The International Law Commission’s 65th Session (2013)

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations’ International Law Commission.]

For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65^th session in Geneva held during the summer of 2013, as well as the Commission’s Guide to Practice on Reservations to Treaties (which could not be debated last year due to Hurricane Sandy). Both the 2013 Annual Report and the Guide to Practice may be found at http://www.un.org/law/ilc. Further, those interested in watching the debate live can do so on U.N. TV at http://webtv.un.org/.  Finally, in due course, summary and some verbatim records should be available at the U.N. PaperSmart portal, which is at http://papersmart.unmeetings.org. This posting will focus on the issues discussed in the 2013 Annual Report.

First, the Commission made progress in addressing the immunity of state officials from foreign criminal jurisdiction by adopting preliminarily three draft articles in what is expected to be a series of draft articles. Draft article 1 indicates the basic scope of the project (immunity of state officials from the criminal jurisdiction of another state) and makes clear that the articles are “without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Draft Article 2 on definitions is being held in abeyance until further along in the project, but Draft Article 3 indicates that:  “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.” By identifying these three persons (sometimes referred to as “the Troika”) as entitled to status-based immunity, the Commission is differing from dicta of the International Court of Justice in the Arrest Warrant (D.R.C. v. Belgium) case, where the Court suggested a potentially broader sweep for the immunity. There the Court asserted in paragraph 51 of the 2002 judgment that “it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” Draft article 4 asserts that immunity ratione personaes is enjoyed only during those three officials’ term of office, that it covers all acts performed (whether in a private or official capacity), and that the cessation of the immunity thereafter is without prejudice to the application of the rules of international law concerning immunity ratione materiae. The Commission will now await the special rapporteur’s subsequent reports, in which she will explore immunity ratione materiae, possible exceptions to immunity, and procedural matters, with associated draft articles and commentary.

Second, the Commission adopted five draft “conclusions” in what is expected to be a series of conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Draft conclusion 1 basically situates the topic within the rules on treaty interpretation set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), and stresses that the “interpretation of a treaty consists of a single combined operation, which places appropriate emphasis on the various means of interpretation indicated, respectively, in articles 31 and 32.”  Where the subsequent agreements and practice establish agreement among all the parties to the treaty, it “shall be taken into account” under VCLT Article 31(3), whereas “recourse may be had” to other subsequent practice in the application of the treaty as a “supplementary means “of interpretation under VCLT Article 32. Notably, draft conclusion 1 confirms the status of Articles 31 and 32 as customary international law.

Draft conclusion 2 indicates that “subsequent agreements and subsequent practice under article 31 (3) (a) and (b), being objective evidence of the understanding of the parties as to the meaning of the treaty, are authentic means of interpretation, in the application of the general rule of treaty interpretation reflected in article 31.” While the term “authentic means of interpretation” does not appear in VCLT Article 31, it was used by the Commission in 1966 to characterize the means identified in Article 31. Since, in some circumstances, a treaty contains an open-textured term which might be understood to encompass different meanings over time, draft conclusion 3 notes that subsequent agreements and subsequent practice “may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.” Draft conclusion 4 defines what is meant by subsequent agreements and subsequent practice using the language of Article 31(3), and notes that the relevant time period for such practice and agreements arises starting with the conclusion of the treaty.  Draft conclusion 5 maintains that “subsequent practice under articles 31 and 32 may consist of any conduct in the application of a treaty which is attributable to a party to the treaty under international law” and that other “conduct, including by non-State actors, does not constitute subsequent practice under articles 31 and 32,” but may “be relevant when assessing the subsequent practice of parties to a treaty.” The special rapporteur plans to submit further reports in the next few years with an eye to concluding the project in 2016.

Third, the Commission is close to completing its first reading on the topic “protection of persons in time of disaster,” which consists of a series of draft articles setting forth rules applicable to a state in which a disaster occurs, and to those states or non-state actors that are in a position to provide assistance. To date sixteen draft articles have been adopted and the Commission’s focus during the 65^th session was on draft article 16, relating to the reduction of the risk of disasters. Paragraph 1 asserts: “Each State shall reduce the risk of disasters by taking the necessary and appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters.” Paragraph 2 provides: “Disaster risk reduction measures include the conduct of risk assessments, the collection and dissemination of risk and past loss information, and the installation and operation of early warning systems.”

The Commission relied on a variety of sources of law in order to identify this duty to reduce the risk of disasters, including international agreements and instruments (such as the 2005 Hyogo Framework for Action), regional court decisions (such as the European Court of Human Rights decisions in Öneryildiz v. Turkey and Budayeva and Others v. Russia), and numerous national laws on prevention, preparation, and mitigation.

Fourth, the Commission began its initial discussion of the topic “identification of customary international law,” which was added to the current program of work in 2012. The discussion at the 65^th session was general in nature, but revealed that the Commission would approach the topic through the twin elements of state practice and opinio juris, and would ultimately develop “a set of conclusions with commentaries, a practical outcome which would serve as a guide to lawyers and judges who are not experts in public international law.”  The Commission was in general agreement that jus cogens would not be directly dealt with as a part of the topic, though the concept may be referenced as the need arises

Fifth, the Commission also commenced work on the topic “provisional application of treaties,” meaning the rules that operate when states agree to apply a treaty even before it enters into force. It is generally understood that the project was concerned with the relevant rules of international law (not national law), including those set forth in VCLT Article 25. Several members identified the central value of the project as determining the legal effect of provisional application, which in their view gave rise to a binding legal obligation (through typically subject to a readily-available ability to terminate the obligation).  The special rapporteur has indicated a preference for developing a set of guidelines with commentaries as the outcome of the Commission’s work on the topic.

Sixth, a working group of the Commission completed a report on the obligation to extradite or prosecute (aut dedere aut judicare). The report – which appears at Annex A of the Annual Report – summarizes the Commission’s work to date on this topic, including the initial reports by a special rapporteur and a detailed memorandum by the secretariat on existing treaty regimes, and analyzes the International Court of Justice’s 2012 decision in the Obligation to Extradite or Prosecute (Belgium v. Senegal) case.

Seventh, some progress was made on the “the most-favored-nation clause” topic, which has been addressed within a Commission study group.  It is expected that the study group will begin consideration of a draft final report at the Commission’s session in 2014, which might include guidelines or model clauses, but might instead simply analyze state practice regarding the writing of MFN clauses and the interpretation that tribunals have given those various provisions.

Eighth, the Commission added a new topic to its active agenda on “protection of the environment in relation to armed conflicts.” It appears that this topic may have three stages: a first report in 2014 addressing the obligations of states in the pre-conflict period with respect to protection of the environment (such as inclusion of relevant materials in military manuals), as well as “peacetime” obligations that may remain relevant in times of armed conflict; a second report in 2015 addressing relevant obligations that arise under the law of armed conflict, both international and non-international; and a third report in 2016  addressing obligations that may exist in the post-conflict period, such as with respect to reparations or reconstruction. 

Ninth, the Commission also added to the active agenda the topic “protection of the atmosphere.” Though agreeing to move forward with this topic, the Commission decided that work “on the topic will proceed in a manner so as not to interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution.” Further, the topic “will not deal with, but is also without prejudice to, questions such as: liability of States and their nationals, the polluter-pays principle, the precautionary principle, common but differentiated responsibilities, and the transfer of funds and technology to developing countries, including intellectual property rights.” Finally, the topic “will also not deal with specific substances, such as black carbon, tropospheric ozone, and other dual-impact substances, which are the subject of negotiations among States,” nor will it seek to “fill” gaps in the treaty regimes. It was also decided that the end product will be “draft guidelines that do not seek to impose on current treaty regimes legal rules or legal principles not already contained therein.”

Tenth, the Commission placed a proposal for the topic “crimes against humanity” on its long-term work program; the proposal appears at Annex B of the Annual Report. If the Commission decides to move this topic to the active agenda, the objective would be to draft a convention addressing the obligation of a state party to criminalize crimes against humanity under its national laws and to exercise jurisdiction over offenders who turn up in its territory, even when the crime is committed abroad by and against non-nationals. Further, the convention would address inter-state obligations with respect to the crime, including aut dedere aut judicare and the provision of mutual legal assistance.