The International law Commission closed its forty-ninth session on 18 July 1997 in Geneva after considering the six topics currently before it:
Nationality in relation to the succession of States
Regarding the topic of nationality, the Commission adopted on first reading a set of 27 articles with commentaries, which has been submitted to the Sixth Committee (Legal) for comments. The draft articles on nationality in relation to State succession are divided into two parts. Part I contains general provisions applicable in all cases of succession of States, while Part II consists of provisions relating to specific categories of succession of States.
The draft set of articles is based on the fundamental principle that every individual who, on the date of the succession of States, had the nationality of the predecessor State has the right to the nationality of at least one of the States involved in the succession (article 1). States thus have the obligation to take all appropriate measures to prevent such persons from becoming stateless as a result of the succession (article 3). A general presumption exists that persons who had the nationality of the predecessor State and who reside in the territory affected by the succession acquire the nationality of the successor State on the date of such succession, but there are exceptions (article 4). Special emphasis is given to the will of individuals whenever they are qualified to acquire the nationality of more than one State involved in the succession. In such cases, they are to be granted a right of option (article 10).
Other issues addressed in Part I concern the enactment of legislation on nationality and connected questions (article 5); the effective date of attribution of nationality following the succession (article 6); and the nationality to be attributed to nationals of the predecessor States residing in a State which is not involved in the succession (article 7).
In giving effect to the provisions of Part I in specific situations, States are to take into account the provisions of Part II (article 19), which contains more detailed rules on the attribution of nationality in the following four specified cases of succession of States. They are: transfer of part of the territory (section 1); unification of States (section 2); dissolution of a State (section 3); and separation of part or parts of the territory (section 4).
The draft also contains a provision stating explicitly that, without prejudice to the right to a nationality, it applies to the affects of a succession of States occurring in conformity with international law, and in particular, with the principles of international law embodied in the Charter of the United Nations (article 27).
International liability for injurious consequences arising out of acts not prohibited by international law
The topic of international liability for injurious consequences arising out of acts not prohibited by international law has been on the work programme of the Commission since 1978. Work on the question of the progressive development and codification of rules on the topic was prompted by the increasing risk of transboundary injuries resulting from activities not prohibited by international law, which have become prevalent with the use of modern technology. The objective is to protect the innocent victims injured by lawful activities which cause transboundary harm and to provide for reparation for such injury or harm. Other considerations involve the prevention of harm before it occurs, as well as the obligation of notification by the State involved in the conduct of the activities entailing risk of transboundary harm to the State that might be affected.
During its forty-ninth session, re-evaluating the work done so far, the Commission decided to deal separately with the two main issues involved in the topic, namely, the prevention of transboundary damage and the international liability resulting from such transboundary harm. Given the considerable progress made on the prevention aspect of the topic, it decided to preceed first with that question under the title "Prevention of transboundary damage from hazardous activities".
State responsibility
The topic of State responsibility has been on the Commission's agenda since 1949. In its consideration of the topic, the Commission has defined the scope of the topic to be confined to the study of international responsibility of States for internationally wrongful acts. In that connection, the Commission has concentrated its study on the determination of the principles which govern such responsibility. Work on the topic reached an advanced stage in 1996 when the Commission adopted, on first reading, an entire set of draft articles dealing with a diversity of legal issues, including the elements constituting an international wrongful act; determining when the international wrongful act could be characterized as an international crime or delict; and the consequences resulting from such an act. The draft articles also include the defences that could preclude wrongfulness, such as distress, state of necessity and self-defence. The rights of the State that is wrongfully injured have also been defined, and include the rights to reparation, restitution in kind, and compensation.
During the session, the Commission appointed a new special rapporteur on the topic and decided to give appropriate priority to the topic in its future work, so as to complete its second reading by the end of the present term of office.
Reservations to treaties
Concerning the topic of reservations to treaties, the objective is to clarify the law relating to this important area of international law. For example, whether the regime of reservations established by the Vienna Convention on the Law of Treaties applies to all treaties, irrespective of their subject matter and the role of monitoring bodies with respect to reservations. The Special Rapporteur on the matter has recommended that the final product should be a guide to the practice in respect of reservations, of States as well as of international organizations.
At the current session, the Commission considered the second report of the Special Rapporteur and adopted preliminary conclusions on reservations to normative multilateral treaties, including human rights treaties.
Diplomatic protection
The topic of diplomatic protection was included for the first time in the programme of work of the current session, given the increasing exchange of persons and commerce across State lines. Such exchanges produce a proliferation of disputes for which States may claim diplomatic protection on behalf of their nationals.
A special rapporteur was appointed, and it was decided that the scope of study would include such issues as the following: basis for diplomatic protection; the required linkage between the beneficiary and the States exercising diplomatic protection; who can claim diplomatic protection and against whom; the conditions under which diplomatic protection may be exercised; and the consequences of diplomatic protection.
Unilateral acts of States
Consideration of the topic of unilateral acts of States, also included in the programme of work for the first time at the current session, was precipitated by the increase in the unilateral acts of States which produce legal consequences on the international plane. The Commission appointed a special rapporteur, and decided that in its study of the issue, the Commission would concentrate on a clarification of the elements and effects of of unilateral acts of States, and the rules that are generally applicable to such acts. The study would include the legal effect of unilateral acts of States on themselves and on other States, as well as duration, when the acts can be terminated or revoked, and so on.
The report of the work of the forty-ninth session of the International Law Commission will be issued as U.N. document A/52/10.