International Law Commission International Law Commission

Last update: September 19, 2018

Seventieth Session (2018)

In accordance with General Assembly resolution 72/116 of 7 December 2017, the International Law Commission held its seventieth session at United Nations Headquarters in New York from 30 April to 1 June 2018 and at the United Nations Office at Geneva from 2 July to 10 August 2018 (11 weeks).

Topics considered in 2018*

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

The Commission had before it the sixth report of the Special Rapporteur (A/CN.4/722), which was devoted to addressing procedural aspects of immunity from foreign criminal jurisdiction, in particular, analysing the way in which procedural aspects had been dealt with previously in the work of the Commission, how such procedural aspects fit within the overall boundaries of the present topic and the approach which the Special Rapporteur intended to follow when further analysing procedural aspects; and providing an analysis of three components of procedural aspects related to the concept of jurisdiction, namely: (a) timing; (b) kinds of acts affected; and (c) the determination of immunity. There were no draft articles proposed for consideration at the 2018 session. The debate of the Commission on the sixth report was partial and will be completed in 2019. (see chap. XI)

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

The Commission would welcome any information that States could provide on their national legislation and practice (of a judicial, administrative or any other nature) concerning procedures for dealing with immunity, in particular the invocation and waiver of immunity, as well as on mechanisms for communication, consultation, cooperation and international judicial assistance that they may use in relation to situations in which the immunity of State officials from foreign criminal jurisdiction is being or may be examined by their national authorities. Similarly, it would be useful to have any information that international organizations could provide on international cooperation mechanisms which, within their area of competence, may affect immunity of State officials from foreign criminal jurisdiction.

See also: Comments by Governments

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

At the present session, the Commission had before it the fifth report of the Special Rapporteur (A/CN.4/715), as well as comments and observations received from Governments (A/CN.4/712) on the draft conclusions adopted on first reading at the forty-eighth session in 2016.

At its 3396th meeting, held on 7 May 2018, the Commission instructed the Drafting Committee to commence the second reading of the entire set of draft conclusions on the basis of the proposals of the Special Rapporteur, taking into account the comments and observations of Governments and the debate in the plenary on the Special Rapporteur’s report.

The Commission considered the report of the Drafting Committee (A/CN.4/L.907) at its 3406th meeting, held on 18 May 2018, and adopted the entire set of draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties on second reading. The Commission subsequently adopted commentaries to the draft conclusions.

In accordance with article 23 of its statute, the Commission recommended that the General Assembly take note in a resolution of the draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, annex the draft conclusions to the resolution, and ensure their widest dissemination; and commend the draft conclusions, together with the commentaries thereto, to the attention of States and all who may be called upon to interpret treaties. (see chap. IV)

See also: Comments by Governments

Provisional application of treaties (Summary | Analytical Guide)

At the present session, the Commission had before it the fifth report of the Special Rapporteur (A/CN.4/718 + Add.1), in which he analysized the comments made by States and international organizations on the 11 draft guidelines provisionally adopted by the Commission at its sixty-ninth session, provided additional information on the practice of international organizations, and submitted two new draft guidelines, 5 bis and 8 bis, concerning reservations and termination or suspension, respectively, as well as eight draft  model clauses. The Commission also had before it the third memorandum prepared by the Secretariat (A/CN.4/707), reviewing State practice in respect of treaties (bilateral and multilateral), deposited or registered in the last 20 years with the Secretary-General, that provide for provisional application, including treaty actions related thereto.

At its 3409th meeting, on 22 May 2018, the Commission decided to refer draft guidelines 5 bis, 8 bis and the eight  draft model clauses, to the Drafting Committee, and instructed it to complete the first reading of the entire set of draft guidelines, including those adopted provisionally at the sixty-ninth session (2017), taking into account the comments and observations of Governments and the debate in the plenary on the Special Rapporteur’s report.

The Commission considered the report of the Drafting Committee (A/CN.4/L.910) at its 3415th meeting, held on 31 May 2018, and adopted draft guidelines 6 [7], 7 [5 bis], 9, 10, 11 and 12. The Commission proceeded to adopt the entire set of draft guidelines on provisional application of treaties, with commentaries, as the “draft Guide to Provisional Application of Treaties”, on first reading. The Commission further took note of the recommendation of the Drafting Committee that a reference be made in the commentaries to the possibility of including, during the second reading, a set of draft model clauses, based on a revised proposal that the Special Rapporteur would make at an appropriate time, taking into account the comments and suggestions made during both the plenary debate and in the Drafting Committee.

The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft guidelines, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 15 December 2019. (see chap. VII)

Identification of customary international law (Summary | Analytical Guide)

At the present session, the Commission had before it the fifth report of the Special Rapporteur (A/CN.4/717 + Add.1), an addendum to that report (A/CN.4/717/Add.1) providing an updated bibliography on the topic, as well as comments and observations received from Governments (A/CN.4/716) on the draft conclusions adopted on first reading at the forty-eighth session in 2016. The Commission also had before it a memorandum by the Secretariat on ways and means for making the evidence of customary international law more readily available (A/CN.4/710).

At its 3402nd meeting, held on 14 May 2018, the Commission referred draft conclusions 1 to 16 to the Drafting Committee, with the instruction that the Drafting Committee commence the second reading of the draft conclusions on the basis of the proposals of the Special Rapporteur, taking into account the comments and observations of Governments and the debate in the plenary on the Special Rapporteur’s report.

The Commission considered the report of the Drafting Committee (A/CN.4/L.908) at its 3412th meeting, held on 25 May 2018, and adopted the entire set of draft conclusions on identification of customary international law on second reading. The Commission subsequently adopted commentaries to the draft conclusions.

In accordance with article 23 of its statute, the Commission recommended that the General Assembly, inter alia, take note in a resolution of the draft conclusions on identification of customary international law, annex the draft conclusions to the resolution, and ensure their widest dissemination; commend the draft conclusions, together with the commentaries thereto, to the attention of States and all who may be called upon to identify rules of customary international law; and follow up the suggestions in the Secretariat memorandum. (see chap. V)

See also: Comments by Governments

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

At the present session, the Commission, at its 3426th meeting, held on 10 July 2018, adopted draft principles 4, 6, 7, 8, 14, 15, 16, 17 and 18 (A/CN.4/L.876), which had been taken note of at the sixty-eighth session (2016).

The Commission also had before it the first report of the Special Rapporteur, Ms. Marja Lehto (A/CN.4/720 + Corr.1). The report provided an overview of previous work on the topic, and debate held in the Sixth Committee of the General Assembly. It further considered the protection of the environment under the law of occupation; protection of the environment in situations of occupation through international human rights law; and the role of international environmental law in situations of occupation. Proposals were made for draft principles 6 (2) (Protection of the environment of indigenous peoples), 15 (Post-armed conflict environmental assessments and remedial measures), 16 (Remnants of war), 17 (Remnants of war at sea) and 18 (Sharing and granting access to information).

The Commission decided, at its 3431st meeting, on 17 July 2018, to refer the draft principles proposed in the first report of the Special Rapporteur to the Drafting Committee. The Commission subsequently received the report of the Drafting Committee (A/CN.4/L.911 ), and took note of draft principles 19 to 21, provisionally adopted by the Drafting Committee. Furthermore, the Commission provisionally adopted draft principles 4, 6 to 8, and 14 to 18, which had been provisionally adopted by the Drafting Committee at the sixty-eighth session, together with commentaries thereto. (see chap. IX)

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

The Commission considers as still relevant the request for information contained in chapter III of the report of its sixty-eighth session (2016) on this topic, and would welcome any additional information in this regard. Furthermore, the Commission would appreciate receiving any information States may be in the position to provide concerning responsibility, liability or reparation for harm caused to the environment in relation to armed conflict, inter alia case law or agreements or arrangements between the parties.

Protection of the atmosphere (Summary | Analytical Guide)

At the present session, the Commission had before it the fifth report of the Special Rapporteur (A/CN.4/711), in which the Special Rapporteur first addressed the question of implementation of the draft guidelines at the domestic level. In that regard, he underlined the various modes of such implementation depending on the nature of the obligations concerned, and considered extraterritorial application of domestic law. He also examined situations where there is a failure to implement the obligations concerned. Turning to the question of compliance at the international level, the Special Rapporteur explained that he favoured cooperative compliance mechanisms, meant to give assistance to a non-compliant party, over punitive or enforcement mechanisms based on the responsibility of States and intended to place penalties on the non-compliant party. The Special Rapporteur further considered the question of dispute settlement. In that connection, he emphasized both the need for the peaceful settlement of disputes and the need to take into account the scientific-heavy and fact-intensive character of environmental disputes, which leads to a requirement to assess scientific evidence and ensure that adequate rules of procedure apply to such disputes.

The Special Rapporteur proposed three additional draft guidelines concerning implementation (draft conclusion 10), compliance (draft conclusion 11) and dispute settlement (draft conclusion 12).

The Commission, at its 3413rd meeting, on 29 May 2018, decided to refer draft guidelines 10 to 12, as contained in the Special Rapporteur’s fifth report, to the Drafting Committee, taking into account the debate in the Commission.

After the Chair of the Drafting Committee presented the report of the Drafting Committee on the topic (A/CN.4/L.909), at the 3417th meeting held on 2 July 2018, the Commission considered the report and adopted the texts and titles of draft guidelines 2, as revised by the Drafting Committee, 10, 11 and 12. The Commission further adopted, on first reading, a draft preamble and the entire set of draft guidelines, including the draft guidelines adopted at its sixty-eighth (2016) and sixty-ninth (2017) sessions, as a whole as the “Guidelines on Protection of the Atmosphere”, with commentaries thereto.

The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft guidelines, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 15 December 2019. (see chap. VI)

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

At the present session, the Commission had before it the third report of the Special Rapporteur (A/CN.4/714), which considered the consequences and legal effects of peremptory norms of general international (jus cogens). On the basis of his analysis, the Special Rapporteur proposed thirteen draft conclusions. The Commission held its debate on the third report during the first and second parts of the session, and at the 3425th meeting, held on 9 July 2018, decided to refer draft conclusions 10 to 23 to the Drafting Committee.

The Commission took note of the interim reports of the Chair of the Drafting Committee on draft conclusions 8 and 9, as well as 10 to 14, provisionally adopted by the Committee, which were presented to the Commission for information only. (see chap. VIII)

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

The Commission considers as still relevant the request for information contained in chapter III of the report of its sixty-seventh session (2015) on the topic “Peremptory norms of general international law (jus cogens)”, and would welcome any additional information.

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

At the present session, the Commission had before it the second report of the Special Rapporteur, Mr. Pavel Šturma (A/CN.4/719). The report provided an outline of general approach (methodology) to the topic. It further discussed the legality of succession, and reviewed the general rules on succession of States in respect of State responsibility, particularly in relation to attribution and in relation to the difference between continuing and completed breaches. The report also discussed cases of succession where the predecessor State continued to exist and cases of succession where the predecessor State did not exist.

Following the debate in plenary, the Commission decided to refer draft articles 5 to 11, as contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft article 1, paragraph 2, and draft articles 5 and 6 provisionally adopted by the Committee, which was presented to the Commission for information only. (see chap. X)

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

The Commission would appreciate being provided by States with information on their practice relevant to the succession of States in respect of State responsibility. The Commission would particularly appreciate receiving examples of:

  • treaties, including relevant multilateral and bilateral agreements;
  • domestic law relevant to the topic, including legislation implementing multilateral or bilateral agreements;
  • decisions of domestic, regional and subregional courts and tribunals addressing issues involving the succession of States in respect of State responsibility.

Commemoration of the seventieth anniversary of the Commission

Under the overarching theme “70 years of the International Law Commission — Drawing a balance for the future”, the International Law Commission celebrated its seventieth anniversary in 2018, with events in New York and Geneva. During the segment held at United Nations Headquarters, New York, a keynote address was delivered by Mr. Nico Schrijver, Professor of Public International Law, Grotius Centre, Leiden University, and President of the Institut de Droit international, on 21 May 2018. H.E. Mr. Abdulqawi Yusuf, President of the International Court of Justice, delivered a further keynote address, at the Palais des Nations (United Nations Office at Geneva) on 5 July 2018 (see chap. XII)

Cooperation with other bodies

The Commission continued its traditional exchanges of information with the Inter-American Juridical Committee and the Committee of Legal Advisers on Public International Law of the Council of Europe. Members of the Commission also held an informal exchange of views with the International Committee of the Red Cross. (see chap. XIII, sect. E)

Other business

Visit of the United Nations Legal Counsel

The United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement at the 3398th meeting, held on 9 May 2018, 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 “General principles of law” in its programme of work and decided to appoint Mr. Marcelo Vázquez-Bermúdez as Special Rapporteur for the topic. (see chap. XIII, sect. A)

The Commission re-established a Planning Group to consider its programme, procedures and working methods, which in turn decided to re-establish the Working Group on the long-term programme of work, chaired by Mr. Mahmoud D. Hmoud, and the Working Group on methods of work, chaired by Mr. Hussein A. Hassouna (chap. XIII, sect. C). The Commission decided to include in its long-term programme of work the topics (a) Universal criminal jurisdiction and (b) Sea-level rise in relation to international law (see chap. XIII, sect. C.1, and annexes A and B). In the selection of its 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.

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

The Commission would welcome the views of States on those 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 seventy-first session

The Commission decided that its seventy-first session would be held in Geneva from 29 April to 7 June and from 8 July to 9 August 2019.

* In accordance with General Assembly resolution 72/116 of 7 December 2017, the topic “Crimes against humanity” is scheduled to be considered next at the seventy-first session in 2019.