Two Interesting New Reports on ILC Website

by Kristen Boon

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.

http://opiniojuris.org/2015/05/18/two-interesting-new-reports-on-ilc-website/

2 Responses

  1. The latter controversial indeed, since “states” are not the only actors in the international legal process with formal participatory roles. The relevant portion of the Stat. of the ICJ (which is not determinative outside the ICJ anyway) does not add “state” to limit the focus re: general practice.
    SC and GA resolutions have already been extensively cited with respect to opinio juris.

  2. Re: 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.

    Sounds like Ambassador John Bolton channeling Senator Henry Cabot Lodge’s objections to the Covenant of the League of Nations. Where were these objections when the ILC and General Assembly adopted the ways and means for making the evidence of customary international law more readily available and applied them to the day to day operations of the organs of the UN?

    Why does everyone insist on pedantically calling it “State practice” when the term “State” can also mean an IO?, i.e. Article 44 of the Convention on the Rights of Persons with Disabilities stipulates that:
    “1. ‘Regional integration organization’ shall mean an
    organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention. (…) 2. References to ‘States Parties’ in the present Convention shall apply to such
    organizations within the limits of their competence.”

    One of the first opinions the ICJ ever delivered held that States had created international organizations in the post-WWII era and endowed them with legal personalities of their own, that are separate from that of their member states. Most IOs these days have the competence to conclude treaty agreements with third parties on their own behalf and pursue their own legal claims in the exercise of their unique functions and in fulfillment of their purposes. Their actions in such instances are binding on all member States, and in some cases, on all States. For example, the ILC Statute requires it to directly consult with international organizations concerned with questions of international law. Such organizations include IOs whose task is the harmonization and codification of international law itself, like the Pan-American Union/OAS. http://www.oas.org/en/sla/dil/workshops_on_international_law.asp

    It’s hard to accept the proposition that the standing organizational rules or practices that govern relations between IO’s cannot be equated with the rules of customary law governing relations between States.

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