International Law Commission (ILC)

Topics: A. Jursidictional Immuinty
            B. Diplomatic Protection

Mikey Butler
Chairperson
YUNMUN X

Dear Delegates,

Welcome to the International Law Commission of the Yeshiva University National Model United Nations. My name is Mikey Butler, and I will be your Chairman. In order for you to feel more comfortable with me yelling, joking, encouraging, correcting, and trading notes with my Vice-Chair during sessions, let me tell you a little about myself. I am a Yeshiva College Junior majoring in Political Science and minoring in Business. I am the drummer in two of the four regions for which I am an NCSY advisor. While I worked 2 summers in Camp HASC (a summer camp for physically and mentally challenged people), I worked this most recent summer as a Congressional Intern with the Institute of Public Affairs in Washington, DC.

This year in the International Law Commission (otherwise known as the ILC) we will be discussing two topics: Jurisdictional Immunities, and Diplomatic Protection. In order for us to have an informative, educational and enjoyable experience, you must keep in mind some pointers on researching these topics for your individual countries.

1) Remember that you are representing a country, and not presenting your own personal or political opinions. You must be well versed in your country's past and present policies, when they complement the positions of the international community and when they depart from it.

2) Use a diverse range of sources and media: books, newspapers, magazines, as well as the Internet. Familiarize yourself with the International Law Commission webpage at the UN site, http://www.un.org/law/ilc and its contents and links. Working Group Reports can usually be 60-100 pages long and the Reports submitted to the GA by the "Special Rapporteur" can be over 250 pages long. Needless to say, we will not recreate nor simulate that aspect of the UN, but the site does give you a plethora of information, virtually all via the Internet.

3) Call your country's consulate or embassy and ask for position papers that your country may have submitted to the Sixth Committee during the recent 54th sessions of the UN General Assembly.

The UN Charter is the international legal system's "super-treaty," authorizing, among other things, the UN's limited law-making capacity. Article 13, paragraph 1 states that the General Assembly shall initiate studies and make recommendations for the purpose of "encouraging the progressive development of international law and its codification."

When the International Law Commission was formed in 1947 to fulfill the above mandate, the idea of developing international law through the restatement of existing rules or through the formulation of new rules was not new. Within the UN the ILC is the preliminary, specialized law creating body. Most of the Commission's work involves the preparation of drafts, that is, an article by article writing of the rules and their attendant interpretive commentaries, on topics of international law. Some topics are chosen by the Commission and others are referred to it by the General Assembly or the Economic and Social Council. When the Commission completes draft articles on a particular topic, the General Assembly usually convenes an international conference of diplomatic representatives to incorporate the draft articles into a binding Convention which is then open to States to become parties.

Governments play an important role at every stage of the codification and progressive development of international law. Individually, they furnish information at the outset of the Commission's work and comment upon its drafts, and, collectively, they may decide upon the initiation, or priority, of the work. Governments, not the ILC, always decide on the outcome of the drafting process. After the Commission has submitted its final draft to the General Assembly on a topic, the Assembly normally requests comments of Governments on that draft. The Commission has also always submitted to the General Assembly a transcript-like report on the work done at each of its sessions. Both ILC reports on a given annual session and draft articles on a given topic are considered by the General Assembly's Sixth (Legal) Committee. The eventual outcome of these numerous considerations could be: the further consideration of the topic before the convening of a diplomatic conference, the elaboration of an already existing convention by the General Assembly itself, or a diplomatic conference to draw up a convention.

The Commission's work deals with legal matters that (unlike those handled by the Economic and Social Commission, or the Division for the Advancement for Women, for example) ultimately may have binding implications for nation states, potentially limiting domestic jurisdiction, or more seriously, making them subject to the jurisdiction of an international body. The process of determining the feasibility of studying certain topics, researching and drafting international rules around them and making recommendations to the General Assembly on their adoption is therefore a painstaking and slow one, subject to the hesitation and uncertainties of states unwilling to risk compromising their sovereignty. As representatives of governments you have considerable freedom to intervene in the ILC process and to shape it.

Since 1947, the ILC has grown three-fold to its present size of thirty-four members, who sit in their individual capacities rather than as representatives of the countries that appointed them. The agenda during any one of its annual 12-week sessions held in both Geneva and New York is shaped by the number of new General Assembly mandates and already assigned topics that remain under consideration.

Anyway, I hope that we can have a productive and fun experience. I look forward to reading your papers, and speaking to you in person.

The General Assembly passed resolutions in 1977 and in 1995 calling for the adoption of legal rules with regard to Jurisdictional Immunity of States and Diplomatic Protection respectively in the ILC. Following the formation of the relevant thematically focused Working Groups, a Special Rapporteur was appointed for each issue. The rapporteur's job was to make initial contact with states to gather information at the national level on case law and other potentially precedent-setting legal information relating to these topics. Provisional draft articles that, among other things, set out the scope and definition of the issue were sent to states for recommendations and editing. State responses were then consolidated into a final draft by a Drafting Committee on each of the topics, which the ILC submitted to the General Assembly's Sixth Committee.

States often submit position papers at this time which make clear their support for or reservations to aspects of the issues. Often these positions are coordinated by regional blocs: the G77 (the Group of 77, comprising Third World members of the UN) and China seek to ensure that international laws do not erode their sovereignty and freedom to act especially with regard to how they treat their own citizens. They also seek to ensure nondiscrimination in the applicability of the law -- if the law "targets" their legal systems more than others, this results in significantly greater debate. The Scandinavian countries and the European Union are the strongest supporters of international law. The US takes strong positions in a very issue-specific fashion determined by the dictates of US foreign policy. Generally the US position has, given its persuasive power, ramifications for the positions taken by those states who are its real and potential allies.

The topic of Jurisdictional Immunity of States and their Property has been under discussion since 1977. This issue is founded upon the fundamentally state-centric organization of the international legal system. States are the subjects, that is, the initiators and makers, of international law. But they are also the objects, that is, the beneficiaries, of the international law making process. The extensive deliberations on this topic, that await a final resolution in the form of an International Conference and a Convention, deal with the definition of the "State" and the extent to which States, as distinct from private entities, require or are entitled to immunity for their acts.

Having stated the fundamental general principle that "A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State" the draft articles elaborate on the circumstances in which states' immunity and the immunity of their property may be qualified, be revoked, or be made inapplicable. States cannot, for example, claim immunity in their commercial transactions or in relation to their use and misuse of intellectual property -- two issues that are of increasing importance in international relations. Such exceptions are, however, without prejudice to the privileges and immunities enjoyed by a State, as represented by "its diplomatic missions, consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences" as well as by the Head of State.

As you go through the text and guides found on the website and elsewhere, I would suggest that you concentrate only on those issues which relate to your country. The official report of the 51st Session of the ILC lists five elements to the issue of Jurisdictional Immunity, but all of these elements are not relevant to all states. They are:

(1) Concept of a State for purposes of immunity;
(2) Criteria for determining the commercial
        character of a contract or transaction;
(3) Concept of a State enterprise or other entity in          relation to commercial transactions;
(4) Contracts of employment and
(5) Measures of constraint against State property.

Many of these issues revolve around the question of the inherent right of individual states to exercise independent power.

The topic of Diplomatic Protection is a recent addition to the work of the ILC, introduced by states concerned about the increasing exchange of persons and commercial activity across state lines brought about by globalization. Such exchanges have produced a proliferation of disputes for which states may claim diplomatic protection on behalf of their nationals. The Special Rapporteur outlined the scope of his study to include such issues as: the basis for diplomatic protection; the required linkage between the individual beneficiary and the State 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. Other interesting questions to be dealt with by the Commission include whether immunity can be granted without the individual's consent and the interplay between diplomatic immunity for civil versus criminal actions.

To put these issues in perspective, consider whether the United States should be permitted to sue Israel for the material losses it suffered as a result of Jonathan Pollards' actions on Israel's behalf. Similarly, should Israel be able to grant diplomatic immunity to Jonathan Pollard, who by virtue of his religion is automatically eligible for Israeli citizenship, although he is native-born American who may not be willing to relinquish his US citizenship? The question of Diplomatic Immunity is inextricably tied to the question of statehood and state representation, as with the issues surrounding Jurisdictional Immunity of States -- the International Court of Justice has ruled that a citizen of one country may not grant diplomatic protection to a citizen of another country.

Here are some resources online you can use to supplement your research: