International Law Commission International Law Commission

Last update: October 29, 2019
#ILC_2019

Seventy-first Session (2019)

In accordance with General Assembly resolution 73/265 of 22 December 2018, the International Law Commission held its seventy-first session at the United Nations Office at Geneva from 29 April to 7 June and from 8 July to 9 August 2019 (11 weeks).

Topics considered in 2019

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

The Commission had before it the sixth (A/CN.4/722) and the seventh (A/CN.4/729) reports of the Special Rapporteur, which were devoted to addressing procedural aspects of immunity from foreign criminal jurisdiction. In particular, the sixth report, on which the debate was not completed at the seventieth session in 2018, provided 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. The seventh report completed the examination of the procedural aspects of immunity regarding the relationship between jurisdiction and the procedural aspects of immunity; addressed questions concerning the invocation of immunity and the waiver of immunity; examined aspects concerning procedural safeguards related to the State of the forum and the State of the official, considered the procedural rights and safeguards of the official, and proposed nine draft articles. Following the debate in plenary, the Commission decided to refer draft articles 8 to 16 to the Drafting Committee, taking into account the debate and proposals made in plenary. The Commission received and took note of the interim report of the Chair of the Drafting Committee on draft article 8 ante (A/CN.4/L.940), which was presented to the Commission for information only (chap. VIII).

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

The Commission welcomed any information that States could provide on the existence of manuals, guidelines, protocols or operational instructions addressed to State officials and bodies that were competent to take any decision that could affect foreign officials and their immunity from criminal jurisdiction in the territory of the forum State.

See also: Comments by Governments

Crimes against humanity (Summary | Analytical Guide)

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/725 and Add.1), as well as comments and observations received from Governments, international organizations and others (A/CN.4/726, Add.1 and Add.2). The fourth report addressed the comments and observations made by Governments, international organizations and others on the draft articles and commentaries adopted on first reading and made recommendations for each draft article.

The Commission adopted, on second reading, the entire set of draft articles on prevention and punishment of crimes against humanity, comprising a draft preamble, 15 draft articles and a draft annex, together with commentaries thereto. The Commission decided, in conformity with article 23 of its statute, to recommend the draft articles on prevention and punishment of crimes against humanity to the General Assembly. In particular, the Commission recommended the elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles (chap. IV).

See also: Comments by Governments

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

The Commission had before it the second report of the Special Rapporteur (A/CN.4/728), which discussed questions related to the protection of the environment in non-international armed conflicts, and matters related to responsibility and liability for environmental damage. Following the plenary debate, the Commission decided to refer the seven draft principles, as proposed by the Special Rapporteur in her second report, to the Drafting Committee.

As a result of its consideration of the topic at the present session, the Commission adopted, on first reading, 28 draft principles, together with commentaries thereto, on protection of the environment in relation to armed conflicts. The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft principles, through the Secretary-General, to Governments, international organizations, including from the United Nations and its Environment Programme, and others, including the International Committee of the Red Cross and the Environmental Law Institute, for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2020 (chap. VI).

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

The Commission had before it the fourth report of the Special Rapporteur (A/CN.4/727), which discussed the question of the existence of regional jus cogens and the inclusion of an illustrative list, based on norms previously recognized by the Commission as possessing a peremptory character. Following the plenary debate, the Commission decided to refer the draft conclusion proposed in the fourth report to the Drafting Committee.

The Commission subsequently adopted, on first reading, 23 draft conclusions and a draft annex, together with commentaries thereto, on peremptory norms of general international law (jus cogens). 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 December 2020 (chap. V).

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

The Commission had before it the third report of the Special Rapporteur (A/CN.4/731), which addressed introductory issues, including certain general considerations, questions of reparation for injury resulting from internationally wrongful acts committed against the predecessor State as well as its nationals, and technical proposals in relation to the scheme of the draft articles. Following the debate in plenary, the Commission decided to refer draft articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the titles of Part Two and Part Three, as contained in the third report of the Special Rapporteur, to the Drafting Committee. Upon its consideration of a first report of the Drafting Committee, the Commission provisionally adopted draft articles 1, 2 and 5, with commentaries thereto. Furthermore, the Commission took note of the interim report of the Chair of the Drafting Committee on draft articles 7, 8 and 9 provisionally adopted by the Committee, which was presented to the Commission for information only (chap. VII).

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

The Commission considered as still relevant the request for information contained in chapter III of the report of its seventieth session (2018) on the topic “Succession of States in respect of State responsibility”, and welcomed any additional information.

See also: Comments by Governments

General principles of law (Summary | Analytical Guide)

The Commission had before it the first report of the Special Rapporteur (A/CN.4/732), which addressed the scope of the topic and the main issues to be addressed in the course of the work of the Commission. The report also addressed previous work of the Commission related to general principles of law and provided an overview of the development of general principles of law over time, as well as an initial assessment of certain basic aspects of the topic and future work on the topic. Following the debate in plenary, the Commission decided to refer draft conclusions 1 to 3, 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 conclusion 1 provisionally adopted by the Committee, which was presented to the Commission for information only (chap. IX).

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

The Commission requested States to provide information on their practice relating to general principles of law, in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice, including as set out in:

  • decisions of national courts, legislation and any other relevant practice at the domestic level;
  • pleadings before international courts and tribunals;
  • statements made in international organizations, international conferences and other forums; and
  • treaty practice.

Sea-level rise in relation to international law (Summary | Analytical Guide)

The Commission decided to include the topic in its programme of work and established a Study Group, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and Mr. Juan José Ruda Santolaria. The Study Group held one meeting, at which time it agreed on its composition, methods and programme of work, based on the three subtopics identified in the syllabus. The Commission subsequently took note of the joint oral report of the Co-Chairs of the Study Group (chaps. X and XI, sect. B).

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

The Commission welcomed any information that States, international organizations and the International Red Cross and Red Crescent Movement could provide on their practice and other relevant information concerning sea-level rise in relation to international law.

At the seventy-second session (2020), the Study Group will focus on the subject of sea-level rise in relation to the law of the sea. In this connection, the Commission appreciated receiving, by 31 December 2019, examples from States of their practice that could be relevant (even if indirectly) to sea-level rise or other changes in circumstances of a similar nature. Such practice could, for example, relate to baselines and where applicable archipelagic baselines, closing lines, low-tide elevations, islands, artificial islands, land reclamation and other coastal fortification measures, limits of maritime zones, delimitation of maritime boundaries, and any other issues relevant to the subject. Relevant materials could include:

  • bilateral or multilateral treaties, in particular maritime boundary delimitation treaties;
  • national legislation or regulations, in particular any provisions related to the effects of sea-level rise on baselines and/or more generally on maritime zones;
  • declarations, statements or other communications in relation to treaties or State practice;
  • jurisprudence of national or international courts or tribunals and outcomes of other relevant processes for the settlement of disputes related to the law of the sea;
  • any observations in relation to sea-level rise in the context of the obligation of States parties under the United Nations Convention on the Law of the Sea to deposit charts and/or lists of geographical coordinates of points; and
  • any other relevant information, for example, statements made at international forums, as well as legal opinions, and studies.

The Commission further welcomed receiving in due course any information related to statehood and the protection of persons affected by sea-level rise, as outlined in the syllabus of the topic, both of which will be considered by the Study Group during the seventy-third session (2021) of the Commission.

Cooperation with other bodies

  • The Chair of the Committee of Legal Advisers on Public International Law (CAHDI), Mr. Petr Válek, and the Head of the Council of Europe’s Public International Law Division and Secretary to the Council of Europe Committee of Legal Advisers of Public International Law (CAHDI), Ms. Marta Requena, addressed the Commission, at the 3472nd meeting, held on 31 May 2019. An exchange of views followed.
  • The President of the Inter-American Juridical Committee, Ms. Ruth Correa Palacio, addressed the Commission, at the 3477th meeting, held on 10 July 2019. An exchange of views followed.
  • The President of the International Court of Justice, Judge Abdulqawi A. Yusuf, addressed the Commission, at the 3478th meeting, held on 11 July 2019. An exchange of views followed.
  • The Secretary-General of the Asian-African Legal Consultative Organization, Mr. Kennedy Gastorn, addressed the Commission, at the 3485th meeting, held on 18 July 2019. An exchange of views followed.
  • The representatives of the African Union Commission on International Law, Commissioner Kathleen Quartey Ayensu and Commissioner Sindiso H. Sichone addressed the Commission, at the 3486th meeting, held on 19 July 2019. An exchange of views followed.

Other business

Video conference with the United Nations Legal Counsel

The United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement by video conference at the 3473rd meeting, held on 4 June 2019, 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 took note of an oral report of the Special Rapporteur on the topic “Provisional application of treaties”, Mr. Juan Manuel Gómez Robledo, on the informal consultations convened to consider the draft model clauses on provisional application of treaties, and decided to annex the Special Rapporteur’s revised proposal for the draft model clauses to the report, with a view to seeking comments from Governments in advance of the commencement of the second reading of the draft Guide to Provisional Application of Treaties at the seventy-second session of the Commission (chap. XI, sect. A, and annex 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. XI, sect. D). The Commission decided to include in its long-term programme of work the topics: (a) “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”; and (b) “Prevention and repression of piracy and armed robbery at sea” (chap. XI, sect. D, and annexes B and C)

Date and place of the seventy-second session

The Commission decided that its seventy-second session would be held in Geneva from 27 April to 5 June and from 6 July to 7 August 2020.