Aust: Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission

Helmut Aust (Freie Universität Berlin - Law) has posted Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission (in Peremptory Norms of General International Law: Perspectives and Future Prospects, Dire Tladi ed., forthcoming). Here's the abstract:

The paper deals with the legal consequences of serious breaches of peremptory norms under general international law. After setting out some aspects of the complex relationship between jus cogens and the law of state responsibility, the contribution presents the recent work of the UN International Law Commission (ILC) on these questions. This work is contextualised in the light of the debates in the Sixth Committee of the UN General Assembly. The contribution discusses to what extent the Commission has offered the international community of States merely an ‘effort to imagine’ hypothetical consequences of breaches of jus cogens – or whether the special consequences for serious breaches of peremptory norms of general international law are now indeed firmly accepted in international law. In particular, the paper assesses recent practice with respect to the three additional consequences that the ILC included in the Articles on State Responsibility in 2001 – the obligation of cooperation as well as the obligations to refrain from recognizing situations brought about by serious breaches of peremptory norms as lawful and to render aid or assistance for maintaining such situations.

UN: Seventy Years of the International Law Commission: Drawing a Balance for the Future

The United Nations has published Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill | Nijhoff 2020). The table of contents is here. Here's the abstract:

Seventy Years of the International Law Commission: Drawing a Balance for the Future brings together voices from academia and practice to celebrate and critically evaluate the work of the United Nations International Law Commission (ILC) over the past seventy years. The edited volume draws on the events commemorating the seventieth anniversary of the Commission, which took place in New York and Geneva in May and July 2018. At a time when multilateral law-making has become increasingly challenging, the edited volume appraises the role of one the most important driving forces behind the codification of international law and discusses the ILC’s future contribution to the development of international law.

Murphy: Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission

Sean D. Murphy (George Washington Univ. - Law) has posted Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission (American Journal of International Law, forthcoming). Here's the abstract:

This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Šturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading of its topic on protection of the environment in relation to armed conflict and completed the second reading of its topic on crimes against humanity. Progress was also made in developing draft articles on succession of states with respect to state responsibility, draft articles on immunity of state officials from foreign criminal jurisdiction, and draft conclusions on general principles of law. Additionally, the Commission held informal consultations concerning model clauses for its topic on provisional application of treaties, the first reading of which was completed in the seventieth session and the second reading of which is expected during the seventy-second session in 2020.

The Commission added to its agenda a topic on sea-level rise in relation to international law, which is being addressed in the context of a study group rather than by use of a special rapporteur. It also added two new topics to its long-term work program: (1) reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law; and (2) prevention and repression of piracy and armed robbery at sea.

Boisson de Chazournes: The International Law Commission in a Mirror - Forms, Impact and Authority

Laurence Boisson de Chazournes (Univ. of Geneva - Law) has posted The International Law Commission in a Mirror - Forms, Impact and Authority. Here's the abstract:

In its 70 years of existence, the International Law Commission has accomplished sterling work in many respects. Much of its output is considered to be the cornerstone of the contemporary international legal order.

However, this positive note should not distract attention from the challenges facing the Commission. Among these, the end of the “golden era” of codification, and the phenomenon of treaty fatigue call into question the relatively comfortable position of the International Law Commission. Questions arise: Is the progressive reduction in the number of conventions adopted as a result of the Commission’s work a sign of its decline? Is the increasing diversity of instruments used by the Commission a problem in terms of impact?

To answer these questions, this contribution first deals with the diversity of forms of the final products and the questions this diversity raises in terms of legal effects (II.) Once this framework for analyzing the Commission’s work has been established, its impacts are examined (III.). The contribution then focuses on the users of the Commission’s work (IV.), and also shed light on its authority (V.).

Nolte: How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018)

Georg Nolte (Humboldt-Universität zu Berlin - Law) has posted How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018). Here's the abstract:

How to identify customary international law is an important question of international law. The International Law Commission has in 2018 adopted a set of sixteen conclusions, together with commentaries, on this topic. The paper consists of three parts: First, the reasons are discussed why the Commission came to work on the topic “Identification of customary international law”. Then, some of its conclusions are highlighted. Finally, the outcome of the work of the Commission is placed in a general context, before concluding.

Weber: Grundwasser im Völkerrecht

Carolin Mai Weber has published Grundwasser im Völkerrecht: Eine Untersuchung der Draft Articles der UN International Law Commission über das Recht grenzüberschreitender Aquifere im Kontext des internationalen Wasserrechts (Duncker & Humblot 2019). Here's the abstract:

Angesichts der globalen Wasserkrise steigt die Bedeutung von Grundwasservorkommen als Wasserressource stetig an. Grundwasservorkommen – auch Aquifere genannt – weisen eine hohe Anfälligkeit für Verschmutzung und Raubbau auf. Auch ist die Mehrzahl der Aquifere grenzüberschreitend. Vor diesem Hintergrund erscheint eine rechtliche Regelung dieser bedeutenden Wasserressource unerlässlich. Diese Arbeit setzt hier an und analysiert, inwiefern die jüngste Entwicklung im internationalen Grundwasserrecht – die Draft Articles der UN International Law Commission über das Recht grenzüberschreitender Aquifere – geeignet ist, den Schutz und die Erhaltung von grenzüberschreitenden Grundwasservorkommen effektiv zu regeln sowie eine angemessene Nutzung und Verteilung der Ressource zu gewährleisten. Gegenstand der Untersuchung sind Fragen zum rechtlichen Rahmen, zum Management grenzüberschreitender Aquifere sowie zu aktuellen Herausforderungen im internationalen Wasserrecht.

Call for Engaged Listeners: Protection of the Environment in Relation to Armed Conflict – Beyond the ILC

A call for engaged listeners has been issued for a workshop on "Protection of the Environment in Relation to Armed Conflict – Beyond the ILC," which will take place on March 7-8, 2019, at the Faculty of Law of the University of Hamburg. The call is here.

Deplano: The Riddle of Custom: General Assembly Resolutions

Rossana Deplano (Univ. of Leicester - Law) has posted The Riddle of Custom: General Assembly Resolutions (in International Organizations, Non-State Actors, and the Formation of Customary International Law, Sufyan Droubi & Jean d’Aspremont eds., forthcoming). Here's the abstract:

This chapter examines the role of resolutions in the International Law Commission (ILC) Conclusions on Identification of Customary International Law. The analysis unfolds along three lines of inquiry. The first one critically analyses the methodology devised by the ILC to ascertain the existence of a customary rule with a view to understanding how it works in the institutional setting of international organizations. The second one examines the definition of resolution contained in the Conclusions and compares it with the mainstream literature on the concept of resolution. The third one evaluates the practical implications of the ILC conclusions by using the resolutions of the United Nations General Assembly as a case study. An argument is made that the ILC Conclusions do not add either certainty or sophistication to the process of ascertaining customary rules, thus failing to provide authoritative guidance to practitioners in the field of international organizations’ practice.

Negishi: The International Law Commission Celebrating Its 70th Anniversary: Dresser le bilan pour l’avenir ‘à venir’

Yota Negishi (Seinan Gakuin Univ. - Law) has posted an ESIL Reflection on The International Law Commission Celebrating Its 70th Anniversary: Dresser le bilan pour l’avenir ‘à venir’.

Jalloh: Universal Criminal Jurisdiction

Charles Chernor Jalloh (Florida International Univ. - Law) has posted Universal Criminal Jurisdiction. Here's the abstract:

The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of "Universal Criminal Jurisdiction" as a topic in the long-term program of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs.

Delerue: The Codification of the International Law Applicable to Cyber Operations: A Matter for the ILC?

François Delerue (Institut de Recherche stratégique de l’École Militaire) has posted an ESIL Reflection on The Codification of the International Law Applicable to Cyber Operations: A Matter for the ILC?

van Sliedregt: The ILC Draft Convention on Crimes Against Humanity - Criminalization Under National Law

Elies van Sliedregt (Univ. of Leeds - Law) has posted The ILC Draft Convention on Crimes Against Humanity - Criminalization Under National Law. Here's the abstract:

This paper discusses Article 6 of the International Law Commission's (ILC) draft articles on crimes against humanity, which deals with criminalization of crimes against humanity in national law. The provision uses neutral and generic terms to describe criminal responsibility. This is appropriate for a treaty like the one which could result from the ILC articles, where it would be left to state parties to enact legislation and to align criminal responsibility for crimes against humanity to existing legal concepts in domestic law. Article 6 is a broad provision, yet it leaves a few gaps. This contribution suggests the insertion and explicit recognition of conspiracy as entailing criminal responsibility for crimes against humanity. Moreover, it proposes a modification of the superior orders defence, allowing reliance on the defence for non-manifestly unlawful orders. The clause on liability of legal persons is welcomed, whereas the provision on superior responsibility is criticized. The latter, mirroring Article 28 of the International Criminal Court's (ICC) Statute, is at the moment vague and unclear. Thus, drafters are encouraged to adopt a 'splitting solution', recognizing a number of separate superior responsibility concepts.

Brunner: Der „DARIO“ - Artikelentwurf über die Verantwortlichkeit Internationaler Organisationen: Eine kritische Analyse

Dominik Brunner has published Der „DARIO“ - Artikelentwurf über die Verantwortlichkeit Internationaler Organisationen: Eine kritische Analyse (Peter Lang 2018). Here's the abstract:

Aufgrund der zunehmenden Bedeutung von Internationalen Organisationen (IO) ist deren Verantwortlichkeit für völkerrechtswidrige Handlungen mittlerweile eine zentrale dogmatische Frage des Allgemeinen Völkerrechts und auch in der Praxis von größter Relevanz. Insofern befasst sich auch die ILC seit 2002 mit dieser Thematik und präsentierte 2011 den Artikelentwurf über die Verantwortlichkeit Internationaler Organisationen (DARIO). Der Autor bietet nicht nur einen Überblick über das grundlegende Konzept der Verantwortlichkeit von IO, sondern analysiert vor allem auch die Kritik und die bestehenden Sonderfälle sowie praktischen Herausforderungen. Nicht zuletzt versucht das Buch, auch die künftige Entwicklung des DARIO und die Kodifikationsreife der Thematik zu evaluieren.

Roundtable: The Codification of International Law: Back to the Future?

On May 14, 2018, the ABILA United Nations Law Committee will hold a roundtable discussion at the NYC Bar Association on “The Codification of International Law: Back to the Future?” Registration and more information are here. Here is the idea:

The “progressive codification of international law” has long been an ideal on par with disarmament and economic integration. In the 19th century, it was considered an essential condition for peace. Throughout the 20th century, it inspired lawyers and diplomats pursuing a stable legal basis for international relations. The Charter of the United Nations lists codification of international law as one of the primary responsibilities of the General Assembly, which in 1948 established a permanent organ for this purpose: the International Law Commission.

As the International Law Commission celebrates its 70th anniversary in 2018, it is time to take stock of the past achievements and future challenges of the codification movement. This panel assesses the lofty objectives and practical results of two centuries of codification, paying special attention to the role of the International Law Commission. To what extent has the Commission fulfilled its mission? Have the codification efforts by the Commission and others contributed to a more peaceful world? And what is the future of codification in the 21st century?

Speakers include Sean Murphy (ILC and Georg Washington University), Patricia Galvão Teles (ILC and Autonomous University Lisbon), Hélène Tigroudja (Aix-Marseille and NYU) and Patrick Luna (Permanent Mission of Brazil to the UN). The event will be moderated by Kristen Boon (Seton Hall) and is convened by Christiane Ahlborn and Bart Smit Duijzentkunst (ABILA UN Law Committee). It is co-sponsored by the NYC Bar Association (International Law and UN Committees), Seton Hall Law School, and the ASIL International Organizations Interest Group.

Sadat: A Contextual and Historical Analysis of the International Law Commission's 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity

Leila N. Sadat (Washington Univ. in St. Louis - Law) has posted A Contextual and Historical Analysis of the International Law Commission's 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity. Here's the abstract:

In 2017 the International Law Commission adopted 15 Draft Articles, a Draft Preamble, and a Draft Annex on Mutual Legal Assistance, comprising the nucleus of what might someday become a new global treaty on crimes against humanity. This essay examines the history of the ILC Draft and analyzes several of its major provisions in light of the existing corpus of international criminal law as well as the work of the Crimes Against Humanity Initiative that preceded it. The essay concludes that the ILC Draft provides an excellent point of departure for the negotiation of a new treaty on crimes against humanity. It incorporates many elements of the Rome Statute, such as the definition of crimes against humanity, and solidifies the obligations of States to prevent and punish crimes against humanity. It also builds upon modern UN conventions on corruption and transnational organized crime to construct a robust model for interstate cooperation, and has other progressive and positive elements. At the same time, the Commission’s work could be enhanced and the new treaty made more robust by addressing certain deficiencies in the draft, many of which would either reinforce the jus cogens nature of the crime or enhance the preventive regime the Draft seeks to bring into existence.

Nolte: The International Law Commission and Community Interests

Georg Nolte (Humboldt-Universität zu Berlin - Law) has posted The International Law Commission and Community Interests. Here's the abstract:

The paper looks at community interests in international law from the perspective of the International Law Commission. As the topics of the Commission are diverse, the outcome of its work is often seen as providing a sense of direction regarding general aspects of international law. After defining what he understands by “community interests”, the author looks at both secondary and primary rules of international law, as they have been articulated by the Commission, as well as their relevance for the recognition and implementation of community interests. The picture which emerges only partly fits the widespread narrative of “from self-interest to community interest”. Whereas the Commission has recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules of international law, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional State-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push towards the recognition of more and thicker community interests.

Murphy: Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission

Sean D. Murphy (George Washington Univ. - Law) has posted Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission (American Journal of International Law, forthcoming 2017). Here's the abstract:

This essay analyzes the outcome of the sixty-ninth session of the U.N. International Law Commission held in the summer of 2017 in Geneva. The session was the first of a new quinquennium of the Commission, consisting of members who will serve from 2017 until 2021. Notably, the Commission completed on first reading a full set of draft articles with commentary on crimes against humanity. Progress was also made in developing draft guidelines on the provisional application of treaties; draft guidelines on protection of the atmosphere; draft articles on the immunity of state officials from foreign criminal jurisdiction; and draft conclusions on peremptory norms of general international law (jus cogens).

The Commission did not make any significant progress with respect to its topic on protection of the environment in relation to armed conflicts, but did appoint a new special rapporteur to carry the work forward. Further, the Commission added a new topic to its agenda on succession of states in respect of state responsibility, and added two new topics to its long-term work program, namely on general principles of law and on evidence before international courts and tribunals. The Commission did not work on two topics that completed their first readings in 2016 and that, after receiving reactions from governments and others, will likely undergo their second readings in 2018: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties.

Deplano: Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law

Rossana Deplano (Univ. of Leicester - Law) has posted Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues (International Organizations Law Review, forthcoming). Here's the abstract:

On 30 May 2016, the International Law Commission (ILC) adopted a set of 16 draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in Article 38(1)(b) of the ICJ Statute, the ILC study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognizing that the practice of international organizations (IOs) as such may be constitutive of custom. This article critically examines the ILC draft Conclusions concerning the role of IOs in the process of custom creation. It examines the concept of resolution adopted by the ILC and assesses the coherence of the interpretive methodology devised by the ILC using the UN General Assembly resolutions as a case study. The findings show that the draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

Murphy: Third Report on Crimes Against Humanity

Sean D. Murphy (Member, International Law Commission; George Washington Univ. - Law) has posted Third Report on Crimes Against Humanity (UN Doc. A/CN.4/704 (2017)). Here's the abstract:

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In 2016, based on the Special Rapporteur’s Second Report, the Commission provisionally adopted an addition six draft articles with commentary. In this Third Report, which will be debated by the Commission during the summer of 2017, the Special Rapporteur proposes a draft preamble and seven additional draft articles, which are focused on various obligations of States with respect to the prosecution of crimes against humanity within national law. Specifically, the seven proposed draft articles address: extradition (draft article 11); non-refoulement (draft article 12); mutual legal assistance (draft article 13); treatment of victims, witnesses and others (draft article 14); relationship to competent international criminal tribunals (draft article 15); federal State obligations (draft article 16); and inter-State dispute resolution in the event of non-compliance (draft article 17).

Annex I to the report contains the ten draft articles provisionally adopted by the Commission to date. Annex II contains the draft preamble and seven draft articles proposed in this report.

Sadat & Falconer: The UN International Law Commission Progresses Towards a New Global Treaty on Crimes Against Humanity

Leila Nadya Sadat (Washington Univ., St. Louis - Law) & Kate Falconer have posted an ASIL Insight on The UN International Law Commission Progresses Towards a New Global Treaty on Crimes Against Humanity.