Summaries of the Work of the International Law Commission
In submitting its final draft on diplomatic intercourse and immunities to the General Assembly at its thirteenth session, in 1958, the Commission stated that, although the draft dealt only with permanent diplomatic missions, diplomatic relations also assumed other forms that might be placed under the heading of “ad hoc diplomacy”, covering itinerant envoys, diplomatic conferences and special missions sent to a State for limited purposes. In 1958, the Commission considered that these forms of diplomacy should also be studied, in order to bring out the rules of law governing them, and accordingly requested A. E. F. Sandström, the Special Rapporteur for the topic “diplomatic intercourse and immunities”, to undertake that study and to submit his report at a future session. The Commission decided at its eleventh session, in 1959, to place the question of ad hoc diplomacy as a special topic on the agenda for its twelfth session, and appointed Mr. Sandström as Special Rapporteur for the topic.
At its twelfth session, in 1960, on the basis of the Special Rapporteur’s report,1 the Commission adopted three draft articles on “special missions” together with commentaries. In the report covering the work of its twelfth session, the Commission stated that the draft should be regarded ‘‘as constituting only a preliminary survey”; the Commission, nevertheless, recommended that the General Assembly should refer the draft to the United Nations Conference on Diplomatic Intercourse and Immunities which was to meet in Vienna in the spring of 1961. Article 1, paragraph 1, of the draft defines “special mission” as follows:
“The expression ‘special mission’ means an official mission of State representatives sent by one State to another in order to carry out a special task. It also applies to an itinerant envoy who carries out special tasks in the States to which he proceeds.”2
At the same session, the Commission, observing that the question of “diplomatic conferences” was linked not only to that of “special missions” but also to that of “relations between States and international organizations”, decided not to deal with the subject of “diplomatic conferences” for the moment.
The General Assembly, by resolution 1504 (XV) of 12 December 1960, decided that the draft articles on special missions should be referred to the Vienna Conference so that they could be considered together with the draft articles on permanent diplomatic missions.
At the Vienna Conference, the question of special missions was referred to a Subcommittee established by the Committee of the Whole. While stressing the importance of the subject of special missions, the Subcommittee noted that, because of lack of time, the draft articles on special missions had, in contrast with the usual practice, not been submitted to Governments for their comments before being drafted in final form, and that the draft articles did little more than indicate which of the rules on permanent missions applied, and which did not apply, to special missions. The Subcommittee considered that, while the basic rules might in fact be the same, it could not be assumed that such an approach necessarily covered the whole field of special missions. Following consideration of the topic by the Subcommittee and by the Committee of the Whole, the Vienna Conference adopted a resolution recommending to the General Assembly that it refer the topic back to the International Law Commission.3
At its sixteenth session, the General Assembly adopted resolution 1687 (XVI) of 18 December 1961, requesting the Commission to study further the subject of special missions and to report thereon to the Assembly.
During its fifteenth session, in 1963, the Commission appointed Milan Bartoš as Special Rapporteur for the topic of special missions and decided that he should prepare draft articles, based on the provisions of the 1961 Vienna Convention on Diplomatic Relations but that he should keep in mind that special missions were, by virtue of both their functions and nature, an institution distinct from permanent missions. It was also agreed to await the Special Rapporteur’s recommendations before deciding whether the draft articles should be in the form of an additional protocol to the 1961 Vienna Convention or should be embodied in a separate convention or any other appropriate form. With regard to the scope of the topic, most of the members of the Commission expressed the opinion that for the time being the question of status of government delegates to international conferences should not be covered in the study on special missions.
The Commission considered this topic from its sixteenth session, in 1964, to its nineteenth session, in 1967. In connection with its work on this topic, the Commission had before it the reports of the Special Rapporteur,4 information provided by Governments5 as well as a document prepared by the Secretariat.6
At its sixteenth session, in 1964, the Commission considered the first report of the Special Rapporteur7 and provisionally adopted sixteen articles, which were subsequently submitted to the General Assembly and to Governments for information. At the first part of its seventeenth session, in 1965, the Commission considered the second report of the Special Rapporteur8 and provisionally adopted twenty-eight articles, which follow on from the sixteen articles previously adopted. All draft articles adopted at the sixteenth and seventeenth sessions were submitted to the General Assembly for its consideration and were also transmitted to Governments for comment.
At its eighteenth session, in 1966, the Commission examined certain questions of a general nature affecting special missions which had arisen out of the opinions expressed in the Sixth Committee and the written comments by Governments and which it was important to settle as a preliminary to the later work on the draft articles.
By resolution 2167 (XXI) of 5 December 1966, the General Assemly recommended that the Commission continue its work relating to special missions with the object of presenting a final draft on the topic in its next report.
At its nineteenth session, in 1967, the Commission, after examining the Special Rapporteur’s fourth report9 and taking into account the written comments received from Governments and the views expressed in the Sixth Committee, adopted its final draft on special missions, comprising fifty draft articles, with commentaries,10 and submitted them to the General Assembly with a recommendation “that appropriate measures be taken for the conclusion of a convention on special missions”.11
After discussion, the Sixth Committee recommended that an item entitled “Draft convention on special missions” be placed on the provisional agenda of the General Assembly’s twenty-third session with a view to the adoption of such a convention by the Assembly. By resolution 2273 (XXII) of 1 December 1967, the Assembly adopted the recommendation of the Sixth Committee and invited Member States to submit comments and observations on the draft articles.
At the General Assembly’s twenty-third and twenty-fourth sessions, in 1968 and 1969, the Sixth Committee considered the item “Draft convention on special missions” on the basis of the draft adopted by the International Law Commission. At each session, Switzerland12 was invited to participate in the relevant proceedings of the Sixth Committee as an observer without the right to vote. By resolution 2530 (XXIV) of 8 December 1969, the General Assembly, upon the recommendation of the Sixth Committee, adopted the Convention on Special Missions13 and the Optional Protocol concerning the Compulsory Settlement of Disputes relating thereto.14 On the same date, 8 December 1969, while adopting the Convention on Special Missions, the General Assembly, in resolution 2531 (XXIV), also recommended that “the sending State should waive the immunity of members of its special mission in respect of civil claims of persons in the receiving State, when it can do so without impeding the performance of the functions of the special mission, and that, when immunity is not waived, the sending State should use its best endeavours to bring about a just settlement of the claims”. For the purposes of the Convention, a “special mission” means “a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task”.
The final provisions of the Convention open it for signature and for ratification or accession by all States Members of the United Nations or members of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and also by any other State invited by the General Assembly to become a party to the Convention. The final provisions of the Optional Protocol open it for signature and for ratification or accession by all States which may become parties to the Convention. The Convention and the Optional Protocol were opened for signature on 16 December 1969 and remained open for signature until 31 December 1970. Signatures are subject to ratification. The Convention and the Optional Protocol are open for accession by any non-signatory State entitled to become a party. The Convention and the Optional Protocol came into force on 21 June 1985.
Also by resolution 2530 (XXIV), the General Assembly decided to consider at its twenty-fifth session the question of issuing invitations in order to ensure the widest possible participation in the Convention. The Assembly deferred consideration of the matter in 1970, 1971, 1972 and 1973 until the following year. On 12 November 1974, on the recommendation of the Sixth Committee, the General Assembly adopted resolution 3233 (XXIX) whereby it noted the Declaration on Universal Participation in the Vienna Convention on the Law of Treaties, adopted by the United Nations Conference on the Law of Treaties, in which the Assembly was invited to give consideration to the matter of issuing invitations in order to ensure the widest possible participation in that Convention. The Assembly by that resolution decided to invite all States to become parties to the Convention on Special Missions and its Optional Protocol concerning the Compulsory Settlement of Disputes.
1 See Yearbook of the International Law Commission, 1960, vol. II, document A/CN.4/129. (see Analytical Guide)
2 See Yearbook of the International Law Commission, 1960, vol. II, document A/4425, para. 38. (see Analytical Guide)
3 See Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities, Vienna, 2 March–14 April 1961, vol. II (United Nations publication, Sales No. 62.X.1), pp. 45–46 and 89–90.
4 See Yearbook of the International Law Commission, 1964, vol. II, document A/CN.4/166; ibid., 1965, vol. II, document A/CN.4/179; ibid., 1966, vol. II, document A/CN.4/189 and Add.1 and 2; and ibid., 1967, vol. II, document A/CN.4/194 and Add.1–5. (see Analytical Guide for individual documents)
5 Documents A/CN.4/188 and Add.1–4 as well as A/CN.4/193 and Add.1–5, all incorporated in Yearbook of the International Law Commission, 1967, vol. II, document A/6709/Rev.1 and Rev.1/Corr.1, annex I. (see Analytical Guide for individual documents)
6 See Yearbook of the International Law Commission, 1962, vol. II, document A/CN.4/147; and ibid., 1963, vol. II, document A/CN.4/155. (see Analytical Guide for individual documents)
7 See Yearbook of the International Law Commission, 1964, vol. II, document A/CN.4/166. (see Analytical Guide)
8 See Yearbook of the International Law Commission, 1965, vol. II, document A/CN.4/179. (see Analytical Guide)
9 See Yearbook of the International Law Commission, 1967, vol. II, document A/CN.4/194 and Add.1–5. (see Analytical Guide)
10 See Yearbook of the International Law Commission, 1967, vol. II, document A/6709/Rev.1 and Rev.1/Corr.l, paras. 32 and 35. (see Analytical Guide)
11 See Yearbook of the International Law Commission, 1967, vol. II, document A/6709/Rev.1 and Rev.1/Corr.l, para. 33. (see Analytical Guide)