18 May Two Interesting New Reports on ILC Website
There are two important new reports up on the International Law Commission’s website.
First, Sean Murphy’s First Report on Crimes Against Humanity is now available. The UN Doc symbol is A/CN.4/680; link to the report here.
The report is a terrific overview of the current gaps in the international legal architecture, and maps out steps towards a future convention. The report also proposes two draft articles: one on prevention and punishment of crimes against humanity and the other on the definition of such crimes. For background, see Leila Sadat’s Crimes Against Humanity Initiative here.
Hat tip to James Stewart for flagging this report.
Second, Sir Michael Wood’s Third Report on the Identification of Customary International Law is available now as well. The UN Doc symbol is A/CN.4/682, and the link is available here. Readers may recall that last summer I asked whether Security Council acts are relevant to Customary International Law, and noted that the ILC’s treatment of the topic to date had not included a discussion of IOs. This report remedies this lacuna in part in that it specifically addresses the acts of IOs. However, its conclusion is that acts of IOs are generally irrelevant to the formation of custom. Instead, the Report’s guiding assumption is that the practice of IOs is to be attributed to the states themselves, not to the IOs. As the report notes:
if one were not to equate the practice of such international organizations with that of States, this would mean not only that the organization’s practice would not be taken into account, but also that its Member States would themselves be deprived of or reduced in their ability to contribute to State practice.
This conclusion will be controversial: even the report’s footnotes cite numerous scholars and states that express opposing views.
Both of these reports are likely to spur important scholarly debates.