International Law Commission International Law Commission

Last update: January 12, 2016

About the Commission

Organization, programme and methods of work

Structure of the Commission

Officers

At the beginning of each session, the Commission elects from among its members the Chairman, the First and Second Vice-Chairmen, the Chairman of the Drafting Committee1 and the General Rapporteur for that session.2 The Chairman presides over the meetings of the plenary, the Bureau and the Enlarged Bureau.3 A vice-chairman has the same powers and duties as the Chairman when designated to take the place of the Chairman.4 The Chairman of the Drafting Committee presides over the meetings of the Drafting Committee; recommends the membership of the Drafting Committee for each topic; and introduces the report of the Drafting Committee when it is considered in plenary. The Rapporteur is responsible for the drafting of the Commission’s annual report to the Assembly. The Commission has emphasized that the Rapporteur should play an active part in the preparation of the report (which is undertaken by the Secretariat) 5.

Bureau, Enlarged Bureau and Planning Group

At each session, the Bureau, consisting of the five officers elected at that session, considers the schedule of work and other organizational matters with respect to the current session. The Enlarged Bureau, consisting of the officers elected at the current session, the former Chairmen of the Commission who are still members and the Special Rapporteurs, may also be called upon to consider issues relating to the organization, programme and methods of the Commission’s work.

Since the 1970s, the Commission has established a Planning Group6 for each session and entrusted it with the task of considering the programme and methods of work of the Commission. Since 1992, the Planning Group has established a Working Group on the Long-Term Programme which is entrusted with the task of recommending topics for inclusion in the Commission’s programme of work. The Working Group has been reconstituted with the same Chairman and membership during the remaining sessions of the quinquennium. The Planning Group may also establish a Working Group to review and consider ways of improving the methods of work of the Commission on the basis of a request by the General Assembly or on the Commission’s own initiative.

Plenary

The Commission meets in plenary primarily to consider the reports of Special Rapporteurs, working groups, the Drafting Committee, the Planning Group as well as any other matters that may require consideration by the Commission as a whole. The Commission also decides in plenary to refer proposed draft articles to the Drafting Committee and to adopt provisional or final draft articles and commentaries.7 At the end of each session, the Commission considers and adopts in plenary its annual report to the General Assembly.

The primary role of the general debate in plenary is to establish the broad approach of the Commission to a topic for the primary purpose of providing guidance to the Commission, its subsidiary organs and Special Rapporteurs on the directions to be taken.8 This is essential to ensure that subsidiary organs, such as the Drafting Committee or a working group, are working along lines broadly acceptable to the Commission as a whole. The Commission has indicated that the Chairman of the Commission should, whenever possible, indicate the main trends of opinion revealed by the debate in plenary to facilitate the task of the Drafting Committee.9 The Commission has also recommended that the plenary debates should be reformed to provide more structure and to allow the Chairman to make an indicative summary of conclusions at the end of the debate,10 based if necessary on an indicative vote.11

At its forty-ninth session, in 1997, the Commission introduced the practice of short, thematic debates or exchanges of views in plenary on particular issues or questions raised during the consideration of a topic, the so-called “mini-debates”, in order to facilitate a more focused debate on particular issues.12 At its fifty-fourth session, in 2002, the Commission expressed the view that the “mini-debates” were useful and constituted an important innovation in its working methods. The Commission emphasized, however, that a mini-debate should be brief, focused and not include long statements falling outside its scope.13

The Commission holds its plenary meetings in public14 unless it decides otherwise, in particular when dealing with certain organizational or administrative matters.15 The Commission’s decisions on substantive and procedural matters are taken in plenary or, if such decisions are reached in a private meeting or informal consultations, announced by the Chairman in plenary.16

Special Rapporteurs

The role of the Special Rapporteur is central to the work of the Commission.17 Although the Statute only envisages the appointment of a Special Rapporteur in the case of progressive development (article 16 (a)), the practice of the Commission has been to appoint a Special Rapporteur at the early stage of the consideration of a topic, where appropriate, without regard to whether it might be classified as one of codification or progressive development.18 The functions of the Special Rapporteur continue until the Commission has completed its work on the topic, provided that he or she remains a member of the Commission.19 In the event that it becomes necessary to appoint a new Special Rapporteur, the Commission usually suspends its work on the topic for an appropriate period of time to enable the newly appointed Special Rapporteur to perform the tasks required depending on the stage of work on the topic.

Special Rapporteurs are one of the institutional features of the Commission which contribute to the efficient performance of its functions and which have served it well.20 The Special Rapporteur performs a number of key tasks, including preparing reports on the topic, participating in the consideration of the topic in plenary, contributing to the work of the Drafting Committee on the topic, and elaborating commentaries to draft articles.

The Special Rapporteur marks out and develops the topic, explains the state of the law and makes proposals for draft articles in the reports on the topic.21 The reports of Special Rapporteurs form the very basis of work for the Commission and constitute a critical component of the methods and techniques of work of the Commission established in its Statute.22 The Commission has recommended that Special Rapporteurs specify the nature and scope of work planned for the next session to ensure that future reports meet the needs of the Commission as a whole and that reports be available to members sufficiently in advance of the session to enable study and reflection.23 The Commission has also recommended that a consultative group be appointed by the Commission to provide input on the general direction of the report and on any particular issues the Special Rapporteur wishes to raise.24 The Special Rapporteur usually introduces the report at the beginning of the Commission’s consideration of the topic in plenary, responds to questions raised during the debate, makes concluding remarks summarizing the main issues and trends at the end of the debate, and, where appropriate, gives a recommendation as to the referral of any draft articles to the Drafting Committee or a Working Group.25

The role of the Special Rapporteur with respect to the Drafting Committee comprises the following elements: (a) to produce clear and complete draft articles; (b) to explain the rationale behind the draft articles currently before the Drafting Committee; and (c) to reflect the view of the Drafting Committee in revised draft articles and/or commentary.26 The Special Rapporteurs should prepare commentaries to draft articles on their respective topics which are as uniform as possible in presentation and length.27 The Special Rapporteurs should also, as far as possible, produce draft commentaries or notes to accompany their draft articles and revise them in the light of changes made by the Drafting Committee to ensure their availability at the time of the debate of the draft articles in plenary.28 The Special Rapporteur may also draft other working documents of the Commission and the Drafting Committee, as required by the Commission’s progress of work on the topic.

Working groups

The Commission has made use of working groups, sometimes called subcommittees, study groups or consultative groups, on particular topics.29 These ad hoc subsidiary bodies have been established by the Commission or by the Planning Group for different purposes and with different mandates.30 They may be of limited membership or open-ended.31

The Commission has established working groups on new topics before appointing a Special Rapporteur to undertake preliminary work or to help define the scope and direction of work, including: formulation of the Nürnberg principles (1949); succession of States and Governments (1962–1963); question of treaties concluded between States and international organizations or between two or more international organizations (1970–1971); the law of the non-navigational uses of international watercourses (1974); status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier (1977–1979); international liability for injurious consequences arising out of acts not prohibited by international law (1978 and 2002 (second part of the topic); jurisdictional immunities of States and their property (1978); diplomatic protection (1997); and unilateral acts of States (1997) and the most-favoured-nation clause (2007).32

The Commission has also established working groups after appointing a Special Rapporteur33 to consider specific issues or to determine the direction of the future work on a particular topic or sub-topic, including: arbitral procedure (1957); State responsibility (1962–1963, 1997, 1998 and 200134); relations between States and international organizations (1971 (first part of the topic) and 1992 (second part of the topic)35); draft code of crimes against the peace and security of mankind (1982 and 1995–1996); international liability for injurious consequences arising out of acts not prohibited by international law (1992, 1995, 1996 and 1997 (the topic as a whole, 1998 and 2000 (prevention aspect of the topic) and 2003 and 2004 (liability aspect of the topic)); unilateral acts of States (1998–2001 and 2003–2006); nationality in relation to the succession of States (1995–1996 and 1999 (first part of the topic) and 1998 (second part of the topic)); diplomatic protection (1998 and 2003); responsibility of international organizations (2002, 2003,36 2005 and 2008); shared natural resources (2002, 2004–2007, 2009–2010) effects of armed conflicts on treaties (2007–2008), expulsion of aliens (2008) and the obligation to extradite or prosecute (aut dedere aut judicare) (2008–2010).37

The Commission has further established working groups to handle a topic as a whole, inter alia, in case of urgency, including: question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law (1972); review of the multilateral treaty-making process (1978–1979); draft code of crimes against the peace and security of mankind (draft Statute for an International Criminal Court) (1990 and 1992–1994); and jurisdictional immunities of States and their property (1999).38

The Commission established a “study group” for the first time, at its fifty-fourth session, in 2002, for the topic “Fragmentation of international law” (2002–2006) in recognition of the uniqueness of the topic which lent itself more to the undertaking of a research study, as opposed to the formulation of draft articles.39 Study groups have since also been established for the topics “The most-favoured-nation clause” (2009–2011) and “Treaties over time” (2009–2011), for the same reasons.40 Study groups should aim to achieve concrete outcomes in accordance with the mandate of the Commission and within a reasonable time.41 While study groups have thusfar undertaken their work under the guidance of their respective Chairpersons,42 without Special Rapporteurs, the Commission is free to consider the possibility of replacing a study group through the appointment of a Special Rapporteur as the topic progresses, as appropriate.43

Whereas the Drafting Committee works on texts of articles prepared by a Special Rapporteur, a working group begins its work at an earlier stage when ideas are still developing and thus is more closely involved in the formulation of an approach and drafts.44 Such a working group may continue its work over several sessions, with substantial continuity of membership, while the composition of the Drafting Committee changes from year to year.45 In some cases, a working group may be entrusted with the task of undertaking a thorough substantive consideration of a topic.46 If the working group has undertaken careful drafting, the final product is submitted directly to the Commission in plenary, not to the Drafting Committee, to avoid duplication or even mistakes which may be made if members of the Drafting Committee have not been party to the detailed discussion which underlies a particular text. In some cases, however, the Drafting Committee may have a role in engaging in a final review of a text from the perspective of adequacy and consistency of language.47 Alternatively, working groups have also been established, as an interim step, to prepare a revised version of a draft article (or guidance regarding the formulation of a draft article), which is subsequently referred to the Drafting Committee. In those instances,48 it is the text of the Working Group and not the proposal of the Special Rapporteur which is referred to the Drafting Committee. Working groups have also been established to consider the feasability of work on a certain topic.49

Such flexibility in the mandates of the working groups (ranging from focusing on specific, sometimes procedural, issues to a more thoroughly substantive consideration of a topic) allows the Commission to tailor its working methods to the needs of the topic at hand, thereby enhancing its overall efficiency.

Whatever its mandate, a working group is always subordinate to the Commission, the Planning Group or other Commission organ which established it. It is for the relevant organ to issue the necessary mandate, to lay down the parameters of any study, to review and, if necessary, modify proposals, and to make a decision on the product of the work.50

In 1996, the Commission recommended that working groups be more extensively used to resolve particular disagreements and, in appropriate cases, to expeditiously deal with whole topics; in the latter case normally acting in place of the Drafting Committee51.

Drafting Committee

Since its first session, the Commission has made use of a Drafting Committee,52 the composition of which has been progressively enlarged to take account of the increase in the size of the Commission. The membership of the Drafting Committee varies from session to session and, since 1992, from topic to topic at any given session, although it continues to be a single body exercising its functions under one Chairman.53 The Special Rapporteur serves as a member of the Drafting Committee on his or her topic. As a member of the Commission, a Special Rapporteur is not precluded from serving as a member of the Drafting Committee on another topic. The General Rapporteur participates ex officio in the work of the Drafting Committee on all topics. The Drafting Committee is also constituted so as to provide equitable representation of the principal legal systems and the various languages54 of the Commission within limits compatible with its drafting responsibilities.55

The Drafting Committee plays an important role in harmonizing the various viewpoints and working out generally acceptable solutions.56 The Drafting Committee is entrusted not only with purely drafting points but also with points of substance which the full Commission has been unable to resolve or which seemed likely to give rise to unduly protracted discussion.57 However, issues which proved difficult to overcome in the Drafting Committee may be transferred to a more informal setting such as a working group.58 In practice, the Commission usually does not take a vote in the Commission at the end of its first discussion of a particular article, and leaves it to the Drafting Committee to try to draft a generally satisfactory text on the question. The Drafting Committee’s proposals have very often been adopted unanimously by the Commission, sometimes without discussion. However, the Drafting Committee’s texts are subject to amendments or alternative formulations submitted by members of the Commission and may be referred back to the Committee for further consideration.59 The Commission has noted that premature referral of draft articles to the Drafting Committee, and excessive time-lags between such referral and actual consideration of draft articles in the Committee, have counter-productive effects.60

The report of the Chairman of the Drafting Committee to the Commission in plenary provides a detailed summary of its work on each topic, including an explanation of the draft articles that have been adopted by the Drafting Committee and are submitted for consideration and adoption by the Commission in plenary.61

1 Since 1974, the Commission has elected the Chairman of the Drafting Committee. Previously, the First Vice-Chairman of the Commission also served as Chairman of the Drafting Committee. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 45.

2 In accordance with the practice of the Commission, the posts of Chairman and the other four officers have been rotated among nationals of the various regional groups.

3 The functions of the Chairman are described in greater detail in rule 106 of the Rules of Procedure of the General Assembly.

4 See rule 105 of the Rules of Procedure of the General Assembly.

5 See Yearbook of the International Law Commission, 1992, vol. II (Part Two), para. 373 (a).

6 In the early years, the Commission established the Planning Group in the Enlarged Bureau which reviewed its report. More recently, the Commission has adopted the practice of establishing the Planning Group more frequently, under the chairmanship of the First Vice-Chairman, and as a subsidiary body of the Commission to which it reports directly.

7 The Commission has decided that the commentaries to draft articles should be considered in plenary as soon as possible during each session and separately from the Commission’s annual report. See Yearbook of the International Law Commission, 1994, vol. II (Part Two), para. 399. Notwithstanding this, since the 1990’s, the practice of the Commission, largely for practical reasons, has been to consider and adopt commentaries as part of the process of the adoption of its annual report.

8 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 202 and 204.

9 See Yearbook of the International Law Commission, 1987, vol. II (Part Two), para. 239.

10 See also the discussion below of the possible role of the Special Rapporteur in this respect.

11 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (i) and 202–211.

12 Under the “mini-debate” arrangement, the Chairman is authorized to deviate from the established list of speakers on a topic in order to allow members to respond to or comment on a statement made by a speaker in the “general debate”. The speaker whose statement gave rise to the “mini-debate” is usually afforded the opportunity to participate during, and to respond at the end of, the mini-debate.

13 See Yearbook of the International Law Commission, 2002, vol. II (Part Two), para. 523.

14 See rule 60 of the Rules of Procedure of the General Assembly.

15 See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 8.

16 This is similar to the practice followed by the General Assembly. See rule 61 of the Rules of Procedure of the General Assembly. The summary records of the plenary meetings of the Commission are published in the Commission’s Yearbook (in volume I). In addition, the major decisions taken in plenary are summarized in the relevant chapters of the Commission’s annual report to the General Assembly. See ibid. The annual report also contains a summary of the debate on each topic held in plenary, except when the Commission adopts draft articles and commentaries (which reflect the position of the entire Commission, and take precedence over the individual views of its members as reflected in the debate).

17 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 185–201.

18 In practice special rapporteurships tend to be distributed among members from different regions. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 185 and 186. The Commission has appointed one of its members to serve as Special Rapporteur for most of the topics on its agenda, with the exception of the appointment of two Special Rapporteurs for the topic “Question of international criminal jurisdiction”, one Special Rapporteur for the topics “Formulation of the Nürnberg principles” and “Draft Code of Offences”, and one Special Rapporteur for the topics “Regime of the high seas” and “Regime of territorial waters”. No Special Rapporteurs were appointed for the following topics: fundamental rights and duties of States; extended participation in general multilateral treaties concluded under the auspices of the League of Nations; question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law; review of the multilateral treaty-making process; fragmentation of international law; the most-favoured-nation clause (second part of the topic); and treaties over time. In some instances, the Chairman of a Working Group has undertaken some of the functions typically performed by a Special Rapporteur. For example, the Chairman of the Study Group on the fragmentation of international law finalized a detailed study on the topic to serve as a companion document to a set of conclusions adopted by the Study Group. See Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 237.

19 The Special Rapporteur for State responsibility, Roberto Ago, resigned from the Commission upon his election to the International Court of Justice in 1978. The Chairman of the Commission sent a letter to the President of the Court requesting that Judge Ago continue to be available to the Commission in his private capacity in order to assist it in finalizing the first part of its draft on State responsibility. The Court acceded to the request in order to facilitate the Commission’s work on State responsibility on the understanding that Judge Ago would be available in an individual and personal capacity to assist the Commission in its consideration of the few remaining articles of a draft of which he himself had been the prime author; there was no question of his being appointed, designated or given any official title such as “expert consultant”; and priority would have to be given to his judicial duties. Mr. Ago attended the thirty-first and thirty-second sessions of the Commission, in 1979 and 1980, respectively. In 1979, he introduced to the Commission and commented on his eighth report. In 1980, he presented to the Commission the addendum to his eighth report. See Yearbook of the International Law Commission, 1979, vol. II (Part Two), para. 69, and ibid., 1980, vol. II (Part Two), para. 28. The Special Rapporteur for the law of the non-navigational uses of international watercourses, Stephen M. Schwebel, after his resignation from the Commission in 1981, continued and completed his research for the third report on the topic which he had begun to prepare prior to his resignation from the Commission. See ibid., 1982, vol. II (Part Two), para. 251. Upon being appointed Director of the Codification Division (and Secretary of the Commission), Vaclav Mikulka, the Special Rapporteur for the topic of Nationality in relation to the succession of States, resigned from the Commission prior to its fifty-first session, in 1999. His analysis of the comments and observations of Governments on the draft articles on Nationality of natural persons in relation to the succession of States adopted on first reading, in 1997, was subsequently issued as a Secretariat memorandum (see document A/CN.4/497) which was submitted to the Commission at its 1999 session. See ibid., 1999, vol. II (Part Two), para. 40. The Commission considered a working paper on oil and gas (see document A/CN.4/608) prepared by Chusei Yamada, the Special Rapporteur on Shared Natural Resources, at its sixty-first session, in 2009, even though he had resigned from the Commission prior to the opening of that session. See Official Records of the General Assembly, Sixty-fourth session, Supplement No. 10 (A/64/10), paras. 187–193.

20 See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 104.

21 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 188. The reports of the Special Rapporteurs are reproduced in the Yearbook of the Commission.

22 See Yearbook of the International Law Commission, 1982, vol. II (Part Two), para. 271.

23 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (f), 189 and 190. The Commission has emphasized on several occasions the importance it attaches to the timely submission of reports by the Special Rapporteur in view of their processing and distribution and to allow members to study the reports in advance. See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), para. 498 and ibid., Sixty-first Session, Supplement No. 10 (A/61/10), para. 262. On occasion, Special Rapporteur reports, or addenda thereto, are submitted during a session in response to a development in the debate. For example, in 2004, in response to a question that arose during the plenary debate, the Special Rapporteur on the topic “diplomatic protection” submitted a memorandum, which was subsequently issued as his sixth report, on the relevance of the “clean hands” doctrine to diplomatic protection. See ibid., Fifty-ninth Session, Supplement No. 10 (A/59/10), para. 54.

24 The Commission further recommended that the principle of a consultative group should be recognized, without any distinction being drawn between codification and progressive development, in any revision of the Statute. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 148 (g) and 191–195. The extent to which such mechanism is resorted to in practice depends on the Special Rapporteur, and, to some degree, on the complexity of the topic. Some Special Rapporteurs prefer to work on their own with minimal guidance. Other Special Rapporteurs do on occasion seek the input, even if informally, of some of their colleagues. In some instances such guidance is sought within the framework of “informal consultations”. For example, an informal consultation was held at the 2002 session to provide the Special Rapporteur for the topic “Diplomatic protection” with guidance on the question of the diplomatic protection of crews as well as that of corporations and shareholders. See ibid., 2002, vol. II (Part Two), para. 113. In other instances such a consultative group is constituted in the more formal setting of a Working Group (as discussed in the next section). For example, in 2001, the Commission established a Working Group to provide the Special Rapporteur on State responsibility with guidance as to the approach to be taken in the commentaries to the draft articles on responsibility of States for internationally wrongful acts. See ibid., 2001, vol. II (Part Two), para. 43.

25 In 2011, the Commission adopted some additional guidelines for Special Rapporteurs. See Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/66/10 and Add.1), para. 372.

26 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 200. In 2011, the Commission recommended that the practice of leaving the formulation of commentaries to the Special Rapporteurs alone, and discussing them only at the time of the adoption of the Commission’s annual report, should be reconsidered. It proposed that Special Rapporteurs prepare draft commentaries as soon as possible after the adoption of the draft articles, with a view to having them, or elements thereof, considered and provisionally approved by the Drafting Committee. See Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/66/10 and Add.1), paras. 379–381.

27 See Yearbook of the International Law Commission, 1995, vol. II (Part Two), para. 508 and Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/66/10 and Add.1), para. 382. The main function of a commentary is to explain the text itself, with appropriate references to key decisions, doctrine and State practice to indicate the extent to which the text reflects, develops or extends the law. Generally speaking it is not the function of such commentary to reflect disagreements on the text as adopted on second reading which can be done in the Commission in plenary at the time of final adoption of the text and reflected in the Commission’s report. See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 198.

28 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 148 (h).

29 In practice, “working groups”, “subcommittees” and “study groups” enjoy a more formal status, in terms of procedure, issuance of documentation, structure of the entity’s report to the Commission, than consultative groups which have included “informal consultations” for which, for example, linguistic interpretation services are not typically provided.

30 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 217.

31 The names of members of groups of limited membership are listed in the report of the Commission on the session at which a group is established.

32 In most cases, the chairman of such a working group has been appointed subsequently by the Commission as the Special Rapporteur for the topic.

33 This type of group is envisaged with respect to progressive development in article 16 (d) and (i) of the Statute.

34 The Commission established two working groups on this topic in 2001.

35 This working group was established by the Planning Group of the Enlarged Bureau.

36 The Commission established two working groups on this topic in 2003.

37 These working groups have usually been chaired by the Special Rapporteur assigned to the topic, with some exceptions. For example, the Working Group established for the topic “Unilateral acts of States” was chaired by the Special Rapporteur in only three (1999–2001) of its eight years of existence. Indeed, for the last four years of its existence (2003–2006), the working group was, exceptionally, chaired by the Special Rapporteur for another topic, albeit not in that capacity. Likewise, the working groups on a draft statute for an international criminal court (in 1993 and 1994), shared natural resources (2005–2007 and 2009–2010), effects of armed conflicts on treaties (2007–2008), expulsion of aliens (2008), and the obligation to extradite or prosecute (aut dedere aut judicare) (2008–2010) were also chaired by Commission members other than the relevant Special Rapporteur. The Chairman of the Working Group on the Effects of Armed Conflicts on Treaties was subsequently appointed Special Rapporteur for the topic, following the resignation of the initial Special Rapporteur.

38 These working groups are usually of substantial size and no Special Rapporteur is appointed.

39 See Yearbook of the International Law Commission, 2002, vol. II (Part Two), paras. 493 and 510.

40 See Official Records of the General Assembly, Sixty-fourth session, Supplement No. 10 (A/64/10), paras. 209 and 218, respectively.

41 Ibid., Sixty-sixth session, Supplement No. 10 (A/66/10 and Add.1), para. 373.

42 Two co-chairmen were appointed in 2009 to chair the Study Group on The Most-favoured-nation Clause. See ibid., Sixty-fourth session, Supplement No. 10 (A/64/10), para. 209.

43 Ibid., Sixty-sixth session, Supplement No. 10 (A/66/10 and Add.1), para. 373.

44 For instance, the working group that elaborated the statute for an international criminal court began by focusing on some basic propositions on which agreement could be reached, before even attempting to draft any articles.

45 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 217. A distinction between the Drafting Committee and a Working Group also exists at the level of mandate and procedure. While the Drafting Committee focuses primarily on questions of drafting, working groups tend to enjoy broader mandates involving the consideration of matters of substance. At the level of procedure, the Drafting Committee follows a more formal procedure, involving the submission of a written report and a detailed oral statement by its Chairman. Working groups tend to adopt more flexible working methods, depending on the nature of the task at hand. Likewise, the reporting procedure for working groups is more flexible, with no requirement that they be in writing, nor that there be a detailed exposition of the decisions taken by the group.

46 For example, the first reading of the draft articles on the law of transboundary aquifers, adopted at the fifty-eighth session, in 2006, in the context of the topic “Shared natural resources”, was (owing to the technical nature of the topic) undertaken largely with the assistance of an open-ended working group (see Part III.A, section 30).

47 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 218.

48 For example, at its fifty-fifth session, in 2003, the Commission established an open-ended Working Group for the topic “Responsibility of international organizations”, in order to consider draft article 2, as proposed by the Special Rapporteur. A revised draft of the provision, prepared by the Working Group, was subsequently referred to the Drafting Committee. See ibid., 2003, vol. II (Part Two), paras. 47–48. Likewise, the Drafting Committee on international liability for injurious consequences arising out of acts not prohibited by international law, established at the fifty-sixth session, in 2004, had before it a draft prepared by a Working Group established that session to consider the proposals of the Special Rapporteur. See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), paras. 170–171. A similar function was performed by an open-ended informal consultation established at the fifty-second and fifty-third sessions, in 2000 and 2001, for the topic “Diplomatic protection”, in order to consider the Special Rapporteur’s proposals for specific draft articles. In both instances, it was the text formulated, or guidance developed, in the “informal consultation” which was referred to the Drafting Committee. See Yearbook of the International Law Commission, 2000, vol. II (Part Two), para. 412 and 495; and ibid., 2001, vol. II (Part Two), para. 166. Likewise, the working group on the effects of armed conflicts on treaties was established, at the fiftyninth and sixtieth sessions, to consider, inter alia, the Special Rapporteur’s proposals for specific draft articles prior to those articles being referred to the Drafting Committee. See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), paras. 323–324 and ibid., Sixtieth Session, Supplement No. 10 (A/60/10), paras. 58–61.

49 The Working Group on Shared Natural Resources was established at the sixtyfirst and sixty-second sessions, in 2009 and 2010, in order to consider the feasibility of any future work by the Commission on tranboundary oil and gas. See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), paras. 187–192, and ibid., Sixty-fifth Session, Supplement No. 10 (A/65/10), paras. 376–384, respectively. At the latter session, the Working Group recommended that the Commission not take up the consideration of such aspects of the topic “Shared natural resources”, ibid., para. 384.

50 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 219. The final outcome of work by a working group is typically a report either presented orally by the Chairman of the working group to the Commission in plenary, which is reflected in the summary records or in written form issued as a document, which may be included in the Commission’s report.

51 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 148 (k).

52 Committees in the nature of drafting committees were set up by the Commission to deal with specific topics or questions at its first three sessions. However, a standing Drafting Committee has been used at each session of the Commission since its fourth session, in 1952. See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 45.

53 See Yearbook of the International Law Commission, 1992, vol. II (Part Two), para. 371; and ibid., 1996, vol. II (Part Two), paras. 148 (j) and 214.

54 The practice of multilingual drafting, now customary in the Commission, as opposed to mere translation from the working language of the Special Rapporteur into the other working languages, frequently brings to light unsuspected questions of substance. This has added additional responsibilities to the work of the Drafting Committee. Upon completion of its work on a set of draft articles, members of the Drafting Committee from the various linguistic groups typically meet separately to align their respective linguistic texts with that of the authoritative version adopted by the Committee.

55 See Yearbook of the International Law Commission, 1987, vol. II (Part Two), para. 238.

56 See Yearbook of the International Law Commission, 1987, vol. II (Part Two), para. 237; and ibid., 1996, vol. II (Part Two), para. 212.

57 See Yearbook of the International Law Commission, 1958, vol. II, document A/3859, para. 65.

58 See Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/66/10 and Add.1), para 375.

59 See Yearbook of the International Law Commission, 1979, vol. II (Part One), document A/CN.4/325, para. 47. In practice, members who joined the consensus in the Drafting Committee abstain from objecting to the draft articles during the plenary discussion.

60 See Yearbook of the International Law Commission, 1987, vol. II (Part Two), paras. 235–239.

61 There are no summary records of the meetings of the Drafting Committee which are not public meetings. However, the statement of the Chairman of the Drafting Committee is reflected in the summary records of the Commission which are published in the Commission’s Yearbook, and is included on the Commission’s website.