International Law Commission International Law Commission

Last update: March 23, 2017

Sixty-eighth Session (2016)

In accordance with General Assembly resolution 70/236 of 23 December 2015, the International Law Commission held its sixty-eighth session at the United Nations Office at Geneva from 2 May to 10 June and from 4 July to 12 August 2016 (12 weeks).

Topics considered in 2016 (chap. II of the Report)

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

The Commission commenced the second reading of the draft articles on the protection of persons in the event of disasters, on the basis of the eighth report of the Special Rapporteur (A/CN.4/697), as well as the report of the Secretary-General reproducing the comments and observations submitted by States, international organizations and entities (A/CN.4/696 + Add.1), which were considered at its 3291st to 3296th meetings, held from 2 to 11 May 2016. The Commission decided to refer the draft preamble and draft articles, as recommended by the Special Rapporteur, to the Drafting Committee.

The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Protection of persons in the event of disasters” (A/CN.4/L.871). The Commission subsequently adopted, on second reading, a draft preamble and 18 draft articles, together with commentaries thereto, on the protection of persons in the event of disaster, and in accordance with article 23 of its statute recommended to the General Assembly the elaboration of a convention on the basis of the draft articles on the protection of persons in the event of disasters (chap. IV).

See also: Comments by Governments

Identification of customary international law (Summary | Analytical Guide)

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/695) and an addendum to that report (A/CN.4/695/Add.1) providing a bibliography on the topic. The fourth report contained, in particular, suggestions for the amendments of several draft conclusions in light of the comments thereof by Governments and others. It also addressed ways and means to make the evidence of customary international law more readily available.  In addition, the Commission had before it the memorandum by the Secretariat concerning the role of decisions of national courts in the case-law of international courts and tribunals of a universal character for the purpose of the determination of customary international law (A/CN.4/691).

The Commission considered the fourth report of the Special Rapporteur, as well as the memorandum by the Secretariat, at its 3301st to 3303rd meetings, from 19 to 24 May 2016, and decided to refer to the Drafting Committee the proposed amendments to the draft conclusions contained in the fourth report. At its 3303rd meeting, on 24 May 2016, the Commission also requested the Secretariat to prepare a memorandum on ways and means for making the evidence of customary international law more readily available, which would survey the present state of the evidence of customary international law and make suggestions for its improvement.

The Chairman of the Drafting Committee subsequently presented the report of the Drafting Committee on “Identification of customary international law” (A/CN.4/L.872), on the basis of which the Commission adopted on first reading a set of 16 draft conclusions.

At its 3291th meeting, on 2 May 2016, the Commission decided to establish an open-ended working group, under the Chairmanship of Mr. Marcelo Vázquez-Bermudez, to assist the Special Rapporteur in the preparation of the draft commentaries to the draft conclusions to be adopted by the Commission. The working group held five meetings between 3 and 11 May 2016.

As a result of its consideration of the topic at the present session, the Commission adopted on first reading a set of 16 draft conclusions, together with commentaries thereto, on identification of customary international law. The Commission decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft conclusions, 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 2018 (chap. V).

See also: Comments by Governments

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

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/694), which addressed the legal significance, for the purpose of interpretation and as forms of practice under a treaty, of pronouncements of expert bodies and of decisions of domestic courts and which proposed, respectively, draft conclusions 12 and 13 on those issues. It also discussed the structure and scope of the draft conclusions, proposing the inclusion of a new draft conclusion 1a, and suggested a revision to draft conclusion 4. Following the debate in Plenary, the Commission decided to refer draft conclusions 1a and 12 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.874), on the basis of which the Commission adopted on first reading a set of 13 draft conclusions, together with commentaries thereto, on subsequent agreements and subsequent practice in relation to the interpretation of treaties. The Commission decided, in accordance with articles 16 to 21 of its Statute, to transmit the draft conclusions, 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 2018 (chap. VI).

See also: Comments by Governments

Crimes against humanity (Summary | Analytical Guide)

The Commission had before it the second report of the Special Rapporteur, Mr. Sean D. Murphy, on the topic (A/CN.4/690), as well as the memorandum by the Secretariat providing information on existing treaty-based monitoring mechanisms which may be of relevance to the future work of the International Law Commission (A/CN.4/698). The second report addressed, inter alia, criminalization under national law, establishment of national jurisdiction, general investigation and cooperation for identifying alleged offenders, exercise of national jurisdiction when an alleged offender is present, aut dedere aut judicare and fair treatment of an alleged offender. The report contained corresponding proposals for draft articles 5, 6, 7, 8, 9 and 10.  

The Commission decided to refer draft articles 5 to 10 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.873). Upon consideration of the report of the Drafting Committee (A/CN.4/L.873), the Commission provisionally adopted draft articles 5 to 10, together with commentaries thereto. The Commission also decided to refer to the Drafting Committee the question of the liability of legal persons. Following its consideration of a further report of the Drafting Committee (A/CN.4/L.873/Add.1), as presented by the Chairperson of the Drafting Committee, the Commission provisionally adopted paragraph 7 of draft article 5, together with the commentary thereto (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 considered as still relevant the requests for information contained in Chapter III of the report of its sixty-sixth session (2014) on the topic.

Protection of the atmosphere (Summary | Analytical Guide)

The Commission had before it the third report of the Special Rapporteur (A/CN.4/692), which, building upon the previous two reports, analysed several key issues relevant to the topic, namely, the obligations of States to prevent atmospheric pollution and mitigate atmospheric degradation and the requirement of due diligence and environmental impact assessment. The report also explored questions concerning sustainable and equitable utilization of the atmosphere, as well as the legal limits on certain activities aimed at intentional modification of the atmosphere. Consequently, 5 draft guidelines were proposed on the obligation of States to protect the environment, environmental impact assessment, sustainable utilization of the atmosphere, equitable utilization of the atmosphere, and geo-engineering, together with an additional preambular paragraph.

Following the debate in the Commission, which was preceded by a dialogue with scientists organized by the Special Rapporteur, the Commission decided to refer the 5 draft guidelines, together with the preambular paragraph, as contained in the Special Rapporteur’s third report, to the Drafting Committee. Upon its consideration of the report of the Drafting Committee (A/CN.4/L.875), as presented by the Chairperson of the Drafting Committee, the Commission considered and provisionally adopted draft guidelines 3, 4, 5, 6 and 7 and a preambular paragraph, together with commentaries thereto (chap. VIII).

See also:

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 considered as still relevant the requests for information contained in Chapter III of the report of its sixty-sixth session (2014) on the topic.

Jus Cogens (Summary | Analytical Guide)

The Commission had before it the first report of the Special Rapporteur (A/CN.4/693), which addressed conceptual issues relating to peremptory norms (jus cogens), including their nature and definition, and traced the historical evolution of peremptory norms and, prior to that, the acceptance in international law of the elements central to the concept of peremptory norms of global international law. The report further raised a number of methodological issues on which the Commission was invited to comment, and reviewed the debates held in the Sixth Committee in 2014 and 2015. The Commission subsequently decided to refer the draft conclusions, contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim report of the Chairperson of the Drafting Committee on draft conclusions 1 and 2 provisionally adopted by the Committee, which was submitted to the Commission for information (chap. IX).

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 considered as still relevant the requests for information contained in Chapter III of the report of its sixty-seventh session (2015) on the topic.

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

The Commission had before it the third report of the Special Rapporteur (A/CN.4/700), which focused on identifying rules applicable in post-conflict situations, while also addressing some preventive issues to be undertaken in the pre-conflict phase. The report contained three draft principles on preventive measures, five draft principles concerning primarily the post-conflict phase and one draft principle on the rights of indigenous peoples. Following the debate in Plenary, the Commission decided to refer the draft principles, as contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently received the report of the Drafting Committee (A/CN.4/L.876), as presented by the Chairperson of the Drafting Committee, and took note of draft principles 4, 6, 7, 8, 14, 15, 16, 17 and 18, provisionally adopted by the Drafting Committee. Furthermore, the Commission provisionally adopted the draft principles it had taken note of during its sixty-seventh session, which had been renumbered and revised for technical reasons (A/CN.4/L.870/Rev.1) by the Drafting Committee at the present session (as presented by the Chairperson of the Drafting Committee), together with commentaries thereto (chap. X).

See also: Comments by Governments

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

The Commission had before it the fifth report of the Special Rapporteur (A/CN.4/701), which analysed the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. Since at the time of its consideration the report was only available to the Commission in two of the six official languages of the United Nations, the debate in the Commission was commenced, involving members wishing to comment on the fifth report at the sixty-eighth session, and would be continued at the sixty-ninth session of the Commission.

Upon its consideration of the report of the Drafting Committee on work done previously and taken note of by the Commission during its sixty-seventh session (A/CN.4/L.865), the Commission provisionally adopted draft articles 2 (f) and 6, together with commentaries thereto (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 would appreciate being provided by States with information on their national legislation and practice, including judicial and executive practice, with reference to the following issues:

  • the invocation of immunity;
  • waivers of immunity;
  • the stage at which the national authorities take immunity into consideration (investigation, indictment, prosecution);
  • the instruments available to the executive for referring information, legal documents and opinions to the national courts in relation to a case in which immunity is or may be considered;
  • the mechanisms for international legal assistance, cooperation and consultation that State authorities may resort to in relation to a case in which immunity is or may be considered.

Provisional application of treaties (Summary | Analytical Guide)

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/699 and Add.1), which continued the analysis of the relationship of provisional application to other provisions of the 1969 Vienna Convention and of the practice of international organizations with regard to provisional application. The report included a proposal for a draft guideline 10 on internal law and the observation of provisional application of all or part of a treaty. The addendum to the report contained examples of recent European Union practice on provisional application of agreements with third States.

Following the debate in Plenary, the Commission decided to refer draft guideline 10, as contained in the fourth report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently received the report of the Drafting Committee (A/CN.4/L.877), as presented by the Chairperson of the Drafting Committee, and took note of draft guidelines 1 to 4 and 6 to 9, provisionally adopted by the Drafting Committee during the sixty-seventh and sixty-eighth sessions (chap. XII). Draft guideline 5 on unilateral declarations had been kept in abeyance by the Drafting Committee to be returned to at a later stage.

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 considered as still relevant the requests for information contained in Chapter III of the report of its sixty-seventh session (2015) on the topic.

Cooperation with other bodies

  • The representative of the Inter-American Juridical Committee, Mr. Gélin Imanès Collot, addressed the Commission at the 3305th meeting, held on 26 May 2016. 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 3316th meeting, held on 7 July 2016. An exchange of views followed.
  • The President of the International Court of Justice, Judge Ronny Abraham, addressed the Commission at the 3317th meeting, held on 8 July 2016. An exchange of views followed.
  • An informal exchange of views was held between members of the Commission and the International Committee of the Red Cross.

Other business

Visit of the United Nations Legal Counsel

The United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement at the 3299th meeting, held on 17 May 2016, 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.

Other decisions and conclusions of the Commission

The Commission decided to request the Secretariat to prepare a memorandum on ways and means for making the evidence of customary international law more readily available, which would survey the present state of the evidence of customary international law and make suggestions for its improvement and another memorandum analysing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, which provide for provisional application, including treaty actions related thereto (chap. XIII, sect. A).

The Commission also established a Planning Group to consider its programme, procedures and working methods (chap. XIII, sect. B). The Commission decided to include in its long-term programme of work the topics: (a) The settlement of international disputes to which international organizations are parties; and (b) Succession of States in respect of State responsibility (chap. XIII, sect. B).

The Commission recommended that it holds the first part of its seventieth session in New York, and requested the Secretariat to proceed with the necessary administrative and organizational arrangements to facilitate this. The Commission recommended that a seventieth anniversary commemorative event be held during its seventieth session in 2018. The commemorative event would be held in two parts, the first during the first part of its seventieth session recommended to be held in New York, and the second during the second part of its seventieth session in Geneva (chap. XIII, sect. B).

New topics

The Commission decided to include in its long-term programme of work two new topics, namely (a) Settlement of international disputes to which international organizations are parties (2016 report, annex A); and (b) Succession of States in respect of State responsibility (2016 report, annex B). In the selection of these topics, the Commission was guided by the following criteria that it had agreed upon at its fiftieth session (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 at a sufficiently advanced stage in terms of State practice to permit progressive development and codification; (c) should be concrete and feasible for progressive development and codification; and (d) that the Commission should not restrict itself to traditional topics, but could also consider those 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.

In addition, the Commission would welcome any proposals that States may wish to make concerning possible topics for inclusion in its long-term programme of work. It would be helpful if such proposals were accompanied by a statement of reasons in their support, taking into account the criteria, referred to above, for the selection of topics.

Date and place of the sixty-ninth session

The Commission decided that the sixty-ninth session of the Commission be held in Geneva from 1 May to 2 June and 3 July to 4 August 2017.