YEARBOOK INTERNATIONAL LAW COMMISSION 1980
A/CN.4/SER.A/1980/Add.l (Part 1)YEARBOOKOF THEINTERNATIONALLAW COMMISSION1980Volume IIPart OneDocuments of the thirty-second session(excluding the report of the Commissionto the General Assembly)U N I T E DN A T I O N Sffi
YEARBOOKOF THEINTERNATIONALLAW COMMISSION1980Volume IIPart OneDocuments of the thirty-second session(excluding the report of the Commissionto the General Assembly)UNITED NATIONSNew York, 1982
NOTESymbols of United Nations documents are composed of capital letterscombined with figures. Mention of such a symbol indicates a reference to aUnited Nations document.The word Yearbook followed by ellipsis points and the year (e.g., Yearbook. 1975) indicates a reference to the Yearbook of the International LawCommission.Part One of volume II contains the reports of the Special Rapporteursdiscussed at the session and certain other documents. Part Two of the volumecontains the Commission's reports to the General Assembly.All references in the present volume to those reports and documents, as wellas quotations from them, are to the edited version of those texts as they appearin volume II of the YearbookA/CN.4/SER.A/1980/Add. 1 (Part 1)UNITED NATIONS PUBLICATIONSales No. E.81.V.4 (Part I)02000P
CONTENTSPageSuccession of States in respect of matters other than treaties (agenda item 1)Document A/CNA/333:Twelfth report o n succession of States in respect of mattersother than treaties, b y M r . M o h a m m e d Bedjaoui, Special R a p p o r t e u r . Draftarticles o n succession t o State archives, with commentaries {continued). . .State responsibility (agenda item 2)Document A/CN.4/318/Add.5-7:Addendum to the eighth report on Stateresponsibility, by Mr. Roberto Ago: The internationally wrongful act of theState, source of international responsibility (part 1) {concluded).Document A/CN.4/318/Add.8: State responsibility for internationally wrongfulacts (part 1). Principal works cited in the reports of Mr. Ago. Documentprepared by the SecretariatDocument A/CN.4/328 and Add. 1-4: Observations and comments of Governmentson chapters I, II, and III of Part 1 of the draft articles on State responsibilityfor internationally wrongful actsDocument A/CN.4/330: Preliminary report on the content, forms and degrees ofinternational responsibility (Part 2 of the draft articles on State responsibility),by Mr. William Riphagen, Special RapporteurQuestion of treaties concluded between States and international organizations orbetween two or more international organizations (agenda item 3)Document A /CN.4/327: Ninth report on the question of treaties concluded betweenStates and international organizations or between two or more internationalorganizations, by Mr. Paul Reuter, Special Rapporteur. Draft articles, withcommentaries {concluded)The law of the non-navigational uses of international watercourses (agenda item 4)Document A.CN.4/329 and Add.l: Replies of Governments to the Commission'squestionnaireDocument A/CN.4/332 and Add.l: Second report on the law of the nonnavigational uses of international watercourses, by Mr. Stephen M. Schwebel,Special RapporteurJurisdictional immunities of States and their property (agenda item 5)Document A/CN.4/331 and Add.l: Second report on jurisdictional immunities ofStates and their property, by Mr. Sompong Sucharitkul, Special Rapporteur11 37187107131153159199Status of the diplomatic courier and the diplomatic bag not accompanied bydiplomatic courier (agenda item 6)Document A/CN.4/335: Preliminary report on the status of the diplomatic courierand the diplomatic bag not accompanied by diplomatic courier, by Mr.Alexander Yankov, Special Rapporteur231International liability for injurious consequences arising out of acts not prohibited byinternational law (agenda item 7)Document A/CN.4/334 and Add.l and 2: Preliminary report on internationalliability for injurious consequences arising out of acts not prohibited byinternational law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur. . 247Check-list of documents of the thirty-second sessionHI267
SUCCESSION OF STATES IN RESPECT OF MATTERSOTHER THAN TREATIES[Agenda item 1]DOCUMENT A/CN.4/333Twelfth report on succession of States in respect of matters other than treatiesby Mr. Mohammed Bedjaoui, Special RapporteurDraft articles on succession to State archives, with commentaries(continued)[Original: French][20 May 1980]CONTENTSPageAbbreviations1Explanatory note: italics in quotations1ParagraphsINTRODUCTION1-92ACTION BY THE UNITED NATIONS10-173ACTION BY UNESCO18-224DISCUSSION OF THE TOPIC IN THE SIXTH 9-509Chapter1.II.III.IV.Title of the draft articlesNeed to codify succession in respect of State archivesExact legal nature of State archivesDefinition of State archivesNeed to supplement articles A and B by other articles covering types ofsuccession of States other than decolonizationMINOR AMENDMENTS TO THE DRAFT ARTICLES PROPOSED BY THE SPECIAL RAPPORTEUR IN HIS ELEVENTH REPORTA.B.C.D.Transfer of part of the territory of one State to another StateArticle B\ Transfer of part of the territory of one State to another State . .Uniting of StatesArticle D. Uniting of StatesSeparation of part or parts of the territory of a StateDissolution of a 11111273-7412ABBREVIATIONSUNESCOUnited Nations Educational, Scientific and Cultural OrganizationEXPLANATORY NOTE: ITALICS IN QUOTATIONSAn asterisk inserted in a quotation indicates that in the passage immediately preceding theasterisk the italics have been supplied by the Special Rapporteur.1
Documents of the thirty-second sessionIntroduction1. This study is the sequel to the Special Rapporteur's eleventh report, which was submitted to theCommission at its thirty-first session and dealt withsuccession in respect of State archives.1 The purpose ofthe present study is to make a few additions andchanges to that report, which none the less remains thebasic document for the Commission's futuredeliberations, in so far as it did not fully complete itsconsideration of the report at the last session. TheSpecial Rapporteur hopes that the Commission willconsider this study in conjunction with the parts of hiseleventh report that were not touched on at thatsession.2. The additions and changes proposed below to theeleventh report are based on:(a) the deliberations at the General Assembly'sthirty-fourth session on the subject of the restitution ojworks of art to countries victims of expropriation, in sofar as those deliberations have a bearing on theproblems of succession to State archives as property ofhistorical and cultural value;(b) the latest work by UNESCO in this field, moreparticularly the work of the Intergovernmental Committee for Promoting the Return of Cultural Propertyto its Countries of Origin or its Restitution in Case ofIllicit Appropriation, which ended its first session on 9May 1980 in Paris;(c) the Sixth Committee's discussion, at the thirtyfourth session of the General Assembly, of the SpecialRapporteur's eleventh report and the views expressedby delegations on the problem of succession in respectof State archives;(d) the opinions expressed by members of theCommission at its thirty-first session, when theCommission considered the Special Rapporteur'seleventh report and provisionally adopted two articleson succession to State archives.3. Before proceeding further, the Special Rapporteurwishes to sum up briefly the state of progress of theCommission's work on the subject of succession ofStates in respect of matters other than treaties.4. As its title indicates, the topic "Succession ofStates in respect of matters other than treaties" coversall subjects other than treaties, more particularly,succession to public property, public debts, thelegislation and the internal law of the predecessorState, the legal status of the inhabitants (in particular,their nationality), territorial problems, acquired rightsand other matters. Since the subject was seen to beboth vast and complex, the Commission, at the SpecialRapporteur's request, first of all restricted it tosuccession of States in economic and financial matters.'See Yearbook. 1979, vol. II (Part One), p. 67, documentA/CN.4/322 and Add.l and 2.5. However, even as so circumscribed, the topicproved to be too broad for that first stage ofcodification. Even if, as the Special Rapporteur hadproposed, "succession of States in economic andfinancial matters" was confined to a study ofsuccession to public property and public debts andother important matters were omitted, the field stillremained too wide-ranging, for public property andpublic debts might be regarded as covering not onlythe property and debts of the State but also those ofterritorial authorities other than States and of publicenterprises or public bodies, not to mention theproperty and debts of the territory to which thesuccession of States relates. For that reason, from1973 onwards, the Special Rapporteur, with theCommission's concurrence, confined his study to asingle category of public property and public debts,namely, the category concerning the State itself.Hence, the draft articles adopted by the Commissionon the topic from 1973 to 1978 deal exclusively withthe succession of States in respect of State propertyand State debts.26. In response to the wish of some members of theCommission and of a number of representatives in theSixth Committee, and also in keeping with his owninclination, the Special Rapporteur proposed at theCommission's thirty-first session, in 1979, that thedraft articles should be supplemented with provisionscovering the case of succession in respect of Statearchives, a topic which, in his view, came under theheading of succession to State property. Accordingly,in his eleventh report he proposed six additionalarticles (A-F). The Commission adopted in firstreading two draft articles, A and B,3 the firstcontaining a definition of state archives and the secondrelating to succession in respect of State archives in thecase of newly independent States.7. At the General Assembly's thirty-fourth session,in 1979, the Sixth Committee considered all of thedraft articles on succession of States in respect ofmatters other than treaties as adopted by the Commission in first reading, and also the two draft articles (Aand B) concerning succession in respect of Statearchives.4 The Sixth Committee and the GeneralAssembly, which referred these texts to States for theircomments, expressed the wish that the Commissionshould complete its work on this topic by preparingsome further draft articles on succession to State2See Yearbook. 1978, vol. II (Part Two), pp. 111-113,document A/33/10, chap. IV, sect. B.I.3Corresponding to articles A and C initially proposed by theSpecial Rapporteur in his eleventh report. See Yearbook. 1979,vol. II (Part Two), pp. 79 and 81-82, document A/34/10, chap.II, sect. B, addendum.4Ibid., pp. 15 et seq., document A/34/10, chap. II, sect. B.
Succession of States in respect of matters other than treatiesarchives, in order that there should be a set of draftarticles covering succession to State archives in casesof State succession other than decolonization (draftarticles B, D,. E and F of the Special Rapporteur'seleventh report, not yet considered by theCommission).8. By its resolution 34/141 of 17 December 1979,the General Assembly noted with appreciation that "atits thirty-first session the International Law Commission, pursuant to General Assembly resolution33/139 of 19 December 1978, completed the firstreading of its draft articles on succession of States inrespect of matters other than treaties". But it recommended that the Commission should:Continue its work on succession of States in matters other thantreaties with the aim of completing, at its thirty-second session,the study of the question of State archives* and, at its thirty-thirdsession, the second reading of all of the draft articles onsuccession of States in respect of matters other than treaties,taking into account the written comments of Governments andviews expressed on the topic in debates in the General Assembly.9. The Commission has thus been given the mandateof preparing at its 1980 session some draft articles onsuccession in respect of State archives in varioussituations of State succession. In this connection, theSpecial Rapporteur draws the Commission's attentionto his eleventh report and in particular to draft articlesB, D, E and F, 5 which may usefully supplement thetwo draft articles already adopted by the Commission.In addition, he invites the Commission to take intoconsideration the present study, the object of which isto provide some more information on the topic and topropose some changes concerning the draft articleswhich appear in his eleventh report.5Ibid., vol. II (Part One), pp. 108, 119, 122 and 123, documentA/CN.4/322 and Add.l and 2, paras. 140, 189, 204 and 206respectively.CHAPTER IAction by the United Nations10. In his eleventh report, the Special Rapporteurdiscussed at length UNESCO's work concerning succession to State archives, but touched only briefly onthe deliberations and recommendations of the UnitedNations6 on the same subject. The few details heprovided did not reflect sufficiently the importancewhich the General Assembly attaches to the problem.Assembly at its thirtieth session on the progressachieved in that connection.12. The General Assembly discussed the matteragain at its thirtieth session. By resolution 3391(XXX) of 19 November 1975, it invited, inter alia:(a) Member States to ratify the Convention on theMeans of Prohibiting and Preventing the Illicit Import,11. The question was included in the Assembly's Export and Transfer of Ownership of Cultural Proagenda for the first time at its twenty-eighth session, at perty, adopted by the UNESCO General conference inthe request of Zaire. At that session, the General 1970;7Assembly affirmed, in resolution 3187 (XXVIII) of 18(b) The Secretary-General of the United Nations toDecember 1973, that:submit a report to the General Assembly at itsThe prompt restitution to a country of its objets d'art, thirty-second session.monuments, museum pieces, manuscripts* and documents* byanother country, without charge, is calculated to strengthen In the same resolution, the General Assembly statedthat it looked forward to the meeting of the Committeeinternational co-operation.of Experts to Study the Question of the Restitution ofIt recognized in addition "the special obligations in this Works of Art, established by UNESCO, which wasconnection of those countries which had access to such scheduled to be held in Cairo early in 1976.valuable objects only as a result of colonial or foreignoccupation". Finally, it invited the Secretary-General 13. At its thirty-second session (resolution 32/18 ofof the United Nations, in consultation with UNESCO 11 November 1977), the General Assembly:and Member States, to submit a report to the General(a) renewed its appeal to Member States to sign andratify the UNESCO Convention of 1970;6The action by the United Nations was summed up in oneparagraph (para. 54).7UNESCO, Records of the General Conference, SixteenthSession, Resolutions, p. 135.
Documents of the thirty-second session(b) Affirmed that the restitution to a country of itsobjets d'art, monuments, museum pieces, manuscripts,documents and any other cultural or artistic treasuresconstituted a step forward towards the strengthening ofinternational co-operation and the preservation anddevelopment of cultural values; and(c) decided to review at its thirty-fourth session theprogress achieved and, in particular, the action takenin that regard by UNESCO.14. At its thirty-third session, in resolution 33/50 of14 December 1978, the General Assembly welcomedthe long-awaited establishment of the Intergovernmental Committee for Promoting the Return ofCultural Property to its Countries of Origin or itsRestitution in Case of Illicit Appropriation.815.By the beginning of the Assembly's thirty-fourth8Ibid., Twentieth Session, Resolutions (Paris, 1978), p. 97,resolution 4/7.6/5. Text reproduced in document A/34/529 andCorr. 1, annex, appendix I.session, 43 States had ratified or accepted theUNESCO 1970 Convention.16. In resolution 34/64 of 29 November 1979, theGeneral Assembly appealed to Member States:to encourage the mass information media and educational andcultural institutions to strive to arouse a greater and more generalawareness with regard to the return or restitution of culturalproperty to the countries of origin.17. In the course of the discussion at the thirty-fourthsession on the restitution of works of art to thecountries which had suffered expropriation, a numberof representatives referred specifically to the problemof archives. The representative of Senegal stated that:UNESCO has established at Timbuctoo, in Mali, the AhmedBaba Centre to encourage the collection of documents,manuscripts and scriptural materials, and in the archives of Iran,Iraq and India, of course, as in China, Europe and America, arestored many pieces of African history awaiting examination byresearchers.99See Official Records of the General Assembly, Thirty-fourthSession, Plenary meetings, 51st meeting, para. 46.CHAPTER IIAction by UNESCO18. The Director-General of UNESCO submitted areport, covering the period from September 1977 toJune 1979, on the most recent activities undertaken byhis organization to promote the return or restitution ofcultural property to the countries of origin.10 Thereport describes the action taken by the DirectorGeneral to develop awareness among the generalpublic and experts and to lay down the principleswhich might form the basis for the restitution or returnof cultural property and define the terms of reference,means of action and working methods of an intergovernmental committee.19. The object of the public information activitieswas to dispel the misunderstanding propagated by thepress regarding the question of the return or restitutionof cultural property to the countries of origin, and alsoto develop awareness of this operation, not only amongexperts but also among the general public. In hisappeal to the General Assembly of the InternationalCouncil of Museums (ICOM), at its twelfth sessionheld in Moscow in May 1977, and later in his solemnappeal of 7 June 1978 to the world at large, theDirector-General of UNESCO stressed "the importance for the countries of origin of the return of objectswith a particular significance from the point of view ofthe spiritual values and the cultural heritage of thepeoples concerned".11 Information on the nature andscope of the action needed in this field, and on theethical reasons for it, was disseminated by thespecialized publications of UNESCO. At present,preparations are in progress for a seminar of journalists and museum curators and for the publication of abrochure aimed at leaders of public opinion.20. In addition, the establishment by UNESCO ofthe Intergovernmental Committee for Promoting theReturn of Cultural Property to its Countries of Originor its Restitution in Case of Illicit Appropriation12responded to the necessity of seeking ways and meansof facilitating bilateral negotiations for the restitution orreturn of cultural property to the countries having lostthem as a result of colonial or foreign occupation.21. This committee, whose members are 20 Stateselected by the UNESCO General Conference, acts inan advisory capacity. Its chief function is to facilitatebilateral negotiations for the restitution of works of art,and to promote bilateral and multilateral co-operation,to foster a public information campaign and to guidethe planning and implementation of the UNESCO programme of activities in this field. It is also responsiblefor encouraging the necessary research and studies forthe establishment of coherent programmes for the1110See A/34/529 and Corr.l, annex.12Ibid., para. 5.See footnote 7
A. Transfer of part of the territory of one State to another State 54-61 9 Article B\ Transfer of part of the territory of one State to another State . . 61 10 B. Uniting of States 62-66 11 Article D. Uniting of States 65 11 C. Separation of part or parts of the territory of a State 67-69 11 D. Dissolution of a State 70-72 12 CONCLUSION 73-74 12
01 MAR 1980 15 MAR 1980 28 MAR 1980 19 APR 1980 07 JUN 1980 19 MAY 1980 29 JUN 1980 03 JUL 1980 07 OCT 1980 10 OCT 1980 27 OCT 1980 01 NOV 1980 13 NOV 1980 14 NOV 1980 15 NOV 1980 III - HISTORICAL SUMMARY Event LCDR F. S. Messick, S-3, OIC of t e Advanced Party departed Gulfport, MS for Rota, Spain.
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