International Law Commission International Law Commission

Last update: December 3, 2015

Sixtieth Session (2008)

In accordance with General Assembly resolution 62/66 of 6 December 2007, the International Law Commission held its sixtieth session at the United Nations Office at Geneva from 5 May to 6 June and 7 July to 8 August 2008 (10 weeks).

A special commemorative event was held at the Palais des Nations, in Geneva, on 19 and 20 May 2008, on the occasion of the sixtieth anniversary of the International Law Commission.

Topics considered in 2008 (chap. II of the Report)

Shared natural resources (Summary | Analytical Guide)

The Commission adopted, on second reading, a preamble and a set of 19 draft articles, together with commentaries thereto, on the law of transboundary aquifers and in accordance with article 23 of its statute recommended a two step approach consisting in the General Assembly (a) taking note of the draft articles to be annexed to its resolution and recommending that States concerned make appropriate bilateral and regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in the draft articles; and (b) considering, at a later stage, the elaboration of a convention on the basis of the draft articles. Since there would be sometime before a decision is made on the second step, the Commission decided to refrain from formulating a draft article on the relationship between these draft articles and other international agreements and also a draft article on the settlement of disputes the formulation of which would become necessary only when the second step would be initiated. (see chap. IV)

In the consideration of the topic at the present session, the Commission had before it the Fifth report of the Special Rapporteur (A/CN.4/591), containing a set of 20 draft articles on the law of transboundary aquifers, together with comments and observations received from Governments on the draft articles adopted on first reading (A/CN.4/595 and Add.1). Having adopted a two step approach, it was considered premature to address issues relating to relationship with other agreements and dispute settlement.

See also: Drafting Committee Chairman's statement

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

The Commission provisionally adopted, on first reading, a set of 18 draft articles and an annex (containing a list of categories of treaties the subject matter of which involves the implication that they continue in operation, in whole or in part, during armed conflict), together with commentaries thereto, on the effects of armed conflicts on treaties and decided, in accordance with articles 16 to 21 of its statute, to transmit the draft articles, through the Secretary General to Governments for comments and observations, with a request that such comments and observations be submitted to the Secretary General by 1 January 2010. The draft articles, which apply to situations where at least one of the parties to a treaty is a party to an armed conflict whether international or non international, proceed on the premise of the basic principle of continuity of treaty relations: the outbreak of such armed conflict does not necessarily terminate or suspend the operation of treaties, and draw relevant expository consequences therefrom. (see chap. V)

In the consideration of the topic at the present session, the Commission had before it the fourth report of the Special Rapporteur (A/CN.4/589) dealing with the procedure for the suspension or termination of treaties as a consequence of an armed conflict. The report was considered in the context of the work of the Working Group the Effects of Armed Conflicts on Treaties, which continued its work began in 2007 and the remaining draft articles which it completed were referred to the Drafting Committee (A/CN.4/L.726).

See also: Drafting Committee Chairman's statement (6 June 2008 and 17 July 2008)

Reservations to treaties (Summary | Analytical Guide)

The Commission adopted 23 draft guidelines dealing with formulation and withdrawal of acceptances and objections, as well as the procedure for acceptance of reservations, together with commentaries thereto. (see chap. VI)

In the consideration of these draft guidelines at the present session, the Commission proceeded on the basis of the Note by the Special Rapporteur on a new draft guideline 2.1.9 on statement of reasons of reservations (A/CN.4/586) and draft guidelines contained in the eleventh (A/CN.4/574) and twelfth (A/CN.4/584) reports of the Special Rapporteur which were referred to the Drafting Committee in 2007.

The Commission also considered the thirteenth report of the Special Rapporteur (A/CN.4/600) on reactions to interpretative declarations and referred to the Drafting Committee 10 draft guidelines on reactions to interpretative declarations. The main issues in the debate concerned the relation between conditional interpretative declarations and reservations, as well as the effects of silence as a reaction to an interpretative declaration.

See also: Drafting Committee Chairman's statement (3 June 2008, 7 July 2008 and 30 July 2008)

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

Given the dearth of practice with regard to reactions to interpretative declarations and the different opinions of the members of the Commission, the Commission would be grateful if States would kindly respond to the questions below in their concrete pratice:

  • Are there circumstances in which silence in response to an interpretative declaration can be taken to constitute acquiescence in the declaration?
  • If so, what would those circumstances be (specific examples would be very welcome)?
  • If silence does not per se constitute acquiescence in an interpretative declaration, should it play a part in the legal effects that the declaration may bring about?

Taking into account that next year's report will deal with, inter alia, the consequences of interpretative declarations, what are the consequences of an interpretative declaration for:

  • Its author;
  • A State or international organization which has approved the declaration;
  • A State or organization which has expressed opposition to the declaration?

More generally, what impact do the reactions — whether positive or negative — of other States or international organizations to an interpretative declaration have upon the effects that the declaration may produce (specific examples would be very welcome)?

Responsibility of international organizations (Summary | Analytical Guide)

The Commission provisionally adopted eight draft articles, together with commentaries thereto, dealing with the invocation of the international responsibility of an international organization, and constituting chapter I of Part Three of the draft articles concerning the implementation of the international responsibility of an international organization. It also took note of seven draft articles provisionally adopted by the Drafting Committee, focusing on countermeasures and constituting chapter II of Part Three of the draft articles concerning the implementation of the international responsibility of an international organization (A/CN.4/L.725/Add.1). These draft articles, together with commentaries thereto, will be considered by the Commission next year. (see chap. VII)

In the consideration of the topic at the present session, the Commission had before it the sixth report of the Special Rapporteur (A/CN.4/597), which focused on issues relating to the implementation of the responsibility of international organizations. Following its debate on the report, during which issues concerning countermeasures were prominent, the Commission referred six draft articles on the invocation of responsibility to the Drafting Committee. The Commission also established a Working Group for the purpose of considering the question of countermeasures, as well as the advisability of including in the draft articles a provision relating to admissibility of claims. Upon receipt of reports of the Working Group, the Commission referred to the Drafting Committee an additional draft article on admissibility of claims; and six draft articles on countermeasures, on the basis of the draft articles submitted by the Special Rapporteur, together with recommendations of the Working Group.

See also: Drafting Committee Chairman's statement (4 June 2008 and 4 August 2008)

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 46 to 53, dealing with the invocation of the responsibility of an international organization.

The Commission would also welcome comments on issues relating to countermeasures against international organizations, taking into account the discussion of these issues, as reflected in Chapter VII of its report to the General Assembly.

Expulsion of aliens (Summary | Analytical Guide)

The Commission considered the fourth report of the Special Rapporteur (A/CN.4/594), dealing with questions relating to the expulsion of dual or multiple nationals, as well as loss of nationality or denationalization in relation to expulsion, prepared in the light of the debate in 2007. Following the debate on the report, the Commission established a Working Group to consider the issues raised by the Special Rapporteur in his report and it determined that there was no need to have separate draft articles on the matter; the necessary clarifications will be made in the commentaries to the relevant draft articles. The seven draft articles referred to the Drafting Committee in 2007 remain in the Drafting Committee until all the draft articles are provisionally adopted. See the oral progress report given by the Chairman of the Drafting Committee. (see chap. VIII)

Protection of persons in the event of disasters (Summary | Analytical Guide)

The Commission held a debate on the basis of the preliminary report of the Special Rapporteur (A/CN.4/598). It also had before it a memorandum of the Secretariat, focusing primarily on natural disasters (A/CN.4/590 and Add.1 to 3 (to be issued)). Among the many issues discussed were the main legal questions to be covered by the topic, including questions concerning the approach to the topic, as well as its scope in terms of the subject matter, personal scope, space and time. (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 concerning the practice of States under this topic, including examples of domestic legislation. It would welcome in particular information and comments on specific legal and institutional problems encountered in dealing with or responding to disasters.

The Commission also endorsed the intention of the Special Rapporteur to seek any relevant information from the United Nations and the International Federation of Red Cross and Red Crescent Societies, as well as other intergovernmental or non-governmental organizations involved in disasters in their various phases, whether pre-, in-, and post.

Immunity of State officials from foreign criminal jurisdiction (Summary | Analytical Guide)

The Commission held a debate on the basis of the preliminary report of the Special Rapporteur (A/CN.4/601). It also had before it a memorandum of the Secretariat (A/CN.4/596 (to be issued)). Among the many issues discussed were the main legal questions to be considered when defining the scope of the topic, including the officials to be covered, the nature of the acts to be covered, as well as whether there are possible exceptions. (see chap. X)

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

The Commission held a debate on the basis of the third report of the Special Rapporteur (A/CN.4/603). It also had before it comments and information received from Governments (A/CN.4/599). Among the issues discussed were the substantive questions related to the customary nature of the obligation, the relation with universal jurisdiction and international courts, as well as procedural aspects to be dealt with in future. (see chap. XI)

Cooperation with other bodies

  • The representative of the Inter-American Juridical Committee, Mr. Antonio Fidel Perez, addressed the Commission at its 2978th meeting, held on 15 July 2008. An exchange of views followed.
  • The President of the International Court of Justice, Judge Rosalyn Higgins, addressed the Commission at its 2982nd meeting, held on 22 July 2008. An exchange of views followed.
  • The Director of Legal Advice and Public International Law of the Council of Europe, Mr. Manuel Lezertua, and the Chair of the Council of Europe's Committee of Legal Advisers on Public International Law (CAHDI), Sir Michael Wood, addressed the Commission at its 2985th meeting, held on 25 July 2008. An exchange of views followed.
  • The President of the forty-seventh session of the Asian-African Legal Consultative Organization, Mr. Narinder Singh, made a statement at the 2988th meeting, held on 31 July 2008.
  • The President of the International Tribunal for the Law of the Sea, Judge Rüdiger Wolfrum, addressed the Commission at the 2988th meeting, held on 31 July 2008. An exchange of views followed.

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. XII, sect. A). The Commission is most appreciative of the efforts undertaken during the two day event organized to commemorate its sixtieth anniversary session (chap. XII, sect. A.1). The Commission pursuant to resolution 62/70 of 6 December 2007 has commented on its current role in promoting the rule of law (chap. XII, sect. A.2). A Working Group on the Long term programme of work was reconstituted, under the chairmanship of Mr. Enrique Candioti (chap. XII, sect. A.4). The Commission decided to include in its current programme of work two new topics, namely “Treaties over time” on the basis of a revised and updated proposal by Mr. G. Nolte (see annex A of the Commission's report) and “The Most favoured Nation clause” on the basis of the report of the 2007 Working Group chaired by Mr. D.M. McRae on the subject (see annex B of the Commission's report). In this regard, it decided to establish at its session next year two study groups on the two topics. (see chap. XII, sect. A.4)

Other

The Legal Counsel, Mr. Nicolas Michel, made a statement at the 2965th meeting, held on 21 May 2008, 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. An exchange of views followed.

Date and place of the sixty-first session

The Commission decided that its sixty-first session be held in Geneva from 4 May to 5 June and 6 July to 7 August 2009.