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Anniversary Commemoration and Work of the International Law Commission's Seventieth Session

  • Sean D. Murphy (a1)
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My thanks to Tara Ippoliti (JD 2019) for assistance in preparing this essay.

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1 See Report of the International Law Commission on the Work of Its Seventieth Session, UN GAOR, 73rd Sess., Supp. No. 10, at 1−2, paras. 1, 4, UN Doc. A/73/10 (Sept. 3, 2018) [hereinafter 2018 Report]. This report and other International Law Commission documents are available online at http://legal.un.org/ilc. In addition, UN documents are generally available online at https://documents.un.org/prod/ods.nsf/home.xsp.

2 Id. at 294−95, para. 335.

3 Speeches at this meeting were delivered by: Eduardo Valencia-Ospina, chair of the Commission; Miroslav Lajčák, president of the UN General Assembly; Miguel de Serpa Soares, UN under-secretary-general for legal affairs and legal counsel (speaking on behalf of the UN secretary-general); Burhan Gafoor, chair of the Sixth Committee of the General Assembly; Jürg Lauber, permanent representative of Switzerland to the United Nations; and Jennifer Newstead, legal adviser of the U.S. Department of State (the host country of the United Nations). Id.

4 The keynote address was delivered by Professor Nico Schrijver of Leiden University, who is also president of the Institute of International Law. Id. at 295, para. 336.

5 Speeches were delivered by: Valencia-Ospina; de Serpa Soares; Corinne Cicéron Bühler, director, Directorate of International Law and legal advisor of the Swiss Federal Department of Foreign Affairs (the host country of the ILC); and Kate Gilmore, UN deputy high commissioner for human rights. Id. at 295, para. 342.

6 This keynote address was delivered by Judge Abdulqawi Ahmed Yusuf, president of the International Court of Justice. Id. at 295, para. 343.

7 Id. at 295−96, paras. 344−54.

8 Id. at 297, para. 361.

9 Id. at 296−97, para. 356.

10 For the complete set of conclusions and commentaries, see 2018 Report, supra note 1, at 11–116. For discussion of prior work on these conclusions, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 176 (2013) [hereinafter Murphy, Sixty-Fourth Session]; Sean D. Murphy, Immunity Personae, Ratione of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission, 108 AJIL 41, 4851 (2014) [hereinafter Murphy, Sixty-Fifth Session]; Murphy, Sean D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 136–38 (2015) [hereinafter Murphy, Sixty-Sixth Session]; Murphy, Sean D., Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission, 109 AJIL 822, 836–38 (2015) [hereinafter Murphy, Sixty-Seventh Session]; Murphy, Sean D., Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission, 110 AJIL 718, 724–26 (2016) [hereinafter Murphy, Sixty-Eighth Session].

11 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT].

12 International Law Commission, Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/CN.4/715 (Feb. 28, 2018) (prepared by Special Rapporteur Georg Nolte) [hereinafter Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties].

13 Id. at 13.

14 2018 Report, supra note 1, at 14 (draft Conclusion 5, para. 2).

15 Id. at 120 (draft Conclusion 5).

16 Report of the International Law Commission on the Work of Its Sixty-Eighth Session, UN GAOR, 71st Sess., Supp. No. 10, at 123, para. 75, UN Doc. A/71/10 (Sept. 19, 2016) (draft Conclusion 13[12], para. 4) [hereinafter 2016 Report].

17 Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, supra note 12, at 41–43, paras. 137–46.

18 2018 Report, supra note 1, at 106 (draft Conclusion 13(4)).

19 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Charles Chernor Jalloh, Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,” at 16 (May 18, 2018), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2018_dc_chairman_statement_sasp.pdf&lang=E.

20 For discussion of prior work on these draft conclusions, see Murphy, Sixty-Fourth Session, supra note 10, at 174; Murphy, Sixty-Fifth Session, supra note 10, at 52–53; Murphy, Sixty-Sixth Session, supra note 10, at 140–42; Murphy, Sixty-Seventh Session, supra note 10, at 822–32; Murphy, Sixty-Eighth Session, supra note 10, at 723–24.

21 International Law Commission, Fifth Report on Identification of Customary International Law, UN Doc. A/CN.4/717 (Mar. 14, 2018) (prepared by Special Rapporteur Michael Wood); see also Fifth Report on Identification of Customary International Law, Addendum, UN Doc. A/CN.4/717/Add.1 (June 6, 2018) (Part A of this addendum lists writings dealing with customary international law and its identification in general, including textbooks; Part B contains studies on particular aspects of the identification of customary international law, and broadly corresponds to issues dealt with by the Commission's conclusions on the identification of customary international law; Part C indicates studies relevant to the identification of customary international law in various fields).

22 For the complete set of conclusions and commentaries, see 2018 Report, supra note 1, at 119–56. In addition to the conclusions and commentaries, the Commission's work on this topic includes a study by the Secretariat on “Ways and Means for Making the Evidence of Customary International Law More Readily Available.” See UN Doc. A/CN.4/710* (Jan. 12, 2018).

23 2018 Report, supra note 1, at 121 (draft Conclusion 15, para. 3).

24 Id. at 122 (draft Conclusion 16, para. 2).

25 See 2016 Report, supra note 16, at 76.

26 UN Doc. A/CN.4/717, at 22, para. 47.

27 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Charles Chernor Jalloh, Identification of Customary International Law, at 6−7 (May 25, 2018), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2018_dc_chairman_statement_icil.pdf&lang=E [hereinafter Statement of the Chairman of the Drafting Committee on Identification of Customary International Law].

28 UN Doc. A/CN.4/717, at 25, para. 55.

29 Statement of the Chairman of the Drafting Committee on Identification of Customary International Law, supra note 27, at 8.

30 UN Doc. A/CN.4/717, at 31, para. 69.

31 2018 Report, supra note 1, at 120 (draft Conclusion 8, para. 1).

32 Statement of the Chairman of the Drafting Committee on Identification of Customary International Law, supra note 27, at 10.

33 2018 Report, supra note 1, at 130, para. (3) (commentary to Conclusion 4).

34 Id. at 131, para. (5) (commentary to Conclusion 4).

35 Id. at 130, para. (4) (commentary to Conclusion 4).

36 Id. at 136–37, para. (4) (commentary to Conclusion 8).

37 For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 10, at 56–57; Murphy, Sixty-Sixth Session, supra note 10, at 139; Murphy, Sixty-Seventh Session, supra note 10, at 832–35; Murphy, Sixty-Eighth Session, supra note 10, at 729–30; Murphy, Sean D., Crimes against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission, 111 AJIL 970, 980–81 (2017) [hereinafter Murphy, Sixty-Ninth Session].

38 See International Law Commission, Fifth Report on the Protection of the Atmosphere, UN Doc. A/CN.4/711 (Feb. 8, 2018) (prepared by Special Rapporteur Shinya Murase).

39 2018 Report, supra note 1, at 160.

40 Id. at 159.

41 Id.

42 Id. at 160.

43 Id. at 160–61.

44 Id. at 161.

45 Id. at 158–200.

46 For discussion of prior work on these draft guidelines, see Murphy, Sixty-Fourth Session, supra note 10, at 171–73; Murphy, Sixty-Fifth Session, supra note 10, at 53–54; Murphy, Sixty-Sixth Session, supra note 10, at 143–44; Murphy, Sixty-Seventh Session, supra note 10, at 822–32; Murphy, Sixty-Eighth Session, supra note 10, at 742–45; Murphy, Sixty-Ninth Session, supra note 37, at 978–80.

47 International Law Commission, Fifth Report on the Provisional Application of Treaties, UN Doc. A/CN.4/718 (Feb. 20, 2018) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo) [hereinafter Fifth Report on Provisional Application of Treaties]. The addendum to the report, UN Doc. A/CN.4/718/Add.1 (June 21, 2018), provides a selected bibliography of books, articles, book chapters, case law, resolutions, and decisions of international organizations, and other documents concerning provisional application of treaties.

48 Fifth Report on Provisional Application of Treaties, supra note 47, at 17, paras. 63–66.

49 Id. at 19, paras. 70–72.

50 Id. at 19−20, paras. 73−77.

51 2018 Report, supra note 1, at 204 (draft Guideline 7).

52 Fifth Report on Provisional Application of Treaties, supra note 47, at para. 67; International Law Commission, Memorandum by the Secretariat on Provisional Application of Treaties, UN Doc. A/CN.4/707 (Mar. 24, 2017) [hereinafter Memorandum by the Secretariat on Provisional Application of Treaties].

53 One scenario where an agreement on provisional application is silent on the issue of reservations, but where reservations might be regarded as impermissible, is where the treaty being provisionally applied precludes reservations. Another scenario might be where the agreement on provisional application is silent on reservations, but establishes a method for accepting provisional application that suggests reservations are not possible. For example, the Energy Charter Treaty might be viewed as precluding a “reservation” to provisional application of the agreement by providing that any signatory, when signing, may deliver to the depositary a declaration that it is not able to accept provisional application. Energy Charter Treaty, Art. 45(2), Dec. 17, 1994, 2080 UNTS 95, 34 ILM 360 (1995). Such an “opt-out” declaration is not a “reservation” within the meaning of the VCLT; rather, it is a decision not to accept the agreement on provisional application ab initio. Arguably, that is the exclusive means for avoiding provisional application of the treaty.

54 2018 Report, supra note 1, at 204 (draft Guideline 9).

55 Id., paras. 65−66.

56 For example, the Secretariat's Memorandum notes the agreement between the European Community and Jordan on scientific and technological cooperation, which provides that projects started before the termination of provisional application will continue after its termination. Memorandum by the Secretariat on Provisional Application of Treaties, supra note 52, at para. 83.

57 2018 Report, supra note 1, at 202, para. 85.

58 Id. at 203−23.

59 For the prior text and some of the problems with it, see Murphy, Sixty-Eighth Session, supra note 10, at 743 (Guideline 7; Guideline 7 was renumbered in 2017 to be Guideline 8); Murphy, Sixty-Ninth Session, supra note 37, at 980.

60 For discussion of prior work on this topic, see Murphy, Sixty-Eighth Session, supra note 10, at 730–31; Murphy, Sixty-Ninth Session, supra note 37, at 988–90.

61 See International Law Commission, Third Report on Peremptory Norms of General International Law (Jus Cogens), UN Doc. A/CN.4/714 (Feb. 12, 2018) (prepared by Special Rapporteur Dire Tladi).

62 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Charles Chernor Jalloh, Peremptory Norms of General International Law (Jus Cogens), at 12−16 (July 26, 2018), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2018_dc_chairman_statement_jc_26july.pdf&lang=E.

63 The Commission's draft indicates that the location of draft Conclusion 14, within the draft conclusions, will be determined at a later stage. Id. at 11.

64 Third Report on Jus Cogens, supra note 61, at 69, para. 162.

65 For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 10, at 55–56; Murphy, Sixty-Sixth Session, supra note 10, at 143; Murphy, Sixty-Seventh Session, supra note 10, at 838–41; Murphy, Sixty-Eighth Session, supra note 10, at 731–32; Murphy, Sixty-Ninth Session, supra note 37, at 992.

66 International Law Commission, First Report on the Protection of the Environment in Relation to Armed Conflicts, UN Doc. A/CN.4/720 (Apr. 30, 2018) (prepared by Special Rapporteur Marja Lehto) [hereinafter First Report on the Protection of the Environment in Relation to Armed Conflicts].

67 Protection of the Environment in Relation to Armed Conflicts: Title of Part Four and Texts and Titles of the Draft Principles 19, 20 and 21 Provisionally Adopted by the Drafting Committee at the Seventieth Session, UN Doc. A/CN.4/L.911 (July 20, 2018), available at http://legal.un.org/docs/?symbol=A/CN.4/L.911.

68 2018 Report, supra note 1, at 246−72 (draft principles 1−2, 4−18, and commentary).

69 First Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 67, at 49, para. 100.

70 Report of the International Law Commission on the Work of Its Sixty-Ninth Session, UN GAOR, 72nd Sess., Supp. No. 10, at 203, para. 211, UN Doc. A/72/10 (Sept. 11, 2017). For discussion of prior work on this topic, see Murphy, Sixty-Ninth Session, supra note 37, at 990–92.

71 For the syllabus of the topic, see 2016 Report, supra note 16, at 400, Annex B. In recent years, other bodies have also studied this issue. See International Law Association, Report of the Seventy-Third Conference, Rio de Janeiro, Aug. 17–21 2008, at 250 et seq.; Institute of International Law, Fourteenth Commission, State Succession in Matters of State Responsibility, Provisional Report of the Rapporteur, Mr. Marcelo G. Kohen; Institute of International Law, Resolution on Succession of States in Matters of International Responsibility, Aug. 28, 2015.

72 See International Law Commission, First Report on Succession of States in Respect of State Responsibility, UN Doc. A/CN.4/708 (May 31, 2017) (prepared by Special Rapporteur Pavel Šturma).

73 See International Law Commission, Second Report on Succession of States in Respect of State Responsibility, UN Doc. A/CN.4/719 (Apr. 6, 2018) (prepared by Special Rapporteur Pavel Šturma) [hereinafter Second Report on Succession of States in Respect of State Responsibility].

74 A/CN.4/713, para. 65. At the same time, several other states “were inclined to support the preliminary conclusion of the Special Rapporteur [in the First Report] that the ‘traditional’ theory of non-succession had recently been challenged.” Id. (in this camp fall Belarus, Croatia, Czech Republic, and Slovenia).

75 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Charles Chernor Jalloh, Succession of States in Respect of State Responsibility, at 8 (Aug. 3, 2018), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2018_dc_chairman_statement_sosr.pdf&lang=E [hereinafter Statement of the Chairman of the Drafting Committee on Succession of States in Respect of State Responsibility].

76 Vienna Convention on Succession of States in Respect of Treaties, Art. 6, adopted Aug. 23, 1978, 1946 UNTS 3, 17 ILM 1488 (1978); Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Art. 3, opened for signature Apr. 8, 1983, UN Juridical Yearbook (1983) (not yet entered into force).

77 GA Res. 55/153, Articles on Nationality of Natural Persons in Relation to the Succession of States, Annex, Art. 3 (Dec. 12, 2000).

78 Statement of the Chairman of the Drafting Committee on Succession of States in Respect of State Responsibility, supra note 75, at 9. A footnote to this draft article provides that “[t]aking into account the views expressed in the Drafting Committee, the present text will be revisited at a later stage.”

79 Second Report on Succession of States in Respect of State Responsibility, supra note 73, at 52, para. 191.

80 Id. at 52, paras. 191−92.

81 International Law Commission, Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/722 (June 12, 2018) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction]. For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 10, at 169–71; Murphy, Sixty-Fifth Session, supra note 10, at 41–48; Murphy, Sixty-Sixth Session, supra note 10, at 139–40; Murphy, Sixty-Seventh Session, supra note 10, at 842; Murphy, Sixty-Eighth Session, supra note 10, at 732−42; Murphy, Sixty-Ninth Session, supra note 37, at 981–88.

82 See Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 81, ch. II (B).

83 Id., ch. II (C).

84 Id., ch. II (D).

85 2018 Report, supra note 1, at 307−25, Annex A. The topic was proposed by Charles Chernor Jalloh (Sierra Leone).

86 Id. at 326–34, Annex B. The topic was proposed by a group of ILC members: Bogdan Aurescu (Romania); Yacouba Cissé (Côte d'Ivoire); Patrica Galvão Teles (Portugal); Nilfer Oral (Turkey); and Juan José Ruda Santolaria (Peru).

87 Id. at 311−12, paras. 12−13 (footnotes omitted).

88 See International Law Association Committee on Baselines Under the International Law of the Sea, Final Report (2012), Sofia Conference, at 30, available at http://ilareporter.org.au/wp-content/uploads/2015/07/Source-1-Baselines-Final-Report-Sofia-2012.pdf [hereinafter Final Report (2012)]. For that committee's final report (under its extended mandate) on straight baselines, see International Law Association Committee on Baselines under the International Law of the Sea, Final Report (2018), Sydney Conference, available at http://www.ila-hq.org/images/ILA/DraftReports/DraftReport_Baselines.pdf [hereinafter Final Report (2018)]. The Sydney conference also adopted a resolution containing twelve “Sydney Conclusions on Baselines Under the International Law of the Sea.” See ILA Resolution 1/2018, Sydney Conference (2018), available at http://www.ila-hq.org/images/ILA/Resolutions/ILAResolution_1_2018_BaselinesundertheInternationalLawoftheSea.pdf.

89 Final Report (2018), supra note 88, at para 2.

90 See Interim Report of the ILA Committee on International Law and Sea Level Rise (2016), Johannesburg Conference, available at http://www.ila-hq.org/index.php/committees.

91 See Draft Report of the ILA Committee on International Law and Sea Level Rise (2018), Sydney Conference, at 19, available at http://www.ila-hq.org/images/ILA/DraftReports/DraftReport_SeaLevelRise.pdf.

92 See ILA Resolution 5/2018, Sydney Conference (2018), available at http://www.ila-hq.org/images/ILA/Resolutions/ILAResolution_5_2018_SeaLevelRise.pdf.

My thanks to Tara Ippoliti (JD 2019) for assistance in preparing this essay.

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