International Law Commission International Law Commission

Last update: March 10, 2016

Sixty-first Session (2009)

In accordance with General Assembly resolution 62/123 of 11 December 2008, the International Law Commission held its sixty-first session at the United Nations Office at Geneva from 4 May to 5 June and 6 July to 7 August 2009 (10 weeks).

Topics considered in 2009 (chap. II of the Report)

Responsibility of international organizations (Summary | Analytical Guide)

The Commission had before it the seventh report of the Special Rapporteur (A/CN.4/610), which contained a review of comments made by States and international organizations on the draft articles provisionally adopted by the Commission and, as necessary, proposed certain amendments thereto. The seventh report also addressed certain outstanding issues, such as the general provisions of the draft articles and the place of the chapter concerning the responsibility of a State in connection with the act of an international organization. Following its debate on the report, the Commission referred these amendments and six draft articles to the Drafting Committee. (see chap. IV)

As a result of its consideration of the topic at the present session, the Commission adopted on first reading a set of 66 draft articles, together with commentaries thereto, on responsibility of international organizations. The Commission also decided, in accordance with articles 16 to 21 of its statute, to transmit the draft articles, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2011.

See also: Drafting Committee Chairman's statement (5 June 2009 and 6 July 2009))

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

Certain issues concerning international responsibility between States and international organizations have not been expressly covered either in the draft articles on the responsibility of States for internationally wrongful acts or in the draft on the responsibility of international organizations. These issues include the following questions: (a) when is conduct of an organ of an international organization placed at the disposal of a State attributable to the latter?; (b) when is consent given by an international organization to the commission of a given act by a State a circumstance precluding wrongfulness of that State's conduct?; (c) when is an international organization entitled to invoke the responsibility of a State? One could argue that these questions are regulated by analogy in the articles on the responsibility of States for internationally wrongful acts. However, one may wish that the Commission addresses these questions expressly. If the latter view is preferred, in what form (draft articles, report or other) should these questions be considered? The Commission would welcome comments and observations from Governments and international organizations in this regard.

Reservations to treaties (Summary | Analytical Guide)

The Commission considered the fourteenth report of the Special Rapporteur (A/CN.4/614 and Add.1) dealing, in particular, with outstanding issues relating to the procedure for the formulation of interpretative declarations, and with the permissibility of reactions to reservations, interpretative declarations and reactions to interpretative declarations. The Commission referred to the Drafting Committee two draft guidelines on the form and communication of interpretative declarations, and seven draft guidelines on the permissibility of reactions to reservations and on the permissibility of interpretative declarations and reactions thereto. One of the main issues in the debate was the existence of conditions for permissibility of objections to reservations, in particular with respect to objections with "intermediate effect". (see chap. V)

The Commission also adopted 32 draft guidelines, together with commentaries thereto. In the consideration of these draft guidelines, the Commission proceeded on the basis of the draft guidelines contained in the tenth (A/CN.4/558 and Cor.1, Add.1 and Corr.1 and Add.2), twelfth (A/CN.4/584), thirteenth (A/CN.4/600) and fourteenth reports of the Special Rapporteur which were referred to the Drafting Committee in 2006, 2007, 2008 and 2009.

See also: Drafting Committee Chairman's statement (5 June 2009 and 22 July 2009)

Expulsion of aliens (Summary | Analytical Guide)

The Commission considered the fifth report of the Special Rapporteur (A/CN.4/611 and Corr.1), dealing with questions relating to the protection of the human rights of persons who have been or are being expelled. In the light of the debate on the report, the Special Rapporteur submitted to the Commission a revised version of the draft articles contained therein (A/CN.4/617) as well as a new draft workplan with a view to structuring the draft articles (A/CN.4/618). The Commission decided to postpone to the next session the consideration of the revised draft articles presented by the Special Rapporteur. (see chap. VI)

The Chairman of the Drafting Committee presented a progress report at the 3027th meeting on 24 July 2009.

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

The Commission would welcome information and observations from Governments on the following points:

  • The grounds for expulsion provided for in national legislation;
  • The conditions and duration of custody/detention of persons who are being expelled in areas set up for that purpose;
  • Whether a person who has been unlawfully expelled has a right to return to the expelling State;
  • The nature of the relations established between the expelling State and the transit State in cases where the person who is being expelled must pass through a transit State.

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

The Commission had before it the second report of the Special Rapporteur (A/CN.4/615 and Corr.1), which focused on issues relating to the scope of the topic ratione materiae, ratione personae and ratione temporis, the definition of disaster, as well as the principles of solidarity and cooperation. Following a debate in the plenary on each of the three draft articles proposed by the Special Rapporteur, the Commission decided to refer all three draft articles to the Drafting Committee. (see chap. VII)

Following suggestions made in plenary, the Special Rapporteur proposed in the Drafting Committee to split some draft articles into a total of five draft articles. The Commission took note of five draft articles provisionally adopted by the Drafting Committee, relating to scope, purpose, the definition of disaster, the relationship with international humanitarian law and the duty to cooperate (A/CN.4/L.758). These draft articles, together with commentaries thereto, will be considered by the Commission at its next session.

See also: Drafting Committee Chairman's statement and Comments by Governments.

Shared natural resources (Summary | Analytical Guide)

The Commission established, under the chairmanship of Mr. Enrique Candioti, a working group on shared natural resources, which, inter alia, had before it a working paper on oil and gas (A/CN.4/608), prepared by Mr. Chusei Yamada, Special Rapporteur on the topic, before he resigned from the Commission. The focus of work of the Working Group was on the feasibility of any future work by the Commission on aspects of the topic relating to transboundary oil and gas resources. (see chap. VIII)

The Working Group decided to entrust Mr. Shinya Murase with the responsibility of preparing a study, with the assistance of the Secretariat, to be submitted to the Working Group on Shared Natural Resources that may be established at the next session of the Commission. Moreover, the Working Group recommended, and the Commission endorsed, that a decision on any future work on oil and gas be deferred until 2010; and that, in the meantime, the 2007 questionnaire on oil and gas be recirculated to Governments, while also encouraging them to provide comments and information on any other matter concerning the issue of oil and gas, including, in particular, whether or not the Commission should address the subject.

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

The Commission is grateful to all Governments who responded to its 2007 questionnaire regarding relevant State practice, in particular treaties or other arrangements existing on oil and gas (A/CN.4/607 and Corr.1 and Add.1). The Commission would welcome more responses from Governments, particularly from those that did not respond to the questionnaire, in order to make a full assessment of the practice. Accordingly, it requested to have the questionnaire on oil and gas circulated once more to Governments, while also encouraging them to provide comments and information on any other matter concerning the issue of oil and gas, including, in particular, whether or not the Commission should address the subject.

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

The Commission established an open-ended Working Group under the chairmanship of Mr. Alain Pellet. The Working Group elaborated a general framework of issues that may need to be addressed in future work by the Special Rapporteur. (see chap. IX)

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

The Commission did not consider the topic during its session. (see chap. X)

Most-favoured-nation clause (Summary | Analytical Guide)

The Commission established, under the co-chairmanship of Mr. Donald M. McRae and Mr. A. Rohan Perera, a Study Group on the Most-Favoured-Nation clause, which considered and agreed on a framework to serve as a road map of future work, in the light of issues highlighted in the syllabus on the topic. In particular, the Study Group conducted a preliminary assessment of the 1978 draft articles and decided on eight papers to be dealt with under the topics identified and assigned primary responsibility to its members for the preparation of the papers. (see chap. XI)

Treaties over time (Summary | Analytical Guide)

The Commission established, under the chairmanship of Mr. Georg Nolte, a Study Group on Treaties over Time, which considered the question of the scope of the work of the Study Group and agreed on a course of action to begin the consideration of the topic. (see chap. XII)

Cooperation with other bodies

  • The President of the International Court of Justice, Judge Hisashi Owada, addressed the Commission at its 3016th meeting, held on 7 July 2009.
  • The Director of Legal Advice and Public International Law of the Council of Europe, Mr. Manuel Lezertua, and the Head of the Public International Law and Anti-Terrorism Division, Mr. Alexandre Guessel, addressed the Commission at its 3024th meeting, held on 21 July 2009.
  • The representative of the Inter-American Juridical Committee, Mr. Jaime Aparicio, addressed the Commission at its 3025th meeting, held on 22 July 2009.
  • The current President of the Asian-African Legal Consultative Organization, Mr. Narinder Singh, made a statement at the Commission's 3026th meeting, held on 23 July 2009.

Other business

Other decisions and conclusions of the Commission

The Commission appointed Mr. Lucius Caflisch as Special Rapporteur of the topic “Effects of armed conflicts on treaties”. In accordance with article 26 (1) of its Statute, the Commission, on 12 May 2009, held a joint meeting dedicated to the work of the Commission under the topic “Responsibility of international organizations”, with Legal Advisers of international organizations within the United Nations system. The Commission set up the Planning Group to consider its programme, procedures and working methods). The Working Group on the Long-term programme of work was reconstituted, under the chairmanship of Mr. Enrique Candioti. (see chap. XIII)

Other
  • The Legal Counsel of the United Nations, Ms. Patricia O'Brien, made a statement at the 3004th meeting, held on 13 May 2009, 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.
  • At its 3012th meeting, held on 29 May 2009, the Commission appointed Mr. Lucius Caflisch as Special Rapporteur on the topic "Effects of armed conflicts on treaties". The Commission also appointed Mr. Georg Nolte as Chairman of the Study Group on the topic "Treaties over time" and Mr. Donald M. McRae and Mr. A. Rohan Perera as Co-Chairs of the Study Group on the topic "The Most-Favoured-Nation clause".
  • The Gilberto Amado memoral lecture was given on 15 July 2009 by Judge José Luis Jesus, President of the International Tribunal for the Law of the Sea.
  • At its 2998th meeting, on 4 May 2009, the Commission paid tribute to Ms. Mahnoush H. Arsanjani, who retired as Secretary to the Commission on 31 March 2009; acknowledged the important contribution made by her to the work of the Commission and to the codification and progressive development of international law; expressed its gratitude to her for her professionalism, dedication to public service and commitment to international law; and extended its very best wishes to her in her future endeavours,
  • Tribute to Nick Jotcham.

Date and place of the sixty-second session

The Commission decided that its sixty-second session be held in Geneva from 3 May to 4 June and 5 July to 6 August 2010.