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Last update: August 3, 2015

Analytical Guide to the Work of the International Law Commission

Jurisdictional immunities of States and their property

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

None

Reports of the Working Group or Sub-Committee

  • 30th session of the International Law Commission (1978)
    • Report of the Working Group on Jurisdictional Immunities of States and their Property
  • 51st session of the International Law Commission (1999)
    • Report of the Working Group on Jurisdictional Immunities of States and their Property

Reports of the Special Rapporteur

  • Preliminary consideration, introduction to topic, historical background, possible source materials, rough analytical outline, possibility of eventual preparation of draft articles.
    • Preliminary Report of the Special Rapporteur, Mr. Sompong Sucharitkul (31st session of the ILC (1979))
  • Proposed draft articles with commentaries: scope (art.1), use of terms (art.2), interpretative provisions (art.3), jurisdictional immunities not within the scope of the articles (art.4), non-retroactivity (art.5), principle of state immunity (art.6).
    • Second Report of the Special Rapporteur, Mr. Sompong Sucharitkul (32nd session of the ILC (1980))
  • Five further draft articles: rules of competence and jurisdictional immunity (art.7); consent of state (art.8); voluntary submission (art.9); counter-claims (art.10); waiver (art.11). Together with art.6 provisionally adopted during the 32nd session, these were placed in Part II, viz. "General Principles".)
    • Third Report of the Special Rapporteur, Mr. Sompong Sucharitkul (33rd session of the ILC (1981))
  • Part III of the draft articles concerning exceptions to State immunity. Two draft articles: scope of Part III (art.11), and trading or commercial activity (art.12)).
    • Fourth Report of the Special Rapporteur, Mr. Sompong Sucharitkul (34th session of the ILC (1982))
  • Part III of the draft Articles concerning exceptions to State immunity. Three further draft articles: contracts of employment (art.13), personal injuries and damage to property (art.14), and ownership, possession and use of property (art.15).
    • Fifth Report of the Special Rapporteur, Mr. Sompong Sucharitkul (35th session of the ILC (1983))
  • Part III, exceptions to state immunity. Five draft articles: patents, trade marks and intellectual properties (art.16), fiscal liabilities and customs duties (art.17), share-holdings and membership of bodies corporate (art.18), ships employed in commercial service (art. 19 alternative A and B), and arbitration (art.20). Revised version of art. 19 was subsequently prepared by the Special Rapporteur.
    • Sixth Report of the Special Rapporteur, Mr. Sompong Sucharitkul (36th session of the ILC (1984))
  • Last two remaining parts: state immunity in respect of property from attachment and execution (Part IV), and miscellaneous provisions (Part V). Part IV comprised of: scope of the Part (art.21), State immunity from attachment and execution (art.22), modalities and effect of consent to attachment and execution (art.23), and types of State property permanently immune from attachment and execution (art.24). Part V: immunities of personal sovereigns and other heads of State (art.25), service of process and judgement in default of appearance (art.26), procedural privileges (art.27), and restriction and extension of immunities and privileges (art.28).
    • Seventh Report of the Special Rapporteur, Mr. Sompong Sucharitkul (37th session of the ILC (1985))
  • Proposed changes to those draft articles still under consideration, and which had not yet been submitted to the drafting Committee, viz. Part I (Introduction): use of terms (art.2(2)), interpretative provisions (art.3(1)), jurisdictional immunities not within the scope of the present articles (art.4), non-retroactivity (art.5); and Part V (Miscellaneous provisions): immunities of personal sovereigns and other heads of State (art.25), service of process and judgment in default of appearance (art.26), procedural privileges (art.27), and restriction and extension of immunities and privileges (art.28). Proposals were also made in the report for a Part VI (settlement of disputes) and Part VII (final provisions) for future consideration by the Commission.
    • Eighth Report of the Special Rapporteur, Mr. Sompong Sucharitkul (38th session of the ILC (1986))
  • Analysis of the comments of 23 Member States, as well as further replies later received from five member States. Proposed the combination of arts. 2 and 3, and proposed the inclusion of draft art.11(bis) dealing with the question of a State enterprise with segregated State property. Several editorial and other amendments to provisionally adopted draft articles were also recommended.
    • Preliminary Report of the Special Rapporteur, Mr. Motoo Ogiso (40th session of the ILC (1988))
  • Consideration of draft articles on the basis of the written comments and observations of Governments and the Special Rapporteur's analysis of relevant codification and State practice. Brief review of the recent developments of general State practice concerning State immunity.
    • Second Report of the Special Rapporteur, Mr. Motoo Ogiso (41st session of the ILC (1989))
  • Review of the entire set of draft articles with suggested reformulations, taking into account the views expressed by members of the Commission at its 41st session, as well as Governments in their written comments and in the 6th Committee.
    • Third Report of the Special Rapporteur, Mr. Motoo Ogiso (42nd session of the ILC (1990))

Reports of the Drafting Committee

  • 32nd session of the International Law Commission (1980)
    • Texts of articles 1–6 and titles of parts 1 and 2 of the draft, adopted by the Drafting Committee
  • 34th session of the International Law Commission (1982)
    • Texts adopted by the Drafting Committee: article 1, article 2, para. 1 (a), and articles 7 to 9
  • 35th session of the International Law Commission (1983)
    • Texts adopted by the Drafting Committee: arts. 10, 12, 2(1)(g), 3(2) and 15
  • 36th session of the International Law Commission (1984)
    • Texts adopted by the Drafting Committee: arts. 13,14, 16, 17 and 18
  • 37th session of the International Law Commission (1985)
    • Texts adopted by the Drafting Committee: arts. 19 and 20
  • 38th session of the International Law Commission (1986)
    • Titles and texts adopted by the Drafting Committee: titles of Parts II and III of the draft; articles 2 to 6 and 20 to 28
  • 42nd session of the International Law Commission (1990)
    • Titles and texts adopted by the Drafting Committee on second reading: arts. 1 to 10 and 12 to 16
  • 43rd session of the International Law Commission (1991)
    • Titles and texts adopted by the Drafting Committee on second reading: arts. 1 to 23

Comments by Governments

  • 33rd session of the International Law Commission (1981)
    • Information and Materials submitted by Governments. Part 1: Government replies to the questionnaire
    • Part II: Materials submitted by Governments together with their replies to the questionnaire
    • Part III: Materials submitted by Governments who have not replied to the questionnaire
  • 40th session of the International Law Commission (1988)
    • Comments and observations received from Governments

Other

  • 33rd session of the International Law Commission (1981)
    • Texts of articles 7 to 10, proposed by the Special Rapporteur on 9 June 1981
  • 34th session of the International Law Commission (1982)
    • Revised texts of articles 11 and 12 submitted by the Special Rapporteur, Mr. Sompong Sucharitkul
  • A/CN.4/L.351 (mimeograph)
  • 35th session of the International Law Commission (1983)
    • Memorandum presented by Mr. Nikolai A. Ushakov
  • 36th session of the International Law Commission (1984)
    • Revised text of article 19 proposed by the Special Rapporteur
    • Text of paragraph 2 of article 11 proposed by the Special Rapporteur

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its thirtieth session, 8 May to 28 July 1978
    • The Commission included the topic in its programme of work, appointed Mr. Sompong Sucharitkul as Special Rapporteur and invited him to prepare a preliminary report. It also requested the Secretary-General to invite Governments of Member States to submit relevant materials on the topic and asked the Secretariat to prepare relevant working papers.
    • Discussion in Plenary: 1502nd meeting (16 June 1978), 1524th meeting (24 July 1978), 1525th meeting (25 July 1978) and 1527th meeting (27 July 1978)
  • Report of the International Law Commission on the work of its thirty-first session, 14 May to 3 August 1979
    • The Commission considered the preliminary report of the Special Rapporteur and decided to request that he continue his study, concentrating on general principles. The Commission noted that in terms of priorities, work should proceed on immunities of States from jurisdiction. The issue of the widening functions of the State was also addressed.
    • Discussion in Plenary: 1574th and 1575th meetings (23 and 24 July 1979)
  • Report of the International Law Commission on the work of its thirty-second session, 5 May to 25 July 1980
    • The Commission discussed the report of the Special Rapporteur and provisionally adopted the texts of articles 1 and 6 proposed by the Drafting Committee with commentaries.
    • Discussion in Plenary: 1622nd, 1623rd, 1624th, 1625th and 1626th meetings (30 June to 4 July 1980), 1634th and 1637th meetings (16 and 18 July 1980)
  • Report of the International Law Commission on the work of its thirty-third session, 4 May to 24 July 1981
    • The Commission discussed the report of the Special Rapporteur, but was unable to consider the revised version of his original five draft articles.
    • Discussion in Plenary: 1653rd, 1654th, 1655th, 1656th and 1657th meetings (18 to 22 May 1981), 1663rd, 1664th and 1665th meetings (1 to 3 June 1981)
  • Report of the International Law Commission on the work of its thirty-fourth session, 3 May to 23 July 1982
    • The Commission considered the fourth report of the Special Rapporteur and confirmed its referral to the Drafting Committee of draft articles 7 to 10. It also referred to the Drafting Committee draft articles 11 and 12 and furthermore decided that draft article 6, already provisionally adopted at the thirty-second session, should be re-examined by the Drafting Committee in the light of the discussions of the rest of the articles constituting part II of the draft articles and that the Drafting Committee should examine the provisions of draft articles 2 and 3 relevant to the problems of definition of "jurisdiction" and "trading or commercial activities". The Commission also adopted draft articles 2, paragraph 1 (a), 7, 8 and 9, as well as a revised version of draft article 1, with commentaries.
    • Discussion in Plenary: 1708th, 1709th, 1710th, 1711th, 1712th, 1713th, 1714th, 1715th, 1716th, 1717th and 1718th meetings (17 May to 2 June 1982), 1728th, 1729th and 1730th meetings (16 to 18 June 1982), 1749th and 1750th meetings (20 and 21 July 1982)
  • Report of the International Law Commission on the work of its thirty-fifth session, 3 May to 22 July 1983
    • Decision to refer articles 13, 14 and 15 to the Drafting Committee. Revised version of draft articles.13 (contracts of employment) and 14 (personal injuries and damage to property) submitted to the drafting Comm. Arts. 2(1)(g), 3(2), 10, 12 and 15 were provisionally adopted with commentaries.
    • Discussion in Plenary: 1762nd, 1763rd, 1764th, 1765th, 1766th, 1767th, 1768th, 1769th and 1770th meetings (17 to 30 May 1983), and 1805th and 1806th meetings (15 and 18 July 1983)
  • Report of the International Law Commission on the work of its thirty-sixth session, 7 May to 27 July 1984
    • The Commission, after considering the Special Rapporteur's sixth report, decided to refer draft articles 16, 17 and 18 to the Drafting Committee. In the light of the discussions held in the Commission, the Special Rapporteur submitted to the Commission a revised version of draft article 19 (A/CN.4/L.380). Owing to lack of time, the Commission was not in a position to conclude its deliberations on article 19 or to take up article 20. It decided to consider those articles next year, at its thirty-seventh session. As recommended by the Drafting Committee, the Commission provisionally adopted draft articles 13, 14, 16, 17, and 18. With regard to the provisional adoption of draft article 16 by the Commission, the Special Rapporteur submitted the text of paragraph 2 of draft article 11 to the Commission (A/CN.4/L.381). The Commission decided to refer paragraph 2 of draft article 11 to the Drafting Committee for consideration.
    • Discussion in Plenary: 1833rd, 1834th, 1835th, 1836th, 1837th, 1838th, 1839th, 1840th and 1841st meetings (4 to 15 June 1984), and 1868th and 1869th meeting (20 and 23 July 1984)
  • Report of the International Law Commission on the work of its thirty-seventh session, 6 May to 26 July 1985
    • The Commission limited its consideration to arts. 19 and 20, left over from the previous session, and Part IV. Part V was left to the following year. On the recommendation of the Drafting Committee., draft articles 19 and 20 were provisionally adopted with commentaries. On the basis of discussion held in the Commission, the Special Rapporteur submitted to the Drafting Committee a new title for Part IV, as well as revised texts for draft arts. 21 to 24. It was decided that the Committee would take up these articles at the following session.
    • Discussion in Plenary: 1915th, 1916th, 1917th, 1918th, 1919th, 1920th, 1921st, 1922nd, 1923rd and 1924th meetings (1 to 11 July 1985), 1931st, and 1932nd, meetings (19 and 22 July 1985)
  • Report of the International Law Commission on the work of its thirty-eighth session, 5 May to 11 July 1986
    • On the basis of the Report of the Drafting Committee, the Commission provisionally adopted on first reading, articles 2(2), 3(1), 4 to 6, 20 to 28, with commentaries. After making several editorial changes to previously adopted draft articles, and renumbering arts. 12 to 20 as draft articles 11 to 19, the Commission adopted on first reading the draft articles on the topic as a whole. It requested that the Secretary-General transmit the draft articles to Governments for comments and observations by 1 Jan. 1988.
    • Discussion in Plenary: 1942nd, 1943rd, 1944th, 1945th, 1946th and 1947th meetings (7 to 16 May 1986), 1968th, 1969th, 1970th, 1971st and 1972nd meetings (17 to 20 June 1986)
  • Report of the International Law Commission on the work of its thirty-ninth session, 4 May to 27 July 1987
    • The Commission appointed Mr. Motoo Ogiso as Special Rapporteur for the topic.
    • Discussion in Plenary: 2016th meeting (17 June 1987)
  • Report of the International Law Commission on the work of its fortieth session, 9 May to 29 July 1988
    • Although the Commission was unable to consider the topic at the session due to time constraints, it did allow the Special Rapporteur to introduce his preliminary report.
    • Discussion in plenary: 2081st meeting (19 July 1988)
  • Report of the International Law Commission on the work of its forty-first session, 2 May to 21 July 1989
    • Each draft article was discussed by the Commission in the light of the Special Rapporteur's comments. The Commission decided to refer arts. 1 to 11 bis to the Drafting Committee. for their second reading, together with the proposals of the Special Rapporteur and other members made in plenary, and decided to continue consideration of arts. 12 to 28 at the next session.
    • Discussion in Plenary: 2114th, 2115th, 2116th, 2117th, 2118th, 2119th, 2120th, 2121st and 2122th meetings (7 to 21 June 1989)
  • Report of the International Law Commission on the work of its forty-second session, 1 May to 20 July 1990
    • Commission resumed its consideration of draft arts. 12 to 28, and referred them to the drafting Committee. The Drafting Committee provisionally adopted on second reading arts. 1 to 10, 12 to 16.
    • Discussion in Plenary: 2158th, 2159th, 2160th, 2161st and 2162nd meetings (16 to 23 May 1990), and 2191st meeting (11 July 1990)
  • Report of the International Law Commission on the work of its fifty-first session, 3 May to 23 July 1999
    • The General Assembly, in its resolution 53/98 of 8 December 1998, invited the International Law Commission to present any preliminary comments it may have regarding outstanding substantive issues related to the draft articles. The Commission decided to establish a Working Group on Jurisdictional Immunities of States and their property which would be entrusted with the task of preparing preliminary comments as requested by operative paragraph 2 of General Assembly resolution 53/98 of 8 December 1998. After an exchange of views, the Commission decided to take note of the report of the Working Group, which would be annexed to the Commission's report. It also decided to adopt the suggestions of the Working Group, as amended in the course of the discussion. These suggestions are contained in paragraphs 22–30; 56–60; 78–83; 103–107 and 125–129 of the Working Group's report.
    • Discussion in Plenary: 2601st and 2602nd meetings (13 and 14 July 1999)

General Assembly Action

  • Resolution 33/139 of 19 December 1978
    • Took note of the preliminary work done by the Commission
 
  • Resolution 41/81 of 3 December 1986
    • Urging States to give full attention to the request of the Commission for comments and observations.
 
  • Resolution 42/156 of 7 December 1987
    • Urging States to give full attention to the request of the Commission for comments and observations.
 

Final Outcome

International Law Commission

  • Fifty-first session, 1999
    • Upon the invitation of the Sixth Committee to present any preliminary comments it might have regarding outstanding substantive issues related to the draft articles, the Commission established a Working Group and subsequently annexed the report of the Working Group to its report and adopted the Group's suggestions as amended.

General Assembly

  • Resolution 46/55 of 9 December 1991
    • Invited States to submit their written comments and observations, and decided to establish at its 47th session an open-ended working group of the Sixth Committee to examine, in the light of the written comments of the Governments, as well as views expressed in debates at the forty-sixth session of the Assembly: a) issues of substance arising out of the draft articles, in order to facilitate a successful conclusion of a convention through the promotion of general agreement; and b) the question of the convening of an international conference, to be held in 1994 or subsequently, to conclude a convention on jurisdictional immunities of States and their property.
 
  • Decision 47/414 of 25 November 1992
    • Took note of the report of the Working Group. Decided to re-establish the Working Group to continue consideration in order to facilitate the successful conclusion of a convention through the promotion of general agreement.
 
  • Decision 48/413 of 9 December 1993
    • Decided that consultations should be held in the framework of the Sixth Committee at its forty-ninth session, to continue consideration of the substantive issues regarding which the identification and attenuation of differences was desirable in order to facilitate the successful conclusion of a convention through general agreement.
 
  • Resolution 49/61 of 9 December 1994
    • Accepted the recommendation of the Commission that an international conference of plenipotentiaries be convened to consider the articles on jurisdictional immunities of States and their property and to conclude a convention on the subject. Decided to resume consideration, at its fifty-second session, of the issues of substance and to determine, at its fifty-second or fifty-third session, the arrangements for the conference.
 
  • Resolution 52/151 of 15 December 1997
    • Decided to consider this item again at its fifty-third session with a view to the establishment of a working group at its fifty-fourth session, taking into account the comments submitted by States in accordance with resolution 49/61. Urged States, if they have not yet done so, to submit to the Secretary-General their comments in accordance with paragraph 2 of resolution 49/61.
 
  • Resolution 53/98 of 8 December 1998
    • Decided to establish at its fifty-fourth session an open-ended working group of the Sixth Committee, open also to participation by States members of the specialized agencies, to consider outstanding substantive issues related to the draft articles on jurisdictional immunities of States and their property adopted by the International Law Commission, taking into account the recent developments of State practice and legislation and any other factors related to this issue since the adoption of the draft articles, as well as the comments submitted by States in accordance with paragraph 2 of resolution 49/61 and paragraph 2 of resolution 52/151, and to consider whether there are any issues identified by the working group upon which it would be useful to seek further comments and recommendations of the Commission. Invited the International Law Commission to present any preliminary comments it may have regarding outstanding substantive issues related to the draft articles by 31 August 1999, in the light of the results of the informal consultations held pursuant to General Assembly decision 48/413 of 9 December 1993 and taking into account the recent developments of State practice and other factors related to this issue since the adoption of the draft articles, in order to facilitate the task of the working group.
 
  • Resolution 54/101 of 9 December 1999
    • Took note with appreciation of the report of the Working Group of the International Law Commission on jurisdictional immunities of States and their property. Urged States, if they had not yet done so, to submit their comments to the Secretary-General in accordance with General Assembly resolution 49/61 of 9 December 1994, and also invited States to submit in writing to the Secretary-General, by 1 August 2000, their comments on the report of the Working Group. Decided that the open-ended working-group of the Sixth Committee would continue its work at the fifty-fifth session to consider the future form of, and outstanding substantive issues related to, the draft articles.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/504 and Add.1)
  • Resolution 54/111 of 9 December 1999
    • Expressed its appreciation to the International Law Commission for the work accomplished at its fifty-first session, in particular with respect to the topic "Jurisdictional immunities of States and their property".
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/504 and Add.1)
  • Resolution 55/150 of 12 December 2000
    • Took note with appreciation of the report of the Working Group on Jurisdictional Immunities of States and their Property. Urged States, if they had not yet done so, to submit their comments to the Secretary-General in accordance with General Assembly resolution 49/61 of 9 December 1994, and also invited States to submit in writing to the Secretary-General, by 1 August 2001, their comments on the reports of the open-ended Working Group of the Sixth Committee. Decided to establish an Ad Hoc Committee on Jurisdictional Immunities of States and Their Property to further the work done, consolidate areas of agreement and resolve outstanding issues with a view to elaborating a generally acceptable instrument.
  • See the website of the Sixth Committee of the General Assembly
  • See the website of the Sixth Committee of the General Assembly
  • See the website of the Sixth Committee of the General Assembly
  • See the website of the Sixth Committee of the General Assembly
  • See the website of the Sixth Committee of the General Assembly