International Law Commission International Law Commission

Last update: November 12, 2021
#ILC_2021

Seventy-second Session (2021)

Due to the ongoing COVID-19 Pandemic, the General Assembly, on 12 August 2020, decided to postpone the seventy-second session of the ILC to 2021. Subsequently, in accordance with resolution  75/135 of 15 December 2020, the International Law Commission held its seventy-second session at the United Nations Office at Geneva from 26 April to 4 June and from 5 July to 6 August 2021 (11 weeks).

Topics considered in 2021

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

The Commission considered the eighth report of the Special Rapporteur on the topic (A/CN.4/739), at its 3520th to 3521st and 3523rd to 3528th meetings, from 12 to 14 and 17 to 21 May 2021. The report examined the relationship between the immunity of State officials from foreign criminal jurisdiction and international criminal tribunals; considered a mechanism for the settlement of disputes between the forum State and the State of the official; considered the issue of good practices that could help to solve the problems that arise in practice in the process of determining and applying immunity; and presented proposals for draft articles 17 and 18. The Commission decided to refer draft articles 17 and 18, as proposed by the Special Rapporteur in her eighth report, to the Drafting Committee on the topic, together with the comments and suggestions made during the debate.

At the 3530th meeting, held on 3 June 2021, the Chair of the Drafting Committee presented the report of the Drafting Committee on “Immunity of State officials from foreign criminal jurisdiction” (A/CN.4/L.953).  The Commission first considered the Report of the Drafting Committee on “Immunity of State officials from foreign criminal jurisdiction” (A/CN.4/L.940) which had been taken note of at the seventy-first session, and adopted draft article 8 ante (Application of Part Four/Application de la quatrième partie). Thereafter, the Commission considered the report of the Drafting Committee for 2021 and provisionally adopted the texts and titles of the following draft articles: 8 (Examination of immunity by the forum State/Examen de la question de l’immunité par l’État du for), 9 (Notification of the State of the official/Notification à l’État du représentant), 10 (Invocation of Invocation of immunity/Invocation de l’immunité) and 11 (Waiver of immunity/Renonciation à l’immunité). The Commission subsequently adopted commentaries to draft articles 8 ante, 8, 9, 10, 11 and 12. (chap. VI of the 2021 ILC report)

See also: Comments by Governments

Provisional application of treaties (Summary | Analytical Guide)

The Commission had before it the sixth report of the Special Rapporteur, Mr. Juan Manuel Gomez Robledo, (A/CN.4/738), as well as comments and observations received from Governments and international organizations (A/CN.4/737). The report examined the comments and observations received from Governments and international organizations on the draft Guide, as adopted on first reading, and on several draft model clauses, proposed by the Special Rapporteur to the Commission at its seventy-first session (2019). It also contained proposals of the Special Rapporteur for consideration on second reading, in the light of the comments and observations, as well as a proposal for a recommendation to the General Assembly. The Commission considered the sixth report at its 3514th and 3516th to 3521st meetings, held from 4 to 14 May 2021. The Commission further decided to refer to the Drafting Committee the text of the draft guidelines on “Provisional application of treaties” together with the draft model clauses, as proposed by the Special Rapporteur in his sixth report, together with the comments and suggestions made during the debate.

At the 3530th meeting, held on 3 June 2021, the Chair of the Drafting Committee presented the report of the Drafting Committee on “Provisional application of treaties” (A/CN.4/L.952).  The Commission took note of the report.

At the 3549th meeting, held on 26 July 2021, the Chair of the Drafting Committee presented the second report of the Drafting Committee on “Provisional application of treaties” (A/CN.4/L.952/Rev.1). The Commission considered the report of the Drafting Committee on “Provisional application of treaties” and adopted on second reading the texts and titles of the following draft guidelines and of the draft annex: 1 (Scope/Champ d’application), 2  (Purpose/Objet), 3 (General rule/Règle générale), 4 (Form of agreement/Forme de l’accord), 5 (Commencement/Prise d’effet ), 6 (Legal effect/Effet juridique), 7 (Reservations/Réserves), 8 (Responsibility for breach/Responsabilité en cas de violation), 9 (Termination/Extinction), 10 (Internal law of States, rules of international organizations and observance of provisionally applied treaties/Droit interne des États, règles des organisations internationales et respect des traités appliqués à titre provisoire), 11 (Provisions of internal law of States and rules of international organizations regarding competence to agree on the provisional application of treaties/Dispositions du droit interne des États et règles des organisations internationales concernant la compétence de convenir de l’application à titre provisoire des traités), 12 (Agreement to provisional application with limitations deriving from internal law of States or rules of international organizations/Accord relatif à l’application à titre provisoire avec des limites découlant du droit interne des États ou des règles des organisations internationales). The Commission adopted the “Guide to Provisional Application of Treaties” as a whole on second reading. The Commission subsequently adopted commentaries to the Guide.

In accordance with article 23 of its statute, the Commission recommended to the General Assembly to take note of the Guide to Provisional Application of Treaties and to encourage its widest possible dissemination, to commend the Guide, and the commentaries thereto, to the attention of States and international organizations, and to request the Secretary-General to prepare a volume of the United Nations Legislative Series compiling the practice of States and international organizations in the provisional application of treaties, as furnished by the latter over the years, together with other materials relevant to the topic (chap. V of the 2021 ILC report).

See also: Comments by Governments

Protection of the atmosphere (Summary | Analytical Guide)

The Commission had before it the sixth report of the Special Rapporteur, Mr. Shinya Murase, (A/CN.4/736), as well as comments and observations received from Governments and international organizations (A/CN.4/735). The report examined the comments and observations received from Governments and international organizations on the draft preamble and guidelines, as adopted on first reading, and made recommendations for each draft guideline, as well as a proposal for a recommendation to the General Assembly. The Commission considered the sixth report at its 3508th to 3510th and 3512th to 3514th meetings, held from 26 April to 4 May 2021. The Commission further decided to refer to the Drafting Committee the text of the draft guidelines with the draft preamble on “Protection of the atmosphere”, as proposed by the Special Rapporteur in his sixth report on the topic, together with the comments and suggestions made during the debate.

At the 3529th meeting, held on 27 May 2021, the Chair of the Drafting Committee presented the report of the Drafting Committee on “Protection of the atmosphere” (A/CN.4/L.951).  The Commission considered the report and adopted the preamble and the following draft guidelines on second reading: 1 (Use of terms/Définitions), 2 (Scope/Champ d’application), 3 (Obligation to protect the atmosphere/Obligation de protéger l’atmosphère), 4 (Environmental impact assessment/Évaluation de l’impact sur l’environnement), 5 (Sustainable utilization of the atmosphere/Utilisation durable de l’atmosphère), 6 (Equitable and reasonable utilization of the atmosphere/Utilisation équitable et raisonnable de l’atmosphère), 7 (Intentional large-scale modification of the atmosphere/Modification intentionnelle à grande échelle de l’atmosphère), 8 (International cooperation/Coopération internationale), 9 (Interrelationship among relevant rules/Relations entre règles pertinentes), 10 (Implementation/Mise en œuvre), 11 (Compliance/Contrôle du respect), 12 (Dispute settlement/Règlement des différends). The Commission adopted, on second reading, the entire set of draft guidelines on the protection of the atmosphere, comprising a draft preamble and 12 draft guidelines. It subsequently adopted commentaries to the entire set of draft guidelines on the protection of the atmosphere.

The Commission decided, in accordance with article 23 of its statute, to recommend that the General Assembly: (a) take note in a resolution of the draft preamble and guidelines on the protection of the atmosphere, annex the draft guidelines to the resolution, and ensure their widest possible dissemination; (b) commend the draft preamble and guidelines, together with the commentaries thereto, to the attention of States, international organizations and all who may be called upon to deal with the subject (chap. IV of the 2021 ILC report).

See also: Comments by Governments

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

The Commission considered the Report of the Drafting Committee on “Succession of States in respect to State responsibility” (A/CN.4/L.939/Add.1) which had been taken note of at the seventy-first session, at its 3528th meeting held on 21 May 2021, and adopted draft articles 7 (Acts having a continuing character/Faits ayant un caractère continu), 8 (Attribution of conduct of an insurrectional or other movement/Attribution du comportement d’un mouvement insurrectionnel ou autre) and 9 (Cases of succession of States when the predecessor State continues to exist/Cas de succession d’États dans lesquels l’État prédécesseur continue d’exister). The Commission subsequently adopted commentaries to draft articles 7, 8 and 9.

The Commission also had before it the fourth report of the Special Rapporteur, Mr. Pavel Šturma, (A/CN.4/743), which addressed questions related to the impact of succession of States on forms of responsibility, in particular the different forms of reparation, the obligation of cessation and assurances and guarantees of non-repetition. The Commission considered the fourth report at its 3531st, 3532nd, 3533rd, 3534th, 3535th, 3536th and 3537th meetings, held from 5 to 12 July 2021, and decided to refer draft articles 7 bis, 16, 17, 18 and 19, as contained in the fourth report of the Special Rapporteur, to the Drafting Committee, taking into account the comments made in plenary.

The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft articles 10, 10 bis and 11 (A/CN.4/L.954), provisionally adopted by the Committee at the present session, which was presented to the Commission, at the 3552nd meeting on 28 July 2021, for information only (chap. VII of the 2021 ILC report).

See also: Comments by Governments

General principles of law (Summary | Analytical Guide)

The Commission had before it the second report of the Special Rapporteur, Mr. Marcelo Vázquez-Bermúdez, (A/CN.4/741 and Corr.1), which discussed the identification of general principles of law in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice. The Commission considered the report at the 3536th, 3538th, 3539th, 3541st, 3542nd, 3543rd, 3544th, 3545th, 3546th and 3547th meetings, held on 12 to 21 July 2021, and decided to refer draft conclusions 4, 5, 6, 7, 8 and 9, as presented in the second report, to the Drafting Committee, taking into account the comments made in plenary. The Commission received and adopted the report of the Drafting Committee (A/CN.4/L.955 and Add.1 and Add.1/Corr.1 (Spanish only)) on draft conclusions 1, 2 and 4, and provisionally adopted those draft conclusions, together with commentaries. Furthermore, the Commission took note of draft conclusion 5, which was also contained in the report of the Drafting Committee (chap. VIII of the 2021 ILC report)

See also: Comments by Governments

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

The Commission reconstituted the Study Group on sea-level rise in relation to international law. The Study Group had before it the first issues paper (A/CN.4/740 and Corr.1 and Add.1) concerning issues relating to the law of the sea, prepared by two of the Co-Chairs of the Study Group, Mr. Bogdan Aurescu and Ms. Nilüfer Oral, as well as informal contribution papers and comments submitted by members. The Study Group held a “plenary-like” debate on the various matters discussed in the first issues paper over five meetings, during the first part of the session, from 1 to 5 June 2021. The Study Group subsequently undertook an interactive discussion, over three further meetings held during the second part of the session, on the basis of, inter alia, a series of guiding questions prepared by the Co-Chairs. Thereafter, the Co-Chairs reported to the plenary on the work of the Study Group (chap. IX of the 2021 ILC report).

See also: Comments by Governments

Cooperation with other bodies

  • The President of the International Court of Justice, Judge Joan E. Donoghue, addressed the Commission via Zoom at the 3548th meeting, held on 22 July 2021. An exchange of views followed.
  • Owing to the coronavirus disease (COVID-19) pandemic, the Commission was regrettably unable to have its traditional exchanges of information with the African Union Commission on International Law; the Asian-African Legal Consultative Organization; the Committee of Legal Advisers on Public International Law of the Council of Europe; and the Inter-American Juridical Committee. However, it was able to have an informal exchange of views with the International Committee of the Red Cross on 15 July 2021

Other business

  • The members of the ILC held an informal meeting on 3 September 2020, pursuant to GA decision 74/566, at which time members, inter alia, made statements in memory of Alexander Yankov, former member of the ILC.
  • At is 3511th meeting, held on 29 April 2021, the Commission elected Mr. Mathias Forteau (France) to fill the casual vacancy following the resignation of Mr. Georg Nolte (A/CN.4/744 + Add.1).
  • The Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Mr. Miguel de Serpa Soares, made a statement via Zoom at the 3540th meeting, held on 14 July 2021, 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.
  • The Commission decided to include in its long-term programme of work the topic “Subsidiary means for the determination of rules of international law” (chap. X, sect. B, and annex of the 2021 ILC report)

Date and place of the seventy-third session

The Commission decided that its seventy-third session would be held in Geneva from 18 April to 3 June and from 4 July to 5 August 2022 (chap. X, sect. C of the 2021 ILC report).