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Document:- A/CN.4/322 and Corr.1 & Add.1 & 2 Eleventh report on succession of States in respect of matters other than treaties, by Mr. Mohamed Bedjaoui, Special Rapporteur - draft articles on succession in respect of State archives, with commentaries Topic: Succession of States in respect of matters other than treaties Extract from the Yearbook of the International Law Commission:- 1979, vol. II(1) Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations SUCCESSION OF STATES IN RESPECT OF MATTERS OTHER THAN TREATIES [Agenda item 3] DOCUMENT A/CN.4/322 AND ADD.l AND 2* Eleventh report on succession of States in respect of matters other than treaties, by Mr. Mohammed Bedjaoui, Special Rapporteur Draft articles on succession in respect of State archives, with commentaries [Original: French] [18,29 and 31 May 1979] CONTENTS Page Abbreviation 68 Explanatory note: italics in quotations 68 Paragraphs Introduction 1_5 68 Chapter I. STATE ARCHIVES IN MODERN INTERNATIONAL RELATIONS AND IN THE SUCCESSION OF STATES 6-91 71 A. Definition of archives affected by the succession of States 6-24 71 1. Content of the concept of archives 8-19 72 2. Definition of archives in the light of State practice in the matter of succession of States 20-24 74 B. The role of archives in the modern world 25-39 75 1. The "paper war" 25-32 75 2. The age of information 33-39 77 C. The claim to archives and the protection of the national cultural heritage 40-56 78 1. Action by UNESCO 41-53 78 (a) Action taken by UNESCO with a view to the restitution of archives 42-43 78 (b) Action taken by UNESCO for the restitution of archives as part of the reconstitution and protection of the national cultural heritage 44—45 79 (c) The right to a collective "cultural memory" 46-53 80 (i) A new international cultural order 46-48 80 (ii) The "four principles of Palermo" 49-53 80 2. Action by the United Nations 54 81 3. Action by the Conferences of non-aligned countries 55-56 81 D. History of the disputes concerning archives in the context of the succession of States 57-58 82 Non-exhaustive table of treaties containing provisions relating to the transfer of archives in cases of succession of States 82 E. General principles respecting succession to State archives 59-91 93 1. General remarks on the practice followed by States: conclusions drawn from the study of the foregoing table 60-63 93 2. General principles concerning succession to State archives 64—83 94 (a) Restitution and co-operation 64-67 94 {b) Demythification of the problems concerning disputes over archives 68-70 95 (c) Obligation to negotiate and to settle disputes concerning archives 71-72 96 (d) Transfer of originals pursuant to the principle of the territorial origin of archives 73-75 96 (e) Transfer of originals pursuant to the principle of functional connection of archives 16-11 96 (/) Concept of archives as a common heritage 78 97 (g) Principle of the territoriality of archives 79-80 97 (h) Subsidiary principles: right to a substitute copy and right to reparation 81-83 97 (i) Right to a substitute copy 81 97 (ii) Right to reparation through delivery of documents of equivalent value 82-83 98 * Incorporating document A/CN.4/322/Corr.l. 67 68 Documents of the thirty-first session Chapter Paragraphs Page 3. Proposals for a draft article 84-91 98 Article A. Transfer of State archives 89 99 II. PROVISIONS PECULIAR TO EACH TYPE OF SUCCESSION OF STATES WITH REGARD TO STATE ARCHIVES .... 92-209 100 A. Transfer of part of a State's territory 92-140 100 1. Transfer to the successor State of all archives relating or belonging to the transferred territory . 93-104 100 (a) Sources 93 100 (b) Archives as evidence 94 100 (c) Archives as instruments of administration 95-101 100 (i) Case of a single successor State 96-98 100 (ii) Case of more than one successor State 99-101 101 (d) Archives: historical fund or cultural heritage 102-104 101 2. Archives removed from or constituted outside the transferred territory 105-121 101 (a) Archives which have been removed 110-118 102 (b) Archives established outside the territory 119-121 104 3. The "archives-territory" link 122-127 105 4. Special obligations of the successor State 128-130 105 5. Time-limits for handing over the archives 131 106 6. State libraries 132 106 7. Conclusions to be drawn from the practice of States and proposals for a draft article 133-140 106 Article B. Transfer of a part of the territory of one State to another State 140 108 B. Newly independent States 141-181 108 1. Historical background and new problems 141-146 108 2. Political archives of the colonial period 147-161 110 3. Pre-colonial historical archives and cultural archives proper to the territory 162-172 112 4. Archives established outside the territory which has become independent 173 114 5. Administrative archives 174-179 114 6. Proposals for a draft article * 180-181 116 Article C. Newly independent States 181 117 C. Uniting of States 182-189 118 Article D. Uniting of States 189 119 D. Separation of part or parts of the territory of a State and dissolution of a State 190-209 119 Article E. Separation of part or parts of the territory of a State 204 122 Article ?. Dissolution of a State 206 123 SHORT BIBLIOGRAPHY 123 ABBREVIATION UNESCO United Nations Educational, Scientific and Cultural Organization EXPLANATORY NOTE: ITALICS IN QUOTATIONS An asterisk inserted in a quotation indicates that in the passage immediately preceding the asterisk the italics have been supplied by the Special Rapporteur. Introduction understanding that this did not in any way imply that all the other questions coming under the same heading 1. In the period from 1968 to 1978, the Special would not be considered later".1 respelt of matters other than treaties. Because of the ?^£2Z?Z^JS%tf£ vastness of the subject which ouches on succession to b h ^ ^ h , * m , . a public property, public debts, the legislation and .. / conseauence «.„, .£,_ iflimite d to « ' C internal law of the predecessor State, the legal status of ™*ofof S in economic »dnnaiSa matters'" it the inhabitants (in particular, their nationality), ter- . ^ ^ . , . , [o^ct^^^^^ decided, on the Special Rapporteur's suggestion, that its researches should be limited to the topic succession i Yearbook ... 1968, vol. II, p. 221, document A/7209/Rev.l, of States in economic and financial matters, "on the para. 78. Succession of States in respect of matters other than treaties 69 property and public debts in the context of State PART I succession in economic and financial matters, the SUCCESSION OF STATES TO STATE PROPERTY Special Rapporteur ran the risk of straying into the study of three categories of public property and public SECTION 1. GENERAL PROVISIONS debts: property and debts of the State, property and debts of territorial authorities other than States, and Article 4. Scope of the articles in the present Part property and debts of public enterprises or public The articles in the present Part apply to the effects of bodies—quite apart from the property and debts of the succession of States in respect of State property. territory affected by the State succession. For this Articles. State property reason the Commission decided in 1973, at its For the purposes of the articles in the present Part, State twenty-fifth session, after full discussion and on the property** means property, rights and interests which, on the date proposal of the Special Rapporteur, that for the time of the succession of States, were, according to the internal law of being the study should be confined to one only of the the predecessor State, owned by that State. three categories of public property and public debts— the category concerning the State.2 Article 6. Rights of the successor State to State property passing to it 3. By the end of its thirtieth session, in 1978, and A succession of States entails the extinction of the rights of the after having considered the subject for several years, predecessor State and the arising of the rights of the successor the Commission had adopted a series of draft articles State to such of the State property as passes to the successor State on succession to State property and State debts, the in accordance with the provisions of the present articles. text of which is reproduced below. Article 7. Date of the passing of State property Unless otherwise agreed or decided, the date of the passing of State property is that of the succession of States. TEXT OF ALL THE DRAFT ARTICLES ADOPTED SO FAR BY THE COMMISSION (ARTICLES 1 TO 25) Article 8. Passing of State property without compensation Without prejudice to the rights of third parties, the passing of INTRODUCTION State property from the predecessor State to the successor State in accordance with the provisions of the present articles shall take Article 1. Scope of the present articles place without compensation unless otherwise agreed or decided. The present articles apply to the effects of succession of States in respect of matters other than treaties. Article 9. General principle of the passing of State property Subject to the provisions of the articles of the present Part and Article 2. Cases of succession of States covered unless otherwise agreed or decided, State property which, on the by the present articles date of the succession of States, is situated in the territory to The present articles apply only to the effects of a succession of which the succession of States relates shall pass to the successor States occurring in conformity with international law and, in State.
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