International Law Commission International Law Commission

Last update: July 15, 2015

Fifty-seventh Session (2005)

In accordance with General Assembly resolution 59/41 of 2 December 2004, the International Law Commission held its fifty-seventh session at the United Nations Office at Geneva from 2 May to 3 June and 4 July to 5 August 2005 (10 weeks). At its 2837th meeting, held on 12 May 2005, the Commission decided, as a cost-cutting measure, to postpone the beginning of the second part of its session until 11 July 2005 (thereby reducing the length of the second part to 4 weeks).

Topics considered in 2005 (chap. II of the Report)

Shared natural resources (Summary | Analytical Guide)

The Commission considered the third report of the Special Rapporteur on the topic, Mr. Chusei Yamada, (A/CN.4/551 and Corr.1 and Add.1), containing a complete set of 25 draft articles on the law of transboundary aquifers, at its 2831st to 2836th meetings, held from 2 to 11 May 2005. (see chap. IV)

At its 2836th meeting, held on 11 May 2005, the Commission decided to establish a Working Group to be chaired by Mr. Enrique Candioti to review the draft articles presented by the Special Rapporteur taking into account the debate in the Commission on the topic. The Working Group had the benefit of advice and briefings from experts on groundwaters from UNESCO and the International Association of Hydrogeologists (IAH). It also heard an informal briefing by the Franco-Swiss Genevese Aquifer Authority. The Working Group reviewed and revised 8 draft articles and recommended that it be reconvened in 2006 to complete its work.

At its 2863rd meeting, held on 3 August 2005, the Chairman of the Working Group, Mr. Enrique Candioti, introduced the report of the Working Group (A/CN.4/L.681 and Corr.1). The Commission took note of the report

Specific issues on which comments would be of particular interest to the Commission

Under this topic, the Commission is now focusing for the time being on codification of the law on transboundary groundwaters (aquifers and aquifer systems). The work is progressing in the form of the elaboration of draft articles on the basis of the proposals by the Special Rapporteur contained in his third report (A/CN.4/551 and Corr.1 and Add.1). In its 2004 report, the Commission requested States and relevant intergovernmental organizations to provide information in reply to the questionnaire prepared by the Special Rapporteur. The responses received from 23 States and 3 intergovernmental organizations (see documents A/CN.4/555 and Add.1) were very useful for the Commission in its current work. Accordingly, the Commission requests those States and intergovernmental organizations that have not yet responded to submit detailed and precise information on the basis of the questionnaire prepared by the Special Rapporteur.

Effects of armed conflicts on treaties (Summary | Analytical Guide)

The Commission considered the first report of the Special Rapporteur on the topic, Mr. Ian Brownlie, (A/CN.4/552) at its 2834th to 2840th meetings, held from 6 to 18 May 2005. The report presented an overview of the issues involved in the topic together with a set of 14 draft articles in order to assist the Commission and Governments with commenting, including providing State practice. The Commission endorsed the Special Rapporteur's suggestion that a written request for information be circulated to member Governments. (see chap. V)

Specific issues on which comments would be of particular interest to the Commission

The Commission would welcome any information Governments may wish to provide concerning their practice with regard to this topic, particularly more contemporary practice. Any further information that Governments consider relevant to the topic is also welcome.

Responsibility of international organizations (Summary | Analytical Guide)

The Commission considered the third report of the Special Rapporteur on the topic, Mr. Giorgio Gaja, (A/CN.4/553) at its 2839th to 2844th meetings, held from 17 to 25 May 2005. The reports proposed nine draft articles dealing with the existence of a breach of an international obligation by and international organization and the responsibility of an international organization in connection with the act of a State or another international organization. (see chap. VI)

At its 2843rd meeting, held on 24 May 2005, the Commission referred draft articles 9 to 15 to the Drafting Committee and established an open-ended Working Group, chaired by the Special Rapproteur, to consider draft articles 8 and 16.

At its 2844th meeting, held on 25 May 2005, the Commission referred draft articles 8 and 18 to the Drafting Committee together with the recommendation of the open-ended Working Group.

At its 2848th meeting, held on 4 June 2005, the Commission considered the report of the Drafting Committee (A/CN.4/L.666/Rev.1) and adopted on first reading the following draft articles together with commentaries: 8 (Existence of a breach of an international obligation/Existence de la violation d’une obligation internationale), 9 (International obligation in force for an international organization/Obligation internationale en vigueur à l’égard d’une organisation internationale), 10 (Extension in time of the breach of an international obligation/Extension dans le temps de la violation d’une obligation internationale), 11 (Breach consisting of a composite act/Violation constituée par un fait composite), 12 (Aid or assistance in the commission of an internationally wrongful act/Aide ou assistance dans la commission du fait internationalement illicite), 13 (Direction and control exercised over the commission of an internationally wrongful act/Directives et contrôle dans la commission du fait internationalement illicite), 14 (Coercion of a State or another international organization/Contrainte sur un État ou une autre organisation internationale), 15[16] (Decisions, recommendations and authorizations addressed to member States and international organizations/Décisions, recommendations et autorisations adressées aux États members et organisations internationals members) and 16[15] (Effect of this chapter/Effet du présent chapitre).

  • Statement of the Chairman of the Drafting Committee.
Specific issues on which comments would be of particular interest to the Commission

The next report of the Special Rapporteur will address questions relating to (1) circumstances precluding wrongfulness, and (2) responsibility of States for the internationally wrongful acts of international organizations. The Commission would welcome comments and observations relating to these questions, especially on the following points:

  • Article 16 of the articles on Responsibility of States for internationally wrongful acts only considers the case that a State aids or assists another State in the commission of an internationally wrongful act. Should the Commission include in the draft articles on responsibility of international organizations also a provision concerning aid or assistance given by a State to an international organization in the commission of an internationally wrongful act? Should the answer given to the question above also apply to the case of direction and control or coercion exercised by a State over the Commission of an act of an international organization that would be wrongful but for the coercion?
  • Apart from the cases considered above, are there cases in which a State could be held responsible for the internationally wrongful act of an international organization of which it is a member?

Diplomatic protection (Summary | Analytical Guide)

The Commission considered the sixth report of the Special Rapporteur on the topic, Mr. John Dugard, (A/CN.4/546) at its 2844th to 2846th meetings, held from 25 to 31 May 2005. The report dealt with the "clean hands" doctrine. (see chap. VII)

Expulsion of aliens (Summary | Analytical Guide)

The Commission considered the preliminary report of the Special Rapporteur on the topic, Mr. Maurice Kamto, (A/CN.4/554) at its 2849th to 2852nd meetings, held from 11 to 15 July 2005. The report presented an overview of some of the issues involved and a possible outline for further consideration of the topic. (see chap. VIII)

Specific issues on which comments would be of particular interest to the Commission

The Commission would appreciate receiving any information concerning the practice of States on the subject, including national legislation.

Unilateral acts of States (Summary | Analytical Guide)

The Commission considered the eighth report of the Special Rapporteur, Mr. Víctor Rodríguez Cedeño, on the topic (A/CN.4/557) at its 2852nd to 2855th meetings, held from 15 to 21 July 2005. The report contained an analysis of 11 cases of State practice and the conclusions thereof. A Working Group on Unilateral Acts was reconstituted and its work focused on the study of State practice and on the elaboration of preliminary conclusions on the topic which the Commission should consider at its next session. (see chap. IX)

The Chairman of the Working Group, Mr. Alain Pellet, made an oral report on Unilateral acts of States at the Commission's 2859th meeting on 28 July 2005. The Commission took note of the oral report.

Specific issues on which comments would be of particular interest to the Commission

The Commission would welcome comments and observations from Governments on the revocability and modification of unilateral acts. In particular, it would be interested to hear about the practice relating to the revocation or modification of unilateral acts, any particular circumstances and conditions, the effects of a revocation or a modification of an unilateral act and the scope of possible third party reactions in that respect.

Reservations to treaties (Summary | Analytical Guide)

At its 2842nd meeting, held on 20 May 2005, the Commission considered the report of the Drafting Committee (A/CN.4/L.665) and adopted on first reading the following draft guidelines with commentaries: 2.6.1 (Definition of objections to reservations/Définition des objections aux réserves) and 2.6.2 (Definition of objections to the late formulation or widening of the scope of a reservation/Définition des objections à la formulation ou à l’aggravation tardives d’une réserve). (see chap. X)

  • Statement of the Chairman of the Drafting Committee.

The Commission considered part of the tenth report of the Special Rapporteur, Mr. Alain Pellet, on the topic (A/CN.4/558 and Add.1) at its 2854th to 2859th meetings, held from 21 to 28 July 2005.

At its 2859th meeting, held on 28 July 2005, the Commission decided to refer draft guidelines 3.1, 3.1.1, 3.1.2, 3.1.3, 3.1.4 to the Drafting Committee. The Commission also decided to refer again draft guidelines 1.6 and 2.1.8 to the Drafting Committee.

Specific issues on which comments would be of particular interest to the Commission

States often object to a reservation that they consider incompatible with the object and purpose of the treaty, but without opposing the entry into force of the treaty between themselves and the author of the reservation. The Commission would be particularly interested in Governments' comments on this practice. It would like to know, in particular, what effects the authors expect such objections to have, and how, in Governments' view, this practice accords with article 19 (c) of the 1969 Vienna Convention on the Law of Treaties.

Fragmentation of international law: difficulties arising from the diversification and expansion of international law (Summary | Analytical Guide)

The Commission heard a briefing by the Chairman of the Study Group, Mr. Martti Koskenniemi, on the status of the work of the Study Group, at its 2859th meeting held on 28 July 2005 and held an exchange of views on the topic at its 2860th and 2864th meetings held on 29 July and 3 August 2005, respectively. The Study Group considered the memorandum on regionalism in the context of the Study on the "Function and Scope of the lex specialis rule and the question of 'self-contained' regimes"; the Study on the Interpretation of Treaties in the light of "any relevant rules of international law applicable in relations between parties" (article 31(3)(c) of the Vienna Convention on the Law of Treaties); as well as the final report on the Study on Hierarchy in International Law: jus cogens, obligations erga omnes, article 103 of the Charter of the United Nations, as conflict rules. The Study Group also received teh final report on the Study concerning the modification of multilateral treaties between certain of the parties only (article 41 of the Vienna Convention on the Law of Treaties). The Study Group envisaged that it would be in a position to submit a consolidated study, as well as a set of conclusions, guidelines or principles to the fifty-eighth session of the Commission in 2006. (see chap. XI)

Cooperation with other bodies

  • The Commission heard a statement by the Representative of the Inter-American Juridical Committee, Mrs. Ana Elizabeth Villalta Vizcarra, at its 2847th meeting, held on 1 June 2005. An exchange of views followed.
  • The President of the International Court of Justice, Mr. Jiuyong Shi, addressed the Commission at its 2851st meeting, held on 14 July 2005. This was followed by an exchange of views.
  • The Commission heard a statement by the Secretary-General of the Asian-African Legal Consultative Organization, Ambassador Dr. Wafik Z. Kamil, at its 2853rd meeting, held on 19 July 2005. An exchange of views followed.
  • The Director General of Legal Affairs of the Council of Europe addressed the Commission at its 2860th meeting, held on 29 July 2005. An exchange of views followed.
  • Members of the Commission also held informal meetings with other bodies and associations on matters of mutual interest.

Other business

Visit of the Legal Counsel
  • The Legal Counsel of the United Nations, Mr. Nicolas Michel, made a statement, at the 2844th meeting, on 25 May 2005, informing the Commission of the activities of the Office of Legal Affairs and recent developments of international law in the context of the United Nations.
Other decisions and conclusions of the Commission
  • At its 2865th meeting, held on 5 August 2005, the Commission considered the selection of new topics for inclusion in the Commission’s current programme of work and decided to include the topic "Obligation to extradite or prosecute (aut dedere aut judicare)" on its agenda, and appointed Mr. Zdzislaw Galicki as the Special Rapporteur. (see chap. XII)
Other
  • The Commission observed a minute of silence in memory of Mr. Robert Rosenstock (United States) at its 2831st meeting, held on 2 May 2005.
  • The Commission observed a minute of silence in memory of Mr. Qizhi, He (China) at its 2849th meeting, held on 11 July 2005.
  • International Law Seminar

Date and place of the fifty-eighth session

The Commission decided that the fifty-eighth session of the Commission be held at Geneva from 1 May to 9 June and from 3 July to 11 August 2006.