the debate 281

2370th meeting

Tuesday, 19 July 1994, at 10.10 a.m.Draft report of the Commission on the work of its forty-

sixth session (continued)Chapter IV. State responsibility (continued)

B. Consideration of the topic at the present session(continued)1. The question of the consequences of acts

characterized as crimes under article 19 ofpart one of the draft (concluded)(b) Issues considered by the Special Rap-

porteur as relevant to the elaboration ofa regime of State responsibility forcrimes (concluded) 281

(e) Comments on the topic in general 281The law of the non-navigational uses of international


Commission on second reading (continued)Commentary to article 1 283Commentary to article 2 284Commentary to article 3 285Commentary to article 4 285

2371st meeting

Tuesday, 19 July 1994, at 3.15 p.m.The law of the non-navigational uses of international


Commission on second reading (continued)Commentary to article 1 (concluded) 285Commentary to article 5 286Commentary to article 6 286Commentary to article 7 286

2372nd meeting

Wednesday, 20 July 1994, at 10.10 a.m.The law of the non-navigational uses of international

watercourses (concluded)Draft articles and commentaries thereto adopted by the

Commission on second reading (concluded)Commentary to article 7 (concluded) 287

Programme, procedures and working methods of theCommission, and its documentationReport of the Planning Group 291

Draft report of the Commission on the work of its forty-sixth session (continued)Chapter II. Draft Code of Crimes against the Peace

and Security of Mankind 292B. Consideration of the topic at the present session

2. Draft Code of Crimes against the Peace andSecurity of Mankind 292

Page

2373rd meeting

Wednesday, 20 July 1994, at 3.10 p.m.Draft report of the Commission on the work of its forty-

sixth session (continued)Chapter II. Draft Code of Crimes against the Peace

and Security of Mankind (continued)B. Consideration of the topic at the present session

(concluded)2. Draft Code of Crimes against the Peace and

Security of Mankind (concluded)Chapter III. The law of the non-navigational uses

of international watercourses

293

296

2374th meeting

Thursday, 21 July 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of


international criminal court (continued) 296Preamble and part one (Establishment of the court) 297Part two (Composition and administration of the court) 297Part three (Jurisdiction of the court) 298Part four (Investigation and prosecution) 300Part five (The trial) 300

2375th meeting

Thursday, 21 July 1994, at 3.05 p.m.Draft Code of Crimes against the Peace and Security of


international criminal court (continued) 301Part two (Composition and administration of the

court) (concluded) 301Part six (Appeal and review) 301Part seven (International cooperation and judicial

assistance) 301Part eight (Enforcement) 301Annex 302

Draft commentaries to the articles of the draft statutefor an international criminal court 302Commentaries to the preamble and parts one to three .. 302Commentaries to parts four and five 303

Draft report of the Commission on the work of its forty-sixth session (continued)Chapter I. Organization of the session 303

A. MembershipB. OfficersC. Drafting CommitteeD. Working Group on a draft statute for an inter-

national criminal court 303E. SecretariatF. Agenda 304G. General description of the work of the Com-

mission at its forty-sixth session 304Chapter IV. State responsibility (concluded)

B. Consideration of the topic at the present session(concluded)2. Pre-countermeasures dispute settlement pro-

cedures so far envisaged for the draftarticles on State responsibility 304

2376th meeting

Friday, 22 July 1994, at 10.10 a.m.Draft Code of Crimes against the Peace and Security of

Mankind (concluded)Commentaries to the articles of the draft statute for an

international criminal court (concluded) 304Commentaries to parts six to eight and to the annex .... 304Commentaries to the preamble and parts one to three

(concluded) 305Commentaries to parts four and five (concluded) 306Commentaries to parts six to eight and to the annex

(concluded) 307

vi

Page

Draft report of the Commission on the work of its forty-sixth session {continued)Chapter II. Draft Code of Crimes against the Peace

and Security of Mankind (concluded) 307A. Introduction 307B. Consideration of the topic at the present session

{concluded)1. Draft statute for an international criminal

court 307Chapter VI. Other decisions and recommendations of

the CommissionA. The law and practice relating to reservations to

treaties 309B. State succession and its impact on the nationality

of natural and legal persons 309C. Programme, procedures and working methods of

the Commission, and its documentation 309D. Cooperation with other bodies 309E. Date and place of the forty-seventh session 309F. Representation at the forty-ninth session of the

General Assembly and at the Congress of PublicInternational Law (New York, 13-17 March 1995) 309

Chapter V. International liability for injurious conse-quences arising out of acts not prohibited by inter-national lawA. Introduction 309B. Consideration of the topic at the present session... 309C. Draft articles on international liability for injurious

consequences arising out of acts not prohibited byinternational law1. Text of the draft articles provisionally

adopted so far by the Commission 3102. Texts of draft articles 1, 2, subparagraphs (a),

(b) and (c), 11 to 14 bis [20 bis], 15 to 16 bisand 17 to 20 with commentaries thereto, pro-visionally adopted by the Commission at itsforty-sixth sessionGeneral commentary 310Commentary to article 1 (Scope of the pres-

ent articles) 310

Page

2377th meetingFriday, 22 July 1994, at 3.15 p.m.Draft report of the Commission on the work of its forty-

sixth session {concluded)Chapter V. International liability for injurious conse-

quences arising out of acts not prohibited by inter-national law {concluded)C. Draft articles on international liability for injurious

consequences arising out of acts not prohibited byinternational law (concluded)2. Texts of draft articles 1, 2, subparagraphs (a),

(b) and (c), 11 to 14 bis [20 bis], 15 to 16 bisand 17 to 20 with commentaries thereto, pro-visionally adopted by the Commission at itsforty-sixth session (concluded)Commentary to article 2 (Use of terms) 312Commentary to article 11 (Prior authoriza-

tion) 313Commentary to article 12 (Risk assessment) . 313Commentary to article 13 (Pre-existing

activities) 314Commentary to article 14 (Measures to pre-

vent or minimize the risk) 315Commentary to article 14 bis [20 bis] (Non-

transference of risk) 315Commentary to article 15 (Notification and

information) 316Commentary to article 16 (Exchange of

information) 316Commentary to article 16 bis (Information to

the public) 316Commentary to article 17 (National security

and industrial secrets) 316Commentary to article 18 (Consultations on

preventive measures) 316Commentary to article 19 (Rights of the State

likely to be affected) 317Commentary to article 20 (Factors involved

in an equitable balance of interests) 317Closure of the session 317

vii

MEMBERS OF THE COMMISSION

Name

Mr. Husain AL-BAHARNAMr. Awn AL-KHASAWNEH

Mr. Gaetano ARANGIO-RUIZMr. Julio BARBOZAMr. Mohamed BENNOUNAMr. Derek William BOWETT

Mr. Carlos CALERO RODRIGUESMr. James CRAWFORDMr. John de SARAMMr. Gudmundur EIRIKSSONMr. Nabil ELARABYMr. Salifou FOMBAMr. Mehmet GUNEYMr. Qizhi HEMr. Kamil IDRISMr. Andreas J. JACOVIDESMr. Peter KABATSI

Country ofnationality

BahrainJordanItalyArgentinaMoroccoUnited Kingdom

of Great Britainand NorthernIreland

BrazilAustraliaSri LankaIcelandEgyptMaliTurkeyChinaSudanCyprusUganda

Name

Mr. Mochtar KUSUMA-ATMADJAMr. Ahmed MAHIOUMr. Vaclav MIKULKAMr. Guillaume PAMBOU-TCHIVOUNDAMr. Alain PELLETMr. Pemmaraju Sreenivasa RAOMr. Edilbert RAZAFINDRALAMBOMr. Patrick Lipton ROBINSONMr. Robert ROSENSTOCK

Mr. Alberto SZEKELYMr. Doudou THIAMMr. Christian TOMUSCHATMr. Edmundo VARGAS CARRENO

Mr. Vladlen VERESHCHETIN

Mr. Francisco VILLAGRAN KRAMER

Mr. Chusei YAMADAMr. Alexander YANKOV

Country ofnationality

IndonesiaAlgeriaCzech RepublicGabonFranceIndiaMadagascarJamaicaUnited States

of AmericaMexicoSenegalGermanyChileRussian

FederationGuatemalaJapanBulgaria

OFFICERS

Chairman: Mr. Vladlen VERESHCHETINFirst Vice-Chairman: Mr. Chusei YAMADA

Second Vice-Chairman: Mr. Francisco VILLAGRAN KRAMERChairman of the Drafting Committee: Mr. Derek William BOWETT

Rapporteur: Mr. Peter KABATSI

Mr. Hans Corell, Under-Secretary-General, the Legal Counsel, representedthe Secretary-General, and Mrs. Jacqueline Dauchy, Director of the CodificationDivision of the Office of Legal Affairs, acted as Secretary to the Commission and, inthe absence of the Legal Counsel, represented the Secretary-General.

viii

AGENDA

The Commission adopted the following agenda at its 2328th meeting, held on2 May 1994:

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 Mankind.5. The law of the non-navigational uses of international watercourses.6. International liability for injurious consequences arising out of acts not

prohibited by international law.7. Programme, procedures and working methods of the Commission, and its

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

10. Other business.

ix

ABBREVIATIONS

ASEAN Association of South-East Asian NationsCSCE Conference on Security and Cooperation in EuropeECA Economic Commission for AfricaECE Economic Commission for EuropeGATT 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 CrossDLA International Law AssociationITU International Telecommunication UnionOAS Organization of American StatesOAU Organization of African UnityPCIJ Permanent Court of International JusticeUNEP United Nations Environment ProgrammeUNHCR Office of the United Nations High Commissioner for Refugees

I.C.J. ReportsP.C.I.J., Series A

ICJ, Reports of Judgments, Advisory Opinions and OrdersPCIJ, Collection of Judgments (Nos. 1-24: up to and includ-ing 1930)

P.C.I.J., Series A/B PCIJ, Judgments, Orders and Advisory Opinions (Nos. 40-80:beginning in 1931)

NOTE CONCERNING QUOTATIONS

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

MULTILATERAL INSTRUMENTScited in the present volume

Source

HUMAN RIGHTS

Convention on the Prevention and Punishment of the Crime of United Nations, Treaty Se-Genocide (New York, 9 December 1948) ries, vol. 78, p. 277.

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

Convention on the reduction of cases of Multiple Nationality and on Ibid., vol. 634, p. 221.Military Obligations in cases of Multiple Nationality (Stras-bourg, 6 May 1963)

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

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

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 of the Ibid., vol. 1015, p. 243.Crime of Apartheid (New York, 30 November 1973)

Convention against Torture and Other Cruel, Inhuman or Degrading Official Records of the Gen-Treatment or Punishment (New York, 10 December 1984) eral Assembly, Thirty-

ninth Session, Supple-ment No. 51, resolution39/46, annex.

PRIVILEGES AND IMMUNITIES, DIPLOMATIC RELATIONS

Convention on the Privileges and Immunities of the United Nations United Nations, Treaty Se-(London, 13 February 1946) ries, vol. 1, p. 15.

Vienna Convention on Diplomatic Relations (Vienna, 18 April Ibid., vol. 500, p. 95.1961)

Vienna Convention on Consular Relations (Vienna, 24 April 1963) Ibid., vol. 596, p. 261.

Convention on the Prevention and Punishment of Crimes against Ibid., vol. 1035, p. 167.Internationally Protected Persons, including Diplomatic Agents(New York, 14 December 1973)

ENVIRONMENT AND NATURAL RESOURCES

Convention on Nature Protection and Wildlife Preservation in Ibid., vol. 161, p .193.the Western Hemisphere (Washington, D.C., 12 October 1940)

xi

Source

Convention and Statutes relating to the development of the Chad United Nations, TreatiesBasin (Fort Lamy, 22 May 1964) concerning the Utiliza-

tion of InternationalWatercourses for OtherPurposes than Navi-gation: Africa, NaturalResources/Water SeriesNo. 13 (Sales No. E/F.84.II.A.7), p. 8.

African Convention on the Conservation of Nature and Natural United Nations, Treaty Se-Resources (Algiers, 15 September 1968) ' ries, vol. 1001, p. 3.

Basel Convention on the Control of Transboundary Movements of UNEP, Selected Multilat-Hazardous Wastes and Their Disposal (Basel, 22 March 1989) eral Treaties in the Field

of the Environment(Cambridge, England,1991), vol. 2, p. 449.

Convention on Environmental Impact Assessment in a Transbound- Document E/ECE/1250,ary Context (Espoo, 25 February 1991) 1991.

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

D.C.), vol. XXXI, No. 6(November 1992), p. 1313.

United Nations Framework Convention on Climate Change Ibid., No. 4 (July 1992),(New York, 9 May 1992) p. 851.

Convention on Biological Diversity (Rio de Janeiro, 5 June 1992) Ibid., p. 822.

LAW OF THE SEA

Convention on the Continental Shelf (Geneva, 29 April 1958) United Nations, Treaty Se-ries, vol. 499, p. 311.

Convention on the Territorial Sea and the Contiguous Zone Ibid., vol. 516, p. 205.(Geneva, 29 April 1958)

Convention on the High Seas (Geneva, 29 April 1958) Ibid., vol. 450, p. 11.

Convention on Fishing and Conservation of the Living Resources of Ibid., vol. 559, p. 285.the High Seas (Geneva, 29 April 1958)

United Nations Convention on the Law of the Sea (Montego Bay, Official Records of the10 December 1982) Third United Nations

Conference on the Lawof the Sea, vol. XVII(Sales No. E.84.V.3),p. 151, document A/CONF.62/122.

LAW APPLICABLE IN ARMED CONFLICT

Convention for the Pacific Settlement of International Disputes J. B. Scott, ed., The Hague(The Hague, 29 July 1899 and 18 October 1907) Conventions and Decla-

rations of 1899 and1907, 3rd edition (NewYork, Oxford UniversityPress, 1918), p. 41.

Source

Inter-American Treaty for Reciprocal Assistance (Rio de Janeiro, United Nations, Treaty Se-2 September 1947) ries, vol. 21, p. 77.

Geneva Conventions for the protection of war victims (Geneva, Ibid., vol. 75, pp. 31 et seq.12 August 1949)

Protocols additional to the Geneva Conventions of 12 August 1949, Ibid., vol. 1125, pp. 3 etand relating to the protection of victims of armed conflicts seq.(Protocols I and II) (Geneva, 8 June 1977)

International Convention against the Recruitment, Use, Financing Official Records of the Gen-and Training of Mercenaries (New York, 4 December 1989) eral Assembly, Forty-

fourth Session, Sup-plement No. 49, resolu-tion 44/34, annex.

LAW OF TREATIES

Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) United Nations, Treaty Se-ries, vol. 1155, p. 331.

Vienna Convention on the Law of Treaties between States and Document A/CONF.129/15.International Organizations or between InternationalOrganizations (Vienna, 21 March 1986)

NARCOTIC DRUGS

United Nations Convention against Illicit Traffic in Narcotic Drugs Document E/CONF.82/15and Psychotropic Substances (Vienna, 20 December 1988) and Corr.l and 2.

CIVIL AVIATION

Convention for the Suppression of Unlawful Seizure of Aircraft United Nations, Treaty Se-(The Hague, 16 December 1970) ries, vol. 860, p. 105.

Convention for the Suppression of Unlawful Acts against the Safety Ibid., vol. 974, p. 177.of Civil Aviation (Montreal, 23 September 1971)

Protocol for the Suppression of Unlawful Acts of Violence at Air- International Legal Ma-ports Serving International Civil Aviation terials, vol. XXVII,

No. 3 (1988), p. 627

LIABILITY

Convention on Third Party Liability in the Field of Nuclear Energy United Nations, Treaty Se-(Paris, 29 July 1960) ries, vol. 956, pp. 251

and 325.

Vienna Convention on Civil Liability for Nuclear Damage (Vienna, Ibid., vol. 1063, p. 265.21 May 1963)

xiii

Source

Convention on International Liability for Damage Caused by Space Ibid., vol. 961, p. 187.Objects (London, Moscow and Washington, 29 March 1972)

Convention for the Suppression of Unlawful Acts against the Safety International Maritime Or-of Maritime Navigation (Rome, 10 March 1988) ganization, convention

No. 18. 1988.

Convention on Civil Liability for Damage Resulting from Activities Council of Europe, Euro-Dangerous to the Environment (Lugano, 21 June 1993) pean Treaty Series,

No. 150.

GENERAL INTERNATIONAL LAW

Convention on Private International Law (Havana, 20 February League of Nations, Treaty1928) Series, vol. LXXXVI,

p. 111.

Convention on Laundering, Search, Seizure and Confiscation of Council of Europe, Euro-Proceeds from Crime pean Treaty Series,

No. 141.

xiv

CHECK-LIST OF DOCUMENTS OF THE FORTY-SIXTH SESSION

Documents

A/CN.4/455

A/CN.4/456

A/CN.4/456/Add.l-3

A/CN.4/457

A/CN.4/458andAdd.l-8

A/CN.4/459

A/CN.4/460[andCorr.l]

A/CN.4/461 and Add.l,Add.2 [and Add.2/Corr.l]and Add.3

A/CN.4/462

A/CN.4/L.491 and Rev.land 2 [and Rev.2/Corr.l]andRev.2/Add.l-3

A/CN.4/L.492 [and Corr.land 3*]

A/CN.4/L.492/Add.l

A/CN.4/L.493 and Add.l[andAdd.l/Corr.l]and2

A/CN.4/L.494 [and Corr.l]

A/CN.4/L.495 and Rev.l

Title

Provisional agenda

Filling of casual vacancies: note by the secretariat

Idem: addenda to the note by the secretariat: list of candidates and cur-ricula vitae

Topical summary, prepared by the Secretariat, of the discussion in theSixth Committee on the report of the Commission during the forty-eighth session of the General Assembly

Comments of Governments on the report of the Working Group on a draftstatute for an international criminal court

Tenth report on international liability for injurious consequences arisingout of acts not prohibited by international law, by Mr. Julio Barboza,Special Rapporteur

Twelfth report on the draft Code of Crimes against the Peace and Securityof Mankind, by Mr. Doudou Thiam, Special Rapporteur

Sixth report on State responsibility, by Mr. Gaetano Arangio-Ruiz, Spe-cial Rapporteur

Observations and references

Mimeographed. For agenda asadopted, see p. ix above.

Reproduced in Yearbook...1994, vol. II (Part One).

Mimeographed.

Idem.

Reproduced in Yearbook1994, vol. II (Part One).

Idem.

Idem.

Idem.

Second report on the law of the non-navigational uses of international Idem.watercourses, by Mr. Robert Rosenstock, Special Rapporteur

Report of the Working Group on a draft statute for an international crimi- Mimeographed,nal court

Draft articles on the law of the non-navigational uses of internationalwatercourses. Titles and texts of articles adopted by the Drafting Com-mittee on second reading: articles 1-33

Idem: Draft resolution adopted by the Drafting Committee

The law of the non-navigational uses of international watercourses. Draftarticles and commentaries thereto, adopted by the Commission on sec-ond reading: articles 1-33

Draft articles on international liability for injurious consequences arisingout of acts not prohibited by international law. Titles and texts of arti-cles adopted by the Drafting Committee at the forty-fifth and forty-sixth sessions of the Commission: articles 1, 2 (subparas. (a), (b) and(c)), 11-14 bis [20 bis], 15-16 bis and 17-20

Draft report of the International Law Commission on the work of its forty-sixth session: chapter I (Organization of the session)

A/CN.4/L.496 and Add.l

A/CN.4/L.497 and Add.l

Idem: chapter II (Draft Code of Crimes against the Peace and Security ofMankind)

Idem: chapter IV (State responsibility)

See summary record of the2353rd meeting (para. 46).

See summary record of the2356th meeting (para. 38).

Texts reproduced in Yearbook...1994, vol. II (Part Two),para. 222.

See summary records of the2362nd to 2365th meetings.

Mimeographed. For the adoptedtext see Official Records of theGeneral Assembly, Forty-ninthsession, Supplement No. 10(A/49/10). The final text ap-pears in Yearbook . . . 1994,vol. II (Part Two).

Idem.

Idem.

* Corr. 2 applies only to French.

Documents

A/CN.4/L.498 and Add.land 2

A/CN.4/L.499

A/CN.4/L.500

Title Observations and references

A/CN.4/L.501

A/CN.4/L.502

A/CN.4/L.503 and Add.land 2

A/CN.4/L.504

/dem: chapter V (International liability for injurious consequences arisingout of acts not prohibited by international law)

Idem: chapter III (The law of the non-navigational uses of internationalwatercourses)

A/CN.4/SR.2328-A/CN.4/SR.2377

Draft articles on State responsibility. Titles and texts of articles adoptedby the Drafting Committee at the forty-fifth and forty-sixth sessions ofthe Commission

Report of the Planning Group: Programme, procedures and workingmethods of the Commission, and its documentation

International liability for injurious consequences arising out of acts notprohibited by international law. Texts of draft articles with commen-taries thereto, provisionally adopted by the Commission at its forty-sixth session: articles 1, 2 (subparas. (a), (b) and (c)), 11-14 bis [20

• bis], 15-16 bis and 17-20

Draft report of the International Law Commission on the work of itsforty-sixth session: chapter VI (Other decisions and recommendationsof the Commission)

Provisional summary records of the 2328th to 2377th meetings

Idem.

[Symbol not used]

Mimeographed. For the adoptedtext see Official Records of theGeneral Assembly, Forty-ninthsession, Supplement No. 10(A/49/10). The final text ap-pears in Yearbook . .. 1994,vol. II (Part Two).

See summary record of the2366th meeting (para. 1).

Mimeographed.

Reproduced in Yearbook1994, vol. II (Part Two).

Mimeographed. For the adoptedtext see Official Records of theGeneral Assembly, Forty-ninthsession, Supplement No. 10(A/49/10). The final text ap-pears in Yearbook. .. 1994,vol. II (Part Two).

Mimeographed. The final text ap-pears in the present volume.

xvi

INTERNATIONAL LAW COMMISSION

SUMMARY RECORDS OF THE FORTY-SIXTH SESSION

Held at Geneva from 2 May to 22 July 1994

2328th MEETING

Monday, 2 May 1994, at 3.30 p.m.

Acting Chairman: Mr. Gudmundur EIRIKSSON

Chairman: Mr. Vladlen VERESHCHETIN

Present: Mr. Arangio-Ruiz, Mr. Bowett, Mr. CaleroRodrigues, Mr. Crawford, Mr. de Saram, Mr. Fomba,Mr. Giiney, Mr. Idris, Mr. Kabatsi, Mr. Kusuma-Atmadja, Mr. Mahiou, Mr. Mikulka, Mr. Pambou-Tchivounda, Mr. Pellet, Mr. Sreenivasa Rao, Mr. Raza-findralambo, Mr. Rosenstock, Mr. Thiam, Mr. VargasCarreno, Mr. Villagran Kramer, Mr. Yamada,Mr. Yankov.

Opening of the session

1. The ACTING CHAIRMAN declared open the forty-sixth session of the International Law Commission andextended a warm welcome to members.

Mr. Villagran Kramer was elected Second Vice-Chairman by acclamation.

Mr. Bowett was elected Chairman of the DraftingCommittee by acclamation.

Mr. Kabatsi was elected Rapporteur by acclamation.

Adoption of the agenda (A/CN.4/455)

4. The CHAIRMAN suggested that the provisionalagenda (A/CN.4/455) should be adopted on the under-standing that the order in which the various items wereshown was without prejudice to the decisions the Com-mission would take on the organization of its work in thelight of various factors, including, inter alia, the requestscontained in General Assembly resolution 48/31, theavailability of documentation, the plans of Special Rap-porteurs, and so forth. In addition, the requests in para-graph 10 of that resolution should be considered underagenda item 7 (Programme, procedures and workingmethods of the Commission, and its documentation).

It was so agreed.

The agenda (A/CN.4/455) was adopted.

Election of officers

Mr. Vereshchetin was elected Chairman by acclama-tion.

Mr. Vereshchetin took the Chair.

2. The CHAIRMAN expressed his thanks to membersfor the confidence they had placed in him and assuredthem that he would do his best to serve the Commissionwith dedication and to bring the work of the forty-sixthsession to a successful conclusion.

3. He suggested that the meeting should be suspendedin order to give members more time for consultationsconcerning the composition of the Bureau.

The meeting was suspended at 3.40 p.m. and resumedat 4.35 p.m.

Mr. Yamada was elected First Vice-Chairman by ac-clamation.

Organization of work of the session

[Agenda item 2]

5. The CHAIRMAN suggested that the Enlarged Bu-reau should meet immediately after the present meetingwas adjourned. He invited the Chairman of the DraftingCommittee to undertake the necessary consultations assoon as possible so that the Committee might begin itswork without delay. The relevant guidelines were to befound in paragraph 371 of the Commission's report onthe work of its forty-fourth session.1 He said he wouldalso be grateful if the First Vice-Chairman, in his capac-ity as Chairman of the Planning Group, engaged in con-sultations as soon as possible on the constitution of theGroup.

The meeting rose at 4.55 p.m.

1 Yearbook. . . 1992, vol. II (Part Two), p. 54.

Summary records of the meetings of the forty-sixth session

2329th MEETING

Tuesday, 3 May 1994, at 10.10a.m.


Present: Mr. Arangio-Ruiz, Mr. Bowett, Mr. CaleroRodrigues, Mr. Crawford, Mr. de Saram, Mr. Eiriksson,Mr. Fomba, Mr. Giiney, Mr. Idris, Mr. Kabatsi,Mr. Kusuma-Atmadja, Mr. Mahiou, Mr. Mikulka,Mr. Pambou-Tchivounda, Mr. Sreenivasa Rao, Mr. Ra-zafindralambo, Mr. Rosenstock, Mr. Thiam, Mr. To-muschat, Mr. Vargas Carreno, Mr. Villagran Kramer,Mr. Yamada, Mr. Yankov.

5. Mr. BOWETT, referring to the exceptional qualitiesof concentration, insight into legal problems, courtesyand humility of Mr. Jimenez de Arechaga, said that withhis death, he had lost a personal friend.

6. Mr. THIAM expressed great sadness over the deathof a man who had been the beacon and pride of the thirdworld.

7. Mr. YANKOV referred to the integrity and dignityof the man and the erudition of the jurist who had madeoutstanding contributions in many fields of internationallaw. Mr. Jimenez de Arechaga's death meant the loss ofa dear friend.

8. The CHAIRMAN said he would transmit the Com-mission's condolences to the family of Mr. Jimenez deArechaga.

Statement by the Legal Counsel

1. The CHAIRMAN welcomed Mr. Hans Corell,Under-Secretary-General and new Legal Counsel of theUnited Nations, and expressed to him, on behalf of allthe members of the Commission, their sincere congratu-lations on his recent appointment. The members of theCommission who had taken part in meetings of the SixthCommittee of the General Assembly had already had oc-casion to appreciate his qualities as a jurist and his senseof leadership as Legal Adviser to the Ministry of ForeignAffairs of his country, Sweden.

2. Mr. CORELL (Under-Secretary-General, the LegalCounsel) thanked the Chairman for his words of wel-come. For several years, he had been following the workof the Commission and would endeavour to pursue thefruitful collaboration established with the Commissionby his predecessor, Mr. Fleischhauer. He would com-ment on the work of the Commission at a later meeting.

Tribute to the memory ofMr. Eduardo Jimenez de Arechaga

3. The CHAIRMAN said that he had the sad duty toremind the members of the Commission thatMr. Jimenez de Arechaga, former President of ICJ andformer member and Chairman of the Commission, hadpassed away on 4 April 1994.

At the invitation of the Chairman, the members of theCommission observed a minute of silence in tribute tothe memory of Mr. Eduardo Jimenez de Arechaga.

4. Mr. VILLAGRAN KRAMER said he was all themore deeply affected by the death of Mr. Jimenez deArechaga because the man had succeeded in crystalliz-ing the legal thinking of the South American continent.He recalled the contribution made by that brilliant authorand professor to the study of the international respon-sibility of States and his ability, as a member of arbitralbodies, to find pragmatic and equitable solutions to verycomplex problems.

Organization of work of the session {continued)

[Agenda item 2]

9. The CHAIRMAN informed the Commission of therecommendations made by the Enlarged Bureau. It wasrecommended that elections to fill casual vacanciesshould be held on Thursday, 5 May 1994, at 10 a.m.

It was so agreed.

10. The CHAIRMAN said the Enlarged Bureau furtherrecommended that, in order to take advantage of thepresence of the Legal Counsel in Geneva, a meeting ofthe Planning Group should be scheduled for Wednesday,4 May 1994, at 3 p.m.

It was so agreed.

11. The CHAIRMAN, referring to the consideration ofagenda items, said that, in the light of paragraph 6 ofGeneral Assembly resolution 48/31, which requested theCommission to continue its work as a matter of priorityon the question of a draft statute for an internationalcriminal court with a view to elaborating a draft statute,if possible at the current session, the Enlarged Bureaurecommended that the first week of the session should bedevoted to a discussion of that subject in plenary. Thetopic of the law of the non-navigational uses of interna-tional watercourses would, in accordance with the rec-ommendations of the Enlarged Bureau, be considered inplenary during the second week of the session, bearingin mind paragraph 8 of Assembly resolution 48/31, inwhich the Assembly had welcomed the Commission'sdecision to endeavour to complete in 1994 the secondreading of the draft articles on the law of the non-navigational uses of international watercourses. The En-larged Bureau also drew the Commission's attention tothe fact that, in paragraph 8 of Assembly resolution48/31, the Assembly also requested the Commission toresume at its forty-sixth session the consideration of thedraft Code of Crimes against the Peace and Security ofMankind, and that would have to be borne in mind forthe organization of work in future.

12. According to the Enlarged Bureau's recommenda-tions, the topic of State responsibility would be consid-

2329th meeting—3 May 1994

ered in plenary during the third week of the session onthe basis of the sixth report of the Special Rapporteur(A/CN.4/461 andAdd.1-3).1

13. The Enlarged Bureau would in the near futuredraw up a programme of work for the remainder of thesession and submit the relevant recommendations to theCommission in plenary.

14. If he heard no objection, he would take it that theCommission endorsed the recommendations of the En-larged Bureau for the first three weeks of the session.

It was so agreed.

Draft Code of Crimes against the Peace and Securityof Mankind (A/CN.4/457, sect. B, A/CN.4/458 andAdd.1-8,2 A/CN.4/460,3 A/CN.4/L.491 and Rev.land 2 and Rev.2/Corr.l and Add.1-3)

[Agenda item 4]

DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL COURT

15. The CHAIRMAN recalled that the report of theWorking Group on a draft statute for an internationalcriminal court was set out in the annex to the report ofthe Commission on the work of its forty-fifth session.4

Paragraph 100 of the report of the Commission5 indi-cated that the Commission would welcome comments bythe General Assembly and by Governments on the spe-cific questions referred to in the commentaries to thedraft articles and on the draft articles as a whole. Hedrew attention to the topical summary of the relevant de-bate in the Sixth Committee (A/CN.4/457, section B)and to the written comments of Governments (A/CN.4/458 and Add.l to 8), which were available in all workinglanguages.

16. Mr. BOWETT said that the summary of the discus-sion in the Sixth Committee and the written commentsof Governments showed that, notwithstanding certaincriticisms, the Commission's work had been well re-ceived.

17. The main problems related to the question of thejurisdiction of the court. Article 22 (List of crimes de-fined by treaties) had met with little opposition; the con-cept of a court based on treaties of that type was widelyaccepted. The list was not exhaustive and could be short-ened or added to. Some representatives in the SixthCommittee had proposed, for example, the addition ofthe Convention against Torture and other Cruel, Inhu-man or Degrading Treatment or Punishment, but the de-cision on that score would have to be taken at the diplo-matic level.

18. Article 26 (Special acceptance of jurisdiction byStates in cases not covered by article 22) had met withmore criticism because of uncertainty and hesitation

about its paragraph 2 (a) dealing with crimes under cus-tomary international law. That paragraph had been criti-cized because it was vague and because it contravenedthe principle nulla poena sine lege. He was prepared toaccept those criticisms in part, but only to the extent thatthey did not rule out the jurisdiction of the Court forcrimes of aggression. It would be nonsensical to estab-lish an international criminal court having no jurisdictionover the crime of aggression, which was the most seriousof all international crimes and should form the verycornerstone of the jurisdiction of the new court.

19. However, he did not think that limiting para-graph 2 (a) to the crime of aggression would in itself re-move the difficulties. First of all, it was not certain thatthere was a sufficiently precise definition of aggression.There was, of course, no treaty definition, but a numberof instruments, the Charter of the United Nations fore-most among them, did contain some relevant provisions.Thus, Article 2, paragraph 4, of the Charter placed a pro-hibition on the use of force which was of unquestionablerelevance to the definition of aggression. In the past, ageneral prohibition of that type had been deemed suffi-cient by the Niirnberg Tribunal for the purpose of estab-lishing its jurisdiction in respect of that crime. In fact,what article 6 (a) of the Charter of the Niirnberg Tribu-nal, annexed to the London Agreement6 submitted to thejurisdiction of the Tribunal were crimes against peace,namely, the planning or waging of a war of aggression ora war in violation of international treaties, but it hadgone no further in defining aggression. That had notstopped the Niirnberg Tribunal from affirming its juris-diction in respect of the crime of aggression or the Gen-eral Assembly in 1946 from enshrining the principlesadopted by the Tribunal.7 The main treaty underlying theLondon Agreement had, of course, been the 1928 Pact ofParis, known as the Briand-Kellogg Pact, which alsocontained no precise definition of aggression, but pro-vided for an obligation to renounce war as an instrumentof national policy. Furthermore, while the obligation im-posed by the Pact applied only to the signatory States,the Nurnberg Tribunal had had no difficulty in extendingthe concept of State obligations to cover individualcriminal responsibility by affirming that crimes againstthe law of nations were committed by men, not by ab-stract entities.

20. If the Nurnberg Tribunal had been able to deducethe principle of individual criminal responsibility from avery general treaty prohibition on war as an instrumentof national policy, why should it not be possible to dothe same within the framework of the Charter, whoseprovisions were at least as specific as those of the Pact?The substantial body of United Nations practice would,moreover, facilitate the task of the court, which, unlikethe Nurnberg Tribunal, would also have at its disposaldocuments prepared by the General Assembly, such as

1 Reproduced in Yearbook . . . 1994, vol. II (Part One).2 Ibid.3 Ibid.4 Yearbook . . . 1993, vol. II (Part Two), pp. 100 et seq.5 Ibid., p. 20.

6 London Agreement of 8 August 1945 for the prosecution andpunishment of the major war criminals of the European Axis (UnitedNations, Treaty Series, vol. 82, p. 288).

7 Principles of International Law recognized in the Charter of theNurnberg Tribunal and in the Judgment of the Tribunal (Hereinafterreferred to as the "Nurnberg Principles") (Yearbook . . . 1950, vol. II,pp. 374-378, document A/1316, paras. 95-127. Text reproduced inYearbook... 1985, vol. II (Part Two), para. 45).


the Declaration on Principles of International Law con-cerning Friendly Relations and Cooperation amongStates in accordance with the Charter of the UnitedNations8 and the Definition of Aggression.9 Even ifthose documents were not treaty definitions of aggres-sion, they would afford more guidance to the new courtthan had been available to the Niirnberg Tribunal.

21. A second stumbling block was that the lack of adefinition of self-defence reinforced doubts arising outof the lack of a definition of aggression, since the twoconcepts were complementary.

22. Such excessive timidity was the essential problemthe Commission had to overcome in drafting the statuteof the new court. The task of the court would be not somuch to decide whether a particular State had committedaggression as to determine whether individuals indictedhad been sufficiently privy to the planning or waging ofthe war as to be guilty of the crime of aggression. Thatwas primarily a problem of proof rather than one involv-ing a legal definition of aggression.

23. He conceded, however, that a problem still existedeven if article 26, paragraph 2 (a), was confined to thecrime of aggression. Wild charges of aggression wereoften made against States and States would not want toexpose their political leaders to a criminal indictment be-fore the court without adequate safeguards. A schemewith the following elements might therefore be envis-aged: an article 26, paragraph 2 (a), limited to the crimeof aggression; making a finding of aggression by the Se-curity Council a preliminary condition for any indict-ment; and a provision in relation to individuals indictedto the effect that, in addition to other defences availableto them, they were entitled to prove that, notwithstand-ing the Security Council determination that the Statewhose policy they had directed had committed aggres-sion, the actions which they had controlled or directedhad in fact been legitimate self-defence. In other words,a finding of aggression by the Security Council, beingessentially political in nature, should not preclude the ac-cused individual from arguing self-defence.

24. A related problem was that of the role of the Secu-rity Council vis-a-vis the court. Article 25 (Cases re-ferred to the Court by the Security Council) envisagedthat the Security Council could refer cases to the court.But a reading of the written comments of Governmentsindicated some apprehension about the precise role ofthe Security Council. In his view, the Commissionshould accept that the Council's role would not be to re-fer specific complaints against specific, named individ-uals, but to bring to the attention of the court situationswhich warranted the opening of an investigation. The in-vestigation would be conducted by the Procuracy, whichwould decide whether an indictment should be broughtagainst a named individual. The Security Council wasnot empowered to conduct a criminal investigation and itwould be for the Procuracy, in accordance with normalprocedure, to identify individuals who should be chargedwith responsibility.

25. Mr. TOMUSCHAT said that he entirely agreedwith Mr. Bowett on the need to retain article 26, para-graph 2 (a), which, to his mind, occupied much too mod-est a place in the draft statute. In any event, the WorkingGroup on a draft statute for an international criminalcourt had very wisely refrained from including a list ofwell-defined crimes in paragraph 2 (a), which was a gen-eral and open clause that would be applicable whenevera crime under general international law occurred. It wasreally very closely linked to article 22, in the sense thatits general wording allowed customary international lawto move into the interstices corresponding to situationswhere international treaties could not be invoked for rea-sons of non-ratification. To replace the concept of acrime under international law by that of aggressionwould therefore be both to restrict the jurisdiction of thecourt and to expand it unduly: to restrict it because inter-national crimes other than aggression would be excludedwhere international treaties could not be invoked—asituation that would be unacceptable, in particular, in thecase of the crime of genocide—and to expand it because,in the present state of international law, at least since thejurisprudence of the Niirnberg Tribunal, individualcriminal responsibility could arise from the planning orwaging of a war of aggression, but not from the mere actof aggression. The Definition of Aggression10 was, to besure, reproduced in the draft Code of Crimes against thePeace and Security of Mankind,11 but the Code wasmerely an instrument designed to become an interna-tional treaty and there were no grounds for regarding allits ingredients as part of customary international law.

26. Mr. ARANGIO-RUIZ said that the problem ofcrimes against humanity was a category that Mr. Bowettseemed to have excluded, although it had been envisagedin the London Agreement,12 which had served as the ba-sis for the Niirnberg Tribunal. Assuming that the courthad jurisdiction for crimes of aggression, its jurisdictionwould cover ipso facto the acts committed in the courseof such aggression, but what happened when the Secu-rity Council did not establish that an act of aggressionhad taken place, when no State or entity was designatedas the aggressor and when terrible crimes had been per-petrated none the less? There were also, of course, warcrimes in the strict sense, for which there existed, in ad-dition to general international law, a corpus of treatylaw, but the main problem remained that of crimesagainst humanity.

27. Mr. YANKOV said that the traditional tendency toapply to domestic situations concepts elaborated in theframework of inter-State relations resulted in confusionbetween aggression and domestic conflict and in situa-tions in which there was no agreement about the identityof the aggressor. The point in the current case was not toredefine the concept of aggression or to arrive at a pre-cise definition of the concept of self-defence, but, as partof its consideration of the items of the draft Code ofCrimes against the Peace and Security of Mankind andthat of State responsibility, the Commission had to re-

8 General Assembly resolution 2625 (XXV), annex.9 General Assembly resolution 3314 (XXIX), annex.

10 Ibid.11 For the text of the draft articles provisionally adopted on first

reading, see Yearbook.. . 1991, vol. II (Part Two), pp. 94 et seq.12 See footnote 6 above.


fleet on the kind of crimes the new situations of geno-cide entailed and on whether there had to be mechanismsor rules to deal with the new type of situation, which inthe medium term might well prove to be more dangerousthan confrontations between States or alliances. For ex-ample, the International Tribunal for the Prosecution ofPersons Responsible for Serious Violations of Interna-tional Humanitarian Law Committed in the Territory ofthe Former Yugoslavia since 1991 (hereinafter referredto as the International Tribunal)13 must not ultimatelyturn out to serve little purpose from the point of view ofcase-law because that would be a serious and lasting set-back for everyone.

28. Mr. EDRIS said that it was particularly important toclarify the procedural and substantive differences be-tween the Security Council's bringing a complaint be-fore the court in the strict sense of the term and drawingthe court's attention to a given situation. Would that in-volve a political statement by the Council or somethingelse that might be interpreted as a complaint formulatedby the Council and brought before the court?

29. Mr. THIAM questioned whether there was any dif-ference between an act of aggression and a war of ag-gression.

30. Mr. TOMUSCHAT said that a war of aggressionusually presupposed a planned action systematically car-ried out by troops acting in a coordinated manner,whereas the concept of aggression was much broaderand could be applied to an isolated act which might notlast more than one day. There was thus a far-reachingdifference in nature stemming in both cases from thescale of the action. By making "wars of aggression"punishable, the Charter of the Nurnberg Tribunal hadintroduced an innovation into international law that hadderogated from the fundamental principles nullumcrimen sine lege and nulla poena sine lege. Article 15 ofthe International Covenant on Civil and Political Rightscontained another derogation of the same kind. TheCommission must prevent derogations from such a fun-damental principle of criminal law from proliferating tooeasily.

31. Mr. CRAWFORD, referring to the question askedby Mr. Idris, said that, under article 25, the SecurityCouncil could, in fact, delegate jurisdiction to the court,inasmuch as a Security Council resolution could replacethe consent of States set out in articles 23 and 26. TheProsecutor was, however, not bound to institute proceed-ings: the point of article 25 was to enable the SecurityCouncil to bring cases before the court instead of creat-ing a large number of special courts.

32. Mr. YANKOV said that he understood the de factodifferences between acts of aggression and wars of ag-gression, but the de jure differences were not clear. Inhis view, it would be more sensible to consider that actsand wars of aggression both constituted crimes undergeneral international law.

33. Mr. ROSENSTOCK said that he agreed with Mr.Crawford's analysis of the effects of a decision by theSecurity Council to bring a case before the court,

13 See Security Council resolutions 808 (1993) of 22 February1993 and 827 (1993) of 25 May 1993.

whether it concerned aggression or, more generally,situations that were a threat to peace and security. Such adecision would have the same function as the acceptanceby a State of the jurisdiction of the court under article 23of the draft statute. However, if such acceptance was aprecondition for the institution of proceedings by theProcuracy, it was not sufficient: a complaint still had tobe filed. Yet it would be very difficult to get the SecurityCouncil to say that a person should be indicted by thecourt for genocide and, where the Council had institutedproceedings, it might be necessary to give the Procuracymore latitude than desired.

34. Accordingly, the Commission would have to agreethat a decision by the Security Council entailed the ap-plication of article 23 of the draft statute, but that it wasnot the mechanism for instituting proceedings. TheCommission therefore had to think about ways of solv-ing the problem, but without giving the Procuracy suchdiscretionary powers that it would deter States from be-coming parties to the statute of the future internationalcriminal court. The Working Group should explore thatarea more thoroughly.

35. Mr. MAHIOU said that he basically agreed withthe line of reasoning set out by Mr. Yankov concerningthe difference between acts of aggression and wars ofaggression. The problem raised by Mr. Tomuschat was,of course, real, but, at the current stage, he had some dif-ficulty understanding how it would be possible to distin-guish between the two situations: after all, a war of ag-gression was nothing more than a succession of acts ofaggression over time. Was an act of aggression instanta-neous and of short duration, whereas a war of aggressionwas planned, expected and continued for a certain pe-riod? He doubted that those details would have a legalimpact, particularly as what counted were their conse-quences for individuals whose responsibility had beenestablished and who must be prosecuted in accordancewith the seriousness of the act committed. An act of ag-gression could have devastating effects and, conversely,a war of aggression, depending on the types of weaponsused, the circumstances, and so forth, might ultimatelyhave limited consequences from the point of view ofdamage caused and the individual responsibility of theguilty persons. Those were, however, all cases of aggres-sion, even if the consequences and responsibility mightbe different.

36. Given the limited time available for the considera-tion of the Working Group's report, it would be prefer-able for the members of the Commission to focus on im-portant questions that were essential to ensuring thatwork progressed.

37. Mr. ARANGIO-RUIZ said that the difference be-tween aggression and wars of aggression was a matter ofthreshold. Clearly, aggression was the commission of anaggressive act. However, for example, the shootingdown of a civilian or military aircraft might or might notconstitute an act of aggression, depending on the circum-stances surrounding that act, the intention behind it, andso forth. Beyond a certain threshold, it was an act of ag-gression, a crime of aggression that was more or less se-rious. It would be for the court and the Prosecutor todraw a distinction and to decide on the degree of crimi-


nal responsibility of each of the persons accused of thecrime of aggression.

38. With regard to a comment by Mr. Rosenstock, hedid not believe that it should be left to the SecurityCouncil to bring charges of genocide against individualsor groups or accuse them of committing that crime. Thatwas the Prosecutor's task, whereas the Council had toconcern itself with threats to the peace, breaches of thepeace and acts of aggression in order to ensure the main-tenance of international peace and security. Needless tosay, a problem of genocide might arise in connectionwith an act or a series of acts characterized as aggressionby the Council, but that was another matter.

39. Mr. TOMUSCHAT said he did not think that itwas the task of the Commission to define crimes underinternational law; that would have to be done by the fu-ture court. The Commission should simply point theway, setting forth a general clause which referred tocrimes under general international law; then, in each in-stance, the court would have to say whether an individ-ual had committed a breach of a very important rule ofinternational law and whether he had therefore commit-ted a crime under international law. It would be advis-able for the Commission to reflect on the effects of theclause contained in article 26, paragraph 2 (a), of thedraft statute, which should be given a more prominentplace in the draft.

40. The Commission was not drafting new rules: it hadto do that within the framework of the draft Code ofCrimes against Peace and Security of Mankind, in whichit could include the crime of aggression or the crime ofwar of aggression.

41. It was not a question whether aggression was un-lawful in relations between States—any act of aggres-sion was unlawful under Article 2, paragraph 4, of theCharter of the United Nations and under general interna-tional law—but of the possible existence of a rule thatestablished individual criminal responsibility.

42. The Commission might wish in that connection toreflect on the sources of general international law, towhich reference was made in article 26, paragraph 2 (a),of the draft statute. General international law comprisedrules of customary law, which in turn derived from prac-tice and opinio juris. The only practice that establishedindividual criminal responsibility was the practice of theNiirnberg Tribunal14 and the Tokyo Tribunal15 and it wasnot very solid because not one individual had beencharged with aggression since then. It was based on theplanning and waging of a war of aggression and thesame principle was set forth in the Declaration on Princi-ples of International Law concerning Friendly Relationsand Cooperation among States in accordance with theCharter of the United Nations.16 An act of aggressionand a war of aggression differed in size and magnitude,but also, significantly, in law. Half a century after theend of the Second World War, the international commu-

14 See footnote 6 above.15 Charter of the International Military Tribunal for the trial of the

major war criminals in the Far East, Tokyo, 19 January 1946, Docu-ments on American Foreign Relations (Princeton University Press,vol. VIII, 1948), pp. 354 et seq.

16 See footnote 8 above.

nity was not prepared to institute proceedings for an iso-lated act of aggression. General international law had asecond source, the dictates of the conscience of mankind(the Martens clause), as underlined by ICJ in its judg-ment in the Corfu Channel case17 and the advisory opin-ion it had delivered in connection with reservations tothe Convention on the Prevention and Punishment of theCrime of Genocide.18 There, as well, there was no ques-tion of individual criminal responsibility.

43. There was a difference, which was more than fac-tual, between a war of aggression, which shocked theconscience of mankind, and an isolated act of aggres-sion, which was the outcome of a political miscalcula-tion or the work of militant activists. It was thereforepossible to invoke only two legal texts and the practicebased on those texts; but the texts in question referredsolely to wars of aggression, specifying that they werecrimes under international law. There had thus far beenno international instrument which stated that aggressionas such, even an isolated act of aggression, was a crimeunder international law.

44. Mr. THIAM said that he had some misgivingsabout the distinction drawn by Mr. Tomuschat betweenaggression and a war of aggression, in other words, be-tween an unprepared act and a planned act. Prior to theSecond World War and at the time of the Niirnberg trial,the expression "war of aggression" had covered anywar waged without a prior declaration, since, at the time,war had been regarded as a lawful act, whereas all warswere now unlawful. He therefore saw no difference be-tween a war of aggression and aggression, since they hadthe same legal consequences. He would like furtherclarification on that point.

45. Mr. Sreenivasa RAO said he was gratified that thequestion under consideration had given rise to a veryopen dialogue and exchange of views among all mem-bers of the Commission in plenary. The Working Groupwas, of course, useful, but discussion in plenary could bevery productive and he trusted that the practice wouldcontinue.

46. As to the distinction drawn between an act of ag-gression and a war of aggression, it had its use, no doubt,but he was not persuaded by Mr. Tomuschat's argu-ments. His own view was that such a distinction was notnecessary to determine which were the crimes of aggres-sion that could lead to prosecution before the court.

47. With regard to Mr. Bowett's point concerning therole of the Security Council in the event of a threat topeace and an act of aggression—a role which was welldefined in Chapter VII of the Charter of the UnitedNations—it was clear that, when the Security Councildetermined the existence of a general situation of aggres-sion, it could take a number of steps under its own pow-ers, but it should not categorize a particular individual asan aggressor. It was for the Procuracy of the court to ex-amine the complaints or allegations of aggression and tosubmit the evidence gathered to the court, which couldthen, without prejudice to the Council's initial decision,pronounce on the responsibility of an individual and de-

17 Judgment of 9 April 1949, l.C.J. Reports 1949, p. 4.18 f.C.J. Reports 1951, p. 15.


clare whether or not he was guilty of a crime of aggres-sion. Furthermore, as he had stated on other occasions,even if the Council had not determined the existence ofan act of aggression in a particular case, but a claim inthat connection had been referred to the Procuracy, itshould be possible to request the Council to determinewhether the act of aggression reported in the complainthad indeed been committed without reference to thecomplaint itself. Another problem could then arise if theCouncil was not willing to pronounce on the matter:what should the Procuracy do if evidence was availableto it which, in its view, justified the adoption of certainmeasures? That was a delicate question to which therewas no immediate answer, but which the Commissionshould nevertheless ponder.

48. As consideration of the draft statute proceeded,other problems of the same kind would arise. The Com-mission would have to pay the closest attention to thembefore it could in all honesty recommend the draft to theGeneral Assembly for its decision as to the action to betaken on it. The time had come for the Commission togive serious consideration to all those issues in the con-text of a frank and open dialogue during which the prob-lems could be pinpointed, if not solved. Lastly, withoutwishing to minimize the value of working groups, hewould stress the importance of the work carried out inplenary.

49. Mr. ARANGIO-RUIZ, referring to the question ofthe distinction between an act of aggression and a war ofaggression, said that it was ambiguous, to say the least,to speak of factual or legal differences. Obviously, asimple attack by a State or by a group of persons on an-other State was less serious, factually, than a war of ag-gression. The main question was whether there were dif-ferences between the two in law. That would depend onthe degree of gravity of the act committed, which wouldbe assessed by reference to a pre-established thresholdbeyond which the act in question would be treated as acrime. Once a crime of aggression had been determined,the legal consequences would be different according towhether it was a simple act of aggression or a war or aseries of wars of aggression. The distinction between ag-gression and a war of aggression could therefore not bereduced to mere factual or legal differences, since, in thetwo cases, both factual and legal aspects would have tobe taken into consideration.

The meeting rose at 12.45 p.m.

hiou, Mr. Mikulka, Mr. Pambou-Tchivounda, Mr. Pellet,Mr. Sreenivasa Rao, Mr. Razafindralambo, Mr. Rosen-stock, Mr. Thiam, Mr. Tomuschat, Mr. Vargas Carreno,Mr. Villagran Kramer, Mr. Yamada, Mr. Yankov.

2330th MEETING

Wednesday, 4 May 1994, at 10.10 a.m.


Draft Code of Crimes against the Peace and Securityof Mankind {continued) (A/CN.4/457, sect. B,A/CN.4/458 and Add.1-81, A/CN.4/460,2 A/CN.4/L.491 and Rev.l and 2 and Rev.2/Corr.l andAdd.1-3)

[Agenda item 4]

DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL COURT3

{continued)

1. Mr. CRAWFORD said that the Commission's workin preparing the draft statute for an international criminalcourt had proceeded on the basis of six propositions.First, the court should be established by a statute in theform of a treaty agreed to by States parties. Secondly, atleast in the initial phase of its operations, the courtshould exercise jurisdiction only over individuals, as dis-tinct from States. There was no disagreement on thosetwo propositions. Thirdly, the court's jurisdiction shouldrelate to specified international treaties in force definingcrimes of an international character: there was generalagreement that it should not be limited to the Code ofCrimes against the Peace and Security of Mankind.Fourthly, the court was seen as a facility for States par-ties and as supplementing existing criminal justice sys-tems and existing procedures for international judicialcooperation. It should not have compulsory jurisdictionin the sense of a general jurisdiction that a State partywas obliged to accept. That proposition, too, had gainedbroad acceptance among States, though with some dif-ferences of nuance. Fifthly, the court should not be afull-time body but an available legal mechanism ready tobe called into operation when required. General, thoughnot universal, agreement had been reached on that point.Sixthly, the statute must guarantee due process and theindependence and impartiality of the court's procedures.There was no disagreement on that point. Those six prin-ciples could well be supplemented and modified, butthey already provided criteria for assessing the draft arti-cles.

2. The Commission was envisaging an entirely newsystem: there had never before been an internationalcriminal court, and the process must be taken step bystep. Law libraries throughout the world were full ofschemes for an international criminal court, but none hadproved atceptable, for reasons that hinged on the unwill-ingness of States to establish sweeping new proceduresthat might have unpredictable effects. The Commissionwas habitually a modest body, but it might have to beeven more modest than usual in the present case.

Present: Mr. Arangio-Ruiz, Mr. Bennouna,Mr. Bowett, Mr. Calero Rodrigues, Mr. Crawford,Mr. de Saram, Mr. Eiriksson, Mr. Fomba, Mr. Giiney,Mr. Idris, Mr. Kabatsi, Mr. Kusuma-Atmadja, Mr. Ma-

1 Reproduced in Yearbook . . . 1994, vol. II (Part One).2 Ibid.3 Yearbook. . . 1993, vol. II (Part Two), p. 100, document A/48/10,

annex.


3. The proposed court outlined in the draft might notbe an ideal solution, but the important thing at presentwas to get agreement on a widely acceptable, flexibleand effective body capable of trying the most seriousinternational offences in accordance with well-definedstandards of due process. If that meant that proposalshad to be more limited in scope than the Commissionmight like, so be it. The call for caution had been sentout by a wide range of countries in the Sixth Commit-tee's debates. Some countries, while supporting the basicapproach adopted in the draft statute, wanted a more re-stricted list of offences to fall within the jurisdiction ofthe court. Many had expressed concern over the vague-ness of the category of "crimes under general interna-tional law". States that would go considerably furtherthan the scheme set out in the draft articles were defi-nitely in the minority.

4. A primary issue of substance was that of the court'sjurisdiction. There was a close link between articles 22(List of crimes defined by treaties) and 26 (Special ac-ceptance of jurisdiction by States in cases not covered byarticle 22) and the principle of nullum crimen sine legeset out in article 41. For crimes defined by the treatieslisted in article 22, there was no jurisdictional require-ment that the State of which the accused was a nationalshould be a party to the treaty. Once the requirementsspelled out in article 24 (Jurisdiction of the Court in rela-tion to article 22) for acceptance by States of jurisdictionwere met, the court had jurisdiction over the crime in re-lation to the accused, and the only issue was whether thenullum crimen sine lege principle applied. But in accord-ance with article 15 of the International Covenant onCivil and Political Rights, that principle was not in-fringed when the act in question was a crime under gen-eral international law. In principle, general internationallaw could be used in a supplementary way in relation tocrimes under article 22. The combination of the jurisdic-tional provision and the nullum crimen sine lege princi-ple could allow general international law to supplementthe crimes defined under article 22 if they were crimesunder general international law.

5. If one accepted the argument he had just outlined,then the controversial provision on crimes under generalinternational law set out in article 26, paragraph 2 (a),could apply only to crimes not defined in article 22, inother words, to undefined international crimes. A widelyheld view was that there were only two such crimes: ag-gression and crimes against humanity. He would be mostreluctant to leave out of the draft the category of crimesagainst humanity. Admittedly, most acts committed dur-ing international armed conflicts that could qualify ascrimes against humanity were already covered by arti-cle 22. So were some, but not all, of those committed ininternal armed conflict—acts amounting to genocide, forexample. However, many of the worst crimes against hu-manity occurred in internal armed conflict or in internalcivil strife. He could, on the other hand, understand theconcern of some States about the licence the draft arti-cles appeared to give the court to define new crimes un-der general international law. If the court did so, thenullum crimen sine lege guarantee would not prevent aconviction, since it, too, referred to crimes under generalinternational law. So there was an area of uncertainty inthat regard.

6. The situation now was different from that at the timeof the Niirnberg Tribunal. In 1945, not even genocidehad been defined as an international crime. Since then,enormous efforts had been made to delineate interna-tional crimes in treaties, whereas the customary lawprocess had been largely bypassed. That created real dif-ficulties of definition for the "additional" crimes undergeneral international law. It was true that there werestrict jurisdictional requirements for crimes under gen-eral international law in article 26, paragraph 3 (a), butthose requirements were themselves likely to prevent thetrial of persons for crimes against humanity committedin internal armed conflict or civil strife. Perhaps Mr.Bowett's suggestion (2329th meeting) of limiting thecoverage of article 26, paragraph 2 (a), to acts of aggres-sion was the only solution. The Commission shouldnone the less consider ways in which, consistent with thestructure of the draft, it could include the category ofcrimes against humanity committed in internal conflicts.

7. The Working Group on a draft statute for an interna-tional criminal court would also have to examine, interalia, the list of treaties in article 22. The main, if not theonly, addition to the list suggested in the Sixth Commit-tee was the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment. In thatconnection, the Commission might wish to reconsider itsearlier view that the Convention was in fact one aimed atthe suppression of a particular crime. Some delegationshad favoured reducing the list by leaving out, for exam-ple, the conventions dealing with terrorism, such as theConvention for the Suppression of Unlawful Actsagainst the Safety of Civil Aviation (the Montreal Con-vention). Personally, he would be opposed to such de-letions. The court might well be the appropriate or eventhe only possible forum for the trial of State officialscharged with aircraft hijacking or with the bombing ordestruction of civil aircraft.

8. As to the need for a list of treaties in relation to arti-cle 26, paragraph 2 (b), failure to enumerate the majormultilateral conventions aimed at the suppression of aparticular crime to be covered by that article constituteda clear anomaly. A list could readily be drawn up andwould be comparatively short. Obviously, it would in-clude the United Nations Convention against Illicit Traf-fic in Narcotic Drugs and Psychotropic Substances,which in any event was the main reason for includingthat category of crimes in the statute. Clearly, the wayshould not be left open to include any convention con-cluded by more than a few States dealing with almostany topic, even on a regional basis and without any ofthe requirements of generality and general acceptancethat ought to be found in the jurisdictional provisions ofthe statute. The list, like the one in article 22, should beconfined to major multilateral conventions aimed at thesuppression of crimes on which there was general con-sensus. With such a list it would be convenient to sepa-rate the two parts of article 26—crimes under generalinternational law and crimes under conventions aimed atthe suppression of a particular crime—for they had littlein common with each other and required separate con-sideration.


9. The difficult task of establishing an internationalcriminal jurisdiction for a range of offences involved noless than three problems: jurisdiction ratione materiae(which crimes?), jurisdiction ratione personae (whichaccused persons?) and the problem of choice of jurisdic-tion (an international criminal court or an available na-tional court?). Each problem had to be dealt with ad-equately. That would inevitably lead to a rather complexscheme, but it should at least be clear. On the third issue,the choice of forum, the draft articles, at present, did notgo far enough and did not give sufficient guidance. TheWorking Group ought to consider whether the interna-tional court should not have power to stay a prosecutionon specified grounds, a power that existed in many na-tional jurisdictions. The grounds might include, say, theexistence of an adequate national tribunal with jurisdic-tion over the offence or the fact that the acts allegedwere not of sufficient gravity to warrant trial at the inter-national level. Failing such power, the court might beswamped by peripheral complaints involving minor of-fenders, possibly in situations where the major offenderswere going free. Some capacity to deal with problems ofthat kind had to be provided. It was not sufficient forsuch considerations to be taken into account by theprosecutor since this would raise problems of account-ability. The international court was intended to sup-plement, rather than replace, existing national criminaljurisdictions, and a suitable provision would help to giveeffect to that principle.

10. On the question of the relationship between thecourt and the Security Council, he agreed that the Coun-cil