The 2019 Session of the International Law Commission: What Happened and What State Should Be Doing Now
· The International Law Commission (ILC) is a body of experts tasked with promoting the progressive development of international law and its codification. The ILC initiates studies and makes recommendations for this purpose. This includes the preparation of draft conventions, and the formulation and systematization of rules of international law.
· Typically, the ILC holds its annual session in two parts – one from April to June and the other from July to August. After the session, the ILC releases a report (usually in September) detailing its work in the session, and its recommendations. This report is then considered by the Sixth Committee of the General Assembly in October of the same year. This year, the ILC conducted its seventy first session, and released its report (A/74/10) in September, 2019. The report is divided into eleven chapters and three annexes.
Summary of 2019 Session
· Of the topics covered, the ILC concluded its consideration of the topic “Crimes against humanity”. The topic was first considered by the ILC in 2014. In 2017, the ILC adopted a set of draft articles (its “first reading”) on the topic and transmitted them to Governments, international organizations and others for comments and observations. After a period of two year, during the 2019 session, the ILC did its “second reading” of the draft articles while taking into consideration the proposals by the Special Rapporteur and the comments received from Governments, international organizations and others. This final iteration of the draft articles are recommended to the current session of the General Assembly, along with a recommendation to elaborate a convention on their basis by the General Assembly or by an international conference of plenipotentiaries. The draft articles, along with the recommendations of the ILC can be found in Chapter IV of the ILC report. Given the ILC’s recommendation to elaborate the draft articles into a convention, it is pertinent for States to consider the advantages and disadvantages of having a convention on the topic and make oral comments during the upcoming session of the Sixth Committee. IILA has prepared a concise primer on this final stage of examination by the ILC. IILA can work with States to analyze the options present and the position that should be taken by the State in the Sixth Committee - as well as the more important substantive aspects surrounding the negotiating and potential ratification of a convention on crimes against humanity
· Additionally, with respect to the following topics, the ILC has adopted a complete set of draft articles on “first reading” and invited comments and observations from States:
o “Peremptory norms of general international law (jus cogens)” – The topic was first considered by the ILC in 2015. From 2016 to 2018, the ILC considered three reports by the Special Rapporteur. During the 2019 session, the ILC, on first reading, adopted a set of draft articles along with the commentaries. The ILC decided to transmit these draft articles and commentaries to Governments for their comments and observations. Any comments and observations should be submitted to the UN Secretary-General by 1st December 2020. The topic, along with the submissions made by the Governments will be considered again by the ILC in its 2021 session.
o “Protection of the environment in relation to armed conflicts” - The topic was first considered by the ILC in 2013. While a large number of the draft articles were provisionally adopted by the ILC in 2015, the entire set of draft articles, along with the commentaries, were adopted during its 2019 session, upon first reading. The ILC decided to transmit these draft articles to Governments, international organizations, including from the United Nations and its Environment Programme (UNEP), and others, including the International Committee of the Red Cross and the Environmental Law Institute, for their comments and observations. The comments and observations should be submitted to the Secretary General by 1st December 2020. The topic, along with the comments made by the Governments will also be considered again by the ILC in its 2021 session.
o “Provisional application of treaties” – The topic was first considered by the ILC in 2012. In 2018, the ILC adopted a set of draft articles on the topic along with the commentaries – on “first reading”. These draft articles were transmitted to the Governments and international organizations for their comments and observations. The deadline for submitting the comments and observations is 15 December 2019. This year the ILC has included in the annex of its report, the Special Rapporteur’s revised proposal for draft model clauses. The ILC has invited Governments and international organization to also consider the annexed draft model clauses and submit their comments and observations.
· With respect to the three topics above, it is important for States to assess the draft articles and issues that may arise, and provide comments. The comments submitted at this stage would be taken into consideration at the second reading of the articles and will have an impact on the final draft articles that are adopted by the ILC. Even when draft articles drafted and finalized by the ILC do not become binding treaty obligations, their impact on the development and evolution of international law is immense. IILA can assist States with drafting the comments to the ILC.
· The ILC has also requested submissions from States on the following topics that remain at the drafting stage within the ILC:
o “Sea-level rise in relation to international law” – The ILC decided to include this topic in its programme of work in the 2019 session and established a study group on the topic. In 2020, the study group will focus on sea level rise in relation to the law of the sea. The ILC welcomes any information that States could provide on this sub-topic including examples from States of their practice that may be relevant (even if indirectly) to sea-level rise or other changes in circumstances of a similar nature, such as relating to baselines, coastal lines, artificial islands, limits of maritime zones etc. The information should be provided by 31 December 2019. The ILC also welcomes receiving in due course information related to statehood and the protection of persons affected by sea-level rise since it will be considering that sub topic during its 2021 session.
o “Succession of States in respect of State responsibility” – The topic was first considered by the ILC in 2017. In 2018, the ILC requested States to provide information on their practice relevant to the succession of States in respect of State responsibility. The ILC in particular asked for examples of treaties (bilateral or multilateral), domestics laws, and decisions of the domestic courts relating to the topic. In 2019, the ILC considered this request as still being relevant and welcomed any additional information that the States can submit – for use in its 2020 session.
o “Immunity of State officials from foreign criminal jurisdiction” – The topic was first considered by the ILC in 2007. Thus far the ILC has considered seven reports of the Special Rapporteur and provisionally adopted a number of draft articles. In its 2019 report, the ILC welcomed any information that States could provide on the existence of manuals, guidelines, protocols or operational instructions addressed to State officials and bodies that are competent to take any decision that may affect foreign officials and their immunity from criminal jurisdiction in the territory of the forum State – for use in its 2020 session.
o “General principles of law” - The ILC decided to include this topic in its programme of work in 2018. In 2019, the ILC considered the first report of the Special Rapporteur. It also requested States to provide information on their practice relating to general principles of law, in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice. This could include treaty practices, statements made by the State in international forums, pleadings before international courts and tribunals, and decisions of domestic courts, domestic laws and other relevant practice at the domestic level.
· Providing information and comments to the ILC, as well as effectively engaging during the Sixth Committee are important methods for the States to affect the progress and codification of international law. IILA, with its expertise in the workings of the ILC and the Sixth Committee can work with small and developing States to enhance their capacity to fully engage with the process.
For more information on the ILC, see the International Law Commission’s website.