International Law Commission International Law Commission

Last update: July 15, 2015

Sixty-fifth Session (2013)

In accordance with General Assembly resolution 67/92 of 14 December 2012, the International Law Commission held its sixty-fifth session at the United Nations Office at Geneva from 6 May to 7 June and 8 July to 9 August 2013 (10 weeks).

Topics considered in 2013 (chap. II of the Report)

Subsequent agreements and subsequent practice in relation to the interpretation of treaties (Summary | Analytical Guide)

The Commission had before it the first report of the Special Rapporteur (A/CN.4/660, which, inter alia, contained four draft conclusions relating to the general rule and means of treaty interpretation; subsequent agreements and subsequent practice as means of interpretation; the definition of subsequent agreement and subsequent practice as means of treaty interpretation; and attribution of a treaty related practice to a State. Following the debate in plenary, the Commission decided to refer the four draft conclusions to the Drafting Committee. Upon consideration of the report of the Drafting Committee, Commission provisionally adopted five draft conclusions A/CN.4/L.813, together with commentaries thereto. (see chap. IV)

See also: Statement of the Chairman of the Drafting Committee (31 May 2013)

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

The Commission had before it the second report of the Special Rapporteur (A/CN.4/661), in which, inter alia, six draft articles were presented, following an analysis of: (a) the scope of the topic and of the draft articles; (b) the concepts of immunity and jurisdiction; (c) the difference between immunity ratione personae and immunity ratione materiae; and (d) identified the basic norms comprising the regime of immunity ratione personae. Following the debate in plenary, the Commission decided to refer the six draft articles to the Drafting Committee. Upon consideration of the report of the Drafting Committee, the Commission provisionally adopted three draft articles (A/CN.4/L.814), together with commentaries thereto. (see chap. V)

See also: Statement of the Chairman of the Drafting Committee (7 June 2013)

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, by 31 January 2014, on the practice of their institutions, and in particular, on judicial decisions, with reference to the meaning given to the phrases "official acts" and "acts performed in an official capacity" in the context of the immunity of State officials from foreign criminal jurisdiction.

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

The Commission had before it the sixth report of the Special Rapporteur (A/CN.4/662), dealing with aspects of prevention in the context of the protection of persons in the event of disasters, including disaster risk reduction, prevention as a principle of international law, and international cooperation on prevention. Following the debate in plenary, the Commission decided to refer the two draft articles, proposed by the Special Rapporteur, to the Drafting Committee. (see chap. VI)

The Commission provisionally adopted seven draft articles, together with commentaries, namely draft articles 5 bis and 12 to 15 (A/CN.4/L.812), of which it had taken note of at its sixty-fourth session (2012), dealing with forms of cooperation, offers of assistance, conditions on the provision of external assistance, facilitation of external assistance, and termination of external assistance, respectively, as well as draft articles 5 ter and 16, concerning cooperation for disaster risk reduction and the duty to reduce the risk of disasters, respectively (A/CN.4/L.815).

See also: Statement of the Chairman of the Drafting Committee (30 July 2012), concerning draft articles 5 bis and 12 to 15, and statement of the Chairman of the Drafting Committee (26 July 2013), relating to draft articles 5 ter and 16.

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

The Commission had before it the first report of the Special Rapporteur (A/CN.4/663), which, inter alia, presented an overview of the previous work of the Commission relevant to the topic, views expressed by delegates in the Sixth Committee of the General Assembly, the scope of the topic, the range of materials to be consulted, and issues relating to customary international law as a source of international law. The Commission also had before it a memorandum by the Secretariat addressing elements in the previous work of the Commission that could be particularly relevant to the topic (A/CN.4/659). The debate in plenary addressed, among other issues, the scope and methodology of the topic, the range of materials to be consulted and the future plan of work. The Special Rapporteur also held informal consultations on the title of the topic, the consideration of jus cogens within the scope of the topic and the need for additional information on State practice. The Commission decided to change the title of the topic to "Identification of customary international law". (see chap. VII)

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

The Commission requests States to provide information, by 31 January 2014, 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.

Provisional application of treaties (Summary | Analytical Guide)

The Commission had before it the first report of the Special Rapporteur (A/CN.4/664) which sought to establish, in general terms, the principal legal issues that arose in the context of the provisional application of treaties by considering doctrinal approaches to the topic and briefly reviewing the existing State practice. The Commission also had before it a memorandum by the Secretariat which traced the negotiating history of article 25 both in the Commission and at the Vienna Conference on the Law of Treaties (A/CN.4/658). The debate revolved around the purpose of the provisional application of treaties, and the elaboration of specific issues to be considered in the future reports of the Special Rapporteur. (see chap. VIII)

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

The Commission requests States to provide information, by 31 January 2014, on their practice concerning the provisional application of treaties, with examples, in particular in relation to:

  • the decision to provisionally apply a treaty;
  • the termination of such provisional application; and
  • the legal effects of provisional application.

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

The Commission re-constituted the Working Group on the topic, which continued the evaluation of work on the topic, particularly in the light of the judgment of the International Court of Justice in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) case, of 20 July 2012. The Commission took note of the report of the Working Group, which was annexed to the report. (see chap. X and Annex A)

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

The Commission re-constituted the Study Group on the topic, which, inter alia, continued to examine the various factors that seemed to influence investment tribunals in interpreting MFN clauses, on the basis, inter alia, of contemporary practice and jurisprudence, in particular Daimler Financial Services AG v. Argentine Republic and Kiliç Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v. Turkmenistan. (see chap. XI)

Cooperation with other bodies

  • The Secretary-General of the Asian-African Legal Consultative Organization, Mr. Rahmat Mohamad, addressed the Commission at the 3176th meeting, held on 9 July 2013.
  • The Chair of the Committee of Legal Advisers on Public international Law (CAHDI), Ms. Liesbeth Lijnzaad, and the Head a.i. of the Public International Law Division of the Council of Europe, Ms. Christina Olsen, addressed the Commission at the 3177th meeting, held on 10 July 2013.
  • The representative of the Inter-American Juridical Committee, Mr. Miguel A. Pichardo Olivier, addressed the Commission at the 3180th meeting, held on 16 July 2013.
  • Prof. Paulo Borba Casella, University of Sao Paulo Law School, presented the Gilberto Amado memorial lecture entitled "Contemporary trends on opinio juris and the material evidence of international customary law", on 17 July 2013.
  • The President of the International Court of Justice, Judge Peter Tomka, addressed the Commission at its 3182nd meeting, held on 18 July 2013.

Other business

Protection of the environment in relation to armed conflict (Summary | Analytical Guide)

The Commission decided to include the topic "Protection of the environment in relation to armed conflict" in its programme of work, and appointed Ms. Marie G. Jacobsson as Special Rapporteur (chap. XII, sect. A.1). The Special Rapporteur presented the Commission with a series of informal working papers with a view to initiating an informal dialogue with members of the Commission on a number of issues that could be relevant for the development and consideration of the work on the topic. Issues addressed in the informal consultations included, inter alia, scope and methodology, the possible outcome of the Commission's work, as well as a number of substantive issues relating to the topic. (see chap. IX)

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

The Commission would like to have information from States on whether, in their practice, international or domestic environmental law has been interpreted as applicable in relation to international or non-international armed conflict. The Commission would particularly appreciate receiving examples of:

  • treaties, particularly relevant regional or bilateral treaties;
  • national legislation relevant to the topic, including legislation implementing regional or bilateral treaties;
  • case law in which international or domestic environmental law was applied to disputes arising from situations of armed conflict.
Other decisions and conclusions of the Commission

The Commission established a Planning Group to consider its programme, procedures and working methods (chap. XII, sect. A). The Commission decided to include the topic "Protection of the atmosphere" in its programme of work, and to appoint Mr. Shinya Murase as Special Rapporteur for the topic (chap. XII, sect. A.1), subject to the following understanding:

"(a) Work on the topic will proceed in a manner so as not to interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution. The topic will not deal with, but is also without prejudice to, questions such as: liability of States and their nationals, the polluter-pays principle, the precautionary principle, common but differentiated responsibilities, and the transfer of funds and technology to developing countries, including intellectual property rights;

(b) The topic will also not deal with specific substances, such as black carbon, tropospheric ozone, and other dual-impact substances, which are the subject of negotiations among States. The project will not seek to “fill” gaps in the treaty regimes;

(c) Questions relating to outer space, including its delimitation, are not part of the topic;

(d) The outcome of the work on the topic will be draft guidelines that do not seek to impose on current treaty regimes legal rules or legal principles not already contained therein.

The Special Rapporteur’s reports would be based on such understanding." (see chap. XII, sect. A.1)

The Commission also decided to include in its long-term programme of work the topic "Crimes against humanity" (see chap. XII, sect. A.2 and annex B).

Other:
  • The Commission paid tribute to the late Ambassador Chusei Yamada, at its 3161st meeting, held on 8 May 2013.
  • The Legal Counsel of the United Nations, Ms. Patricia O'Brien, made a statement at the 3169th meeting, held on 23 May 2013, 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 Commission paid tribute to Sir Ian Sinclair at its 3181st meeting, on 17 July 2013.

Date and place of the sixty-sixth session

The Commission decided that its sixty-sixth session be held in Geneva from 5 May to 6 June and 7 July to 8 August 2014.