YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1959 Volume II Documents of the eleventh session including the report of the Commission to the General Assembly UNITED NATIONS New York, 1 960 NOTE Symbols of United Nations documents are composed of capital letters com- bined with figures. Mention of such a symbol indicates a reference to a United Nations document. A/CN.4/SER.A/ 1959/ADD. 1 UNITED NATIONS PUBLICATION Sales No.: 59. V. 1. Vol. II Price: $ U.S. 1.50 ; 10/6 stg.; Sw.fr. 6.50 (or equivalent in other currencies) u CONTENTS STATE RESPONSIBILITY (agenda item 4) Page Document A/CN.4/U9: International responsibility: Fourth report by F. V. Garcia Amador, Special Rapporteur 1 LAW OF TREATIES (agenda item 3) Document A/CN.41120 : Fourth report by Sir Gerald Fitzmaurice, Special Rapporteur 37 Document A/CN.4/121 : Practice of the United Nations Secretariat in relation to certain questions raised in connexion with the articles on the law of treaties : note by the Secretariat 82 CONSULAR INTERCOURSE AND IMMUNITIES (agenda item 2) Document A/CN.4/L.79: Proposals and comments submitted by Mr. Alfred Verdross regarding the draft provisional articles on consular intercourse and immunities (A/CN.4/108) 84 Document A/CN.4/L.82: Proposals and comments submitted by Mr. Georges Scelle regarding the draft provisional articles on consular intercourse and immunities (A/CN.4/108) 86 REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY Document A/4169: Report of the International Law Commission covering the work of its eleventh session, 20 April—26 June 1959 87 CHECK LIST OF COMMISSION DOCUMENTS REFERRED TO IN THIS VOLUME 124 111 INTERNATIONAL LAW COMMISSION DOCUMENTS OF THE ELEVENTH SESSION, INCLUDING THE REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY STATE RESPONSIBILITY [Agenda item 4] DOCUMENT A/CN.4/119 International responsibility. Fourth report by F. V. Garcia Amador, Special Rapporteur RESPONSIBILITY OF THE STATE FOR INJURIES CAUSED IN ITS TERRITORY TO THE PERSON OR PROPERTY OF ALIENS —MEASURES AFFECTING ACQUIRED RIGHTS [Original text: Spanish] [26 February 1959] CONTENTS Page INTRODUCTION 2 Chapter I. International protection of acquired rights I. RESPECT OF ACQUIRED RIGHTS AS A PRINCIPLE OF INTERNATIONAL LAW 1. Regime applicable to the acquisition of patrimonial rights 3 2. The international obligation to respect acquired rights 4 3. Relationship between the above principle and the doctrine of " unjust enrichment " 5 4. Scope of international protection: the need to revise the traditional conception . 6 5. The notion of " arbitrariness " and the doctrine of abuse of rights 7 II. NATURE AND CONTENT OF ACQUIRED RIGHTS 6. Patrimonial rights lato sensu 9 7. Mixed (private and public) character of some of these rights 9 8. Special situations which do not involve acquired rights 10 Chapter II. Expropriation in general I. THE RIGHT OF " EXPROPRIATION " 9. International recognition of the right 11 10. The various forms which the exercise of the right of " expropriation " may assume 11 11. Expropriation stricto sensu and "nationalization" 12 II. OTHER INTERNATIONAL ASPECTS OF EXPROPRIATION 12. " Unlawful " expropriation and " arbitrary ' expropriation 13 13. Measures of expropriation involving the non-observance of contracts or concession agreements 14 14. Motives and purposes of expropriation 15 15. Questions concerning the method of expropriation 16 III. COMPENSATION 16. Legal nature of compensation 17 17. The obligation to indemnify and the law governing it 17 18. Amount of compensation and criterion for valuation of the property expropriated 19 19. Promptness of compensation and form in which payment is to be made .... 20 20. Lump-sum agreements 21 21. General considerations concerning the requirements in regard to compensation . 22 Yearbook of the International Law Commission, Vol. II Chapter III. Contractual rights Page I. TREATIES AND CONTRACTS AS SOURCES OF PRIVATE RIGHTS 22. Treaties relating to private rights of a patrimonial nature 24 23. Object and forms of "public contracts" 25 II. LAW GOVERNING CONTRACTUAL RELATIONS BETWEEN STATES AND ALIENS 24. The traditional position 26 25. Recent instruments and jurisprudence 27 26. New orientation of scientific doctrine 28 27. Applicability of the principle pacta sunt servanda—recent opinions in the affirmative 29 28. Position taken in the prevailing doctrine and practice 30 29. Reconsideration of the traditional position 31 III. EFFECTS OF NON-PERFORMANCE OF CONTRACTUAL OBLIGATIONS 30. "Unlawful" non-performance and "arbitrary' non-performance 33 31. Component elements (general) of arbitrary non-performance 34 32. Ultra vires contracts and contracts with political subdivisions 34 33. Public debts 35 34. Legal nature of " compensation " 35 Introduction of " respect for acquired rights ". The report thus starts from the premise that respect for private rights of a 1. In his second report to the International Law Com- patrimonial nature constitutes one of the principles of mission (A/CN.4/106), the Special Rapporteur sub- international law governing the treatment of aliens. The mitted a draft, chapter IV of which deals with the inter- traditional views on this principle may admittedly need national responsibility which the State may incur as a revision, but, in the present state of development of result of "non-performance of contractual obligations international law, its existence and validity cannot be and acts of expropriation". However, the Special Rap- questioned. It can even be said that, coupled with the porteur's consideration of the subject was not only doctrine of "unjust enrichment", this principle con- somewhat summary but also limited to a survey of the stitutes the only solid basis on which the State's inter- precedents and other relevant matters which can be national responsibility in this context can be esta- found in traditional doctrine and practice. Both these blished. Moreover, from the technical-juridical point of qualifications can be explained by the fact that the Spe- view, it is the sole point of departure which permits a cial Rapporteur's object was to present to the Commis- systematic and coherent consideration of the subject. sion, with the least possible delay, a draft covering each There is no doubt, in fact, that, whatever the specific and every aspect of "international responsibility of the nature of the patrimonial rights involved or of the State for injuries caused in its territory to the person or measures taken by the State, the latter's international property of aliens". But that task having been com- responsibility will always be determined in the light of pleted, the Special Rapporteur believes, in view of the the principle of respect for the acquired rights of Commission's request that he should continue with his aliens. work, that no subject requires more thorough study— and, in a sense, even complete reconsideration—than 4. The above considerations will be discussed in the aspects of responsibility envisaged in chapter IV of detail in chapter I. As regards the general structure of the draft. this report, chapter I deals with the basic notions which influence the present system of international protection 2. Moreover, it should be stressed that the present of acquired rights and the component elements of the report is not merely an expansion of chapter IV of the State's international responsibility in that connexion. second report, for there is also a difference in the Chapter II surveys "expropriation in general" and method of study adopted in each of them. The present discusses the different international aspects of that mea- report, besides giving more exhaustive treatment to the sure, while chapter III concentrates on "contractual traditional doctrine and practice in the matter, also rights", in an endeavour to show the conditions and dwells on the new doctrinal and practical trends which circumstances in which the State may incur interna- have made their appearance mostly since the last World tional responsibility when the rights at issue are solely War. Although they do not jointly constitute a uniform within that class. The Special Rapporteur unfortunately movement, and some are even contradictory, there is no lacked the time necessary to deal with other aspects and doubt that they have made a deep impact on the tradi- matters which, today more than ever, are of fundamen- tional notions and ideas. This fact is so certain that it tal relevance to the subject. These include, in particular, would be wholly unrealistic to disregard it and to deny the extra-territorial effects of acts of expropriation and that the new tendencies can make a valuable contribu- other problems of "private" international law, as well tion to the development and codification of the rele- as the methods and procedures which lend themselves vant rules on international responsibility. best to the settlement of international disputes arising 3. In seeking the most satisfactory method of work, in consequence of measures affecting the patrimonial the Special Rapporteur adopted as a basis the principle rights of aliens. State Responsibility CHAPTER I any place whatever. But the primary purpose, which can be perceived in subsequent instruments on the re- INTERNATIONAL PROTECTION OF ACQUIRED cognition and protection of human rights and funda- RIGHTS mental freedoms and even in the Universal Declaration itself, seems to be rather to protect private property, I. Respect of acquired rights as a principle once acquired, against " arbitrary " actions of the State. of international