I. Introduction
The International Law Commission (ILC or Commission) held its seventy-sixth session in Geneva, Switzerland, from April 28 to May 30, 2025. This year, the Commission was chaired by Mr. Mārtiņš Paparinskis (Latvia).Footnote 1 Due to the ongoing “liquidity crisis”Footnote 2 facing the United Nations and its “race to bankruptcy,”Footnote 3 the Commission’s session was reduced from twelve to five weeks, thereby significantly curtailing its ability to meet its objectives for the session. The work program for the session, presented to member states at the beginning of the present quinquennium in 2023,Footnote 4 had anticipated the completion in 2025 of two topics on second readingFootnote 5 and two topics on first Footnote 6 reading as well as the presentation of the final consolidated report of its only study group. The negative impact on the Commission’s work program risks several topics to not be completed by their current special rapporteurs, severely disrupts the work program, and will reverberate for years to come.
Despite the negative impacts of the significant funding cut on its overall work program,Footnote 7 the Commission worked hard to make the best of the situation by completing key aspects of its substantive work and progressing some of the topics. Most notably, it adopted the final report of the Study Group on Sea-level Rise in Relation to International Law, concluding its work on the topic after several years of study. The Commission also adopted four draft articles with their commentaries, on second reading, on the topic Immunity of State Officials from Foreign Criminal Jurisdiction. It also took note of three other draft articles provisionally adopted by the Drafting Committee this year, including the most sensitive one in the entire project. The rest of the eight draft articles in the topic will be considered by the drafting group if the Commission resumes its work in 2026.
The Drafting Committee also made significant progress on the two topics on the current work program relating to the sources of international law: General Principles of Law and Subsidiary Means for the Determination of Rules of International Law. On the former, following a review and debate of state comments by the special rapporteur’s fourth report,Footnote 8 twelve draft conclusions were provisionally adopted on second reading. However, the finalization of the second reading by the Commission as a whole was postponed to 2026, pending the submission and translation of commentaries for which there was insufficient time due to the loss of the second half session in July 2025.Footnote 9 On Subsidiary Means for the Determination of Rules of International Law, following the plenary debate of the third report of the special rapporteur, the Drafting Committee provisionally adopted thirteen draft conclusions on first reading. This marked a key milestone in the topic. The present writer, in his capacity as special rapporteur, revised the commentaries to the previously adopted draft conclusions and proposed commentaries for the remaining new text provisionally adopted this year by the drafting group. Yet, adoption of the draft conclusions by the Commission itself was deferred. There was simply no time available to translate the draft commentaries into all official United Nations language in the absence of the second half session.
Overall, while it is commendable that as a consequence of the persistence and cooperation of all the members and the Secretariat remarkable progress was achieved in key topics, owing to the limited time, the Commission ultimately did not make any progress on four other topics. The discussion of those topics, for which there were special rapporteur reports that would have otherwise been debated in the plenary, instead took place in an innovative working group format. Open-ended working groups chaired by each special rapporteur were established. The idea was to give them preliminary member feedback on their reports. But the tight work program only supported the allocation of single working group meetings for each of the topics Settlement of Disputes to Which International Organizations Are Parties, Non-legally Binding International Agreements, and Prevention and Repression of Piracy and Armed Robbery at Sea. In addition, the topic Succession of States in Respect of State Responsibility—originally slated for conclusion this year by its own working group—met only once with the substantive discussion of the proposed final report deferred to the seventy-seventh session.
In addition to the above, though some members expressed some misgivings due to the current fiscal uncertainty affecting the entire United Nations, the Commission added two new topics to its current work program.Footnote 10 It appointed the two proponents of the topics, from Eastern and Western Europe respectively, as the special rapporteurs.
The Commission also added three new topics to its long-term program of work proposed by two Asian and one African member. To reflect a decision it had notified the General Assembly two years ago, and considering the volume of leftover work from this year, the Commission sought a twelve-week session for its next session. As part of this, assuming it would have some funds for meetings, it decided that it would meet for the first part of its spring 2026 session in New York. The aim was to provide more opportunities to enhance the dialogue with the General Assembly. The decision follows on the Commission’s positive experience with the experiment in 2018 when it last met at the UN Headquarters in New York instead of its usual meeting place in Geneva. That said, taking a pragmatic approach, the Commission also contemplated that should funding be unavailable to cover the higher expenses that will be required to facilitate meetings in the United States, it would meet in Geneva instead.
II. Immunity of State Officials from Foreign Criminal Jurisdiction
The Commission continued its second reading of the topic Immunity of State Officials from Foreign Criminal Jurisdiction, a project first added to its program of work at its fifty-ninth session in 2007.Footnote 11 At that time, the Commission appointed a special rapporteur (Roman Kolodkin, Russian Federation) and requested a background study to clarify the scope, nature, and exceptions to immunity afforded to state officials when facing foreign criminal jurisdiction. The draft articles, which developed largely under the rapporteurship of Concepción Escobar Hernández (Spain),Footnote 12 aim to clarify and regulate a narrow but highly consequential legal field: the rules that prevent one state from exercising criminal jurisdiction over the officials of another state. The narrow focus of the present second reading stage of the topic is to consider the views of states, and adjust as necessary, the entire set of eighteen draft articles and draft annex, together with the commentaries, as adopted on first reading during the seventy-third (2022) session.
In 2024, based on the first reportFootnote 13 of the current special rapporteur in the topic Claudio Grossman Guiloff (Chile), the Commission referred draft articles 1–6 to the Drafting Committee and ultimately took note of provisionally adopted draft articles 1, 3, 4, and 5. The Commission’s work on the topic this year therefore included adopting those draft articles since their commentaries were now available.
Draft article 1 on scope provides that the draft articles apply to the immunity of state officials from the criminal jurisdiction of another state. A “state official” is any individual who represents the state or exercises state functions, encompassing a wide range of potential actors beyond heads of state.Footnote 14 The immunity concerns criminal jurisdiction and specifically to its exercise by a foreign state.Footnote 15 It does not exonerate persons from legal responsibility but rather establishes a procedural shield. The draft articles are without prejudice to lex specialis governing immunity in specific contexts, such as diplomatic and consular missions, international organizations, armed forces, and special missions, as well as to rights and obligations under international agreements establishing or relating to international criminal tribunals.Footnote 16
Draft article 3 affirms that immunity ratione personae attaches to three high-ranking officials: heads of state, heads of government, and ministers for foreign affairs.Footnote 17 This personal immunity, grounded in the need for unhindered discharge of governmental functions, has been consistently recognized in customary international law and affirmed by the International Court of Justice in cases such as Arrest Warrant and Certain Questions of Mutual Assistance in Criminal Matters.Footnote 18
Draft article 4 clarifies that this immunity is both temporary, as it applies only during the official’s time in office, and absolute in nature. It covers all acts, whether private or official, committed by the troika before or during the term of office.Footnote 19 Upon leaving office, such individuals cease to enjoy personal immunity but may still invoke functional immunity under draft article 5 for official acts.
Draft article 5 governs immunity ratione materiae, which is accorded to all state officials for acts performed in an official capacity, regardless of rank.Footnote 20 This immunity continues to apply after the individual has left office and is tied to the nature of the act, not the identity of the actor. Private acts are excluded. Former officials who previously enjoyed personal immunity retain functional immunity for official acts committed while in office.Footnote 21 This type of immunity is generally less controversial but becomes sharply contested when raised in cases involving serious violations of international law. The principal debate concerns whether such immunity should yield in the face of accountability for international crimes.
The Commission also considered in the 2025 plenary a second report of the special rapporteur.Footnote 22 It subsequently referred draft articles 7 to 18 to the Drafting Committee. Three draft articles were provisionally adopted by the drafting group before the allocated time for the topic exhausted, namely, draft articles 7 to 9. During the second reading of draft article 7, which is easily the most sensitive provision in the entire project addressing the crimes under international law in respect of which immunity ratione materiae shall not apply, the Commission engaged in extensive deliberation reflecting the complexity of the topic
State comments on the provision were divided with some governments supporting the draft article, while others opposed it and yet others took the middle ground. Some supporters argued that the provision reflected customary international law. A small number of states proposed deleting draft article 7, and in some cases, contested its customary international law status. Other states did not only want to retain draft article 7, but also to expand it. The latter position garnered wider support. The draft article, as revised by the Drafting Committee, added three crimes—the crime of aggression, slavery, and slave trading—to the previously adopted list of six crimes in respect of which immunity shall not apply to reflect the comments of states, to wit: (1) crime of genocide; (2) crimes against humanity; (3) war crimes; (4) crime of apartheid; (5) torture; and (6) enforced disappearance. The drafting group noted that each of these additions satisfied the dual threshold of being clearly recognized as crimes under international law and of giving rise to direct individual criminal responsibility. These criteria were essential to ensure consistency with the principle of legality (nullum crimen sine lege) and to provide guidance to national authorities who might lack specialized knowledge in international law.Footnote 23
The inclusion of the crime of aggression, which had been controversially excluded from the initial list of crimes in July 2017,Footnote 24 was particularly debated. The Drafting Committee recognized its longstanding status as a crime under international law, as reflected in the 1950 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal, as well as subsequent ILC instruments and the Rome Statute and its Kampala Amendments.Footnote 25 However, concern was raised about the practicality of domestic prosecution in the absence of an international determination of aggression. Some members proposed conditioning its inclusion on a prior finding by a competent international tribunal. This proposal was ultimately rejected on the basis that such a requirement would conflate the question of jurisdiction with the applicability of immunity and would improperly restrict the draft article’s procedural scope.Footnote 26 Several members, including the present author who had been part of a minority of eight Commission members that protested its omission in 2017, welcomed the inclusion of the crime of aggression in draft article 7, seeing it as a restoration of a crime that should not have been excluded in the first place.
The crimes of slavery and slave trading were considered equally well-established. Their inclusion was supported by reference to multiple international treaties and customary international law. It was noted that in the work of the Commission, in another project, slavery and slave trading had been qualified as crimes bearing a jus cogens character. Members recalled that enslavement is also expressly qualified as a crime against humanity in Article 7(1)(c) of the Rome Statute and that both slavery and slave trading are defined with sufficient clarity to satisfy legal certainty requirements. Their addition was a response to concerns raised by states on the first reading text with Sierra Leone,Footnote 27 in particular, successfully advocating for their inclusion in its written comments to the Commission.Footnote 28
The Drafting Committee also debated the form and structure of draft article 7. It decided to consolidate the provision into a single paragraph and to delete the former annex and paragraph 2, which had contained references to treaty definitions of the crimes. This decision was motivated by concerns that many states were not parties to all the treaties cited, particularly the Rome Statute, and that including specific treaty definitions might inadvertently suggest the imposition of obligations on non-party states. Instead, the revised draft article 7 formulation refers to crimes “as defined according to the applicable rules of international law,” thereby encompassing both treaty and customary sources without prescribing one over the other.Footnote 29
Proposals to further expand the list of crimes in draft article 7 were considered but rejected. For instance, some members called for the inclusion of terrorism, drug trafficking, corruption, and extrajudicial killings. These proposals were not adopted due to persistent definitional ambiguities and a lack of consensus about their legal status under international law. In the case of terrorism, for example, despite its severity and the existence of numerous treaties, the lack of a universally accepted definition made it unsuitable for inclusion. A similar logic applied to other proposed offenses, where definitional inconsistencies could risk undermining the article’s clarity and legal precision.Footnote 30
Another point of discussion was whether the draft article should instead include a general clause allowing for the future inclusion of additional crimes. Such a general proposal had been first made in plenary debates of this topic by the present author in 2017, but it did not garner support. Suggestions by the members that argued similarly ranged from using phrases like “inter alia” in the chapeau to inserting a “without prejudice” clause. Ultimately, the Drafting Committee rejected these options, deciding instead to address future developments in international law through the commentary, thereby maintaining a balance between legal certainty and openness to evolution.Footnote 31
A final contentious point was whether the draft article should include a “without prejudice” paragraph clarifying that the exclusion of immunity did not affect other applicable special rules under treaties or customary international law. The Drafting Committee decided not to incorporate such a clause, finding it unnecessary given that this principle was already addressed in draft article 1(2) and could be further elaborated in the commentary. Nonetheless, the deletion of the annex and the reliance on international law definitions raised the importance of detailed explanations in the future commentary to ensure clarity for states and domestic authorities applying the rule.Footnote 32
Despite these efforts to balance legal precision, progressive development and codification, and respect for sovereignty, a handful of members of the Commission expressly disassociated themselves from the adoption of draft article 7. They contended that the provision did not reflect existing customary international law.Footnote 33 It is worth stressing however that the adoption of the final text took place without a vote with the ILC speaking as one voice on the topic, contrary to the experience when the draft article was adopted in July 2017. It will be interesting to hear the views of states on the topic in the 2025 debate of the Commission’s report. The experience of past debates indicates that states, like members of the ILC, will reflect a similar difference of view supporting the draft articles present status as customary international law while a handful of other states opposing it.
Part Four of the draft articles introduces detailed procedural safeguards to regulate how and when a forum state may investigate or prosecute a foreign official. These provisions were broadly welcomed as mechanisms to balance accountability, sovereign equality, and due process.Footnote 34 Draft article 8, on the application of part 4, anticipates that procedural provisions and safeguards shall apply in any situation that may involve the exercise of criminal jurisdiction by the forum state over an official of another state.Footnote 35 The second part of draft article 8 clarifies the applicability of the draft articles, including in relation to the determination of whether immunity applies or does not apply under any of the draft articles.
Article 9, on examination of immunity by the forum state, requires the competent authorities of the forum state when they become aware that an official of another state may be affected by the exercise of its criminal jurisdiction, to examine the question of immunity without delay. It goes on to specify that the competent authorities of the forum state shall always examine the question of immunity: (1) before initiating criminal proceedings against an official of another state; and (2) before taking coercive measures that may affect an official of another state, including those that may affect any inviolability that the official may enjoy under international law.Footnote 36
Although no formal decision was made on the final form of the draft articles this year, since draft articles 10 to 18 remain in the Drafting Committee, the special rapporteur and many members reiterated their preference for their eventual transmission to the General Assembly with a recommendation that they form the basis for the negotiation of a future convention on the topic whenever states felt ready to do so.Footnote 37 A minority of members suggested that non-binding guidelines or model provisions may be more appropriate, especially in light of continuing disagreements regarding the legal status of key provisions like draft article 7. The latter proposal to transform them to draft guidelines is basically unlikely to occur, as it would contradict the settled practice of the Commission when it carries out studies formulated as draft articles. Be that as it may, the Commission aims to complete the second reading of the full draft at its seventy-seventh session. So far, the topic remains a test case for reconciling the principle of sovereign equality with the imperative of individual accountability under international law.
III. General Principles of Law
The topic General Principles of Law remained a focal point of the Commission’s seventy-sixth session since second reading topics take priority. Initially included in the program of work in 2018, with the first reading completed in 2023, the topic is rooted in the need to clarify the practice concerning Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) which identifies “general principles of law recognized by civilized nations” as one of the sources of international law.Footnote 38 The Commission had appointed Marcelo Vázquez-Bermúdez (Ecuador) as the special rapporteur. The objective of the topic is to clarify the nature, categories and functions of general principles of law, a source historically under-analyzed despite its foundational role, and to draw conclusions reflecting practice.Footnote 39 While the Commission had planned to adopt the draft conclusions on second reading in 2025, as noted above, the shortening of the session led to a postponement until 2026.Footnote 40
In the work this year, the Commission affirmed that general principles of law are autonomous sources of international law, distinct from treaties and customary international law. Yet, it also noted that they operate in close doctrinal relationship with both.Footnote 41 The special rapporteur stressed the need for terminological clarity, particularly distinguishing general principles from jus cogens norms and broader principles derived from treaties or customary international law.Footnote 42 Some members proposed addressing these distinctions more explicitly in the commentaries.
There was strong consensus against including a non-exhaustive list of general principles in the draft conclusions themselves.Footnote 43 The Commission members feared that any such list would mislead by suggesting that only the listed principles qualified, undermining the open-textured nature of Article 38(1)(c). Instead, keeping in mind the wider goal, the conclusions aimed to establish definitional and methodological guidance.
Central to the concept of general principles is the idea of recognition, a process understood to arise primarily from the practice of states. While some members acknowledged that international organizations may contribute to the recognition of certain principles, the dominant view held that state practice remains the cornerstone.Footnote 44 The Commission also addressed the outdated language of “civilized nations” in the ICJ Statute, recommending replacement with “community of states” or “international community.”Footnote 45 The terminology which prevailed, as was already the case on first reading, is that used by states in the ICCPR: “community of nations.”Footnote 46
The Commission retained its two-tiered approach to categorizing general principles: (1) those derived from national legal systems; and (2) those that may be formed within the international legal system itself.Footnote 47 The first category enjoys widespread consensus and is solidly grounded in the Statute’s wording and in practice. The second category of general principles has generated more debate, both in the recently concluded session and in previous years, with some members arguing that such principles reflect progressive development rather than codification.Footnote 48 The comments of states reflected a similar pattern, with a small number of states questioning the existence of the second category or at least requiring some clarification of it. The special rapporteur, however, defended the validity of this category by referencing consistent jurisprudence and doctrinal support. He was supported by some members of the Commission, including those that agreed with the state comments requesting further elaboration of the best examples in the commentary.
Draft conclusions 4 through 6 articulate the process for identifying and determining general principles derived from national legal systems.Footnote 49 The Commission reaffirmed the two-step methodology: first, identifying a legal principle common to domestic systems; and second, assessing whether the principle is “transposable” or “compatible” with the international legal system.Footnote 50 This established methodology requires a comparative approach that considers legal traditions from diverse geographical, linguistic, and cultural contexts. The Commission noted that decisions of national high courts and academic doctrine serve as valuable tools in this comparative exercise.Footnote 51
Draft conclusion 7 addresses principles formed within the international legal system. The methodology for identifying these principles is inductive and deductive, focusing on whether the principle has been ascertained by the community of nations as intrinsic to the international legal system. Debate centered on whether such principles could be distinguished clearly from customary international law, which is comprised of the twin elements of state practice and opinio juris.Footnote 52 Some members expressed concern about potential conflation, with general principles of law, emphasizing the need for a distinct identification methodology. In response, the special rapporteur proposed moving explanatory material from the text to the commentary and deleting an earlier paragraph that may have blurred the distinction.Footnote 53 It is at this point unclear whether such a change would be sufficient to address the concerns of the states that have been critical of the category.
Draft conclusions 8 and 9 discuss the use of subsidiary means in the context of the topic of general principles of law, namely, decisions of courts and tribunals and teachings, when engaged in the process of identification of general principles of law. Those subsidiary means are not sources in their own right but play an evidentiary role in the determination of the existence and content of general principles of law.Footnote 54 As it had determined in the conclusions on the identification of customary international law, adopted in 2018, the Commission took the view that decisions of international courts and tribunals, especially those of the International Court of Justice, are a subsidiary means for the determination of the existence and content of general principles of law.Footnote 55 It also added in a separate paragraph that, without prejudice to their use for other purposes, regard may be had where appropriate to decisions of national courts concerning the existence of general principles of law. This approach aligns with the Commission’s parallel work on the topic of subsidiary means for determining rules of international law. The Commission highlighted that decisions of international and national courts, while not sources themselves, assist in confirming the existence and content of general principles, particularly within the first category.Footnote 56
One major point of debate was whether the Commission’s draft conclusion 8, in the general principles of law topic, should mirror the same text as had been adopted in the more recent and more specific study in the topic Subsidiary means for the determination of rules of international law. That text in the subsidiary means topic provided in a first paragraph of draft conclusion 5 that decision of courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for the determination of the existence and content of rules of international law. A second paragraph provided decisions of national courts may be used, in certain circumstances, as a subsidiary means for the determination of the existence and content of rules of international law. The argument was that using such formulation would align the text and avoid creating confusion for states and other users of the Commission’s work. The text, as adopted on first reading in the general principles of law topic, had been based on the same formulation of the identical conclusion on decisions in the identification of customary international law topic. The Commission retained the text largely as adopted on first reading. It was felt that harmonization of the conclusion with the prior topic on customary international law was preferable.
Interestingly, in a decision that contradicted the argument of harmonization of texts across different topics, the Draft conclusion 9 as revised in the general principles of law topic partly adopted the position of the Commission in subsidiary means topic when it provided that teachings, especially those generally reflecting the coinciding views of persons with competence in international law from the various legal systems and regions of the world, are a subsidiary means for the determination of general principles of law. As the present writer noted, however, this language omitted the second sentence of the draft conclusion as had been adopted in the parallel topic providing further that “[i]n assessing the representativeness of teachings, due regard should also be had to, inter alia, gender and linguistic diversity.”Footnote 57 It was suggested that the entirety of the framing of the conclusion on teachings should align with the framing in the Subsidiary Means topic. The special rapporteur for general principles of law instead proposed that the commentary to a revised draft conclusion 9 on teachings should further develop the aspect of linguistic diversity.Footnote 58 No express mention of gender considerations appear to have been contemplated.
Draft conclusion 10 addresses the functions of general principles of law, most notably their traditional role promoting “coherence” and serving as “gap-fillers” when treaty or customary rules do not provide clear guidance.Footnote 59 Some members felt the draft should prioritize this function, while others highlighted the broader utility of general principles, including their role in establishing rights and obligations. The special rapporteur agreed to explore these nuances in the commentary.Footnote 60
Draft conclusion 11 elaborates on the relationship between general principles and other sources of international law. General principles are not hierarchically superior or subordinate to treaties or custom; rather, the principle of lex specialis governs in case of conflict.Footnote 61 If a general principle contradicts a jus cogens norm, the latter prevails by virtue of its higher status. The special rapporteur noted that the persistent objector rule, common to custom, is inapplicable here due to the nature of recognition and the structural role general principles play.Footnote 62
The Commission addressed several structural and political concerns regarding the scope and presentation of the draft conclusions. Some delegations and members called attention to the lack of geographical diversity in cited practice and jurisprudence.Footnote 63 The special rapporteur acknowledged these critiques and committed to strengthening the commentary with examples from underrepresented regions.
Draft conclusion 12, a new provision, proposed a caveat by making the entire project without prejudice to the general principles of limited scope of application. Examples included those applicable at the regional or subregional levels.Footnote 64 This proposal received general support, though members debated whether it should remain a standalone conclusion or be elaborated within the commentary. It was ultimately included as a standalone provision.
Finally, the Commission agreed that the final form of the text should be a set of draft conclusions accompanied by commentaries.Footnote 65 The proposed recommendation to the General Assembly, which will be adopted next year, would encourage states to take note of the conclusions, annex them to a resolution, and disseminate them widely. While not binding, these conclusions are intended to serve as practical guidance for courts, practitioners, and states in navigating one of international law’s most conceptually rich and doctrinally unsettled sources.
IV. Subsidiary Means for the Determination of Rules of International Law
The Commission’s ongoing work on the topic Subsidiary Means for the Determination of Rules of International Law—pursuant to Article 38(1)(d) of the Statute of the International Court of Justice—entered a significant phase during the seventy-sixth session, with the submission of the third report by the Special Rapporteur, Charles Chernor Jalloh (Sierra Leone—the present author).Footnote 66 The Commission, which seeks to produce a set of conclusions reflecting the practice on the use of subsidiary means, had maintained its schedule for the topic in the first three years of consideration.Footnote 67 However, despite the efforts of the special rapporteur to produce commentaries to five newly adopted draft conclusions adopted in this session at record speed, the late consideration of the topic in the plenary and the shortening of the session because of the fiscal crisis facing the UN prevented completion of the first reading. The Commission did make notable progress by advancing a complete set of thirteen draft conclusions for the topic.Footnote 68 The draft conclusions aim to clarify the nature, function, role and weight of subsidiary means in the process of determining the existence and content of rules of international law. The project is therefore significant to the extent that it applies to all of international law and contemplates the place of the subsidiary means vis-à-vis the sources of law found in Article 38, paragraph 1(a) to (c), namely treaties, customary international law, and general principles of law.
For the 2025 session, the Commission had before it the thirdFootnote 69 report of the special rapporteur as well as an accompanying bibliography, which addressed several key issues. First, teachings and the works of expert bodies produced by private or state-affiliated expert groups, resolutions of international organizations and intergovernmental conferences, the question of the unity and coherence of international law, the relationship between subsidiary means for determining rules of international law and supplementary means of interpretation and the structure of the entirety of the draft conclusions. The special rapporteur proposed five draft conclusions, which were referred to the Drafting Committee, together with the draft conclusions adopted in previous sessions with the sole purpose of finalizing the first reading. Substantial progress followed with the adoption of five new draft conclusions at this year’s session. The progress included revisiting the structure of the entirety of the draft conclusions, in line with the plan of the special rapporteur and also to reflect the views of states.
As provisionally adopted by the Drafting Committee, the draft conclusions are now structured into five parts and are thirteen in number.Footnote 70 Part One consists of draft conclusion 1, which is the scope provision stating that the draft conclusions concern the use of subsidiary means for the determination of rules of international law. Part Two is comprised of draft conclusions 2 to 4 covering, respectively, the three categories of subsidiary means; the nature and functions of subsidiary means as assistive vehicles instead of sources of international law; and the general criteria for the assessment of subsidiary means for the determination of rules of international law. Part Three is comprised of conclusions addressing decisions of courts and tribunals; absence of legally binding precedent in international law; and weight of decisions of courts and tribunals. Part Four concerns conclusions on teachings and the weight of teachings. Part Five contains five draft conclusions addressing the other means generally used to assist in determining rules of international law. The conclusions address the works of expert bodies and the weight of the works of expert bodies. They are followed by two conclusions addressing resolutions and other texts produced by international organizations or at intergovernmental conferences, while the last draft conclusion considers the weight of resolutions and other texts produced by international organizations.
With these structured draft conclusions, arranged into a baker’s dozen, the Commission has now significantly advanced clarity on the law and practice regarding the use of Article 38(1)(d) of the ICJ Statute directing international lawyers to apply subsidiary means for the determination of rules of law. The Commission, assuming it is funded to meet next year, will adopt commentaries for all the draft conclusions. And, in so doing, it will complete the first reading on this topic. At this stage, and considering the discussion of this topic in previous issues of this journal, only a few additional comments are warranted on the general tenor of the debate at the 2025 session.
Several members of the Commission reaffirmed that subsidiary means are not independent sources of international law but tools to assist in ascertaining the existence or content of rules derived from primary sources—namely treaties, custom, and general principles of law.Footnote 71 Several members stressed that Article 38(1)(d) should not be construed expansively. Or be treated as a “catch-all” for legal reasoning, but rather should retain its evidentiary, non-generative function.Footnote 72
Decisions garnered attention among the categories of subsidiary means. It was broadly accepted that decisions of international courts and tribunals—particularly of the International Court of Justice—hold significant weight in interpreting and applying general international law.Footnote 73 However, several members emphasized the importance of avoiding an overly hierarchical treatment of judicial decisions and called for greater consideration of rulings from diverse domestic jurisdictions.Footnote 74 Decisions of domestic courts, particularly those from the highest courts, can serve as valuable indications of opinio juris or evidence of emerging consensus, especially when representative of different legal systems and regions.Footnote 75
On the topic of teachings, the special rapporteur proposed a more inclusive understanding of “teachings of the most highly qualified publicists,” recommending that the category be broadened to reflect contemporary realities.Footnote 76 This would include not only individual academic publications. But also, the work of expert groups and institutions with demonstrated legal competence.Footnote 77 Many Commission members supported this approach, noting that representativeness, authorship, and quality of legal analysis should guide the weight given to teachings.Footnote 78 The Commission also considered whether to distinguish between teachings used to identify rules (as evidentiary) and those that serve interpretive or doctrinal functions.Footnote 79
A related discussion concerned the role of pronouncements by public expert bodies, such as the International Law Commission itself, treaty monitoring bodies such as the Human Rights Committee, and the International Committee of the Red Cross.Footnote 80 These were seen as playing an increasingly influential role in legal reasoning, despite lacking formal judicial authority. Members acknowledged their potential utility as subsidiary means. But others cautioned that such outputs must be treated carefully and assessed based on methodological rigor and reception by states.Footnote 81
Another debated issue was the inclusion of resolutions of international organizations as part of the other subsidiary means category. Some members recognized that certain resolutions—especially those adopted by consensus or grounded in legal principle—may assist in identifying rules of law. At the same time others cautioned that the inherently political nature of resolutions risks conflating evidence of opinio juris with normative instruments.Footnote 82 There was general agreement that resolutions must be treated on a case-by-case basis. There was consensus that Security Council resolutions should not be categorized as subsidiary means due to their binding legal status.Footnote 83 On the other hand, some members pointed out that certain resolutions of plenary bodies such as those of UN organs like the General Assembly carry some weight, depending on their content and various additional factors, which are set out in the criteria included in the final draft conclusion for assessing their weight.
The Commission did not consider the relationship between subsidiary means and interpretive tools under Article 32 of the Vienna Convention on the Law of Treaties.Footnote 84 In particular, the relationship between “subsidiary means” and “supplementary means” was addressed by the special rapporteur at the request of Sixth Committee delegations. Members stressed that while some materials may serve both interpretive and evidentiary purposes, clarity must be maintained to avoid doctrinal confusion.Footnote 85 After the debate, in which he sensed a preference not to address the issue, the special rapporteur did not pursue the inclusion of a specific conclusion on the topic, suggesting instead that the relationship should be explained in the commentary. The distinction between determination and interpretation of rules would be further elaborated in the commentaries.Footnote 86
A final topic that some members were hesitant on was whether to adopt a specific conclusion to address conflicting decisions that may be issued on the same legal question by different international courts and tribunals (the so-called question of fragmentation, or more positively framed, the question of the unity and coherence of international law). While many members supported examination of that issue, as strongly urged by the special rapporteur, other members considered that the issue of conflicting decisions appeared distant from the core purpose of this topic. Another argument by some members was that the issue of conflicting decisions had already been addressed in the Commission’s previous work on the fragmentation of international law. This, as I showed in my third report, was incorrect as a factual matter. Rather, the issue of conflicting decisions was set aside by the Commission. What was perplexing was that members repeated that mantra without showing, by reference to the previous ILC work on fragmentation, the special rapporteur’s errors. The ensuing bandwagon effect that was generated in the plenary meant that the Commission thereby lost yet again the opportunity to add value for member states and the international legal community on the not so remote prospect that different international tribunals might issue conflicting decisions on the same subject, as had famously occurred between the ICJ and the International Criminal Tribunal for the former Yugoslavia. In the end, due to a lack of time, the special rapporteur withdrew his proposed conclusion. Importantly, as compromise, the Drafting Committee agreed he should clarify the issue in the commentaries thereby preserving the chance that the Commission would not be entirely silent on that important issue.
Overall, though the first reading was only completed at the Drafting Committee level, the Commission expressed support for the substance of the thirteen draft conclusions by taking note of them and making plans to revisit the full set at its seventy-seventh session in 2026.Footnote 87 The commentaries accompanying the draft conclusions will play a crucial role in elaborating standards of authority, representativeness, and methodological rigor in the use of subsidiary means for the determination of rules of international law.
IV. Sea-Level Rise in Relation to International Law
At its seventy-sixth session, the Commission concluded its work on the topic Sea-Level Rise in Relation to International Law by adopting the final report of the Study Group.Footnote 88 This marked the culmination of a multi-year study into one of the most pressing legal challenges arising from climate change.
The Commission added the topic to its program of work in 2018, based on a proposal of five members of the Commission which took into account a formal request from the Federated States of Micronesia, and emphasized the need for greater legal clarity regarding the consequences of sea-level rise—a relatively new phenomenon that has increasingly affected many coastal states from different regions of the world.Footnote 89 The Study Group was to carry out a mapping exercise and examine existing international law and its applicability to sea-level rise, taking into account the progressive development and codification mandate of the Commission. The topic was grouped into three themes, namely, issues relating to: (1) the law of the sea; (2) statehood and recognition; and (3) protection of persons affected by sea-level rise. As part of the compromise, among members, core aspects of sea-level rise such as protection of the environment, climate change per se, causation and responsibility were excluded from the scope of the study. The study was to also avoid proposing amendments to the United Nations Convention on the Law of the Sea (UNCLOS).Footnote 90 The General Assembly subsequently took note of the Commission’s decision.Footnote 91
Starting in 2019, an open-ended Study Group was established and co-chaired on a rotating basis by Bogdan Aurescu (Romania),Footnote 92 Yacouba Cissé (Cote d’Ivoire), Patrícia Galvão Teles (Portugal), Nilüfer Oral (Turkey), and Juan José Ruda Santolaria (Peru).Footnote 93 Over the course of the next five years (2020–2024), the Study Group issued two issues papers and two supplementary reports addressing each of the three subtopics on the law of the sea, statehood, and the protection of persons affected by sea-level rise. These, along with debates of the issues papers by the members of the Study Group and extensive state input and emerging state practice especially from Asia-Pacific states, formed the basis of the final consolidated reportFootnote 94 that was adopted this year.Footnote 95 Despite the shortened 2025 Commission session, a decision was made to prioritize the completion of the sea-level rise topic, taking into account the considerable state interest in the topic and the relatively more flexible study group format which does not require the preparation of commentaries. The Study Group held six meetings between April 28 and May 5, and the Commission formally adopted its final report on May 26, 2025.Footnote 96 A brief summary of key findings, on each of the three aspects of the study, follows below.
A. Law of the Sea
The Study Group affirmed that UNCLOS, concluded in 1982, did not expressly foresee the legal implications of climate-induced sea-level rise.Footnote 97 As a consequence, there were no specific provisions that addressed certain issues such as climate change-related sea-level rise in relation to baselines, the outer limits of maritime zones, and the status of islands and of archipelagic waters. Given that conclusion, the approach was to generally uphold the framework anticipated by UNCLOS, ensuring that whatever solution is advanced is consistent with it and complements it.
Preserving legal stability, certainty, and predictability was emphasized with firm commitment to avoid opening the door for states to question existing maritime boundaries agreed upon or otherwise duly established under international law as a consequence of climate change-related sea-level rise. The final report underlined the need to avoid creating uncertainty and fresh disputes over maritime areas. Maritime entitlements—once lawfully established and deposited with the UN secretary-general in line with the provisions of UNCLOS—should remain stable despite geographic changes, in order to preserve legal certainty and avoid disputes.Footnote 98 The Commission concluded that no provision in UNCLOS or customary international law requires states to revise baselines or maritime zones due to coastal recession.Footnote 99 The Study Group emphasized that maintaining legal stability, certainty, and predictability to preserve baselines and the outer limits of maritime zones notwithstanding sea-level rise were already evidenced in state practice.
Moreover, the Study Group confirmed that Article 62 of the Vienna Convention on the Law of Treaties, which permits termination or withdrawal from a treaty in case of a fundamental change of circumstances (rebus sic stantibus), does not apply to maritime boundaries.Footnote 100 Article 62(2)(a) expressly excludes treaties establishing boundaries, including maritime delimitations.Footnote 101 These conclusions are consistent with increasing state practice, including the 2021 Pacific Islands Forum Declaration on Preserving Maritime Zones in the Face of Climate Change–Related Sea-Level Rise.Footnote 102
B. Statehood
The Study Group’s final report underlined the “strong support among States for the continuity of statehood and sovereignty and the maintenance of international legal personality and membership of international organizations.”Footnote 103 Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, which enumerates the famous four-part criteria for states, concerns the creation—not the continuity—of states.Footnote 104 It did not contemplate climate change induced sea-level rise, and in practice, is applied with some flexibility. In that wider context, statehood cannot be extinguished merely by loss of habitable territory or permanent population due to sea-level rise.Footnote 105
Numerous states, as well as the 2023 Pacific Islands Forum Declaration and the 2024 Declaration of the Heads of State and Government of the Alliance of Small Island States on Sea-Level Rise and Statehood, expressed support for the continued recognition of statehood under such circumstances.Footnote 106 This continuity of statehood is closely tied to the right of each state to preserve its existence and core principles of international law, including territorial integrity, self-determination, permanent sovereignty of states over their natural resources, the maintenance of international peace and security, equity and justice, and international cooperation and the prevention of statelessness.Footnote 107
The Study Group further determined that to “preserve their rights, States particularly [those especially] affected by climate change-related sea-level rise are entitled to take the measures available to them under international law, including adaptation measures, in response to different levels of submergence of land surface or challenges to habitability, while upholding their obligations under international law.”Footnote 108
Self-determination, particularly for Indigenous Peoples and vulnerable communities, was also cited as requiring meaningful participation in decisions related to relocation or alternative governance.Footnote 109 Affected states retain the right to pursue legal and institutional adaptations to preserve their identity and obligations under international law.Footnote 110
C. Protection of Persons Affected by Sea-Level Rise
The third and final aspect of the Study Group’s report recognized that current international legal frameworks governing displacement are fragmented and do not specifically address slow-onset environmental phenomena.Footnote 111 Nonetheless, states continue to bear human rights obligations toward persons displaced by sea-level rise. Such persons remain “rights holders” and states will continue to carry a duty to respect, protect and fulfil their human rights obligations, including with regard to civil, political, economic, social and cultural rights. Here, the Commission maintained the indivisibility of all rights, without distinguishing between some rights as more important than others.
The Study Group also concluded the need to develop legal and practical solutions to better protect persons affected by sea-level rise. The protection of human dignity should be a guiding principle informing all actions taken in relation to climate induced sea-level rise. Additional elements include a hybrid approach combining needs-based and rights-based frameworks and recommended practical tools such as humanitarian visas, climate mobility agreements, and legal safeguards against statelessness.Footnote 112 The principle of non-refoulement was also identified as relevant in some contexts.Footnote 113 International cooperation—including cultural preservation and equity-based solutions—was deemed essential.Footnote 114
D. Cross-Cutting Issues
Throughout the report, the Study Group emphasized that the three subtopics of law of the sea, statehood, and protection of persons are interconnected. Legal stability, certainty, and predictability were identified as shared foundations across all three domains. Principles of equity and solidarity were likewise underscored, especially in light of the fact that those most affected by sea-level rise are often those least responsible for global greenhouse gas emissions.Footnote 115
The Study Group identified two possible practical paths for states, international organizations and others—whether used individually or in combination. Under the first path, “an approach may be adopted that allows for the interpretation and application of existing instruments and rules of international law to take into account the adverse impact of sea-level rise.”Footnote 116 Under this approach, for instance, “existing instruments and rules of international law may be applied in a manner that addresses the impact of sea-level rise so as to allow for a contemporary interpretation….”Footnote 117 Relatedly, “an interpretative statement or a subsequent agreement” may be adopted by the states parties to UNCLOS or by the General Assembly to ensure preservation of baselines and maritime zones under the Convention and other rules of international law.Footnote 118 Lastly, the elements for legal protection of persons affected by sea-level rise, may be considered, as appropriate, in the interpretation and application of relevant instruments.
Under the second practical path that the Study Group advanced, with three additional sub-options, the General Assembly and other international organizations may adopt binding or non-binding instruments and develop mechanisms that specifically address the legal issues arising from sea-level rise.Footnote 119
With the report of the Study Group now finalized, the Commission study on this topic has now successfully concluded. Curiously, although there was no formal decision as was the case with the fragmentation study,Footnote 120 the final report has been published on the website of the Commission. Only time will tell how states will make use of the work on this topic, especially considering the study group format does not lend itself to the preparation of texts with commentaries. That said, at this point, at least three preliminary observations can be made about the likely impact of this topic.
First, it has provided the first major legal mapping exercise of the international legal implications of sea-level rise. By addressing law of the sea, statehood, and protection of persons affected by sea-level rise, the topic has provided a strong foundation in the search for practical solutions to climate induced sea-level rise. The conclusions reached by the Commission have already been widely embraced by states in the UN General Assembly and in other contexts.
Second, the work on the topic has generated a body of practice since the topic was added to the program of work. While the Commission traditionally looks for practice from states, to use in its work, a different situation occurred whereby with the study underway, a dialogic process began coinciding with actions at the technical expert level generating feedback and reaction among states thereby feeding a dynamic process of practice. This dynamic process includes the adoption of several declarations and statements of principle that were in turn used by the Commission, and even the ICJ, as useful state practice. This demonstrates both the promise, and perhaps the risks, of taking up topics that are in the process of evolution.
Third, the work has also started making a jurisprudential contribution as manifested by the ICJ’s advisory opinion on climate change. In that opinion, the Court referenced the work of the Commission, of which it was “aware,” on sea level, a key conclusion of the study group indicating that: “The Court considers that the provisions of UNCLOS do not require states parties, in the context of physical changes resulting from climate-change related sea-level rise, to update their charts or lists of geographical co-ordinates that show the baselines and outer limit lines of their maritime zones once they have been duly established in conformity with the Convention. For this reason, states parties to UNCLOS are under no obligation to update such charts or lists of geographical co-ordinates.”Footnote 121 By this quote, the Court—itself comprised of several former ILC members including some who had worked on the sea level rise topic—basically adopted and reinforced the ILC position. As more regions and bodies grapple with sea-level rise issues, the legal implications of sea-level rise and the Commission’s work in that regard will prove to be a handy starting point.
V. Special Rapporteur Led Topics Discussed in Working Groups
As indicated above, due to the shortened seventy-sixth session, the Commission was unable to consider several topics in plenary. Taking a flexible approach, it instead undertook limited discussions through working groups. These meetings provided a preliminary forum for the exchange of views, laying the groundwork for continued deliberation in the seventy-seventh session and providing useful feedback to the special rapporteurs. The format, which is not per se problematic, was not optimal because of the limited number of meetings that could be made available to each topic. This is despite the hard work of each special rapporteur to timely present their reports. Briefly, I set out some highlights for each topic, without delving into substance since the working groups were themselves unable to do so.
A. Settlement of Disputes to Which International Organizations Are Parties
This topic was first added to the Commission’s program of work in 2022, with August Reinisch (Austria) appointed as special rapporteur.Footnote 122 At the seventy-sixth session, the Commission did not have time to consider the third report in plenary and instead convened a Working Group of the Whole. The report focused on disputes between international organizations and private parties and proposed five draft guidelines addressing scope, jurisdictional immunity, access to justice, and rule of law concerns.Footnote 123
The Working Group’s discussion emphasized the importance of these disputes in contemporary practice. Members broadly supported distinguishing disputes based on the parties involved rather than solely on the legal basis of the dispute. Particular attention was paid to the imbalance of power between international organizations and private individuals, especially regarding access to justice and procedural fairness.Footnote 124 Concerns were raised about the adequacy of current remedies, the role of good faith and cooperation, and the potential applicability of human rights and labor standards.Footnote 125 Several members proposed additional draft guidelines on topics such as diplomatic protection, consent-based arbitration, and effective remedies. The Commission expects to proceed to the first reading of the draft guidelines in 2026.
B. Non-legally Binding International Agreements
The Commission continued its consideration of Non-legally binding international agreements, a topic added in 2023 and led by Special Rapporteur Mathias Forteau (France).Footnote 126 Due to the time constraints, the Commission only held a Working Group discussion on the second report,Footnote 127 which examined core definitional elements, scope, and the line between treaties and non-binding instruments. Six draft conclusions were proposed but were not debated.
Members commended the special rapporteur’s measured and non-prescriptive approach. The core debate centered on balancing flexibility with legal certainty and whether “agreements” or “instruments” best captured the nature of these texts.Footnote 128 Support emerged for identifying party intention as the key criterion for determining legal bindingness, a view consistent with the ICJ’s recent decision in Gabon/Equatorial Guinea.Footnote 129 Some members expressed reservations about proposed draft conclusion 6, which addresses explicit declarations of legal (or non-legal) intent and its implications for documents that lack such language.
The Commission is expected to consider the legal effects of these instruments in the next report, with the final product anticipated to take the form of draft conclusions. It is possible that, for next year, there might be an additional report of the special rapporteur on the topic. This would mean sufficient time will be required to enable two sets of plenary debates on the two reports. If this proves to be the case, more time than is typically allocated for a single report may also be required for this topic in the Drafting Committee.
C. Prevention and Repression of Piracy and Armed Robbery at Sea
The Commission resumed its work on this topic, originally added in 2022, and now under the leadership of Special Rapporteur Louis Savadogo (Burkina Faso), importantly thereby retaining the topic among the African members of the Commission. The Working Group examined a preliminary noteFootnote 130 outlining key thematic areas and legal frameworks for possible future exploration. This was consistent with the Commission’s mandate to the special rapporteur when he was appointed last year.
The discussion focused on the relationship between the topic and the law of the sea, including universal jurisdiction, the freedom of the high seas, and the competing competencies of flag and coastal states. Members expressed interest in emerging legal issues, including the role of armed security personnel, arbitrary ship seizures, and technological threats such as cyberattacks and drones.Footnote 131 Several members emphasized the importance of addressing the jus cogens nature of piracy and the aut dedere aut judicare obligation. Others highlighted the need to include humanitarian concerns such as the rescue and protection of victims.Footnote 132 The Working Group reaffirmed the relevance of regional practice and supported continued study with a view toward adopting draft articles or, alternatively, guidelines.
D. Succession of States in Respect of State Responsibility
This topic, first introduced in 2017 by Pavel Sturma (Czechia) with the aim of preparing draft articles, was restructured in 2022 as draft guidelines. It was revisited briefly during the seventy-sixth session as the special rapporteur was no longer a member of the Commission. Over the past two years, successive Working Groups, initially chaired by Mr. Reinisch and more recently by Mr. Bimal N. Patel (India), have considered a draft report prepared by the Chair.Footnote 133
Members reiterated general support for discontinuing the topic due to the absence of consistent or substantial state practice, particularly from African and Asian states. They also cited enduring tensions between “clean slate” and “automatic succession” theories and the frequent use of ad hoc bilateral agreements to resolve succession issues.Footnote 134 Although the draft report was broadly welcomed, members requested that it be reviewed paragraph by paragraph at the next session. Some objected to language in the report that suggested potential for future work, urging that it be removed to avoid any implication that the topic might be revived. The Working Group intends to finalize and adopt the report in 2026, thereby formally concluding the Commission’s work on the topic.
VII. Other Decisions and Conclusions of the Commission
A. Addition of New Topics to the Work Program
During its seventy-sixth session, the Commission adopted a range of procedural and institutional decisions. Although its substantive agenda was curtailed by time limitations, the Commission considered matters integral to the fulfillment of its mandate and institutional continuity.
Two new topics were added to the Commission’s program of work:Footnote 135
(1) Compensation for the damage caused by internationally wrongful acts, with Mr. Mārtiņš Paparinskis (Latvia) appointed special rapporteur. The topic aims to build on the prior work of the Commission in the context of the Articles on the Responsibility of States for Intentionally Wrongful Acts to clarify the contemporary practice relating to compensation contained in Article 36.Footnote 136 It will therefore address the “issues necessarily implicated by identification of rules on compensation and commonly involved with their application in practice”;Footnote 137 and
(2) Due diligence in international law, with Ms. Penelope Ridings (New Zealand) appointed special rapporteur.Footnote 138 The topic “seek[s] to clarify the legal character, scope and content of the due diligence obligation” in relation to states only.Footnote 139 Due diligence, which is widely associated with international environmental law but is not limited to that subfield, is defined as “a duty or standard of care that should be applied to a State’s actions on its territory or activities subject to its jurisdiction or control, which harm the rights and interests of other States.”Footnote 140 The topic seeks to discern the nature and scope of the obligation by identifying the “common elements of the due diligence obligation that can be applied both generally in international law and to special regimes of international law.”Footnote 141 The idea is to locate “the core characteristics of due diligence that are not dependent on the primary obligation to which due diligence is attached.”Footnote 142
With the addition of these topics, issues of representation of special rapporteurships in the current composition of the Commission are beginning to be partly addressed with Eastern Europe gaining one more rapporteurship.Footnote 143 But questions of representation will continue to remain. Since, at this point, there are no special rapporteurs from the Asian region leading work on any topic. The last such rapporteur from the region concluded his work in 2021.Footnote 144 That said, the pending completion of some existing topics will open up some possibilities to appoint an Asian member to lead a topic. As do the new additions of topics to the long-term work program, which would create possibilities to move one of them forward, provided those topics obtain wide state support in the Sixth Committee.
B. Working Group on the Long-Term Program of Work
The Commission’s Planning Group annually reconstitutes two working groups. One addresses new topics, the other concerns working methods. On the same day, it constituted its Working Group on the Long-Term Program of Work, chaired by Mr. Marcelo Vázquez-Bermúdez. The Group, which was the only one of the two working groups to have meeting allocations, considered a number of member proposals for new topics. Following multiple meetings, on topics that had been presented last year, it found consensus to recommend the inclusion of three new topics on the long-term program of work:
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1. The principle of non-intervention in international law proposed by Ivon Mingashang (Democratic Republic of the Congo).
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2. Identification and legal consequences of obligations erga omnes in international law proposed by Masa Asada (Japan).
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3. Legal aspects of accountability for crimes committed against United Nations personnel serving in peacekeeping operations by Bimal N. Patel (India).Footnote 145
These selections were made in accordance with the Commission’s 1998 criteria, which include practical relevance, sufficiency of state practice, feasibility, and conceptual clarity. States have been invited to comment on their suitability for further study in the autumn 2025 debate. While the Commission has taken these topics, into the long-term work program, careful consideration should be given on whether to take them into the current agenda. Indeed, for some legal experts, some of these topics may not bear direct practical relevance and would seem rather academic or theoretical leading to questions about their utility for further study. In the end, it is the views of member states that should serve as a litmus test on whether one or more of these topics are taken forward rather than the preferences of the individual proponents of the topics.
C. Working Group on Methods of Work and Procedures
The Working Group on Methods of Work and Procedures, chaired by Mr. Charles Chernor Jalloh, was also reconstituted by the Planning Group. While the working group has three standing agenda items, for discussion, and a charge from last year to prepare a handbook to transparently set out the working methods, it could not meet during the seventy-sixth session as there was no space for the meetings on the work program.Footnote 146 It is expected that the working group will resume its work, which includes the preparation of a handbook and a return to the other agenda items, during the seventy-seventh session. Working methods, though often dismissed even by members of the Commission, are actually quite critical to the success of the institution and have been a key concern for states. The tendency to not allocate any meetings to their consideration, when time pressures arise, should therefore be avoided going forward. The latter tendency was a key reason why no report was produced by the working group in the previous (2017–2022) term of the Commission.
VIII. Conclusion
Like much of the United Nations, 2025 was a challenging year for the Commission. While the Commission is not unsympathetic to the financial challenges facing the organization, including the non-payment of the dues by many member states, the Commission felt compelled to express its “deep disappointment” at the reduction of its session from twelve to five weeks.Footnote 147 This marked the second consecutive year of reduced sessions, amounting to a loss of nine working weeks across two years.
This amounts to a total of one-year of the five-year mandate of the current Commission leading some members to suggest that consideration should be given to requesting an extension of the mandate of members in compensation for the lost work time. Due to the loss of time, as was pointed out earlier, the Commission was unable to conclude the second readings of Immunity of State Officials and General Principles of Law and postponed the finalization of Succession of States in Respect of State Responsibility.Footnote 148 The Commission was also unable to complete the first readings on Subsidiary Means for the Determination of Rules of International Law and the Settlement of Disputes to Which International Organizations Are Parties.
The key question was why the Commission seemed to have had a significant cut to its budget, more so apparently compared to other equivalent bodies. The answer seems to lie in the fact that the budget of the Commission is not separate. But instead forms part of the broader Office of Legal Affairs budget within the Secretariat of the United Nations. This arrangement makes the Commission, as apparently a relatively expensive budget line item within the Secretariat, vulnerable to administrators seeking to find efficiencies and areas to cut for cost savings. This has led members to urge the General Assembly to consider separate budgeting to prevent further disruptions.Footnote 149 Discussions to use a trust fund with voluntary contributions from states have also taken place. While the latter approach might help in the short term, the concern is that in the long-term, this might risk separating the member states among the haves (generally Global North) that can contribute to the Commission budget and the have nots (generally Global South) that may not. The risk to the independence of the body is obvious. Innovative solutions like this idea, while perhaps welcome in an era of budget cuts, must be rooted in principle. And, if this track is unavoidably pursued, no state should be able to earmark donations to the Commission for a particular topic or to a specific special rapporteur. The damage that will result will undermine the credibility and authority of the Commission and hamper its efforts to codify and develop international law.
The extension of the mandate of members by one year, which has occurred before, could be a pragmatic compromise approach that prioritizes the need for coherence of the Commission’s work and recognizes the potential negative impacts created by a change of membership as a function of the ongoing fiscal crisis. As usual, for such a proposal to be realized, it would require the strong support of member states and the General Assembly. One or both of those actors may resist such creative approaches to dealing with the budget crisis not due to lack of merit in the proposal but for more political considerations such as a preference to nominate their own nationals to serve as members of the Commission in the next electoral cycle in 2027.
The Commission’s seventy-sixth session, though severely constrained by unprecedented time limitations, reflected both the resilience of its mandate and the growing complexity of contemporary international law. Under difficult circumstances, members showed creativity and a willingness to adapt to a challenging fiscal environment. Its successful adoption of the final report on sea-level rise marked a historic step in confronting the legal implications of climate change for statehood, sovereignty, and human dignity.
Meanwhile, the debates on immunity of state officials, general principles of law, and subsidiary means revealed deepening engagement with issues of accountability, legitimacy of international law, and the classical sources of international law. Even topics not formally debated in plenary—such as non-legally binding agreements or the settlement of disputes involving international organizations—demonstrated the Commission’s deep commitment to legal clarity across increasingly diverse fields. The symbiosis between the work carried out in Geneva, by the Commission, and reported to New York in the Sixth Committee, confirm that both sides of the main entities responsible for codification and progressive development of international law will be affected if the current financial crisis continues. As it looks ahead to its seventy-seventh session, its ability to navigate competing views, deliver substantive outputs, and adapt to structural constraints will remain central to its role in promoting the progressive development and codification of international law.
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