International Law Commission International Law Commission

Last update: March 10, 2016

Sixty-fourth Session (2012)

In accordance with General Assembly resolution 66/98 of 9 December 2011, the International Law Commission held its sixty-fourth session at the United Nations Office at Geneva from 7 May to 1 June and 2 July to 3 August 2012 (9 weeks).

Topics considered in 2012 (chap. II of the Report)

Expulsion of aliens (Summary | Analytical Guide)

The Commission had before it the eighth report of the Special Rapporteur (A/CN.4/651), which provided an overview of comments made by States and by the European Union on the topic during the debate on the report of the International Law Commission that had taken place in the Sixth Committee at the sixty-sixth session of the General Assembly. The eighth report also contained a number of final observations by the Special Rapporteur, including on the form of the outcome of the Commission's work on the topic. (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 32 draft articles (A/CN.4/L.797), together with commentaries thereto, on the expulsion of aliens. The Commission 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 the request that such comments and observations be submitted to the Secretary-General by 1 January 2014.

See: Statement of the Chairman of the Drafting Committee (29 May 2012)

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

The Commission had before it the fifth report of the Special Rapporteur (A/CN.4/652), providing an elaboration on the duty to cooperate, as well as a consideration of the conditions for the provision of assistance, and of the termination of assistance. Following a debate in plenary, the Commission decided to refer draft articles A, 13 and 14, as proposed by the Special Rapporteur, to the Drafting Committee. (see chap. V)

The Commission subsequently took note of five draft articles provisionally adopted by the Drafting Committee, relating to forms of cooperation, offers of assistance, conditions on the provision of external assistance, facilitation of external assistance and the termination of external assistance, respectively (A/CN.4/L.812).

See also: Statement of the Chairman of the Drafting Committee (30 July 2012) and Comments by Governments.

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

The Commission appointed Ms. Concepción Escobar Hernández as Special Rapporteur. The Commission considered the preliminary report (A/CN.4/654) of the Special Rapporteur, which provided an overview of the work of the previous Special Rapporteur, as well as the debate on the topic in the Commission and in the Sixth Committee of the General Assembly; addressed the issues to be considered during the present quinquennium, focusing in particular on the distinction and the relationship between, and basis for, immunity ratione materiae and immunity ratione personae, the distinction and the relationship between the international responsibility of the State and the international responsibility of individuals and their implications for immunity, the scope of immunity ratione personae and immunity ratione materiae, and the procedural issues related to immunity; and gave an outline of the workplan. The debate revolved around, inter alia, the methodological and substantive issues highlighted by the Special Rapporteur in the preliminary report. (see chap. VI)

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

The Commission requested States to provide information on their national law and practice on the following questions:

  • Does the distinction between immunity ratione personae and immunity ratione materiae result in different legal consequences and, if so, how are they treated differently?
  • What criteria are used in identifying the persons covered by immunity ratione personae?

Provisional application of treaties (Summary | Analytical Guide)

The Commission decided to include the topic in its programme of work and appointed Mr. Juan Manuel Gómez-Robledo as Special Rapporteur. The Special Rapporteur presented to the Commission an oral report on the informal consultations that he had chaired with a view to initiating an informal dialogue with members of the Commission on a number of issues that could be relevant for the consideration of this topic. Aspects addressed in the informal consultations included, inter alia, the scope of the topic, the methodology, the possible outcome of the Commission's work as well as a number of substantive issues relating to the topic. The Commission decided to request the Secretariat to prepare a study related to the topic. (see chap. VII)

Formation and evidence of customary international law (Summary | Analytical Guide)

The Commission decided to include the topic in its programme of work and appointed Mr. Michael Wood as Special Rapporteur. During the second part of the session, the Commission had before it a Note by the Special Rapporteur (A/CN.4/653), which aimed at stimulating an initial debate and which addressed the possible scope of the topic, terminological issues, questions of methodology as well as a number of specific points that could be dealt with in considering the topic. The debate revolved around, inter alia, the scope of the topic as well as the methodological and substantive issues highlighted by the Special Rapporteur in his Note. The Commission decided to request the Secretariat to prepare a study related to the topic. (see chap. VIII)

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

The Commission requested States to provide information on their practice relating to the formation of customary international law and the types of evidence suitable for establishing such law in a given situation, as set out in:

  • official statements before legislatures, courts and international organizations; and
  • decisions of national, regional and subregional courts.

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

The Commission established a Working Group to make a general assessment of the topic as a whole, focusing on questions concerning its viability and steps to be taken in moving forward, against the background of the debate on the topic in the Sixth Committee of the General Assembly. The Working Group requested its Chairman to prepare a working paper, to be considered at the sixty-fifth session of the Commission, reviewing the various perspectives in relation to the topic in light of the judgment of the International Court of Justice of 20 July 2012, any further developments, as well as comments made in the Working Group and the debate in the Sixth Committee. (see chap. IX)

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 subsequent practice. The Study Group completed its consideration of the second report by its Chairman on the jurisprudence under special regimes relating to subsequent agreements and subsequent practice, by examining some remaining preliminary conclusions contained in that report. In the light of the discussions in the Study Group, the Chairman reformulated the text of six additional preliminary conclusions by the Chairman of the Study Group on the following issues: subsequent practice as reflecting a position regarding the interpretation of a treaty; specificity of subsequent practice; the degree of active participation in a practice and silence; effects of contradictory subsequent practice; subsequent agreement or practice and formal amendment or interpretation procedures; and subsequent practice and possible modification of a treaty. The Study Group also considered the third report by its Chairman on subsequent agreements and subsequent practice of States outside judicial and quasi-judicial proceedings. Furthermore, the Study Group discussed the modalities of the Commission's work on the topic, and recommended that the Commission change the format of that work and appoint a Special Rapporteur. (see chap. X)

The Commission decided:

  • to change, with effect from its sixty-fifth session (2013), the format of the work on the topic as suggested by the Study Group; and
  • to appoint Mr. Georg Nolte as Special Rapporteur for the topic "Subsequent agreements and subsequent practice in relation to the interpretation of treaties".

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

The Commission reconstituted the Study Group on the Most-Favoured-Nation clause, which continued to have a discussion concerning factors which appeared to influence investment tribunals in interpreting MFN clauses, on the basis, inter alia, of working papers concerning Interpretation and Application of MFN Clauses in Investment Agreements and the Effect of the Mixed Nature of Investment Tribunals on the Application of MFN Clauses to Procedural Provisions. The Study Group also considered elements of the outline of its future report. (see chap. XI)

Cooperation with other bodies

  • 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 the 3140th meeting, held on 4 July 2012.
  • The representatives of the African Union Commission on International Law, Mr. Blaise Tchikaya and Mr. Minelik Alemu Getahun addressed the Commission at the 3146th meeting, held on 17 July 2012.
  • The President of the International Court of Justice, Judge Peter Tomka, addressed the Commission at the 3148th meeting, held on 24 July 2012.
  • The representative of the Inter-American Juridical Committee, Mr. David P. Stewart, addressed the Commission at the 3149th meeting, held on 25 July 2012.
  • The representative of the Asian-African Legal Consultative Organization, Mr. Rahmat Bin Mohamad, addressed the Commission at the 3150th meeting, held on 26 July 2012.

Other business

Other decisions and conclusions of the Commission

The Commission, inter alia, decided: to appoint Ms. Concepción Escobar Hernández as Special Rapporteur for the topic “Immunity of State officials from foreign criminal jurisdiction” to replace Mr. Roman A. Kolodkin; to include the topic “Provisional application of treaties” in its programme of work and appoint Mr. Juan Manuel Gómez-Robledo as Special Rapporteur for the topic; to include the topic “Formation and evidence of customary international law” in its programme of work and appoint Mr. Michael Wood as Special Rapporteur for the topic; and to change, with effect from its sixty-fifth session (2013), the format of the work on the topic "Treaties over time" and appointed Mr. Georg Nolte as Special Rapporteur for the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. (see chap. XII)

Other

The Legal Counsel of the United Nations, Ms. Patricia O'Brien, made a statement at the 3132nd meeting, held on 22 May 2012, 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-fifth session

The Commission recommended that the sixty-fifth session of the Commission be held in Geneva from 6 May to 7 June and from 8 July to 9 August 2013.