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Last update: March 16, 2016

Sixty-third Session (2011)

In accordance with General Assembly resolution 65/26 of 6 December 2010, the International Law Commission held its sixty-third session at the United Nations Office at Geneva from 26 April to 3 June and 4 July to 12 August 2011 (12 weeks).

Topics considered in 2011 (chap. II of the Report)

Reservations to treaties (Summary | Analytical Guide)

The Commission had before it the seventeenth report (A/CN.4/647) of the Special Rapporteur, addressing the question of the reservations dialogue, as well as addendum 1 to the seventeenth report (A/CN.4/647/Add.1), which considered the issue of assistance in the resolution of disputes concerning reservations, and also contained a draft introduction to the Guide to Practice. Furthermore, the Commission had before it the comments and observations received from Governments on the provisional version of the Guide to Practice on Reservations to Treaties, adopted by the Commission at its sixty-second session (2010) (A/CN.4/639 and Add.1). (see chap. IV)

The Commission established a Working Group in order to proceed with the finalization of the text of the guidelines constituting the Guide to Practice, as had been envisaged at the sixty-second session (2010). The Commission also referred to the Working Group a draft recommendation or conclusions on the reservations dialogue, contained in the seventeenth report of the Special Rapporteur, and a draft recommendation on technical assistance and assistance in the settlement of disputes concerning reservations, contained in addendum 1 to the seventeenth report.

On the basis of the recommendations of the Working Group, the Commission adopted the Guide to Practice on Reservations to Treaties which comprises an introduction, the text of the guidelines with commentaries thereto (contained in document A/66/10/Add.1), as well as an annex on the reservations dialogue. In accordance with article 23 of its Statute, the Commission recommended to the General Assembly to take note of the Guide to Practice on Reservations to Treaties and to ensure its widest possible dissemination.

The Commission also adopted a recommendation to the General Assembly on mechanisms of assistance in relation to reservations.

See also: Statement of the Chairman of the Working Group on Reservations to Treaties (20 May 2011, and 28 July 2011)

Responsibility of international organizations (Summary | Analytical Guide)

The Commission adopted, on second reading, a set of 67 draft articles, together with commentaries thereto, on the responsibility of international organizations, and in accordance with article 23 of its Statute recommended to the General Assembly to take note of the draft articles in a resolution, and to annex them to the resolution, and to consider, at a later stage, the elaboration of a convention on the basis of the draft articles. (see chap. V)

In the consideration of the topic at the present session, the Commission had before it the eighth report of the Special Rapporteur (A/CN.4/640) surveying the comments made by States and international organizations on the draft articles on responsibility of international organizations adopted on first reading at the sixty-first session (2009) and making recommendations for consideration by the Commission during the second reading. The Commission also had before it the comments and observations received from Governments (A/CN.4/636 and Add.1) and international organizations (A/CN.4/637 and Add.1) on the draft articles adopted on first reading (chap. V).

See also: Statement of the Chairman of the Drafting Committee (3 June 2011)

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

The Commission adopted, on second reading, a set of 18 draft articles and an annex (containing an indicative list of treaties the subject matter of which involves an 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 in accordance with article 23 of its Statute recommended to the General Assembly to take note of the draft articles in a resolution and to annex them to the resolution, and to consider, at a later stage, the elaboration of a convention on the basis of the draft articles. (see chap.VI)

At the present session, the Drafting Committee continued and concluded its consideration (commenced at its sixty-second session (2010)) of the second reading of the draft articles on the effects of armed conflicts on treaties.

See also: Statement of the Chairman of the Drafting Committee (17 May 2011).

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

The Commission considered the second (A/CN.4/631) and third (A/CN.4/646) reports of the Special Rapporteur. The second report reviewed and presented the substantive issues concerning and implicated by the scope of immunity of a State official from foreign criminal jurisdiction, while the third report addressed the procedural aspects, focusing, in particular on questions concerning the timing of consideration of immunity, its invocation and waiver. The debate revolved around, inter alia, issues relating to methodology, possible exceptions to immunity and questions of procedure. (see chap.VII)

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

What approach would States wish the Commission to take on this topic? Should the Commission seek to set out existing rules of international law (lex lata), or should the Commission embark on an exercise of progressive development (lex ferenda)?

Which holders of high office in the States (Heads of State, Heads of Government, Ministers for Foreign Affairs, others) enjoy de lege lata, or should enjoy de lege ferenda, immunity ratione personae?

What crimes are, or should be, excluded from immunity ratione personae or immunity ratione materiae?

It would greatly assist the Commission if States could provide information on their law and practice in the field covered by the Special Rapporteur's three reports (A/CN.4/601, A/CN.4/631 and A/CN.4/646). Such information could include recent developments in the case law and legislation. Information on the procedural issues covered by the Special Rapporteur's third report (A/CN.4/646) would be particularly helpful.

Expulsion of aliens (Summary | Analytical Guide)

The Commission had before it addendum 2 to the sixth report (A/CN.4/625/Add.2) as well as the seventh report (A/CN.4/642) of the Special Rapporteur. The Commission also had before it comments and information received thus far from Governments (A/CN.4/604, A/CN.4/628 and Add.1). (see chap.VIII)

Addendum 2 to the sixth report completed the consideration of the expulsion proceedings (including the implementation of the expulsion decision, appeals against the expulsion decision, the determination of the State of destination and the protection of human rights in the transit State) and also considered the legal consequences of expulsion (notably the protection of the property rights and similar interests of aliens subject to expulsion, the question of the existence of a right of return in the case of unlawful expulsion, and the responsibility of the expelling State as a result of an unlawful expulsion, including the question of diplomatic protection). Following a debate in plenary, the Commission referred seven draft articles on these issues to the Drafting Committee, as well as a draft article on "Expulsion in connection with extradition" as revised by the Special Rapporteur during the sixty-second session (2010).

The seventh report provided an account of recent developments in relation to the topic and also proposed a restructured summary of the draft articles. The Commission referred the restructured summary of the draft articles to the Drafting Committee.

See also: Progress report of the Chairman of the Drafting Committee (11 August 2011)

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

The Commission would like to know from States whether, in their national practice, suspensive effect is given to appeals against an expulsion decision:

  • relating to an alien lawfully in the territory;
  • relating to an alien unlawfully in the territory;
  • relating to either, irrespective of category.

Does a State that has such a practice consider it to be required by international law?

The Commission would also welcome the views of States on whether, as a matter of international law or otherwise, an appeal against an expulsion decision should have suspensive effect on the implementation of the decision.

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

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/643 and Corr.1), dealing with the responsibility of the affected State to seek assistance where its national response capacity is exceeded, the duty of the affected State not to arbitrarily withhold its consent to external assistance, and the right to offer assistance in the international community. Following a debate in plenary, the Commission decided to refer draft articles 10 to 12, as proposed by the Special Rapporteur, to the Drafting Committee. (see chap.IX)

The Commission provisionally adopted six draft articles, together with commentaries, including draft articles 6 to 9, which it had taken note of at its sixty-second session (2010) (A/CN.4/L.776), dealing with humanitarian principles in disaster response, human dignity, human rights and the role of the affected State, respectively, as well as draft articles 10 and 11 (A/CN.4/L.794), dealing with the duty of the affected State to seek assistance and the question of the consent of the affected State to external assistance.

See also: Statement of the Chairman of the Drafting Committee (2 August 2011)

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

The Commission reiterates that it 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 has taken the view that States have a duty to cooperate with the affected State in disaster relief matters. Does this duty to cooperate include a duty on States to provide assistance when requested by the affected State?

See also: Comments by Governments

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

The Commission considered the fourth (A/CN.4/648) report of the Special Rapporteur addressing the question of sources of the obligation to extradite or prosecute, focusing on treaties and custom, and concerning which three draft articles were proposed. (see chap.X)

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

Are there, in the legislation of States or in the case law of domestic tribunals, certain crimes or categories of crimes in respect of which the obligation to extradite or prosecute has been implemented?

If so, has a court or tribunal ever relied, in this respect, on customary international law?

Treaties over time (Summary | Analytical Guide)

The Commission reconstituted the Study Group on Treaties over time, which continued its work on the aspects of the topic relating to subsequent agreements and practice. The Study Group first completed its consideration of the introductory report by its Chairman on the relevant jurisprudence of the International Court of Justice and of arbitral tribunals of ad hoc jurisdiction, by examining the section of the report which addressed the question of possible modifications of a treaty by subsequent agreements and practice as well as the relation of subsequent agreements and practice to formal amendment procedures. (see chap.XI)

The Study Group then began its consideration of the second report by its Chairman on the jurisprudence under special regimes relating to subsequent agreements and practice, by focusing on certain conclusions contained therein. In the light of the discussions, the Chairman of the Study Group reformulated the text of nine preliminary conclusions relating to a number of issues such as reliance by adjudicatory bodies on the general rule of treaty interpretation, different approaches to treaty interpretation, and various aspects concerning subsequent agreements and practice as a means of treaty interpretation.

See also: the oral report presented by the Chairman of the Study Group on Treaties over time, Mr. Georg Nolte (8 August 2011)

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

The Commission, in its consideration of the topic "Treaties over time", attempts to clarify the practical and legal significance of “subsequent agreements” and the “subsequent practice” of the parties as a means of interpretation and application of treaties (article 31 (3) (a) and (b) of the Vienna Convention on the Law of Treaties). In this context, the Commission reminds States of its request, contained in its 2010 report, to provide it with one or more examples of “subsequent agreements” or “subsequent practice” which are or have been relevant to the interpretation and application of one or more of their treaties. The Commission would be interested, in particular, in instances of interpretation by way of subsequent agreements or subsequent practice which have not been subject to judicial or quasi-judicial proceedings.

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

The Commission reconstituted the Study Group on the Most-Favoured-Nation clause. The Study Group held a wide-ranging discussion, on the basis of the working paper on the Interpretation and Application of MFN Clauses in Investment Agreements and a framework of questions prepared to provide an overview of issues that may need to be considered in the context of the overall work of the Study Group, while also taking into account other developments, including recent arbitral decisions, and the Group set out a programme of work for the future. (see chap.XII)

See also: the oral report presented by the Co-Chairman of the Study Group on the Most-Favoured-Nation clause, Mr. A. Rohan Perera (8 August 2011)

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

In order to complete its work on the Most-Favoured-Nation clause in relation to the field of investment law, the Study Group on The Most-Favoured-Nation clause plans to consider whether any use of Most-Favoured-Nation clauses in areas outside those of trade and investment law could provide it with guidance for its work. Accordingly, the Commission would appreciate being provided with examples of any recent practice or case law in relation to Most-Favoured-Nation clauses in fields other than trade and investment law.

Cooperation with other bodies

  • The President of the International Court of Justice, Judge Hisashi Owada, addressed the Commission at its 3100th meeting on 7 July 2011, followed by an exchange of views
  • The Chair of the Committee of Legal Advisers on Public international Law (CAHDI), Ms. Edwige Belliard, and the Director of Legal Advice and Public International Law of the Council of Europe, Mr. Manuel Lezertua, addressed the Commission at its 3101st meeting, held on 8 July 2011. An exchange of views followed.
  • The representative of the Inter-American Juridical Committee, Ms. Hyacinth Lindsay, addressed the Commission at its 3108th meeting, held on 20 July 2011. An exchange of views followed.
  • The Secretary-General of the Asian-African Legal Consultative Organization, Mr. Rahmat Mohamad, addressed the Commission at its 3112th meeting, held on 26 July 2011. An exchange of views followed.

Other business

Other decisions and conclusions of the Commission

The Commission established a Planning Group to consider its programme, procedures and working methods (chap. XIII, sect. A). As a result of the work undertaken throughout the quinquennium by the Working Group on the Long-Term Programme of Work, the Commission decided to include in its long-term programme of work the following topics: "Formation and evidence of customary international law", "Protection of the atmosphere", "Provisional application of treaties", "The fair and equitable treatment standard in international investment law", and "Protection of the environment in relation to armed conflicts" (chap. XIII, sect. A.1). The Commission reconsidered its methods of work and adopted recommendations on, inter alia, Special Rapporteurs, Study Groups, the Drafting Committee, preparation of commentaries to draft articles, how to make the Commission's report more informative and the relations between the Commission and the Sixth Committee. (see chap.XIII, sect. A.2)

The Commission continued traditional exchanges of information with the International Court of Justice, the Asian-African Legal Consultative Organization, the European Committee on Legal Cooperation and the Committee of Legal Advisers on Public International Law of the Council of Europe, and the Inter-American Juridical Committee. Members of the Commission also held informal meetings with other bodies and associations on matters of mutual interest (chap. XIII, sect. D).

A training seminar was held with 26 participants of different nationalities (chap. XIII, sect. H).

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

The Commission decided to include in its long-term programme of work five new topics referred to in paragraphs 365 to 367 of the current report. In the selection of these topics, the Commission was guided by the following criteria that it had agreed upon in 1998, namely that the topic (a) should reflect the needs of States in respect of the progressive development and codification of international law, (b) should be sufficiently advanced in stage in terms of State practice to permit progressive development and codification and (c) is concrete and feasible for progressive development and codification, and (d) that account should also be taken of those topics that reflect new developments in international law and pressing concerns of the international community as a whole. The Commission would welcome the views of States on these new topics.

Other
  • The Commission held a special commemorative segment, in the memory of Paula Escarameia, during its 3081st plenary meeting on 27 April 2011.
  • The Legal Counsel of the United Nations, Ms. Patricia O'Brien, made a statement at the 3092nd meeting, held on 25 May 2011, 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.
  • The Gilberto Amado memorial lecture was held on 19 July 2011.

Date and place of the sixty-fourth session

The Commission decided that its next session be held at the United Nations Office in Geneva in two parts, from 7 May to 1 June and 2 July to 3 August 2012.