International Law Commission International Law Commission

Last update: September 22, 2017

Sixty-ninth Session (2017)

In accordance with General Assembly resolution 71/140 of 13 December 2016, the International Law Commission held its sixty-ninth session at the United Nations Office at Geneva from 1 May to 2 June and from 3 July to 4 August 2017 (10 weeks).

Topics considered in 2017*

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

The Commission resumed its consideration of the Special Rapporteur’s fifth report, which it had commenced at the sixty-eighth session, at its 3360th to 3365th meetings, held from 18 to 30 May 2017. The report analysed the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction and proposed a single draft article on the issue. At the 3365th meeting, on 30 May 2017, the Commission decided to refer draft article 7 to the Drafting Committee taking into account the views expressed in the Commission. At the 3378th meeting, held on 20 July 2017, the Chairman of the Drafting Committee introduced the report of the Drafting Committee on “Immunity of State officials from foreign criminal jurisdiction” (A/CN.4/L.893). The Commission considered the report and provisionally adopted, by a recorded vote (21 in favour, 8 against and 1 abstention), the footnotes to Part Two Immunity ratione personae and to Part Three Immunity ratione materiae, draft article 7 and the Annex, together with commentaries thereto. (see chap. VII)

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.

See also: Comments by Governments

Provisional application of treaties (Summary | Analytical Guide)

The Commission decided to refer draft guidelines 1 to 4 and 6 to 9, which the Commission had taken note of in 2016, to the Drafting Committee, with a view to having a consolidated text, as provisionally worked out thus far, prepared. At the 3357th meeting, held on 12 May 2017, the Chairman of the Drafting Committee introduced the first report of the Drafting Committee on “Provisional application of treaties”. At the 3382nd meeting, held on 26 July 2017, the Chairman of the Drafting Committee presented a further report on the topic (A/CN.4/L.895/Rev.1). The Commission considered the report and adopted draft guidelines 1 to 11, with commentaries thereto. (see chap. V)

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 (2015) on the topic.

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

At the 3375th meeting, held on 14 July 2017, the Commission decided to establish a Working Group on the topic “Protection of the environment in relation to armed conflicts” and appointed Mr. Marcelo Vázquez-Bermúdez as Chairman of the Working Group. The Working Group had before it the draft commentaries prepared by the Special Rapporteur, even though she was no longer with the Commission, on draft principles 4, 6 to 8, and 14 to 18 provisionally adopted by the Drafting Committee at the sixty-eighth session of the Commission, and taken note of by the Commission at the same session. The Working Group focused its discussion on considering the way forward. Upon consideration of the oral report the Chairperson of the Working Group, the Commission decided to appoint Ms. Marja Lehto as Special Rapporteur. (see chap. X)

Protection of the atmosphere (Summary | Analytical Guide)

The Commission considered the fourth report (A/CN.4/705 + Corr.1) of the Special Rapporteur on the topic, Mr. Shinya Murase, from its 3355th to 3359th meetings, held from 10 to 17 May 2017. Building upon the previous three reports, the fourth report proposed four guidelines on the interrelationship between the rules of international law relating to the protection of the atmosphere and other relevant rules of international law, including the rules of international trade and investment law, the law of the sea, and international human rights law. The Commission subsequently decided to refer draft guidelines 9 to 12, as proposed by the Special Rapporteur, to the Drafting Committee, taking into account the views expressed during the debate on the fourth report. At the 3367th meeting, held on 2 June 2017, the Chairperson of the Drafting Committee presented the report of the Drafting Committee on “Protection of the atmosphere” (A/CN.4/L.894). The Commission considered the report and provisionally adopted draft preambular paragraphs 3bis, 4bis and 6 and draft guideline 9, together with commentaries thereto. (see chap. VI)

See also:

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.

See also: Comments by Governments

Crimes against humanity (Summary | Analytical Guide)

The Commission considered the third report (A/CN.4/704) of the Special Rapporteur on the topic, Mr. Sean D. Murphy, from its 3348th to 3354th meetings, held from 1 to 9 May 2017. The report addressed, in particular, the following issues: extradition, non-refoulement, mutual legal assistance, victims, witnesses and other affected persons, relationship to competent international criminal tribunals, federal State obligations, monitoring mechanisms and dispute settlement, remaining issues, the preamble to the draft articles, and final clauses of a convention. The Commission subsequently decided to refer draft articles 11 to 17 and the preamble, as proposed by the Special Rapporteur, to the Drafting Committee, taking into account the views expressed during the debate on the third report. At the 3366th and 3377th meetings, held on 1 June and 19 July 2017, respectively, the Chairperson of the Drafting Committee presented the first and second reports of the Drafting Committee on "Crimes against humanity" (A/CN.4/L.892 + Add.1). The Commission considered the report of the Drafting Committee on “Crimes against humanity” and adopted, on first reading, a draft preamble, 15 draft articles and a draft annex, together with commentaries thereto, on crimes against humanity. The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft articles, through the Secretary-General, to Governments, international organizations and others, for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2018. (see chap. IV)

See also: Comments by Governments

Peremptory norms of general international law (Jus cogens) (Summary | Analytical Guide)

The Commission considered the second report (A/CN.4/706) of the Special Rapporteur on the topic, Mr. Dire Tladi, from its 3368th to 3370th and 3372nd to 3374th meetings, held from 3 to 5 and 11 to 13 July 2017. The report sought to set out the criteria for the identification of peremptory norms (jus cogens), taking the 1969 Vienna Convention on the Law of Treaties as a point of departure. The Commission subsequently decided to refer draft conclusions 4 to 9, as contained in the report of the Special Rapporteur, to the Drafting Committee, taking into account the views expressed during the debate on the third report, and decided to change the title of the topic from “Jus cogens” to “Peremptory norms of general international law (jus cogens)”, as proposed by the Special Rapporteur. At the 3382nd meeting, held on 26 July 2017, the Commission took note of the interim report of the Chairperson of the Drafting Committee on draft conclusions 2 [3 (2)], 4, 5, 6 and 7 provisionally adopted by the Committee, which was submitted to the Commission for information. (see chap. VIII)

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 (2015) on the topic.

Succession of States in respect of State responsibility (Summary | Analytical Guide)

The Commission decided to include the topic in its programme of work, and to appoint Mr. Pavel Šturma as Special Rapporteur. The Commission considered the first report of the Special Rapporteur, at its 3374th to 3381st meetings, held from 13 to 25 July 2017. The report sought to set out the Special Rapporteur’s approach to the scope and outcome of the topic, and to provide an overview of general provisions relating to the topic. At the 3381st meeting, on 25 July 2017, the Commission decided to refer draft articles 1 to 4, as 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 articles 1 and 2 provisionally adopted by the Committee, which was submitted to the Commission for information. (see chap. IX)

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

It would assist the Commission if States could provide it with any relevant international agreements, national legislation or decisions of national courts related to succession in, or distribution of, rights and obligations arising from internationally wrongful acts of, or against, a predecessor State.

Cooperation with other bodies

  • The Chair of the Council of Europe Committee of Legal Advisers on Public International Law (CAHDI) and Director of the Legal Service of the Finnish Ministry for Foreign Affairs, Ms. Päivi Kaukoranta, and the Head of Public International Law and Treaty Division and Secretary to the CAHDI of the Directorate of Legal Advice and Public International Law of the Council of Europe, Ms. Marta Requena, addressed the Commission, at the 3371st meeting, held on 6 July 2017. An exchange of views followed.
  • The representatives of the African Union Commission on International Law, Ambassador Juliet Kalema and Professor Hajer Gueldich addressed the Commission, at the 3376th meeting, held on 18 July 2017. An exchange of views followed.
  • The Secretary-General of the Asian-African Legal Consultative Organization, Professor Kennedy Gastorn, addressed the Commission, at the 3377th meeting, held on 19 July 2017. An exchange of views followed.
  • The President of the Inter-American Juridical Committee, Mr. Hernán Salinas, addressed the Commission, at the 3379th meeting, held on 21 July 2017. An exchange of views followed.
  • The President of the International Court of Justice, Judge Ronny Abraham, addressed the Commission, at the 3380th meeting, held on 25 July 2017. An exchange of views followed.

Other business

Visit of the United Nations Legal Counsel

The United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement at the 3371st meeting, held on 6 July 2017, 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 include the topic “Succession of States in respect of State responsibility” in its programme of work and decided to appoint Mr. Pavel Šturma as Special Rapporteur for the topic. (see chap. XI, sect. A)

The Commission also established a Planning Group to consider its programme, procedures and working methods, which in turn decided to establish the Working Group on the long-term programme of work, under the chairmanship of Mr. Mahmoud Hmoud, and the Working Group on methods of work, under the chairmanship of Mr. Hussein Hassouna.  (see chap. XI, sect. B)

The Commission will hold a seventieth anniversary commemorative event during its seventieth session in 2018. The commemorative event under the theme “70 years of the International Law Commission — Drawing a balance for the future”, will be held in two parts, the first during the first part of its seventieth session, to be held in New York on 21 May 2018, and the second during the second part of its seventieth session, to be held in Geneva on 5 and 6 July 2018. (see chap. XI, sect. B)

New topics

The Commission decided to include in its long-term programme of work two new topics, namely (a) general principles of law; and (b) evidence before international courts and tribunals. (see chap. XI., sect. B.1 and annexes A and B) In the selection of those 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 welcomed the views of States on those new topics.

In addition, the Commission welcomed any proposals that States may wish to make concerning possible topics for inclusion in its long-term programme of work. The Commission considered  it 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.

The Commission noted that the commemoration of its seventieth anniversary to be held during its seventieth session in New York and Geneva would provide an opportunity for an exchange of views between States and members of the Commission on possible topics that could be considered by the Commission in the future.

Date and place of the seventieth session

The Commission decided that its seventieth session would be held in New York from 30 April to 1 June 2018 and in Geneva from 2 July to 10 August 2018. (see chap. XI, sect. C)

* In accordance with General Assembly resolution 71/140 of 13 December 2016, the topics “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to interpretation of treaties” are scheduled to be considered next at the seventieth session in 2018.