International Law Commission International Law Commission

Last update: March 23, 2017

Sixty-seventh Session (2015)

In accordance with General Assembly resolution 69/118 of 10 December 2014, the International Law Commission held its sixty-seventh session at the United Nations Office at Geneva from 4 May to 5 June and 6 July to 7 August 2015 (10 weeks).

Topics considered in 2015 (chap. II of the Report)

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

The Commission considered the fourth report of the Special Rapporteur, Ms. Concepción Escobar Hernández, on the topic (A/CN.4/686), which was devoted to the consideration of the remaining aspects of the material scope of immunity ratione materiae, namely what constituted an “act performed in an official capacity”, and its temporal scope. The report contained proposals for draft article 2, subparagraph (f), defining an “act performed in an official capacity” and draft article 6 on the scope of immunity ratione materiae. The Commission decided to refer draft articles 2 (f) and 6 to the Drafting Committee. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Immunity of State officials from foreign criminal jurisdiction”. The Commission took note of draft articles 2, subparagraph (f), and 6, provisionally adopted by the Drafting Committee (A/CN.4/L.865). (see chap. X)

See also: Comments by Governments

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

The Commission requested States to provide it, by 31 January 2016, with information on their legislation and practice, in particular judicial practice, related to limits and exceptions to the immunity of State officials from foreign criminal jurisdiction.

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

The Commission considered the third report of the Special Rapporteur, Mr. Georg Nolte, on the topic (A/CN.4/683) , which contained, inter alia, one draft conclusion relating to constituent instruments of international organizations. It decided to refer draft conclusion 11 to the Drafting Committee. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties (A/CN.4/L.854). The Commission considered the report and provisionally adopted draft conclusion 11 (Constituent instruments of international organizations/Actes constitutifs d’organisations internationales), together with a commentary thereto. (see chap. VIII)

See also: Comments by Governments

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

The Commission requested States to provide it, by 31 January 2016:

  • any examples of decisions of national courts in which a subsequent agreement or subsequent practice has contributed to the interpretation of a treaty; and
  • any examples where pronouncements or other action by a treaty body consisting of independent experts have been considered as giving rise to subsequent agreements or subsequent practice relevant for the interpretation of a treaty.

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

The Chairman of the Study Group on the Most-Favoured-Nation clause, Mr. Donald M. McRae, introduced the final report of the Study Group on the topic (A/CN.4/L.852). The Commission subsequently considered the report of the Study Group together with appropriate recommendations and endorsed the summary conclusions of the Study Group. The Commission commended the final report to the attention of the General Assembly, and encouraged its widest possible dissemination. The Commission thus concluded its consideration of the topic. (see chap. IV and annex)

Provisional application of treaties (Summary | Analytical Guide)

The Commission considered the third report of the Special Rapporteur, Mr. Juan Manuel Gomez-Robledo, on the topic (A/CN.4/687), which considered the relationship of provisional application to other provisions of the Vienna Convention on the Law of Treaties of 1969, and the question of provisional application with regard to international organizations. The Commission also had before it a memorandum (A/CN.4/676), prepared by the Secretariat, on provisional application under the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. It decided to refer draft guidelines 1 to 6 to the Drafting Committee. The Chairman of the Drafting Committee subsequently presented, for information only, an interim oral report of the Drafting Committee on draft guidelines 1 to 3, provisionally adopted by the Drafting Committee. (see chap. XI)

See also: Comments by Governments

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

The Commission requested States to provide it, by 31 January 2016, with information on their practice concerning the provisional application of treaties, including domestic legislation pertaining thereto, 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.

Identification of customary international law (Summary | Analytical Guide)

The Commission considered the third report of the Special Rapporteur, Sir Michael Wood, on the topic (A/CN.4/682) which contained, inter alia, additional paragraphs to three of the draft conclusions proposed in the second report and five new draft conclusions relating respectively to the relationship between the two constituent elements of customary international law, the role of inaction, the role of treaties and resolutions, judicial decisions and writings, the relevance of international organizations, as well as particular custom and the persistent objector. It decided to refer draft conclusions 3, 4 and 11 to 16 to the Drafting Committee. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Identification of customary international law”. The Commission took note of draft conclusions 1 to 16 [15] provisionally adopted by the Drafting Committee at the sixty-sixth and sixty-seventh sessions (A/CN.4/L.869). (see chap. VI)

See also: Comments by Governments

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

The Commission reiterated its request to States to provide information, by 31 January 2016, on their practice relating to the formation of customary international law and the types of evidence 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.

In addition, the Commission welcomed information about digests and surveys on State practice in the field of international law.

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

The Commission considered the second report of the Special Rapporteur, Ms. Marie G. Jacobsson, on the topic (A/CN.4/685), which, inter alia, identified and examined existing rules of armed conflict directly relevant to the protection of the environment in relation to armed conflict. The report contained five draft principles and three draft preambular paragraphs relating to the scope and purpose of the draft principles as well as use of terms. It decided to refer the draft principles and the preamble, proposed by the Special Rapporteur, to the Drafting Committee, with the understanding that the “Use of terms” provision would be before the Committee to assist consideration of the other draft provisions. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Protection of the environment in relation to armed conflicts”, and took note of the draft introductory provisions and draft principles I-(x) to II-5, provisionally adopted by the Drafting Committee (A/CN.4/L.870). (see chap. IX)

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

The Commission requested States to provide it, by 31 January 2016, with information 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, including 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 in relation to armed conflict.

The Commission also invited information from States as to whether they have any instruments aimed at protecting the environment in relation to armed conflict, for example, national legislation and regulations; military manuals, standard operating procedures, Rules of Engagement or Status of Forces Agreements applicable during international operations; and environmental management policies related to defence-related activities. The Commission was, in particular, interested in instruments related to preventive and remedial measures.

Protection of the atmosphere (Summary | Analytical Guide)

The Commission considered the second report of the Special Rapporteur, Mr. Shinya Murase, on the topic (A/CN.4/681 + Corr.1), which, upon a further analysis of the draft guidelines submitted in the first report, presented a set of revised draft guidelines relating to the use of terms, the scope of the draft guidelines, and the common concern of humankind, as well as draft guidelines on the general obligation of States to protect the atmosphere and on international cooperation. It decided to refer draft guidelines 1, 2, 3 and 5 to the Drafting Committee with the understanding that draft guideline 3 be considered as part of a preamble. The Special Rapporteur proposed to defer the referral by the Commission of draft guideline 4 to the Drafting Committee to the next session. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on Protection of the atmosphere (A/CN.4/L.851). The Commission considered the report and adopted the preambular paragraphs and the following draft guidelines, as orally revised: 1 (Use of terms/Définition), 2 (Scope of the guidelines/Champ d’application des directives) and 5 (International cooperation/Coopération internationale), together with commentaries thereto. (see chap. V)

See also: Comments by Governments

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

The Commission requested States to provide relevant information, by 31 January 2016, on domestic legislation and the judicial decisions of the domestic courts.

Crimes against humanity (Summary | Analytical Guide)

The Commission considered the first report of the Special Rapporteur, Mr. Sean D. Murphy, on the topic (A/CN.4/680 + Corr.1), which contained, inter alia, two draft articles relating respectively to the prevention and punishment of crimes against humanity and to the definition of crimes against humanity. It decided to refer draft articles 1 and 2 to the Drafting Committee taking into account the observations and comments made during the debate. The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Crimes against humanity" (A/CN.4/L.853). The Commission considered the report and provisionally adopted the following draft articles, as orally revised: 1 (Scope/Champ d’application), 2 (General obligation/Obligation générale), 3 (Definition of crimes against humanity/Définition des crimes contre l’humanité) and 4 (Obligation of prevention/Obligation de prévention), together with commentaries thereto. (see chap. VII)

See also: Comments by Governments

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 2016, on:

  • whether the State’s national law expressly criminalized “crimes against humanity” as such and, if so:
  • the text of the relevant criminal statute(s);
  • under what conditions the State was capable of exercising jurisdiction over an alleged offender for the commission of a crime against humanity (e.g. when the offense occured within its territory or when the offense was by its national or resident); and
  • decisions of the State’s national courts that had adjudicated crimes against humanity.

Jus Cogens (Summary | Analytical Guide)

The Commission decided to include the topic “Jus cogens“ in the programme of work and decided to appoint Mr. Dire D. Tladi as Special Rapporteur for the topic. See the 2014 Syllabus for the topic. (see chap. XII)

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

The Commission requested States to provide it, by 31 January 2016, with information, relating to their practice on the nature of jus cogens, the criteria for its formation and the consequences flowing therefrom as expressed in:

  • official statements, including official statements before legislatures, courts and international organizations; and
  • decisions of national and regional courts and tribunals, including quasi-judicial bodies.

Cooperation with other bodies

  • The Secretary-General of the Asian-African Legal Consultative Organization, Mr. Rahmat Mohamad, addressed the Commission at the 3250th meeting, held on 13 May 2015. An exchange of views followed.
  • The Vice-President of the Inter-American Juridical Committee, Mr. Carlos Mata Prates, addressed the Commission at the 3265th meeting, held on 7 July 2015. An exchange of views followed.
  • The Chair of the Council of Europe Committee of Legal Advisers on Public International Law (CAHDI), Mr. Paul Rietjens, and the Head of Public International Law Division and Treaty Office of the Directorate of Legal Advice and Public International Law, Ms. Marta Requena, addressed the Commission at the 3268th meeting, held on 10 July 2015. An exchange of views followed.
  • The High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, addressed the Commission at the 3272nd meeting, held on 21 July 2015. An exchange of views followed.
  • The President of the International Court of Justice, Judge Ronny Abraham, addressed the Commission at the 3274th meeting, held on 22 July 2015. An exchange of views followed.
  • The Representatives of the African Union Commission on International Law, Mr. Solo Kholisani and Mr. Ebenezer Appreku, addressed the Commission at the 3276th meeting, held on 23 July 2015.

Other business

Visit of the United Nations Legal Counsel

The United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement at the 3245th meeting, held on 5 May 2015, 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-eighth session

The Commission recommended that its sixty-eighth session be held in Geneva from 2 May to 10 June and 4 July to 12 August 2016.