International Law Commission International Law Commission

Last update: December 1, 2015

Fifty-ninth Session (2007)

In accordance with General Assembly resolution 61/34 of 4 December 2006, the International Law Commission held its fifty-ninth session at the United Nations Office at Geneva from 7 May to 8 June and 9 July to 10 August 2007 (10 weeks). The Commission decided to conclude the first part of its session on Tuesday, 5 June 2007.

Topics considered in 2014 (chap. II of the Report)

Reservations to treaties (Summary | Analytical Guide)

Concerning the topic "Reservations to Treaties", the Commission considered the eleventh and twelfth reports of the Special Rapporteur (A/CN.4/574) and A/CN.4/584) on the formulation and withdrawal of acceptances and objections and on the procedure for acceptances of reservations, respectively, and referred to the Drafting Committee 35 draft guidelines on the above issues. The Commission also adopted 9 draft guidelines dealing with the determination of the object and purpose of the treaty as well as the question of incompatibility of a reservation with the object and purpose of the treaty together with commentaries. (see chap. IV)

  • Statement of the Chairman of the Drafting Committee.
  • Summary of discussions, held in 2007, with United Nations and other experts in the field of human rights, including representatives from various human rights treaty bodies, prepared by the Special Rapporteur, Mr. Alain Pellet (ILC(LIX)/RT/CRP.1)
Specific issues on which comments would be of particular interest to the Commission (chap. III of the Report)

The Special Rapporteur on reservations to treaties proposes to complete his presentation of problems posed by the invalidity of reservations next year. With this in view, the Commission would welcome replies from States to the following questions:

  • What conclusions do States draw if a reservation is found to be invalid for any of the reasons listed in article 19 of the 1969 and 1986 Vienna Conventions? Do they consider that the State formulating the reservation is still bound by the treaty without being able to enjoy the benefit of the reservation? Or, conversely, do they believe that the acceptance of the reserving State is flawed and that that State cannot be considered to be bound by the treaty? Or do they favour a compromise solution and, if so, what is it?
  • Are the replies to the preceding questions based on a position of principle or are they based on practical considerations? Do they (or should they) vary according to whether the State has or has not formulated an objection to the reservation in question?
  • Do the replies to the above two sets of questions vary (or should they vary) according to the type of treaty concerned (bilateral or normative, human rights, environmental protection, codification, etc.)?
  • More specifically, State practice offers examples of objections that are intended to produce effects different from those provided for in article 21, paragraph 3 (objection with minimum effect), or article 20, paragraph 4 (b) (maximum effect), of the Vienna Conventions, either because the objecting State wishes to exclude from its treaty relations with the reserving State provisions that are not related to the reservation (intermediate effect), or because it wishes to render the reservation ineffective and considers the reserving State to be bound by the treaty as a whole and that the reservation thus has no effect ("super-maximum" effect). The Commission would welcome the views of States regarding these practices (irrespective of their own practice).

    The Commission would note that it is aware of the relative complexity of the above questions, which are related to problems that are themselves highly complex and take into account a wide range of practice. The Commission suggests that the replies to these questions be addressed to the Special Rapporteur in writing through the Secretariat. It would be particularly useful if the authors could include with their replies as precise a description as possible of the practice they themselves follow.

The Commission has noted that, in the main, the formulation of objections to reservations is practised by a relatively small number of States. It would thus be particularly useful if States that do not engage in this practice could transmit their views on these matters, which are fundamental to the topic of "Reservations to treaties".

Shared natural resources (Summary | Analytical Guide)

Concerning the topic "Shared Natural Resources", the Commission considered the fourth report by the Special Rapporteur (A/CN.4/580), which focused on the relationship between the work on transboundary aquifers and any future work on oil and gas and recommended that the Commission should proceed with the second reading of the draft articles on the law of transboundary aquifers independently of any future consideration of oil and gas. The Commission also established a Working Group on Shared Natural Resources which addressed (a) the substance of the draft articles on the law of transboundary aquifers adopted on first reading; (b) the final form that the draft articles should take; and (c) issues involved in the consideration of oil and gas, and in particular prepared a questionnaire on State practice concerning oil and gas for circulation to Governments. (see chap. V)

Specific issues on which comments would be of particular interest to the Commission (chap. III of the Report)

The Commission intends to study issues concerning oil and gas under the topic "Shared natural resources". It would be useful for the Commission in the consideration of these issues to be provided with relevant State practice, in particular treaties or other arrangements existing on the subject.

Expulsion of aliens (Summary | Analytical Guide)

In connection with the topic "Expulsion of Aliens", the Commission considered the second and third reports of the Special Rapporteur (A/CN.4/573, Corr.1 and A/CN.4/581), dealing, respectively, with the scope of the topic and definitions (2 draft articles), and with certain general provisions limiting the right of a State to expel an alien (5 draft articles). Following its debate on the two reports, the Commission decided to refer the 7 draft articles to the Drafting Committee. (see chap. VI)

Specific issues on which comments would be of particular interest to the Commission (chap. III of the Report)

The Commission would welcome any information concerning the practice of States under this topic, including examples of domestic legislation. It would welcome in particular information and comments on the following points:

  • State practice with regard to the expulsion of nationals. Is it allowed under domestic legislation? Is it permissible under international law?
  • The manner in which persons having two or more nationalities are dealt with under expulsion legislation. Can such persons be considered aliens in the context of expulsion?
  • The question of deprivation of nationality as a possible precondition for a person's expulsion. Is such a measure allowed under domestic legislation? Is it permissible under international law?
  • The question of the collective expulsion of aliens who are nationals of a State involved in an armed conflict with the host State. In such a situation, should a distinction be drawn between aliens living peacefully in the host State and those involved in activities hostile to it?
  • The question of whether an alien who has had to leave the territory of a State under an expulsion order that is subsequently found by a competent authority to be unlawful has the right of return.
  • Criteria that could be used to distinguish between the expulsion of an alien and the question of non-admission; more specifically, determining the point at which the removal of an illegal immigrant is governed by the expulsion procedure and not by the non-admission procedure.
  • The legal status of illegal immigrants located in the territorial sea or in internal waters, or in the frontier zone excluding port and airport areas. Specifically, apart from port and airport areas, is there an international zone within which an alien would be considered as not having yet entered the territory of the State? If so, how is the extent and breadth of such a zone determined?
  • State practice in relation to grounds for expulsion, and the question of whether and, where appropriate, the extent to which such grounds are restricted by international law.

The Commission also approved the Special Rapporteur's recommendation that the Secretariat should contact the relevant international organizations in order to obtain information and their views on particular aspects of the topic.

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

As regards the topic "Effects of Armed Conflicts on Treaties", the Commission considered the third report of the Special Rapporteur (A/CN.4/578 and Corr.1), and decided to establish a Working Group under the Chairmanship of Mr. Lucius Caflisch. The Commission subsequently adopted the report of the Working Group (A/CN.4/L.718) and decided to refer draft articles 1 to 3, 5, 5 bis, 7, 10 and 11 as proposed by the Special Rapporteur and draft article 4 as proposed by the Working Group to the Drafting Committee, together with the recommendations and suggestions of the Working Group. (see chap. VII)

Responsibility of international organizations (Summary | Analytical Guide)

Concerning the topic "Responsibility of International Organizations", the Commission considered the fifth report of the Special Rapporteur (A/CN.4/583), which focused on content of the international responsibility of an international organization. Following its debate on the report, the Commission referred 15 draft articles to the Drafting Committee and it subsequently adopted 15 draft articles, together with commentaries, dealing with the content of the international responsibility of an international organization. (see chap. VIII)

  • Statement of the Chairman of the Drafting Committee.
Specific issues on which comments would be of particular interest to the Commission (chap. III of the Report)

The Commission would welcome comments and observations from Governments and international organizations on draft articles 31 to 45, in particular on draft article 43, relating to an obligation of members of a responsible international organization to take, in accordance with the rules of the organization, all appropriate measures in order to provide the organization with the means for effectively fulfilling its obligation to make reparation.

The Commission would also welcome views from Governments and international organizations on the two following questions, due to be examined in the next report:

  • Article 48 on responsibility of States for internationally wrongful acts provides that, in case of a breach by a State of an obligation owed to the international community as a whole, States are entitled to claim from the responsible State cessation of the internationally wrongful act and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries of the obligation breached. Should a breach of an obligation owed to the international community as a whole be committed by an international organization, would the other organizations or some of them be entitled to make a similar claim?
  • If an injured international organization intends to resort to countermeasures, would it encounter further restrictions than those that are listed in articles 49 to 53 of the articles on responsibility of States for internationally wrongful acts?

Obligation to extradite or prosecute (aut dedere aut judicare) (Summary | Analytical Guide)

Concerning the topic "The Obligation to Extradite or Prosecute (aut dedere aut judicare)", the Commission considered the second report of the Special Rapporteur (A/CN.4/585 and Corr.1), containing one draft article on the scope of application, as well as a proposed plan for further development. The Commission also had before it comments and information received from Governments (A/CN.4/579, Add.1, Add.2, Add.3 and Add.4). (see chap. IX)

Specific issues on which comments would be of particular interest to the Commission (chap. III of the Report)

The Commission would welcome any information that Governments may wish to provide concerning their legislation and practice with regard to this topic, particularly more contemporary ones. If possible, such information should concern:

  • International treaties by which a State is bound, containing the principle of universal jurisdiction in criminal matters; is it connected with the obligation aut dedere aut judicare?
  • Domestic legal regulations adopted and applied by a State, including constitutional provisions and penal codes or codes of criminal procedures, concerning the principle of universal jurisdiction in criminal matters; is it connected with the obligation aut dedere aut judicare?
  • Judicial practice of a State reflecting the application of the principle of universal jurisdiction in criminal matters; is it connected with the obligation aut dedere aut judicare?
  • Crimes or offences to which the principle of universal jurisdiction in criminal matters is applied in the legislation and practice of a State; is it connected with the obligation aut dedere aut judicare?

The Commission would also appreciate information on the following:

  • Whether the State has authority under its domestic law to extradite persons in cases not covered by a treaty or to extradite persons of its own nationality?
  • Whether the State has authority to assert jurisdiction over crimes occurring in other States that do not involve one of its nationals?
  • Whether the State considers the obligation to extradite or prosecute as an obligation under customary international law and if so to what extent?

The Commission would also welcome any further information and views that Governments may consider relevant to the topic.

Cooperation with other bodies

  • The President of the International Court of Justice, Ms. Rosalyn Higgins, addressed the Commission at its 2933rd meeting, on 10 July 2007.
  • The representative of the Inter-American Juridical Committee, Mr. Mauricio Herdocia Sacasa, addressed the Commission, at the 2943th meeting, held on 26 July 2007.
  • The Secretary-General of the Asian-African Legal Consultative Organization, Ambassador Wafik Z. Kamil, addressed the Commission at the 2944th meeting, held on 26 July 2007.
  • The Director of Legal Advice and Public International Law of the Council of Europe, Mr. Manuel Lezertua, addressed the Commission at the 2952nd meeting, held on 8 August 2007.

Other business

Other decisions and conclusions of the Commission

The Commission set up the Planning Group to consider its programme, procedures and working methods (chap. X, sect. A). A Working Group on the Long-term Programme of Work was established, under the chairmanship of Mr. Enrique Candioti, which will submit its final report to the Commission at the end of the current quinquennium topic (chap. X, sect. A.3). The Commission decided to include in its current programme of work two new topics, namely "Protection of persons in the event of disasters" and "Immunity of State officials from foreign criminal jurisdiction". In this regard, it decided to appoint Mr. Eduardo Valencia-Ospina as Special Rapporteur for the former topic and Mr. Roman A. Kolodkin as Special Rapporteur for the latter topic (chap. X, sect. A.4). The Commission also established a Working Group on the Most-Favoured-Nation clause under the chairmanship of Mr. Donald McRae to examine the possibility of considering the topic "Most-Favoured-Nation clause" (see chap. X, sect. A.4).

The Commission continued its traditional exchanges of information with the International Court of Justice, the Inter-American Juridical Committee, the Asian-African Legal Consultative Organization, and the European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law of the Council of Europe (chap. X, sect. C). The Commission also organized a meeting with United Nations and other experts in the field of human rights, which was devoted to discussions on reservations to human rights treaties (chap. X, sect. A.9). The Commission also held an informal meeting with the International Committee of the Red Cross on matters of mutual interest (chap. X, sect. C).

An international law seminar was held with 25 participants of different nationalities. Members of the Commission gave lectures and were involved in other activities concerning the seminar (chap. X, sect. E).

Other
  • At its 2929th meeting, held on 1 June 2007, the Commission decided to appoint Mr. Valencia Ospina as Special Rapporteur for the topic "Protection of persons in the event of disasters". The Commission also decided to establish a Working Group on the topic "Most-favoured-nation clause" under the Chairmanship of Mr. Donald M. McRae.
  • The Legal Counsel of the United Nations, Mr. Nicolas Michel, made a statement at the 2924th meeting, held on 24 May 2007, 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.
  • International Law Seminar

Date and place of the sixtieth session

The Commission decided that the sixtieth session of the Commission be held in Geneva from 5 May to 6 June and 7 July to 8 August 2008.