The International Law Commission (ILC or Commission) held its seventy-fourth session at its seat in Switzerland from April 24 to June 2 and from July 3 to August 4, 2023, and met fully in person for the first time since the COVID-19 global health pandemic. The Commission, which has had a gender imbalance in its composition, was chaired for the first time by two successive female chairs: Nilüfer Oral (Türkiye) for the first half session; followed by Patrícia Galvão Teles (Portugal) for the second half session.Footnote 1
Significantly, the seventy-fourth session marked the beginning of a new quinquennium for the Commission, consisting of thirty-four members elected by the United Nations General Assembly on November 12, 2021, for the 2023 to 2027 term.Footnote 2 Notably, there were more incoming members (eighteen) than returning incumbent members (sixteen), a rarity in the Commission's history. Looking ahead, to 2024, the Commission will celebrate another milestone: its seventy-fifth anniversary, for which it decided to hold a commemorative event in Geneva. The Commission, which has been taking more steps to strengthen its interaction with states especially the Sixth (Legal) Committee of the UN General Assembly, decided to meet for part of its 2026 session in New York when conference facilities would be available at headquarters.Footnote 3
Regarding its substantive work, the Commission completed the first reading of its topic general principles of law. Progress was also made in developing draft conclusions on subsidiary means for the determination of rules of international law, draft guidelines on settlement of disputes to which international organizations are parties and draft articles on prevention and repression of piracy and armed robbery at sea. Additionally, the Commission reconstituted its study group on sea-level rise in relation to international law. It also established an open-ended working group to consider the future of the topic succession of states in respect of state responsibility. As regards new topics, the Commission added a new topic to its current work program on non-legally binding agreements and appointed a special rapporteur. The Commission also made significant progress developing a structured process for the review of its working methods, over the next few years, including the preparation of an internal practice guide.
I. General Principles of Law
The topic “General principles of law” was added to the Commission's program of work at its seventieth session (2018). Marcelo Vázquez-Bermúdez (Ecuador) was appointed as special rapporteur.Footnote 4 The study, which builds on the Commission's previous work on sources of international law including most recently the 2018 Conclusions on identification of customary international law, aims to clarify practice regarding general principles of law under Article 38(1)(c) of the Statute of the International Court of Justice (ICJ Statute), which directs the Court when resolving disputes between states to apply, after treaties and customary international law, “the general principles of law recognized by civilized nations.”Footnote 5
Between 2019 and 2022, the Commission considered three separate special rapporteur reports on general principles of law.Footnote 6 Eleven draft conclusions were provisionally adopted during that period, some by the Commission as a whole and some by the Drafting Committee, a sub-body of the Commission.Footnote 7 Specifically, in 2021 the Commission provisionally adopted draft conclusions 1, 2, and 4, together with their commentaries. In 2022, the Commission provisionally adopted draft conclusions 3, 5, and 7 and their commentaries. Last year, due to time constraints, the Commission only took note of Conclusions 6 and 8 through to 11. The commentaries for the latter conclusions were scheduled for adoption during the 2023 session, meaning that the Commission was positioned to adopt this year the complete package of eleven draft conclusions on general principles of law on first reading, along with all their commentaries. It did so between July 24 and 26, 2023.Footnote 8
The draft conclusions address key issues, namely: Conclusions 1 (scope); 2 (recognition); 3 (categories of general principles of law); 4 (identification of general principles of law derived from national legal systems); 5 (determination of the existence of a principle common to the various legal systems of the world); 6 (determination of transposition to the international legal system); 7 (identification of general principles of law formed within the international legal system); 8 (decisions of courts and tribunals); 9 (teachings); 10 (functions of general principles of law); and 11 (relationship between general principles of law and treaties and customary international law).Footnote 9
Conclusion 1 on scope specifies that the draft conclusions concern “general principles of law,” described in French as principes généraux du droit and in Spanish as principios generales del derecho, as a source of international law.Footnote 10 Conclusion 2 provides that for a general principle of law to exist, it must be recognized by the community of nations. Recognition, as explained in the commentary, is “the essential condition for the emergence of a general principle of law.”Footnote 11
Importantly, the Commission departed from the terminology in Article 38(1)(c) of the ICJ Statute “recognized by civilized nations,” instead employing the phrase “recognized by the community of nations”Footnote 12 borrowed from Article 15(2) of the International Covenant on Civil and Political Rights (ICCPR), a treaty that enjoys broad support among states. The reference to “civilized nations” was nearly unanimously considered “anachronistic” and was rightly updated because all nations today participate equally in the formation of general principles of law. The new language rejects the pejorative colonial-era civilized states versus uncivilized states distinction that prevailed during the drafting of the Statute of the Permanent Court of International Justice in the early 1920s.Footnote 13 Indeed, the more modern ICCPR language is more consistent with the foundational principle of sovereign equality of all states under Article 2(1) of the UN Charter.Footnote 14
Conclusion 3 on “categories of general principles of law” clarifies that general principles of law consist of two distinct groups: (a) those “that are derived from national legal systems”; and (b) those “that may be formed within the international legal system.”Footnote 15 The former category enjoyed broad support within the Commission and among states, from the earliest stages of the topic, while the latter was more controversial.Footnote 16 This is reflected in the formula derived from, which applies to the first category of general principles derived from national legal systems, as opposed to the more flexible phrase that may be formed, which applies to the second category of general principles stemming from the international legal system.
Conclusions 4 to 6 set out a methodology for the identification, determination, and transposition of general principles of law derived from national legal systems. Conclusion 4 contemplates a two-step process reflected in practice and literature for the “identification of general principles of law derived from national legal systems.”Footnote 17 First, one must identify “the existence of a principle common to the various legal systems of the world,”Footnote 18 and second, one must assess whether it is capable of “transposition to the international legal system.”Footnote 19 The first element requires a showing that a principle generally exists across legal systems of the world. The second element (“transposition”) seeks to establish whether, and if so to what extent, a principle common to the various legal systems can be applied in the international legal system. The latter recognizes the possibility that a principle may be found to exist, at the national level, but in practice be unsuitable for application in the international legal system. It also recognizes that a principle may be deemed suitable for application at the international level, but only in a modified form.Footnote 20
Conclusions 5 and 6 flesh out the two-step methodology for the identification of general principles of law derived from national legal systems. Conclusion 5, paragraph 1, requires “a comparative analysis of national legal systems” in order “[t]o determine the existence of a principle common to the various legal systems of the world.”Footnote 21 The comparative analysis “must be wide and representative, including the different regions of the world,” under paragraph 2, and “includes an assessment of national laws and decisions of national courts, and other relevant materials”Footnote 22 under paragraph 3.
The Commission deliberately decided not to specify what it means for a legal principle to be “common” to the various legal systems of the world. It reasoned that “since the content and scope of general principles of law derived from national legal systems may vary, it was appropriate not to be overly prescriptive in this regard, thus allowing for a case-by-case analysis.”Footnote 23 As regards the breadth of the comparative analysis required, the Commission clarified that “while it is not necessary to assess every single legal system of the world to identify a general principle of law, the comparative analysis must nonetheless be sufficiently comprehensive to take into account the legal systems of States in accordance with the principle of sovereign equality of States.”Footnote 24 It is therefore insufficient to take a shortcut, as is often done in practice, to merely show that a legal principle exists in certain legal families such as civil law, common law, Islamic law or for that matter African customary law. Instead, for it to be found general enough, a legal principle must also be recognized widely in the various regions of the world, or as the International Court of Justice (ICJ) put it in Barcelona Traction, the principle must have been “generally accepted by municipal legal systems.”Footnote 25
Finally, as to the sources for the comparative assessment, the Commission provided an illustrative list indicating that national laws and decisions of courts will be among the relevant materials for the purpose of identifying a general principle of law.Footnote 26 In addition, since each national legal system has its own distinctive features, which must be assessed on its terms, different levels of weight may be assigned to legislation, decisions and other materials when identifying the existence, or not, of a certain general principle of law.
Conclusion 6 states: “[a] principle common to the various legal systems of the world may be transposed to the international legal system insofar as it is compatible with that system.”Footnote 27 This language means that transposition of a general principle derived from national legal systems “may” take place (first precondition, indicating that applicability is not automatic) and “insofar as it is compatible with that system” (second precondition, leaving open the possibility of partial applicability of a principle). Designed to apply with a degree of flexibility,Footnote 28 compatibility is the key to transposition of a principle in foro domestico given the structural differences between national legal systems and the international legal system. For example, as the commentary explained, the right of access to courts is a widely accepted principle across national legal systems. But it may not be transposed to the international legal system since “it would be incompatible with the fundamental principle of consent to jurisdiction in international law, which underlies the structure and functioning of international courts and tribunals” and is thus “incapable of operating at the international level due to the absence of conditions for its application, i.e. a judicial body with universal and compulsory jurisdiction to settle disputes.”Footnote 29
Significantly, despite some initial controversy among members, the Commission adopted by consensus Conclusion 7 on general principles of law formed within the international legal system. The Commission offered three sound justifications for this second category of general principles of law: (1) judicial and state practice supports it; (2) the international legal system, like any other system, must necessarily be able to generate general principles; and (3) there is nothing in the text of Article 38(1)(c) or the drafting history to limit general principles to those derived only from national legal systems.Footnote 30
Some literature casts doubt on the existence of general principles of law formed within the international legal system.Footnote 31 But there is also a settled body of literature possibly the majority arguing to the contrary.Footnote 32 Indeed, some commentators—like some members of the Commission—found it “surprising”Footnote 33 that there was a debate in the Commission about the existence of the second category within the meaning of Article 38(1)(c). Nearly a century ago, Anzilotti, who was one of the drafters of Article 38, wrote that “not only were general principles of law formed within the international legal system part of the category of Article 38(1)(c), but that the rubric referred first and foremost to such principles, giving only second place to principles recognized in domestic legal systems.”Footnote 34 Anzillotti's view is also supported by other scholars, and is also reflected in state and international tribunal practice.Footnote 35
Entitled “identification of general principles of law formed within the international legal system,” Conclusion 7 as adopted by the Commission provides that:
1. To determine the existence and content of a general principle of law that may be formed within the international legal system, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system.
2. Paragraph 1 is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system.Footnote 36
Paragraph 1 contemplates a narrower category of general principles of law that are intrinsic to the international legal system as compared to the general principles applicable in national legal systems. By identifying them as “intrinsic,” the Commission emphasized that “the principle is specific to the international legal system and reflects and regulates its basic features.”Footnote 37 For example, although agreement could only be reached on their inclusion this year, consent to jurisdiction, uti possidetis juris as elaborated by the ICJ in Frontier Dispute (Burkina Faso/Mali) and respect for human dignity in the Furundžija judgement of the International Criminal Tribunal for the former Yugoslavia were found to be general principles of law intrinsic to the international legal system.Footnote 38
Paragraph 2 was a savings clause to address the concern of some members that there may exist additional general principles of law that form part of the international legal system. The latter members, which included the present author, did not wish to foreclose the possibility that there may be general principles of law formed within the international legal system despite apparently bearing a non-intrinsic character. In other words, this paragraph was meant to preserve the possibility of a much wider category of general principles of law that can be formed within the international legal system. That said, the link between the conditions contained in paragraph 1 and the text and caveat in paragraph 2 has been criticized as unclear by some Sixth Committee delegations, for example, the Nordic Countries.Footnote 39
Conclusions 8 and 9 adopt the Commission's approach to customary international law and applies it to the determination of general principles. Specifically, the weight given to decisions of courts and tribunals and teachings, in the determination of general principles of law, mirrors the weight afforded to those subsidiary means in the determination of customary international law.Footnote 40 Conclusion 8 distinguishes between decisions of international courts and those of national courts. The decisions of the former, particularly those of the ICJ, concerning the existence and content of general principles of law are subsidiary means for the determination of general principles of law. By contrast, the decisions of national courts regarding the existence and content of general principles of law “may be” referred to, “as appropriate,” as subsidiary means for the determination of such principles. Here, in the text as well as in the commentary to Conclusion 8, the Commission makes clear there are qualitative differences between the decisions of international courts compared to those of national courts. The decisions of latter courts may reflect the parochial views of one state or the peculiarities of its own legal system. In addition, when assessing all decisions, one must have regard to what I call the internal (such as the quality of the reasoning) and external factors (e.g., the reception of the decisions by others including states) that ought to be taken into account in assessing the value of decisions and points to several examples from the ICJ, the European Court of Human Rights, and the Inter-American Court of Human Rights.Footnote 41
Conclusion 9 provides, in language that closely tracks Article 38(1)(d) of the ICJ Statute, that “[t]eachings of the most highly qualified publicists of the various nations may serve as a subsidiary means for the determination of general principles of law.” The commentary makes clear that, like decisions of courts and tribunals, “teachings” are not sources of law in and of themselves but that they may offer useful guidance, when used cautiously, for the determination of the existence and content of general principles of law.Footnote 42 It is notable that, in relation to Conclusions 8 and 9, the Commission now has a more specific project that it added to the program of work in 2022 on “subsidiary means for the determination of rules of international law.” One might therefore wonder, as some states suggested in the Sixth Committee's 2022 debate, whether the general principles of law topic should decline to address those elements. This is because part of the approved work program for the latter topic will address the relationship between subsidiary means and the sources of international law, including general principles of law. On the other hand, since the latter topic will engage in more focused analysis of the subsidiary means for determining the rules of international law, having a starting point in the work of the Commission that is already familiar to states upon which to develop the new topic could prove useful.
Conclusion 10 concerning “functions of general principles of law,” recognizes that for any category of general principles concerned, “general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part.”Footnote 43 The Commission, in paragraph 2, highlights that “general principles of law contribute to the coherence of the international legal system.”Footnote 44 As part of this, they may serve as a basis “to interpret and complement other rules of international law” and “as a basis for primary rights and obligations, as well as a basis for secondary and procedural rules.”Footnote 45 The commentary provides examples of various types of complementary general principles of law, such as pacta sunt servanda, good faith, and elementary considerations of humanity as well as those found in legal instruments and judicial decisions giving rise to substantive obligations that may lead to international responsibility for their breach such as the prohibition of unjust enrichment and the prohibition of crimes under international law.Footnote 46
Finally, Conclusion 11 deals with the “relationship between general principles of law and treaties and customary international law.”Footnote 47 Although paragraph 1 provides that “general principles of law, as a source of international law, are not in a hierarchical relationship with treaties and customary international law,”Footnote 48 the Commission reiterated, as explained in the prior draft conclusion, that general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part.Footnote 49 Paragraph 2 of Conclusion 11 specifies that “[a] general principle of law may exist in parallel with a rule of the same or similar content in a treaty or customary international law.” The commentary explains that the intention was to underline “that general principles of law are a separate source of international law, with their own requirements for identification, and that their existence and applicability as part of general international law is not affected if a treaty rule or a rule of customary international law addresses the same or a similar subject matter.”Footnote 50
The third paragraph of Conclusion 11 states that “[a]ny conflict between a general principle of law and a rule in a treaty or customary international law is to be resolved by applying the generally accepted techniques of interpretation and conflict resolution in international law.” The commentary explains that this provision should be read in conjunction with the conclusion of the Study Group on the fragmentation of international law upon which it builds. In this regard, the commentary explains that “[t]he ‘generally accepted techniques of interpretation and conflict resolution in international law’ mentioned in the draft conclusion refer to principles such as lex specialis derogat legi generali, lex posterior derogat legi priori, the principle of harmonization, as well as to Articles 31 to 33 of the Vienna Convention on the Law of Treaties.”Footnote 51
Having adopted the foregoing set of eleven draft conclusions and their commentaries on general principles of law, the Commission decided, in accordance with Articles 16 to 21 of its statute, to transmit them, through the UN secretary-general, to governments for their comments with the request that they respond by December 1, 2024.Footnote 52
There has been an imbalance in the geographical distribution of comments received from states on topics with comments often predominantly coming from developed Western states. The relatively limited participation of Global South states is often linked to lack of capacity. It is to be hoped that, given the foundational nature of general principles of law as a source of international law, states from Africa, Asia, and Latin America and the Caribbean will engage substantively with the Commission's first reading text and commentaries.
A fourth and final report will be prepared by the special rapporteur in 2025. Its sole purpose will be to analyze the comments received from governments, and in some cases, that might lead to adjustments to the text of the conclusions and commentaries adopted upon first reading.Footnote 53 Procedurally, the Commission intends to complete a second reading of the Conclusions on general principles of law in 2025 and then submit them to the General Assembly with a final recommendation. For similar projects, the recommendation has been multipronged: (1) to take note of the conclusions and to annex them to a resolution; (2) to bring them to the attention of all those who may have reason to address the substance of the topic; and (3) to encourage their widest possible dissemination.Footnote 54
Until last year, when the General Assembly decided to defer consideration of the Commission's recommendation on “identification and legal consequences of peremptory norms of general international law (jus cogens),”Footnote 55 states typically endorsed the Commission's recommendation for outcomes styled as conclusions. The General Assembly has returned to the jus cogens topic in autumn 2023 and acted on the Commission's recommendation with a problematic new twist.Footnote 56 That new twist, which was to merely take note of the Commission's work without annexing the Commission's final text to a General Assembly resolution and encouraging its wider dissemination, attracted some strong criticisms by a group of states.Footnote 57 However, the decisions to not endorse immediately the generally well received jus cogens conclusions and once it decided to do so to take a cherry picking approach to the Commission's work, should give rise to further reflections in the Commission and the Sixth Committee as well as between the two bodies. It could have negative implications for their intertwined mandates of promoting the codification and progressive development of international law. There is already a strained relationship between the two bodies due to non-action on many Commission recommendations to the General Assembly dating back to the early 2000s.Footnote 58 Ironically, the concerning developments on the jus cogens topic took place in the same year that the Commission had undertaken strenuous efforts including by adopting, for the first time, a standing agenda item concerning enhancing its relationship with the General Assembly. Hopefully, as a number of states in the Sixth Committee also rightly recognize that states too need to deploy more effort to strengthen relations with the Commission, they can strengthen their interactions and previously successful partnership that contributed significantly to the advancement of modern international law.
II. Other Topics Addressed During the Seventy-Fourth Session
A. Subsidiary Means for the Determination of Rules of International Law
During its 2022 session, the Commission moved the topic “subsidiary means for the determination of rules of international law” onto the current program of work and appointed Charles Chernor Jalloh (Sierra Leone; the present author) as special rapporteur. The topic, which was proposed by the current author in 2021 and received broad support from the Sixth Committee, is intended to serve as a final piece of the Commission's work on the sources enumerated in Article 38(1) of the ICJ Statute.Footnote 59 The Commission's study of Article 38(1) began with its draft articles on the law of treaties under subparagraph (a) completed in 1966, which served as the negotiating basis for the Vienna Convention on the Law of Treaties. It was then followed by the Commission's 2018 Conclusions on identification of customary international law under subparagraph (b) of Article 38(1). In the same year, the Commission took up “general principles of law” from subparagraph (c) of Article 38(1), which as discussed immediately above, just accomplished a first reading in 2023 and seem set to be finalized in 2025.
Under Article 38(1)(d) of the Statute, the ICJ may also apply subject only to the provisions of Article 59 “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”Footnote 60 The topic seeks to clarify the traditional and contemporary role of subsidiary means in the process of determining the rules of international law. This includes by offering, as the Commission explained in its commentary, “a coherent and systematic methodology”Footnote 61 to elucidate the traditional subsidiary means as well as to determine “the scope of new subsidiary means”Footnote 62 that may emerge in the future.
At the 2023 session, the Commission considered the first report of the special rapporteur,Footnote 63 as well as a memorandum prepared by the Secretariat, identifying elements in the previous work of the Commission that could be particularly relevant to the topic.Footnote 64 The first report addressed the scope of the topic and the key issues proposed for examination by the Commission. The report also considered: the views of states on the topic; questions of methodology; the previous work of the Commission on the topic; the nature and function of sources in the international legal system and their relationship to the subsidiary means; as well as the drafting history of Article 38(1)(d) of the ICJ Statute.Footnote 65 The special rapporteur, consistent with the Commission's approach to the customary international law and general principles of law topics, proposed draft conclusions as the final form of output with the main objective of clarifying the law based on current practice.Footnote 66
The first report proposed five draft conclusions and a tentative program of work for the topic. Following the plenary debate and their referral to the Drafting Committee, the Commission provisionally adopted Conclusions 1 (scope), 2 (categories of subsidiary means), and 3 (general criteria for the assessment of subsidiary means), and their commentaries toward the end of the first half session. Owing to lack of time, the Drafting Committee considered Draft Conclusions 4 (decisions of courts and tribunals) and 5 (teachings) during the second half session in July 2023. It thereafter provisionally adopted both.Footnote 67 The text and commentaries to these two last mentioned conclusions will likely be adopted by the Commission during the 2024 session.
Conclusion 1 on scope provides that: “[t]he present draft conclusions concern the use of subsidiary means for the determination of rules of international law.”Footnote 68 The point of departure is the language “subsidiary means for the determination of rules of law” in Article 38(1)(d) of the ICJ Statute. However, the term “rules of law,” found in the ICJ Statute, was replaced by the term “rules of international law” that was chosen to emphasize that the main thrust is “the determination of the rules of international law, as opposed to the rules of law more generally.”Footnote 69
Based on a proposal of the special rapporteur, after he sensed some intellectual tension perhaps due to differences of approach between common law and civil lawyers, the commentary clarified that the subsidiary means are not sources of law as are the first three subparagraphs of Article 38(1) (i.e., treaties, customary law, and general principles of law). Instead, they play an auxiliary role by providing a basis to assess “whether or not rules of international law exist and, if so, the content of such rules.”Footnote 70 The ancillary nature of “subsidiary means” is confirmed by the other authentic language versions of the provision, including the French (moyen auxiliaires) and Spanish (medios auxiliaries) versions, which “set forth a relatively narrower understanding of the term subsidiary than a broader ordinary understanding which also became associated with the English term.”Footnote 71 The Commission also explained the term “determination,”Footnote 72 which as a noun, can mean to ascertain what a rule is or as a verb can mean to state the law. The Commission mostly endorsed the special rapporteur's approach. But there was pushback, on aspects of the draft commentary to conclusion 1 out of concern that some proposed language could wittingly or unwittingly elevate the standing of subsidiary means to being more like sources of law. It will be interesting to see whether, and if so how, the doctrinal difference in the starting points of common law versus civil law as regards the place of judicial decisions might affect member approach to the topic going forward. This is particularly so keeping in mind that the universe of principal legal systems that the Commission—as a global body—is statutorily required to take into account extend well beyond those two predominant Western systems to include additional principal legal traditions prevalent in different regions of the world.
Draft Conclusion 2, “categories of subsidiary means for the determination of rules of international law,” states:Footnote 73
Subsidiary means for the determination of rules of international law include:
(a) decisions of courts and tribunals;
(b) teachings;
(c) any other means generally used to assist in determining rules of international law.
As the commentaries noted, “[t]he first two categories are rooted in and largely track the language of Article 38, paragraph 1(d) of the Statute of the International Court of Justice, with the adjustments discussed below. The third category addresses the fact that there are other means used generally in practice to assist in the determination of the rules of international law.”Footnote 74 In an important conclusion that will likely attract comments from states, but consistent with both practice and the literature, the Commission determined that the list of subsidiary means in Article 38(1)(d) of the Statute was not exhaustive.Footnote 75 This understanding was reflected in the use of the word “include” at the end of the chapeau and in the inclusion of subparagraph (c). Subparagraph (a) indicates that the first subsidiary means category are “decisions of courts and tribunals.” This wider formulation, which deletes the qualifier “judicial,” was intended “to ensure that a wider set of decisions from a variety of bodies could be covered”Footnote 76 by the draft conclusions and to promote consistency with other texts previously adopted by the Commission.Footnote 77 Decisions are understood broadly to originate from traditional judicial bodies such as national or international courts or another type of body or institution, so long as they are “part of a process of adjudication with a view to bringing to an end a controversy or settling a matter.”Footnote 78 This conclusion leaves open the possibility—contested only by a minority of members—of including certain decisionsFootnote 79 of treaty bodies concerning individual complaints of human rights violations such as those of the Human Rights Committee established under the ICCPR.
Subparagraph (b) addresses “teachings” as subsidiary means. Here, much as it did in the topic general principles of law, the Commission retreated from the language of Article 38(1)(d), which employs “teachings of the most highly qualified publicists of the various nations.” The original formulation, from a century ago, was described as “historically and geographically charged notion that could be considered elitist.”Footnote 80 It was also thought that the phrasing “focused too heavily on the status of the individual as an author as opposed to the scientific quality of the individual's work, which ought to be the primary consideration.”Footnote 81 Further clarification of “decisions” and “teachings,” addressed as part of the categories described by Conclusion 2, are addressed by Conclusions 4 (decisions of courts and tribunals) and 5 (teachings), which have been provisionally adopted by the Drafting Committee.
Subparagraph (c) recognizes a third category of subsidiary means: “any other means generally used to assist in determining rules of international law.” This category unsurprisingly provoked the most debate within the Commission. The threshold issue was whether there are subsidiary means beyond “decisions” and “teachings” or whether those two traditional categories were sufficiently wide to encompass developments in practice since 1945. And, if so, whether to enumerate any additional categories explicitly. There was broad consensus that Article 38(1)(d) was not exhaustive and there are various other subsidiary means found in practice. In terms of the best formulation, after some debate, the Commission settled on the subparagraph (c) language above since it was broad enough “for further elaboration of its contents in future draft conclusions.”Footnote 82 Based on a robust debate around candidates for inclusion in the “other means” category, the future work would likely include the works of public and private expert bodies and certain resolutions/decisions of international organizations.
Conclusion 3 addresses the “general criteria for the assessment of subsidiary means for the determination of rules of international law.” It provides:
When assessing the weight of subsidiary means for the determination of rules of international law, regard should be had to, inter alia:
(a) their degree of representativeness;
(b) the quality of the reasoning;
(c) the expertise of those involved;
(d) the level of agreement among those involved;
(e) the reception by States and other entities;
(f) where applicable, the mandate conferred on the body.
As indicated in the chapeau of this conclusion, these factors are illustrative and not exhaustive. They are “general factors for determining the relative weight to be given to materials that are already considered subsidiary means under one of the categories identified in draft conclusion 2.”Footnote 83 Each of them is further explained in the commentary.
Draft Conclusions 4 and 5 and their commentaries are slated for adoption by the Commission at next year's session. The special rapporteur's work plan aims for a second report in 2024, one that addresses judicial decisions and their function and relationship to the primary sources of international law.Footnote 84
B. Settlement of Disputes to Which International Organizations Are Parties
The Commission added the topic “Settlement of international disputes to which international organizations are parties” in 2022 and appointed August Reinisch (Austria) as special rapporteur.Footnote 85 This topic builds upon and continues in some respects the Commission's prior work on the law of international organizations.Footnote 86 During this year's session, the Commission changed the title of the topic from “Settlement of international disputes to which international organizations are parties” because there is no sharp distinction between international and non-international disputes. To ensure that disputes of a “private law character,” and any disputes that may be qualified as “non-international” fall within the scope of the draft guidelines, the word “international” before “disputes” was deleted.Footnote 87
In the 2023 session, the Commission considered the preliminary report of the special rapporteur, which proposed two draft guidelines and a tentative program of work.Footnote 88 The Commission, following a rich debate and transmission of the guidelines to its drafting committee, provisionally adopted Guidelines 1 and 2 with commentaries.
The two provisionally adopted guidelines concern the scope of the draft guidelines (Guideline 1) and definitional issues (Guideline 2).Footnote 89 The commentary to Guideline 1 indicates that it is to be read in conjunction with Guideline 2, which defines the terms “international organization,” “dispute,” and “means of dispute settlement” and also helps contribute to delimiting the scope of the topic.Footnote 90
Guideline 1 states: “[t]he present draft guidelines concern the settlement of disputes to which international organizations are parties.” The commentary explains that international organizations may be parties to disputes at both the national and international levels, and that these disputes may be subject to varying sources of applicable law including international law, national law, stipulated applicable rules or the rules of the organization itself.Footnote 91 The disputes may stem from the relationship between international organizations and host states, third states, or other international organizations, but more frequently in practice, involve disputes with private persons often in relation to contractual or tortious issues.Footnote 92 International organizations often enjoy immunity that may limit litigation against them in relation to private disputes. It is unclear, at this stage, whether the Commission will address that aspect although there were already some calls by some members for it to do so.
Lastly, the commentary to Guideline 1 explains that draft articles are not an appropriate output for this project.Footnote 93 Instead, the objective is to restate the existing practices of international organizations in the settlement of disputes and to develop recommendations for resolving disputes in the form of draft guidelines.Footnote 94 The guidelines will not provide procedural rules, which the Commission has done in the past,Footnote 95 but will instead focus on the availability and adequacy of means for the settlement of disputes and also possibly include model clauses for national and international instruments including contracts and treaties.
Guideline 2, on the use of terms, defines three key terms: “international organization,” “dispute” and “means of dispute settlement” by providing as follows:
For the purposes of the present draft guidelines:
(a) “international organization” means an entity possessing its own international legal personality, established by a treaty or other instrument governed by international law, that may include as members, in addition to States, other entities, and has at least one organ capable of expressing a will distinct from that of its members.
(b) “dispute” means a disagreement concerning a point of law or fact in which a claim or assertion is met with refusal or denial.
(c) “means of dispute settlement” refers to negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of resolving disputes.
Subparagraph (a) and its accompanying commentary containing the term “international organization” traces the history of the definition the Commission developed over the course of several projects over the decades. In its earliest form, the Commission simply defined international organizations as “intergovernmental organizations” and this definition was adopted by multiple multilateral treaties.Footnote 96 Subsequently, by the time of the Articles on the Responsibility of International Organizations (ARIO) in 2011, the Commission adopted a more elaborate definition (ARIO definition), which provided:
an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.Footnote 97
There was significant debate within the Commission whether the draft guidelines should reproduce the ARIO definition, or to adopt a new definition as proposed by the special rapporteur. Several members argued that reproducing the ARIO definition was more appropriate because, besides being consistent with past work, it was sufficiently flexible for the current topic and was already known and generally accepted by states and legal practitioners. A few members believed that a new definition would allow for refinement to account for evolutions in the definition since 2011.Footnote 98 Ultimately, the Commission elected to adopt a new definition that builds upon the ARIO definition and includes its core elements.
The commentary explains that this definition highlights that the legal basis of an international organization is international law, most often by operation of a treaty.Footnote 99 As a result, only subjects of international law with treaty making capacity, namely states, sui generis subjects of international law and international organizations that possess that capacity, can create a new international organization.Footnote 100 The reference to other entities “in addition to States” does not require that a plurality of states be members of an international organization. The commentary indicates that instances where an international organization was created by a treaty between a state and an international organization, such as the case of the Special Court for Sierra Leone,Footnote 101 where an international organization may include territories as members,Footnote 102 or where an international organization was created entirely by other international organizationsFootnote 103 are all covered by subparagraph (a).
Finally, there was considerable debate within the Commission regarding the new criteria of “at least one organ capable of expressing a will distinct from that of its members” and the link between that element and international legal personality. The special rapporteur's initial proposal forwent a reference to international legal personality,Footnote 104 instead proposing the criteria of an organ capable of expressing a will distinct from its members, which in his view, would be a readily identifiable marker of an organization's international legal personality. However, several members including the present author considered that international legal personality was too important to omit, being a key requirement for an organization to be able to create treaties, raise or respond to international claims and incur international responsibility.
It was further observed that the ICJ advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations did not refer to the possession of an organ capable of expressing a distinct will from that of its members as an aspect of an international organization.Footnote 105 Ultimately, a compromise text containing reference to possession of international legal personality and at least one organ capable of expressing a distinct will was adopted by the Commission, though it was stressed that the addition to the ARIO definition is to be read as an enrichment of it, not a departure from it.Footnote 106 Whether this definition, which was strongly preferred by the special rapporteur, will make a practical difference remains to be seen as the work on this new topic evolves, taking into account the views of states on the adjustment to the ARIO definition.
The commentary to subparagraph (b) explains that the definition of “dispute” is grounded in the classic one offered by the Mavrommatis Palestine Concessions judgment.Footnote 107 There was debate within the Commission whether the draft guidelines should simply adopt the definition contained in Mavrommatis, or whether a new definition should be adopted as the special rapporteur had proposed in his first report. The Commission did adopt a new definition. However, it omitted reference to disputes regarding policy that the special rapporteur originally proposed. The Commission, however, acknowledged that legal disputes may reflect underlying political and policy differences, but stressed that these do not detract from the legal character of the dispute.Footnote 108
Subparagraph (c) is basically modeled on Article 33 of the Charter of the United Nations,Footnote 109 and lists various means generally available to settle disputes. As was emphasized in the Drafting Committee and underlined in the commentary, the listed means are not to be understood as being in any particular order.Footnote 110 The phrase “of their own choice” was omitted from the language of Article 33 to account for the reality that an international organization may have obligations that limit the choice of means of dispute settlement, depending on the applicable law of the dispute. Lastly, subparagraph (c) merely lists means of dispute settlement. It does not mean there is an obligation for parties to “actually” resolve a dispute, unlike Article 33, which requires the parties to a dispute that endangers international peace and security to seek a solution—as explained in the commentary to draft guideline 2.Footnote 111 Indeed, it would be odd to include the latter as a substantive requirement in what is basically a definitions clause addressing the “use of terms.”
A substantive second report is expected in 2024.Footnote 112 It is expected to analyze the practice of the settlement of disputes to which international organizations are parties, i.e., mostly disputes arising between international organizations and states.
C. Prevention and Repression of Piracy and Armed Robbery at Sea
The Commission, in 2022, moved “Prevention and repression of piracy and armed robbery at sea” onto the current program of work and appointed Yacouba Cissé (Côte d'IvoireFootnote 113) as special rapporteur. The topic seeks to clarify, given the modern resurgence of piracy, the law and practice in respect of piracy as well as armed robbery at sea.
In 2023, the Commission considered the first report of the special rapporteurFootnote 114 and a Secretariat memorandum examining the previous work of the Commission that could be particularly relevant for its future work on the topic.Footnote 115 The first report considered historical, socioeconomic, and legal aspects of the topic, and analyzed the international law applicable to piracy and armed robbery at sea, including its shortcomings in light of contemporary practice.Footnote 116 It also provided a detailed overview of national legislation and judicial practice of states concerning the definition of piracy and the implementation of conventional and customary international law. Three draft articles proposed in the first report, on the scope of the draft articles, on the definition of piracy, and on the definition of armed robbery at sea were all transmitted to the Drafting Committee, which then reported them back to the plenary.Footnote 117 The Commission provisionally adopted them with commentaries.Footnote 118
The outcome of the topic was to be draft articles as initially proposed by the syllabus in 2019.Footnote 119 Given the first report, some members agreed that draft articles would be the most appropriate outcome as they would be more suitable for a criminal law topic and would allow the Commission to provide states with a concrete objective and practical legal solutions to the problems posed by piracy and armed robbery at sea. Other members favored other types of outputs, in particular draft guidelines, because they would allow the Commission to consider a wider range of legal issues without affecting the integrity of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It was ultimately found premature to alter the form of the Commission's output on the topic at this early stage.Footnote 120
Article 1 concerns the scope of the topic and reads: “[t]he present draft articles apply to the prevention and repression of piracy and armed robbery at sea.”Footnote 121 The draft article reflects the Commission's intention to address two separate crimes, namely, (1) piracy and (2) armed robbery at sea. The Commission decided not to further qualify the criminal acts or their geographical scope, as subsequent articles would define “piracy” and “armed robbery at sea.”Footnote 122
The Article 1 commentaries indicate that the topic will be primarily studied against the backdrop of the UNCLOS.Footnote 123 As armed robbery at sea is not addressed in UNCLOS, the Commission will also take into account existing applicable international law, regional approaches, extensive state practice, and legislative and judicial practice under national legal systems.Footnote 124 The work does not seek “to duplicate existing frameworks and academic studies, but instead aims to clarify and build upon them, as well as to identify new issues of common concern.”Footnote 125
Article 2 sets out the definition of piracyFootnote 126 as follows:
1. Piracy consists of any of the following acts:
(a) any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
2. Paragraph 1 shall be read in conjunction with the provisions of article 58, paragraph 2, of the United Nations Convention on the Law of the Sea.
In defining piracy in paragraph 1, following a lengthy debate, the Commission decided to reproduce the definition in Article 101 of UNCLOS.Footnote 127 That definition is understood as reflective of customary international law and has been reproduced in both regional legal instruments and national legislation.Footnote 128 The Drafting Committee declined the special rapporteur's suggestion of a provision to accommodate “any other illegal act committed at sea or from land that is defined as an act of piracy in domestic law or international law.” Extending the definition also opened the door for the draft articles to incorporate acts beyond the definition already adopted in paragraph 1 subparagraphs (a) to (c), undermining the integrity of the established UNCLOS piracy definition. The commentary acknowledged that questions of interpretation have arisen in practice concerning key elements of the piracy definition under UNCLOS and therefore explained those aspects in detail, including by underlining that piracy can only be committed on the high seas (not in the territorial sea) and may also be conducted from land against ships.
Paragraph 2 of Article 2 recognizes that Article 58(2) of UNCLOS, stipulates: “Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible” with the regime established for that maritime zone in Part Five of UNCLOS.Footnote 129 The Commission sought to account for developments in practice. As part of this, by reference to the provisions of Article 58(2), it clarified that piracy can also be committed in the Exclusive Economic Zone as confirmed by the jurisprudence of arbitral tribunals.
Finally, Article 3 sets forth a definition of armed robbery at sea, which is the second crime covered by the topic. It provides:
Armed robbery at sea consists of any of the following acts:
(a) any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State's internal waters, archipelagic waters and territorial sea;
(b) any act of inciting or of intentionally facilitating an act described in subparagraph (a).Footnote 130
The definition adopted by the Commission reproduces that of the Assembly of the International Maritime Organization (IMO) in paragraph 2.2 of its 2009 Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships.Footnote 131 The only difference between the Commission's definition and the IMO definition was the former's preference for “armed robbery at sea” instead of “armed robbery against ships” in the chapeau.Footnote 132 The choice was justified, inter alia, on the basis that United Nations Security Council resolutions addressing the situation in Somalia and the Gulf of Guinea, which have been among the most active theatres for modern pirates, commonly used the phrase “armed robbery at sea” without the words “committed against ships.”Footnote 133 The commentary explained that the decision to do so was “[i]n view of the practice of the Security Council, and to avoid unduly restricting the definition, the Commission considered that it was unnecessary to replicate the IMO definition verbatim.”Footnote 134
Ultimately, as far as the conduct itself is concerned, the commentary recognizes that there is no substantive difference between the acts of piracy and armed robbery at sea. Instead, the differences are ones of geographic location and jurisdiction. The commentary to Article 3 explained this critical nuance:
The main difference between piracy and armed robbery at sea is the location of the act: the high seas and exclusive economic zone on one hand, and waters subject to the jurisdiction of the coastal State on the other. This has consequences for the applicable jurisdiction in respect of the two crimes. In the case of piracy, it is acknowledged that universal jurisdiction applies such that any State has the right to prosecute the crime of piracy committed on the high seas. With respect to armed robbery at sea, the coastal State has the exclusive competence to exercise prescriptive and enforcement jurisdiction over such acts.Footnote 135
According to the special rapporteur's first report, in his second report, to be presented in 2024, the special rapporteur will focus on regional and subregional practices and initiatives for combating piracy and armed robbery at sea, as well as the resolutions of relevant international organizations, in particular IMO, the UN General Assembly and Security Council.
D. Study Group on Sea-Level Rise in Relation to International Law
At the seventy-first session, the Commission decided to include the topic “Sea-level rise in relation to international law” in its current program of work to be addressed in the form of an open ended study group open to all members.Footnote 136 The topic is co-chaired by Bogdan Aurescu (Romania), Yacouba Cissé (Côte d'Ivoire), Patricia Galvão Teles (Portugal), Nilüfer Oral (Turkey), and Juan José Ruda Santolaria (Peru) who jointly proposed the topic. For the present session, it was decided that the study group would focus on the additional paperFootnote 137 addressing the law of the sea aspects of the topic, prepared by Mr. Aurescu and Ms. Oral, as well as a selected bibliographyFootnote 138 prepared in consultation with members of the study group. A final report is expected in 2025.Footnote 139
Discussion focused in part on developing a clearer roadmap for the final report of the study group.Footnote 140 Some members suggested developing practical guidance for states, possibly in the form of a set of conclusions.Footnote 141 Others favored an interpretative declaration on the United Nations Convention on the Law of the Sea, to serve as a basis for future negotiations between state parties,Footnote 142 or a set of draft set of articles that could lead to a framework convention on issues related to sea level rise.Footnote 143 Some emphasized that the Commission's work should guarantee the sovereign rights of states over their maritime spaces, and that its work should be firmly rooted in existing international law.Footnote 144 Considering the recent requests for advisory opinions on the issues of sea-level rise from the International Tribunal for the Law of the Sea and the International Court of Justice, a view was expressed that the Study Group should exercise due caution considering issues being addressed by other bodies.Footnote 145
The co-chairs highlighted that the issue of submerged territories that had not been raised in 2021 should be explored, given the issues relating to the law of the sea and to statehood, and suggested that it be included in the Study Group's additional paper to the second issues paper, expected in 2024.Footnote 146 In 2024, the Study Group is expected to revert to the subtopics of statehood and protection of persons affected by sea-level rise for a final time.
III. Addition of a New Topic to the Current Program of Work
In the last week of the seventy-fourth session, the Commission announced the inclusion of a new topic, “[n]on-legally binding international agreements,” in its program of work and appointed Mathias Forteau (France) as special rapporteur.Footnote 147 The topic, whose name might need to be revisited to make it broader, aims to clarify the nature and regime that governs such agreements, which are increasingly common in state practice, and how to distinguish non-binding agreements from legally binding agreements through the preparation of a set of either conclusions or guidelines. The topic is expected to consider the potential direct and indirect legal effects of such agreements, building on the studies by regional codification bodies in the Americas and Europe. Further information on the topic can be found in the syllabus for the topic contained in Annex I to the Report of the seventy-third session.Footnote 148
IV. Progress in the Review of Working Methods of the Commission
The Commission reconstituted the working group on methods of work of the Commission and elected Charles Chernor Jalloh (Sierra Leone; the present author) as Chair.Footnote 149 The prior working group on this topic in the 2017–2022 term did not present a report after five years of deliberation but did make progress discussing several member proposals. This year, discussion centered on how to build on those proposals, including whether to develop rules of procedure for the Commission; an internal practice manual; possible limits on the length of interventions in the plenary and on the length of special rapporteur reports; the membership size of the drafting committees; possible guidance on the nomenclature of the texts and instruments adopted by the Commission, including the meaning of output on topics described as draft articles, draft conclusions, draft guidelines, and draft principles; the timing of the issuance and distribution of official documents including in the various official languages; the possibility of establishing some mechanism for reviewing the reception by member states of the past products of the Commission; and the role of the special rapporteurs.Footnote 150
Additional suggestions for the working group agenda included: development of a code of conduct for members in relation to conflicts of interest, a review of the implementation of the working group's prior reports, particularly its 1996 and 2011 reports, and a potential review of the statute of the Commission to address, inter alia, issues of gender parity in composition.Footnote 151 The working group, reflecting to some extent the similar initiatives of states in the General Assembly, established a new standing agenda of three broad themes to guide its future work on internal and external aspects of the Commission composed of: (1) revitalization of the working methods and procedures of the International Law Commission; (2) relationship of the International Law Commission with the General Assembly and other bodies; and (3) other issues.
The timing for the reconstitution of the working group is quite opportune. Perhaps due to the large number of new members for the 2023–2027 quinquennium, and the increased pace of its work over the last few years, several members of the Commission at multiple points throughout the current session raised questions about the working methods, which some found arcane, and how they could be improved. The various suggestions for how the working methods could be improved are to be welcomed as they are an opportunity to give fresh impetus to the institution and to respond to the increasing concerns of states on various issues, for example, concerning the question of the normative value of the outputs of the Commission's work.
On the other hand, while some of the new members may not have fully appreciated this, many of the issues that they flagged had been raised in the previous quinquennia by other members, and in some cases, already led to concrete recommendations of how they could be addressed. The question then becomes about how best to implement those recommendations, in an incremental and balanced manner, in line with the Statute of the Commission and without radically altering the nature of the Commission as a body of independent legal experts that is accountable to states in the Sixth Committee. Given the important role that the Commission plays in the codification and progressive development of international law, and the significant 2023 decision to develop a structured approach to review of its working methods, it is hoped that this new approach would help revitalize the Commission while remaining true to its founders’ aspirations. In an encouraging development, during the Sixth Committee 2023 debate, many states welcomed the transparent and structured approach of the Commission to improve its working methods. Several states, noting that a two-way relationship requires good will from both sides, called on the Sixth Committee to also reciprocate by establishing a standing agenda item to discuss how best to improve its own relationship with the Commission including in relation to the final outcomes of its work. The present writer could not agree more.
V. Trust Fund to Assist Special Rapporteurs Especially from Developing States
At its seventy-second (2021) and seventy-third (2022) sessions, the Commission proposed that consideration be given to the establishment of a trust fund to support special rapporteurs of the Commission and related matters. In paragraph 34 of its Resolution 76/111, the General Assembly requested information regarding the terms of reference of the proposed trust fund. In its 2022 report, the Commission included an annex elaborating on the unique role of special rapporteurs and the necessity to establish a Special Rapporteur's Trust Fund.Footnote 152 Significantly, the Commission recognized the need for special rapporteurs, particularly those from developing regions, to obtain assistance to undertake the research required for the preparation of their reports.Footnote 153 This is a significant initiative that should assist in addressing structural imbalances that otherwise result in a form of advantage to the special rapporteurs from developed states.
In November 2022, the Sixth Committee approved the submission of a draft resolution that requested the secretary-general to establish a trust fund for assistance to special rapporteurs of the Commission.Footnote 154 Pursuant to paragraph 37 of General Assembly Resolution 77/103 of December 7, 2022, the secretary-general has now established a trust fund to receive voluntary contributions for assistance to special rapporteurs of the Commission or chairs of its study groups and matters ancillary thereto.Footnote 155 While reiterating the importance of ensuring necessary allocations for the Commission and its secretariat in the regular budget, the Commission appeals to member states, NGOs, private entities, and individuals to contribute to the trust fund, in accordance with the terms of the trust fund, importantly including the need for the financial contributions not to be earmarked for any specific activity of the Commission, its special rapporteurs, or chairs of its study groups so as to preserve the independence of its work.Footnote 156
The trust fund reflects the Commission's continued efforts toward diversity and regional representation in its work, as special rapporteurs and study group chairs, particularly those from developing regions, have often been limited in their ability to engage in research, access resources, and interact with relevant actors due to severe funding limitations. In the past, the Commission provided honoraria for special rapporteurs that was phased out due to the budgetary crisis facing the United Nations in the mid-1990s.
Overall, in this first year of the quinquennium in which it was welcoming many new members, the Commission had a successful session. It is to be hoped that the seventy-fifth anniversary (2024) session, during which commemorative events will be held in Geneva, will be equally successful.
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