YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1960 Volume II Documents of the twelfth session including the report of the Commission to the General Assembly UNITED NATIONS YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1960 Volume II Documents of the twelfth session including the report of the Commission to the General Assembly UNITED NAT IONS New York, 1 96 1 NOTE Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. A/CN.4/SER.A/1960/ADD. 1 UNITED NATIONS PUBLICATION Sales No.: 60. V. 1. Vol. II Price: $U.S. 2.00; 14/- stg.; Sw. fr. 8.50 (or equivalent in other currencies) 11 CONTENTS Page FILLING OF CASUAL VACANCY IN THE COMMISSION (ARTICLE 11 OF THE STATUTE) (agenda item 1) Document A/CN.4/127: Note by the Secretariat 1 CONSULAR INTERCOURSE AND IMMUNITIES (agenda item 2) Document A/CN.4/131: Second report by Jaroslav Zourek. Special Rap- porteur 2 Document A/CN.4/L.86: Provisional draft articles submitted by Jaroslav Zourek, Special Rapporteur 32 STATE RESPONSIBILITY (agenda item 3) Document A/CN.4/125: International responsibility: Fifth report by F. V. Garcia Amador, Special Rapporteur 41 LAW OF TREATIES (agenda item 4) Document A/CN.4/130: Fifth Report by Sir Gerald Fitzmaurice, Special Rapporteur 69 Ad hoc DIPLOMACY (agenda item 5) Document A/CN.4/129: Report by A. E. F. Sandstrom, Special Rapporteur 108 Document A/CN.4/L.87: Provisions proposed by Mr. Jimenez de Arechaga for insertion in the draft articles on diplomatic intercourse and immunities prepared by the International Law Commission at its tenth session ... 115 Document A/CN.4/L.88: Memorandum by Mr. Jimenez de Arechaga in explanation of his proposal concerning ad hoc diplomacy (A/CN.4/L.87) 115 Document A/CN.4/L.89: New alternative proposal submitted by the Special Rapporteur 117 GENERAL ASSEMBLY RESOLUTION 1400 (XIV) ON THE CODIFICATION OF THE PRIN- CIPLES AND RULES OF INTERNATIONAL LAW RELATING TO THE RIGHT OF ASYLUM (agenda item 6) Document A/CN.4/128: Note by the Secretariat 118 GENERAL ASSEMBLY RESOLUTION 1453 (XIV) ON THE STUDY OF THE JURIDICAL REGIME OF HISTORIC WATERS, INCLUDING HISTORIC BAYS (agenda item 7) Document A/CN.4/126: Note by the Secretariat 119 CO-OPERATION WITH OTHER BODIES (agenda item 8) Document A/CN.4/124: Report by Mr. Yuen-li Liang, Secretary of the Com- mission, on the proceedings of the Fourth Meeting of the Inter-American Council of Jurists 120 REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY Document A/4425: Report of the International Law Commission covering the work of its twelfth session, 25 April-1 July 1960 CHECK LIST OF COMMISSION DOCUMENTS REFERRED TO IN THIS VOLUME .... 182 m INTERNATIONAL LAW COMMISSION DOCUMENTS OF THE TWELFTH SESSION, INCLUDING THE REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY FILLING OF CASUAL VACANCY IN THE COMMISSION (article 11 of the Statute) [Agenda item 1] DOCUMENT A/CN.4/127 Note by the Secretariat [Original text: English] [1 March 1960] 1. On 29 September 1959, Mr. Ricardo J. Alfaro was elected a member of the In- ternational Court of Justice. 2. By a letter dated 11 January 1960 and addressed to the Chairman of the Com- mission, Mr. Thanat Khoman tendered his resignation from the Commission. 3. There are therefore two casual vacancies in the membership of the Commission. Article 11 of the Commission's Statute prescribes: " In the case of a casual vacancy, the Commission itself shall fill the vacancy having due regard to the provisions contained in articles 2 and 8 of this Statute." Article 2 reads: "1. The Commission shall consist of twenty-one members who shall be per- sons of recognized competence in international law. " 2. No two members of the Commission shall be nationals of the same State. "3. In case of dual nationality a candidate shall be deemed to be a national of the State in which he ordinarily exercises civil and political rights." Article 8 reads: " At the election the electors shall bear in mind that the persons to be elected to the Commission should individually possess the qualifications required and that in the Commission as a whole representation of the main forms of civilization and of the principal legal systems of the world should be assured." 4. The terms of the two members to be elected by the Commission will expire at the end of 1961. CONSULAR INTERCOURSE AND IMMUNITIES [Agenda item 2] DOCUMENT A/CN.4/131 Second report by Jaroslav Zourek, Special Rapporteur [Original text: French] [30 March 1960] CONTENTS Paragraphs Page PARTI QUESTION OF THE PERSONAL INVIOLABILITY OF CONSULS AND THEIR IMMUNITY FROM CRIMINAL JURISDICTION SECTION I: HISTORICAL INTRODUCTION 1. Development of custom 1-10 3 2. Case-law 11-20 5 3. International conventions 21-33 6 4. Scope of the so-called personal immunity clause 34-36 8 5. Doctrine and practice 37-40 9 6. Draft codes 41-43 9 SECTION II: THE EXISTING LAW 1. Official acts 44^5 10 2. Acts other than those performed in the exercise of the consular function 46-83 11 (a) The case-law of local courts 49-54 11 (6) International treaties 55-66 13 (c) National law and practice 67-83 16 SECTION III: PROPOSED CODIFICATION 17 SPECIAL ARTICLE Personal inviolability 18/19 PART II THE MOST-FAVOURED-NATION CLAUSE AND CONSULAR INTERCOURSE AND IMMUNITIES SECTION I 1. Introduction 1-2 19 2. General considerations 3-15 19 3. The conditional most-favoured-nation clause in conventions concerning consular intercourse and immunities •. 16-20 21 SECTION II: SCOPE OF THE MOST-FAVOURED-NATION CLAUSE IN THE MATTER OF CONSULAR INTER- COURSE AND IMMUNITIES 1. Introduction 21 22 2. Most-favoured-nation clause mentioning the powers, privileges and immunities of consuls 22-27 22 3. Most-favoured-nation clause mentioning the treatment of consuls in general .... 28-29 23 4. Most-favoured-nation clause mentioning consular privileges and immunities .... 30-32 23 5. Most-favoured-nation clause mentioning a specific immunity 33 24 6. Most-favoured-nation clause mentioning the establishment and location of consulates 34-36 24 7. Interpretation of the clause 37 25 SECTION III: Is IT DESIRABLE TO INCLUDE A MOST-FAVOURED-NATION CLAUSE IN THE DRAFT ARTIC- LES ON CONSULAR INTERCOURSE AND IMMUNITIES? 38 25 PARTHI ADDITIONAL ARTICLES Article I: Staff employed in the consulate 26 Article II: Persons deemed unacceptable 26 Consular intercourse and immunities Paragraphs Page Article III: Exemption from obligations in the matter of registration of aliens and residence permits 27 Article IV: Notification of arrival and departure 27 Article V: Acquisition of nationality 27 Article VI: Members of the consular staff who are nationals of the receiving State 28 Article VII: Duration of consular privileges and immunities 28 Article VIII: Estates of deceased members of the consular staff or of deceased members of their families 29 Article IX: Duties of third States 29 Article X: Duty to respect the laws and regulations of the receiving State 30 Article XI: Right to leave the territory of the receiving State and facilitation of departure . 30 Article XII: Protection of premises, archives and interests 31 Article XIII: Non-discrimination 31 PART I levied in the Gulf, instituted proceedings against the consul and, when the latter went to Venice to complain Question of the personal inviolability of consuls to the Senate, sent soldiers to his house and ordered and their immunity from criminal jurisdiction the removal therefrom of the furniture and papers, even those relating to the exercise of the consular SECTION I: HISTORICAL INTRODUCTION function. The Venetian Senate protested vehemently, 1. Development of custom and, to prevent an open breach with the Pope, the French ambassador interposed with a view to settling 1. At the time when they were regarded as public the dispute. But before a settlement could be reached, ministers and were invested with judicial and diploma- 1 the Governor obtained a sentence of banishment against tic functions, consuls enjoyed complete immunity from the consul in contumacia, on the ground that the consul the jurisdiction of the receiving State. Their legal status had unloaded goods at a time of epidemic. After a in no way differed from that of the diplomatic agents 1 further intervention by the French Ambassador, this of the present time. incident was settled on the terms that the Governor 2. At that time, an act of violence committed against would rescind the ban and agree to consul Oberti's a consul was regarded as a breach of international law, reinstatement and that the consul would then be re- as is evidenced by a number of cases well known in placed by the Venetian Senate. The consul having died diplomatic history. For example, Wicquefort (1606- in the meantime, he was replaced by his brother, whom 1682 reports that the States-General of the United the Governor imprisoned and refused to release until Provinces, whose consul at Cadiz had suffered an affront he had given his word to leave the town and not to and had been detained for six or eight months by the return. Outraged by these proceedings, the Venetian Governor of Cadiz, made representations to the Court Senate expressed its indignation by refusing to give of Madrid, complaining of a breach of the Droit des audience to the Pope's envoys and by forbidding its gens (jus gentium).2 ambassador to enter the Pope's presence until the Gov- ernor of Ancona had been forced to give satisfaction.8 3.