CYIL 2012

PETR VÁLEK CYIL 3 ȍ2012Ȏ dilemma for States. It is true that in the “golden era” of the progressive development and codification of international law in the sixties, the ILC draft articles used to be turned into conventions by States with great efficiency. After the most important areas requiring legal certainty had been covered, such as diplomatic relations, consular relations and law of the treaties, the “legislative machinery” composed of the ILC, Sixth Committee and States has suddenly stopped running. The causes of this development have already been analyzed by other writers. 3 The last ILC draft articles that made it through the Sixth Committee and were designated to become a treaty, were the Draft Articles on Jurisdictional Immunities of States and Their Property. These Draft Articles constitute a useful case study demonstrating the complexity of this issue. The ILC started to work at these Draft Articles in 1978 and adopted them in 1991. 4 The GA adopted the Convention on Jurisdictional Immunities of States and Their Property in 2004, 5 which was opened for signature at UN Headquarters in New York from January 17, 2005, until January 17, 2007. 6 As of the end of March 2012, this Convention has so far, according to its depositary, 28 signatories (including the Czech Republic) and only 13 States parties. 7 In order to enter into force, the Convention needs thirty States to deposit the instrument of ratification, acceptance, approval or accession. 8 It seems, therefore, that the Convention will not enter into force anytime soon. Furthermore, this relatively low support among States can hardly lead to a conclusion that the content of the Convention is regarded as customary international law. Such an outcome of the legislative process, which started at the end of the seventies, is quite a disappointment, as the legal certainty for the States has not been substantially improved. 9 The lessons learned from the fate of these Draft Articles is: would it not be better, if they remained an annex of a resolution adopted by the GA? That is exactly what has happened so far to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, which is the second case study I want to present. These Draft Articles were adopted by the ILC after almost five decades of work in 2001 before the 56 th session of the GA. 10 At that time, the GA “took note” 3 G. Nolte, The International Law Commission Facing the Second Decade of the Twenty-First Century, in: From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma, 2011, p. 782; J. Malenovský, Mezinárodní právo veřejné, jeho obecná část a poměr k jiným právním systémům, zvláště k právu českému, 2008, p. 201. 4 Report of the ILC, 43rd session, 1991, UN Doc. A/46/10, p. 8 et seq. 5 Resolution of the GA No. 59/38 of December 2, 2004, UN Doc. A/RES/59/38. 6 Id. , Art. 28 and 33 of the Convention. 7 The database of the UN Treaty Office, available at: www.treaties.un.org. 8 See Art. 30 of the Convention supra note 5. 9 By coincidence, the Czech Republic learned first hand about the need for clear legal standards in the area of jurisdictional immunities of States and their property in 2011, when a group of investors in dispute with the Czech Government convinced an Austrian court to seize the paintings loaned by the Czech National Gallery to Vienna’s Belvedere Gallery (fortunately, the Austrian appeals court ruled in favor of the Czech Republic). 10 Report of the ILC, 53rd session, 2001, UN Doc. A/56/10, p. 43 et seq.

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