The International Law Commission (Commission or ILC) held its seventy-fifth session at its seat in Geneva from April 15 to May 31 and from July 1 to August 2, 2024. The Commission was chaired by Mr. Marcelo Vázquez-Bermúdez (Ecuador), and for the first time since its establishment in 1945, elected a majority of three females out of the five officers elected to its bureau annually.Footnote 1 The Commission celebrated its seventy-fifth anniversary and progressed its work on the topics in the program of work despite the shortening of the twelve-week General Assembly approved session to ten weeks due to the liquidity crisis facing the United Nations. Following the resignation of two of its members, one upon his election to the International Court of Justice (ICJ)Footnote 2 and the other for personal reasons,Footnote 3 the Commission elected two new members from RomaniaFootnote 4 and ChinaFootnote 5 to fill the casual vacancies that arose as a result.
As regards its substantive work, the Commission worked on seven separate topics on its program of work in 2024.Footnote 6 It commenced the second reading on Immunity of State Officials from Foreign Criminal Jurisdiction by examining the first six draft articles. Progress was also made in provisionally adopting five draft conclusions on Subsidiary Means for the Determination of Rules of International Law and four draft guidelines on Settlement of Disputes to Which International Organizations Are Parties. The Commission did not make significant progress on Prevention and Repression of Piracy and Armed Robbery at Sea, in relation to which, only its Drafting Committee adopted one draft article. It held the first plenary debate, without adopting text, on the new topic of Non-legally Binding International Agreements. Additionally, the Commission reconstituted its study group on Sea-Level Rise in Relation to International Law focusing on the sub-topics of statehood and the protection of persons affected by sea-level rise. It also re-established an open-ended working group to recommend the way forward on Succession of States in Respect of State Responsibility. The Commission also added two new topics to its long-term program of work and invited state comments on their suitability for future study. As regards improvement on working methods, it also decided to prepare a handbook, with the Secretariat's assistance, to transparently guide the future work of the Commission.
I. Immunity of State Officials from Foreign Criminal Jurisdiction
The topic “Immunity of State Officials from Foreign Criminal Jurisdiction” was added to the Commission's program of work at its fifty-ninth session (2007), making it the longest topic on the current work program. The purpose of the topic is to clarify the legal nature and the personal, material, and procedural aspects of immunity of state officials from the criminal jurisdiction of another state. The proponent of the topic, Roman A. Kolodkin (Russian Federation), was appointed the first special rapporteur. Following his departure from the Commission,Footnote 7 after preparing three reports, he was replaced by Concepción Escobar Hernández (Spain).
In the decade between its sixty-fourth session (2012) and the seventy-second session (2022), the Commission considered eight separate special rapporteur reports on the immunity of state officials.Footnote 8 The work culminated in the Commission's adoption in 2022, on first reading, a full set of eighteen draft articles containing an annex along with their commentaries. In line with Articles 16 to 21 of the Statute, the Commission transmitted, through the UN secretary-general, the draft articles inviting governments to provide their comments by December 1, 2023.Footnote 9 In the interim period, between the adoption of the first reading text and the receipt of state comments, the Commission appointed Claudio Grossman Guiloff (Chile) as special rapporteur since Ms. Escobar Hernández was no longer a member of the Commission.
The eighteen draft articles, as adopted upon first reading, are divided into four parts. Part One, comprised of the first two provisions and titled introduction, address issues of scope of the present draft articles (draft Article 1) and definitions (draft Article 2). Part Two, bearing the title immunity ratione personae, contains two provisions on persons enjoying immunity ratione personae (draft Article 3) and scope of immunity ratione personae (draft Article 4), whereas Part Three (immunity ratione materiae) is comprised of three provisions addressing persons enjoying immunity ratione materiae (draft Article 5), scope of immunity ratione materiae (draft Article 6), and crimes under international law in respect of which immunity ratione materiae shall not apply (draft Article 7). Articles 1 through 6, taken individually and together, constitute the least controversial aspects of the draft articles both among members of the Commission and states because they are widely thought to reflect a codification of customary international law.
Part Four, procedural provisions and safeguards, is the longest and the most creative section of the draft articles. They address, in sequence, application of Part Four (draft Article 8), examination of immunity by the forum state (draft Article 9), notification to the state of the official (draft Article 10), invocation of immunity (draft Article 11), waiver of immunity (draft Article 12), requests for information (draft Article 13), determination of immunity (draft Article 14), transfer of the criminal proceedings (draft Article 15), fair treatment of the state official (draft Article 16), consultations (draft Article 17), and settlement of disputes (draft Article 18). The safeguards are intended to ensure, in a general way, that there is a broad system of interstate cooperation to facilitate mutually respectful interactions in relation to questions of immunity. The challenge for their application is that they address questions that touch largely on the nature of national criminal justice systems that differ widely in how they address questions of immunity of foreign officials. They also address issues that some states might perceive as sensitive, for example, how to seek information or whether to notify the state of an official that he is under investigation for a crime to give that state an opportunity to invoke or waive his immunity.
The Commission's consideration of the topic during the seventy-fourth (2024) session focused on Parts One through Three. Those articles were the object of Special Rapporteur Grossman's first report. The focus of which was to analyze the comments and observations received from governments, on draft Articles 1 through 6, with a view to making recommendations to the Commission on what, if any adjustments, are needed whether in relation to the draft articles or their commentary. The Commission received comments from thirty-eight governments. The special rapporteur recommended, consistent with the practice at second reading, that the Commission assess the comments of governments without necessarily automatically adopting their views especially when they pulled in opposite directions.Footnote 10 Instead, he proposed that the Commission seek to reflect any new developments since the first reading in 2022. The Commission will be revisiting the remainder of the draft articles centered around the procedural safeguards the spring of 2025 to address the key issues raised by states, including those that argue they are largely exercises in progressive development.
Following the plenary debate, on the first report, the Commission referred draft Articles 1 through 6 to the Drafting Committee which provisionally took note of four draft articles on second reading, namely, draft Articles 1, 3, 4, and 5. Draft Article 2, which addresses definitional issues, was retained in the Drafting Committee until next year when the Commission will consider the second special rapporteur report covering draft Articles 7 through 18. It was rightly considered that the terms that would need to be defined and their effect on the definitional clause would be clearer in view then.
Article 1 on scope consists of three paragraphs. Paragraph 1 provides that “the present draft articles apply to the immunity of State officials from the criminal jurisdiction of another State.”Footnote 11 This means that the topic does not address immunity issues arising within a state, only those concerning those of foreign officials, nor does it implicate immunities before an international criminal tribunal. During the second reading stage, only a relatively small group of states commented on that paragraph, with most of the commenters finding the scope clearly set out. Consequently, the special rapporteur did not propose nor did the Commission make any amendments to the paragraph 1 text, which was retained as is.
Paragraph 2 of draft Article 1 provides that “[t]he present draft 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 organisations and [armed] forces of a State.”Footnote 12 This without prejudice clause, inspired by the Commission's prior work in the draft articles on the jurisdictional immunity of states and their property, was amended slightly. The idea was to make clearer that the “provision preserves both the immunity provided for by such rules, where such immunity exists, as well as any exceptions to it.”Footnote 13 The term “military forces,” used in the first reading text, was replaced with the phrase “armed forces” in the English text to better “align it with both general usage and the French and Spanish texts.”Footnote 14
The first reading commentary indicates that the “special rules of international law” would include those found in the Vienna Convention on Diplomatic Relations,Footnote 15 the Vienna Convention on Consular Relations,Footnote 16 and the Convention on Special MissionsFootnote 17 as well as relevant rules of customary international law. They also cover special rules concerning persons associated with international organizations, such as the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character,Footnote 18 the Convention on the Privileges and Immunities of the United Nations, and the Convention on the Privileges and Immunities of the Specialized Agencies.Footnote 19 The special rules also encompass those addressing the stationing of military forces in a foreign state under Status of Forces Agreements. The use of the term, “in particular,” confirms that the list is illustrative and that there are other rules that are applicable to the three groups of examples given.
Turning now to paragraph 3, which generated extensive debate, the text as adopted provides that “the present draft articles do not affect the rights and obligations of States under international agreements establishing or relating to the operation of international criminal courts and tribunals as between the parties to those agreements.”Footnote 20 The inclusion of the italicized text, “or relating to the operation of,” to the revised text was intended to recognize a wider scope of modern international criminal law.Footnote 21 For instance, tribunals established by the UN Security Council on the basis of its Chapter VII powers, such as the Yugoslav and Rwanda Tribunals, constituted a source of obligations for states even if such obligations can be found in a resolution. So also would the decisions of such a body as the Security Council to refer a situation to the International Criminal Court. The actions, as a legal matter, are anchored in Chapter VII of the UN Charter.
While the final part of the text did not change, the phrase “as between the parties to those agreements” provoked extensive debate at the second reading stage, much as it did when the text was first adopted in 2022.Footnote 22 As included, the idea of that language was to reflect the pacta tertiis rule found in Article 34 of the Vienna Convention on the Law of Treaties.Footnote 23 Under that rule, a treaty cannot create obligations or rights for a third state that has not given its consent. Some members felt that the phrase was unnecessary as it prejudices immunity questions before tribunals such as the International Criminal Court. Other members felt that the phrase should be kept, with the compromise providing for the issue to be further explained in the revised commentary. A related special rapporteur proposal to reformulate the text of paragraph 3, separating it into two subparagraphs addressing treaties establishing international criminal courts and tribunals and binding resolutions establishing such courts and tribunals generated considerable debate but did not garner sufficient support to be adopted. Thus, the essence of the first reading text was retained.
Draft Article 2, on definitions for the purposes of these draft articles, as adopted on first reading, remains the same. It provides for the definitions of two terms: “State official,” in subparagraph (a), which “means any individual who represents the State or who exercises State functions, and refers to both current and former State officials.”Footnote 24 Subparagraph (b) defines “an act performed in an official capacity” to mean “any act performed by a State official in the exercise of State authority.”Footnote 25 A proposal for an alternative formulation that would refer instead to “in the exercise of elements of the governmental authority” to reflect the comments of some states and the complexity of the link between “rules of immunity and responsibility of States for internationally wrongful acts” and the issue of ultra vires acts was not adopted.Footnote 26 Leaving aside the decision to retain the definitional clause in the Drafting Committee, pending the conclusion of the work on the remaining draft articles, it was felt that the additional concerns about the definitions expressed by states and some members would be better clarified in the commentary.
Draft Article 3, which concerns immunity ratione personae, for the so-called troika, was retained without change. It provides that “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.”Footnote 27 This provision was widely agreed as codifying present customary international law. One question that was debated at the second reading stage was whether, as a small number of states had suggested, the category of persons enjoying such personal immunities should be expanded. After some debate, the Drafting Committee considered that the provision should not be amended since it not only reflected the current law, but it also enjoyed the broad support of states. The issue of the status of some family members, of the troika, was deemed to fall outside the scope of the articles.
On draft Article 4, concerning the scope of immunity ratione personae, there are three subparagraphs. The first paragraph reads: “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae only during their term of office.”Footnote 28 The first reading text “their term of office” was placed with “their period of office”—language borrowed from the International Court of Justice's Arrest Warrant Footnote 29 Judgment. The change, which was to the English language text only (and not the French and Spanish versions which used the words mandat and mandato respectively), reflected the comments of some states that the word “term” might be too restrictive—at least in circumstances where there may be monarchs and ministers for foreign affairs, who might not necessarily have specified terms of office.Footnote 30 The same textual change replacing “term of office” with “period of office” was made to the end of the paragraph 2 first reading text. The final change, to paragraph 3 of draft Article 4, concerns the cessation of immunity. The issue provoked much debate in the Drafting Committee.Footnote 31 As revised, the draft article now provides more directly that “[t]he cessation of immunity ratione personae is without prejudice to the rules of international law on immunity ratione materiae.”Footnote 32 The language referring to the application of such rules found in the first reading text was deleted. It was felt that not all such rules were about the applicability of immunity as such, but rather in some cases, would concern the process and procedure for resolving immunity claims when those are raised.
The final change to the second reading text concerned draft Articles 5 and 6. The new draft Article 5, as adopted, merged the two provisions and comprises three paragraphs. The first of the paragraphs combines texts of draft Article 5 and draft Article 6, paragraph 1, while it omits certain texts. It states: “State officials enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction with respect to acts performed in an official capacity.”Footnote 33 The previous version of paragraph 1 of draft Article 5 had provided that “State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction.”Footnote 34 Whereas paragraph 1 of draft Article 6 had stated that state officials enjoy such immunity “only with respect to acts performed in an official capacity.”Footnote 35 The text of paragraph 2 remains the same as the first reading text, while the text of paragraph 3 of draft Article 5 also now uses the phrase “period of office” in replacement for “term of office,” thereby aligning it with the earlier adopted text of draft Article 4.
As revised during the second reading, considering all the changes, the content of the now merged draft Article 5 and 6 reads as follows:
Draft article 5 [6] Scope of immunity ratione materiae
1. State officials enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction with respect to acts performed in an official capacity.
2. Immunity ratione materiae with respect to acts performed in an official capacity continues to subsist after the individuals concerned have ceased to be State officials.
3. Individuals who enjoyed immunity ratione personae in accordance with draft article 4, whose period of office has come to an end, continue to enjoy immunity with respect to acts performed in an official capacity during such period of office.Footnote 36
Overall, as can be seen from the above, the Commission made satisfactory progress in addressing six out of eighteen (that is, a third of the eighteen draft articles) it had adopted on first reading on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction. While there are internal procedural matters, such as the date of timing of special rapporteur reports and delays in receiving the translated versions of state comments that meant it was not possible to complete the second reading on this topic in one year, this approach could be seen as a blessing in disguise. This is because the Commission has now returned to an earlier working approach on its topics whereby second readings are not necessarily completed in one year. In the experience of this author, increasingly, the Commission faces time constraints for the substantive work especially in the Drafting Committee. This often leads to pressure to abbreviate the debate, in order to complete the work on time, to report back to the plenary. While that approach is practically necessary, in an era of budget cuts, the scientific rigor of the Commission's work is too important to rush to complete the substantive work given the general complexity of the issues on its program of work. Indeed, as the first report of the special rapporteur rightly notes, taking time to do the second reading over the course of two years “also corresponds to the views of a number of States that called upon the Commission to prioritize thoroughness and consensus and suggested that the Commission take the necessary time to properly digest and consider States’ comments.”Footnote 37
The present writer also considers that it was useful for the Commission, whose composition changed significantly since the adoption of the first reading text in 2022 and now, to engage in a collective consideration of this sometimes-sensitive topic. The first six draft articles considered during the seventy-fourth session constitute those around which there was a greater degree of consensus both among members of the Commission and states since they are presumed to reflect a codification of customary international law. This enables confidence building between members of the Commission and states before moving on to the most challenging part of the draft articles: the procedural provisions and safeguards, which it has been argued, are largely exercises in progressive development of the law.
While the present author does not necessarily subscribe to the view that there is a watertight distinction between codification, on the one hand, and progressive development on the other, as BrierlyFootnote 38 pointed out as far back as the 1950s, it is clear that the practices of states on how they procedurally address immunities differ depending on the nature of the national legal system. Civil law jurisdictions operate differently from common law countries. And, even within the civil law category, there are strong variations between jurisdictions in the same way there are within common law systems. This means that the nature of the procedures available to criminal law prosecuting authorities, and how they interact with the judicial and executive branches of government differ markedly and are likely to generate divergencies of view by the mere fact of different state practices that can hardly be expected to be uniform. The point is that the Commission's procedural safeguards could be criticized on the simple ground that they are not necessarily anchored in the practice of particular groupings of states.
Of course, the litmus test for the Commission's work on this topic will come next year when consideration is given of draft Article 7. Draft Article 7, which concerns crimes under international law in respect of which immunity ratione materiae shall not apply, elicits strong reactions, both among its supporters and its detractors, since it is seen as both underinclusive and overinclusive. The provision, which was adopted by recorded vote in 2017 (with twenty-one members in favor, eight against, and one abstention), provides that functional immunity from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (1) crime of genocide; (2) crimes against humanity; (3) war crimes; (4) crime of apartheid; (5) torture; and (6) enforced disappearance.
There are some calls to delete draft Article 7 from the final articles, by some of the detractors, while the supporters seek its expansion. The key question will likely not be whether to retain it, as there appears to be sufficient support for the provision among states and members of the Commission to make that outcome unlikely, but whether to reopen it. If it is reopened, the question will be whether to add previously excluded crimes such as the crime of aggression, as a number of members including the present author had arguedFootnote 39 when the article was adopted by recorded vote and many states in the last year spurred on by developments concerning Ukraine, or whether to also add the crime of slavery as Sierra Leone suggested, both as additional crimes to the six currently enumerated as crimes in respect of which immunity ratione materiae shall not apply. The challenge for the Commission will be to find the middle ground that bridges the two opposite camps, keeping fully in view its mandate of promotion of the codification and progressive development of the law, and the fact that it is states that decide on the fate of the draft articles and would thus ideally have the conditions to reach agreement on the way forward.
II. Other Topics Addressed During the Seventy-Fourth Session
A. Subsidiary Means for the Determination of Rules of International Law
During its 2022 session, the Commission advanced the topic “subsidiary means for the determination of rules of international law” onto the current program of work and appointed Charles Chernor Jalloh (Sierra Leone; the present author) as special rapporteur. The topic, which was proposed in 2021 and received broad support from the Sixth Committee, aims to serve as a final piece of the Commission's work on the sources enumerated in Article 38(1) of the ICJ Statute.Footnote 40 The Commission's study of Article 38(1) began with its draft articles on the law of treaties under subparagraph (a) completed in 1966, which served as the negotiating basis for the Vienna Convention on the Law of Treaties. It was then followed by the Commission's 2018 conclusions on identification of customary international law under subparagraph (b) of Article 38(1). In the same year, the Commission took up “general principles of law” from subparagraph (c) of Article 38(1), which accomplished a first reading in 2023 and is expected to be completed with the second reading in 2025.
Under Article 38(1)(d) of the Statute, the ICJ may also apply “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”Footnote 41 The topic seeks to clarify the historical and contemporary role of subsidiary means in the process of determining the rules of international law. This includes by offering, as the Commission explained in its commentary, “a coherent and systematic methodology” to elucidate the traditional subsidiary means as well as to determine “the scope of new subsidiary means” that may emerge in the future.Footnote 42
During its 2023 session, following the debate of the first report of the special rapporteur,Footnote 43 the Commission provisionally adopted three Conclusions, namely 1 on scope,Footnote 44 2 on the categories of subsidiary means,Footnote 45 and 3 on the general criteria for the assessment of subsidiary means.Footnote 46
At the 2024 session, the Commission considered the second report of the special rapporteur.Footnote 47 In that report, the special rapporteur mainly addressed the functions of subsidiary means for the determination of rules of international law, including in the drafting history of Article 38, paragraph 1(d), of the Statute of the International Court of Justice, the practice of the International Court of Justice and other international tribunals, and scholarly writings concerning the functions of subsidiary means; and the general nature of precedent in domestic and international adjudication, including Article 38, paragraph 1(d), and its relationship to Article 59 of the Statute of the International Court of Justice, as well as the relationship between Article 59 and Article 61 of the Statute of the International Court of Justice, and the link to the rights of third states.Footnote 48
The second report proposed three draft conclusions. Following the plenary debate and their referral to the Drafting Committee, the Commission provisionally adopted draft Conclusions 6 (nature and functions of subsidiary means), 7 (absence of legally binding precedent in international law), and 8 (weight of decisions of courts and tribunals) and their commentaries. Earlier in the same session, the Commission had adopted draft Conclusions 4 (decisions of courts and tribunals) and 5 (teachings). These two conclusions had been provisionally adopted, by the Drafting Committee, during its seventy-third (i.e., 2023) session. Their adoption by the Commission as a whole enabled the special rapporteur to prepare their commentaries which were adopted at the end of the 2024 session.
Draft Conclusion 4, “[d]ecisions of courts and tribunals,” states:
1. Decisions of international courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for the determination of the existence and content of rules of international law.
2. Decisions of national courts may be used, in certain circumstances, as a subsidiary means for the determination of the existence and content of rules of international law.Footnote 49
The commentaries explained that both this draft Conclusion, and the one on teachings that follows it, build on and complement the prior work of the Commission. As explained, the two provisions both seek to explain how decisions of courts and tribunals and teachings, “the two principal subsidiary means derived from Article 38, paragraph 1(d), of the Statute of the International Court of Justice, are to be used for the purpose of determining the existence and content of rules of international law.”Footnote 50
In this regard, the first paragraph indicates that decisions of international courts and tribunals, especially those of the International Court of Justice, are a subsidiary means for the determination of the existence and content of rules of international law. Here, as in the related prior topics, the Commission accorded greater weight to the decisions of international courts and tribunals compared to the decisions of national courts covered in paragraph 2 and also stressed the role of the International Court of Justice. The Commission determined that there are ample reasons to give priority to the decisions of the World Court without in any way suggesting that a “hierarchy exists vis-à-vis other international courts and tribunals created by States or international organizations exercising specific competencies conferred on them by their constitutive instruments.”Footnote 51 It was underlined that, in some cases such as those concerning various subfields of international law, the decisions of specialized bodies must be taken into due account and, in some cases, given considerable or even great weight compared to general courts.
Paragraph 2 of draft Conclusion 4 considers that there is a relatively more limited role of decisions of national courts as a subsidiary means for the determination of the existence and content of rules of international law calls for caution. This caution is reflected in the use of the terms “may be used” and “in certain circumstances” in paragraph 2, qualifying the phrase “subsidiary means for the determination of the existence and content of rules of international law.”Footnote 52
Draft Conclusion 5 concerns, “[t]eachings.” It provides:
Teachings, especially those generally reflecting the coinciding views of persons with competence in international law from the various legal systems and regions of the world, are a subsidiary means for the determination of the existence and content of rules of international law. In assessing the representativeness of teachings, due regard should also be had to, inter alia, gender and linguistic diversity.Footnote 53
As explained by the commentary, this draft conclusion addresses the “role of teachings or materials (“la doctrine” in French and “la doctrina” in Spanish) understood in a broad sense to include writings, as well as recorded lectures and audiovisual materials.”Footnote 54 Draft Conclusion 5 is composed of two sentences, the first of which reflects the basic proposition that teachings are a subsidiary means for the determination of the existence and content of rules of international law. This formulation, stating that teachings “are” a subsidiary means, differs from the formula used in prior equivalent conclusions in the identification of customary international law and the general principles of law topics. It restores the status of teachings to its equivalence in Article 38(1)(d) which does not distinguish between them and judicial decisions. However, as the commentary explained, the intention was not to elevate the status of teachings to something that they are not.Footnote 55 The formulation “especially those generally reflecting the coinciding views of persons with competence in international law from various legal systems and regions of the world” sought to ensure “that the diversity of viewpoints and teachings from different parts of the world are fully considered when determining the existence and content of rules of international law.”Footnote 56 One outstanding issue is whether the Commission should have reflected a similar approach also in its Conclusion 4 since it can be agreed that diversity of decisions from various legal systems and regions of the world is equally important.
The second sentence of draft Conclusion 5 addresses the representativeness of teachings by indicating, in an illustrative way, that “due regard should also be had to, inter alia, gender and linguistic diversity.”Footnote 57 In the end, as the commentary explains, the Commission here highlights some, though not necessarily all, of the considerations that may be relevant to assessing how representative teachings are, which in addition to the two expressly mentioned forms of diversity could also include racial diversity, ethnic, cultural, and religious diversity.
Draft Conclusion 6, on “[n]ature and functions of subsidiary means,” provides:
1. Subsidiary means are not a source of international law. The function of subsidiary means is to assist with the determination of the existence and content of rules of international law.
2. The use of materials as subsidiary means for the determination of rules of international law is without prejudice to their use for other purposes.Footnote 58
The Commission chose a negative formulation in the first sentence of paragraph 1, instead of a positive one, to state that the subsidiary means are not a source of international law. While some members found this statement too categorial, and perhaps oversimplifying the complex and interactive role of subsidiary means with the sources of international law, the majority preferred this statement. The second sentence, which could have probably been better put as a separate standalone sentence or paragraph, goes on to specify the function of subsidiary means as helpers or aids in the process of determination of rules of international law. The alternative of stating that the subsidiary means are auxiliary to the sources was considered, but due to the apparent conflation that would result since auxiliary is translated in the same way as the term subsidiary in French, Spanish, and Russian, the Commission did not use such formulation.
The second paragraph is simple. It states in a single sentence that the use of “materials” as subsidiary means for the determination of rules of international law is without prejudice to their use for other purposes.Footnote 59 As the commentary explained: “In the first place, such materials may be used to assist in determining the existence and content of rules of international law. In the second place, they may be used for a wide variety of other purposes. For instance, when it comes to the decisions of national courts, the Commission has already determined in its previous works that they may serve a dual function: “(a) either as evidence of the constituent elements of customary international law; or (b) as subsidiary means that are useful to assess whether there exists evidence of State practice and opinio juris.”Footnote 60
Draft Conclusion 7, on the “[a]bsence of legally binding precedent in international law,” states:
Decisions of international courts or tribunals may be followed on points of law where those decisions address the same or similar issues as those under consideration. Such decisions do not constitute legally binding precedent unless otherwise provided for in a specific instrument or rule of international law.Footnote 61
This draft Conclusion addresses the issue of precedent in international law. As the commentary explains, “[i]t confirms the existence of an extensive practice from which the Commission has established that, as a general rule, there is no system of legally binding precedent, or stare decisis, in international courts or tribunals under international law.”Footnote 62 At the same time, and this nuance is important, the Commission considered that “for reasons of legal security, stability and consistency, which is the essence of any rule of law-based legal system, international courts or tribunals routinely take into account the legal reasoning contained in the decisions of other courts and tribunals, although they are not obligated to apply them.”Footnote 63 That said, as per the second sentence of draft Conclusion 7, it could be argued that there is practice that makes as a functional equivalent a rule of binding precedent. The Commission explained that: “However, in these situations, there is no obligation under international law for the international courts or tribunals to follow previous decisions as legally binding precedents. For such an obligation to exist, it should be provided for in a specific instrument or a specific rule, as contemplated by the second sentence of draft conclusion 7.”Footnote 64
Lastly, in draft Conclusion 8 concerning the, “[w]eight of decisions of courts and tribunals,” the Commission sought to provide guidance on how to assess the quality of decisions by providing specific criteria applicable to decisions to the effect that:
When assessing the weight of decisions of courts or tribunals, regard should be had to, in addition to the criteria set out in draft conclusion 3, inter alia:
(a) whether the court or tribunal has been conferred with a specific competence with regard to the application of the rule in question;
(b) the extent to which the decision is part of a body of concurring decisions; and
(c) the extent to which the reasoning remains relevant, taking into account subsequent developments.Footnote 65
In the above, the Commission does establish a linkage to the prior adopted text of draft Conclusion 3 setting out general criteria for assessing subsidiary means more generally, it also sets forth three specific considerations that ought to be highlighted when assessing decisions. The framing of the text, as additional criteria, suggests that both the text of the more general conclusion and the more specific one would apply. However, reading the provision this way could introduce confusion as to the relationship between the two clauses. A lex specialis approach would likely better serve the purpose of indicating that the specific criteria should take priority over the general criteria since the former would more effectively serve “the specific purpose of clarifying how the decisions of courts and tribunals are to be assessed.”Footnote 66 Besides, some of the general criteria does not conceptually sit well in the context of decisions.
It is anticipated that, during the seventy-sixth (2025) session, the special rapporteur will present his third report that will analyze teachings and other subsidiary means. In addition to examining questions of classification of teachings into individual and collective works and assessing the quality or weight of writings, it is expected that the third report will also address the works of expert bodies and the resolutions/decisions of certain international organizations plus any other miscellaneous issues. The Commission, if the schedule is maintained, will thereafter complete its first reading on the topic. At that stage, states will have a year to submit their written comments with the special rapporteur presenting a final (i.e., fourth) report on second reading in 2027. Thereafter, the draft conclusions will be submitted to the General Assembly with the Commission's final recommendation.
B. Settlement of Disputes to Which International Organizations Are Parties.
The Commission added the topic “Settlement of International Disputes to Which International Organizations Are Parties” in 2022 and appointed August Reinisch (Austria) as special rapporteur.Footnote 67 This topic builds upon and continues in some respects the Commission's prior work on the law of international organizations by focusing on the specific question of disputes.Footnote 68
In the 2023 session, the Commission considered the first report of the special rapporteur which proposed two draft guidelines and a tentative program of work.Footnote 69 It adopted draft Guideline 1 (on scope) and Guideline 2 (definitional issues).Footnote 70
During the 2024 session, the Commission debated the second report of the special rapporteur, which focused on “international disputes.” The report examined the practice of settling international disputes to which international organizations are parties, discussed some policy issues relating to such disputes as well as proposed some recommendations. After the plenary debate on the topic, the Commission referred Guidelines 3, 4, 5, and 6, as proposed by the special rapporteur in his second report, to the Drafting Committee, taking into account the debate in the plenary. The Commission thereafter adopted draft Guidelines 3 to 6.
Draft Guideline 3, “[s]cope of the present Part,” provides that: “This Part addresses disputes between international organizations as well as disputes between international organizations and States.”Footnote 71 This provision sets out the two types of disputes addressed by this part of the guidelines. The commentary explains that while the first category of disputes (that is disputes between international organizations) are rare, the second category of disputes (that is between international organizations and states) are more frequent. These cover a wide range of disputes: “from headquarters-related disputes between organizations and their host States, disputes involving the privileges and immunities enjoyed by international organizations and persons connected with them, to disputes concerning the withdrawal from membership.”Footnote 72 A good example of such disputes, which generally involved international law and concerns questions of treaty interpretation, involved the PLO Mission case where the issue was whether a dispute had arisen between the United Nations and the United States that had “triggered the obligation to arbitrate under the Headquarters Agreement.”Footnote 73 Another example concerns a dispute that took the form of an advisory opinion at the bottom of which was a dispute between the host country (Egypt) and an international organization (the World Health Organization).
Draft Guideline 4, “[r]esort to means of dispute settlement,” recommends that: “disputes between international organizations or between international organizations and States should be settled in good faith and in a spirit of cooperation by the means of dispute settlement referred to in draft guideline 2, subparagraph (c), that may be appropriate to the circumstances and the nature of the dispute.”Footnote 74 The guideline referred to, adopted last year, in turn refers to the various choices of dispute settlement set out in Article 33 of the United Nations Charter and reaffirmed by the Manila Declaration including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of resolving disputes.
In practice, amicable means such as negotiations and other diplomatic means are frequently resorted to. That is why it was not considered appropriate for the Commission to establish a preference for a particular modality. The choice of the best means was left to the state and international organization concerned. Disputes, for the most part, arise under international law but this does not mean that they may not also arise under domestic law, especially when they involve private matters such as service or loan agreements. Disputes between international organizations and private parties, such as individuals and legal persons, such as in the Haiti Cholera epidemic case in the U.S. courts which in practice arise also quite frequently, will be covered in a Part Three of the Guidelines next year.
Draft Guideline 5, “[a]ccessibility of means of dispute settlement,” provides for “[t]he means of dispute settlement, including arbitration and judicial settlement, as appropriate, [to] be made more widely accessible for the settlement of disputes between international organizations or between international organizations and States.”Footnote 75 The commentary explains that:
Draft guideline 5 recommends the wider accessibility of the means of dispute settlement referred to in draft guideline 2, subparagraph (c). The expression “accessibility” has been chosen to emphasize practical issues, such as costs and legal remedies available, and not only the legal availability of means of dispute settlement. The recommendation that means of dispute settlement, including arbitration and judicial settlement, as appropriate, should be made more widely “accessible” is intended to focus on the practical use of the different forms of settling disputes to which international organizations are parties.Footnote 76
The Commission left the preferred choice of means to the parties, but given the limited availability of third party dispute settlement in disputes involving such bodies and states except where provided for, highlights the recommendation that forms such as judicial settlement might be made more available.
Draft Guideline 6, “[r]equirements for arbitration and judicial settlement,” provide that “[a]rbitration and judicial settlement shall conform to the requirements of independence and impartiality of adjudicators and due process.”Footnote 77 The requirements of independence and impartiality were considered “core requirements”Footnote 78 of the rule of law and are therefore obligatory as expressed in various international instruments. The specific references to arbitration and judicial settlement was justified on the ground that they are the most well established methods that require both independence and impartiality of third party adjudicators as well as the need to comply with due process requirements.Footnote 79
According to the second report, in 2025, the special rapporteur will focus his third report on the settlement of “non-international” disputes to which international organizations are parties, “that is, mostly disputes between international organizations and private parties arising under a law other than international law.”Footnote 80 This will include disputes of a “private law character.” This is easily the most important and possibly also the most challenging aspect of the topic. The Commission will also, at that stage, seek to complete a first reading on this topic. States will then have more time to give their views before the project is completed in 2027.
C. Prevention and Repression of Piracy and Armed Robbery at Sea
The Commission, in 2022, moved “Prevention and Repression of Piracy and Armed Robbery at Sea” onto the current program of work and appointed Yacouba Cissé (Côte d'Ivoire) as special rapporteur. Given the modern resurgence of piracy, which has somewhat abated now but continues to pose a threat especially in Africa and Asia, the Commission decided to study the law and practice regarding the old crime of piracy as well as the more modern phenomenon of armed robbery at sea. The Commission aims to prepare a set of draft articles on the subject, as noted in the syllabus for the topic and reiterated since then, with the view to ultimately recommending them to states as a basis for a future convention on the subject.
In 2023, the Commission considered the first report of the special rapporteur,Footnote 81 and adopted draft Articles 1 (on scope), 2 (definition of piracy), and 3 (definition of armed robbery at sea). During the 2024 session, the Commission had before it the second report of the special rapporteur, in which he examined the practice of international organizations engaged with addressing piracy and armed robbery at sea, reviewed regional and subregional approaches to combating piracy and armed robbery at sea, as well as state practice concerning cooperation such as the conclusion of bilateral agreements. He proposed four draft articles.
After a contentious plenary debate, the Commission referred draft Articles 4 through 7, as contained in the second report, taking into account the plenary debate and on the understanding that the Drafting Committee would first undertake a general discussion on the topic and its future direction. An informal paper, containing a series of questions, served as the basis for discussion following which one draft article was provisionally adopted. The Commission received an interim oral report summarizing the proceedings and the Drafting Committee's provisionally adopted draft Article 4.Footnote 82
Draft Article 4, which would clarify the general obligations of states in respect of piracy and armed robbery at sea, provides that:
States undertake to prevent and to repress piracy and armed robbery at sea, in conformity with international law, through:
(a) taking effective legislative, administrative, judicial or other appropriate measures; and
(b) cooperating to the fullest possible extent with other States and competent international organizations at the international, regional and subregional levels.Footnote 83
This draft article contains a chapeau and two sub-paragraphs. The chapeau sets out the general proposition that states undertake to both (1) prevent; and (2) repress both piracy and armed robbery at sea. The idea of undertakingFootnote 84 was included to capture the element of obligation, which would be mandatory, and uses similar to the language in other criminal law conventions such as Article II of the Convention on the Prevention and Punishment of the Crime of Genocide and also tracks the approach of the Commission's own 2019 Articles on the Prevention and Punishment of Crimes Against Humanity. All measures undertaken by states are to be done “in conformity with international law” meaning consistent with their obligations such as the sovereign rights of other states or the rights of individuals under international law. This specification was deemed important given that piracy and armed robbery at sea may occur in different maritime spaces to which different rules of international law may apply.
Sub-paragraph (a) of draft Article 4 is linked to the chapeau in the sense of establishing that it is “through” the “taking of effective legislative, administrative, judicial or other appropriate measures” that states may discharge their obligations. Inspired by Article 2, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the provision basically mandates that states take effective measures of a legislative, administrative or judicial character while retaining a catch all for “other appropriate measures.”
Concerning sub-paragraph (b), regarding cooperation, states are to cooperate “to the fullest possible extent” with both other (1) states and (2) competent international organizations, whether those are from the international, regional or sub-regional levels. The “to the fullest possible extent” language was borrowed from Article 100 of the UN Convention on the Law of the Sea (UNCLOS) as well as Article 14 of the Convention on the High Seas and represents the current law concerning piracy. The challenge was, since the provision covered both piracy and armed robbery at sea, whether the fullest possible extent language was appropriate since in relation to the latter it would not be codification but progressive development. In the end, it was considered appropriate to retain the text, since in any event, the complete set of draft articles would constitute a recommendation to states.
In terms of substance, the fullest extent possible language is meant to recognize that states may have different capabilities meaning that states with more resources should “assist those States that had fewer resources in the prevention and repression of piracy and armed robbery at sea.”Footnote 85 Thus, a proposal was made to add “according to their capacity” to the chapeau of the provision. But concern was expressed that this would derogate from the language of Article 100 of UNCLOS. Moreover, “an explicit reference to capacity could be subject to abuse by states lacking the political will to fight piracy and armed robbery at sea.”Footnote 86 And, in any event, it was “suggested that technical cooperation and capacity building would be appropriate matters to address more specifically in further draft articles.”Footnote 87
Toward the end of the seventy-fourth session, Mr. Cissé resigned his position as special rapporteur. The Commission, upon the proposal of the present author, expressed its appreciation to him for his contributions.Footnote 88 Subsequently, following informal consultations, the Commission appointed Mr. Louis Savadogo (Burkina Faso) as the new special rapporteur.Footnote 89 A substantive report on the topic of piracy is not expected in 2025 since the Commission has requested the new special rapporteur to carry out informal consultations to hear the views of members on the preferred scope and future direction for the topic. Some progress on the topic can be expected in 2026.
D. Non-legally Binding International Agreements
As reported in the pages of this journal last year, during the last week of its seventy-fourth (2023) session, the Commission decided to include the topic “Non-legally Binding International Agreements” in its program of work and appointed Mathias Forteau (France) as special rapporteur. The topicFootnote 90 aims to clarify the nature and regime that governs such agreements, which are increasingly common in state practice, and how to distinguish non-binding agreements from legally binding agreements through the preparation of a set of either conclusions or guidelines.
During the 2024 session, the Commission had before it the first report of the special rapporteur.Footnote 91 The purpose of the first report was to commence the debate on the topic in a preliminary way to define the general direction of the Commission's work on the topic, its scope, questions to be examined, and the form of the final outcome.Footnote 92 Accordingly, since no draft provisions were proposed, the Commission did not need to establish a drafting committee to consider the adoption of any text which process will be embarked upon following the submission of the second report in 2025.Footnote 93
Nevertheless, the outcome of the first plenary debate indicates good progress was made in clarifying several questions. First, as regards the name and scope of the topic, about ten states and some members of the Commission had proposed changing the name of the topic to avoid the use of the term “agreements” and instead use “arrangements” or “instruments.” However, after the plenary debate, the special rapporteur expressed a preference to retain the existing title. States will likely react to this issue in the Sixth Committee debate. It will then be up to the Commission whether to continue its position suggested by the special rapporteur or to accommodate the views of the states.
As to the related issue of the scope of the topic, members seemed to agree that the focus should be only on “agreements” and not other types of non-legally binding instruments such as political declarations, or the acts adopted by international organizations or states such as unilateral acts. The nature of the agreements requires that they be written, not be oral or tacit, agreements. They would encompass those agreements concluded between states, between international organizations, and between international organizations and states but not agreements between such entities and private persons. It was observed that several terminological clarifications would be needed, and that a key added value of the topic would be clarity in distinguishing the criteria between the legally and non-legally binding agreements and instruments.
Regarding the outcome of the topic, it had been initially proposed that the Commission either prepare a set of draft guidelines or draft conclusions on the topic. The special rapporteur expressed a preference for the latter over the former. While the normative value of the two types of outputs were thought not to differ substantially,Footnote 94 and a consensus emerged from the plenary debate that the Commission's work on this topic should not be prescriptive, a slight preference of the members was the preparation of draft conclusions and commentaries. Accordingly, in his summing up of the first debate, the special rapporteur recommended that draft conclusions be the tentative basis for the future work on the topic subject to the possibility that the Commission might revisit the issue if it decides at a later stage.
According to the future program of work contained in the first report, and taking into account the general trend of the first plenary debate of the topic this year, the second report will be substantive in nature and will make concrete proposals of draft conclusions. That report will, in terms of the substance, tackle the most important aspect of the topic, which will be the criteria for distinguishing between treaties and non-legally binding international agreements.
E. Study Group on Sea-Level Rise in Relation to International Law
At the seventy-first session, the Commission decided to include the topic “Sea-Level Rise in Relation to International Law” in its current program of work to be addressed in the form of an open-ended study group open to all members. The topic was initially co-chaired by Bogdan Aurescu (Romania), Yacouba Cissé (Côte d'Ivoire), Patricia Galvão Teles (Portugal), Nilüfer Oral (Turkey), and Juan José Ruda Santolaria (Peru) who jointly proposed the topic. For the present session, it was decided that the study group would focus on the additional paper to the second issues paper addressing the protection of persons in the event of sea-level rise and statehood, prepared by Ms. Galvao-Teles and Mr. Ruda Santolaria.Footnote 95 A selected bibliography, building on work done last year, was issued as an addendum to the additional paper.Footnote 96
Discussion in the study group this year focused on issues of statehood and protection of persons in the event of sea-level rise.Footnote 97 On the former, the Study Group generally supported the idea of continuity of statehood and agreed on the relevance of Article 1 of the 1933 Montevideo Convention on Rights and Duties of States. It set the bar for what states require for recognition and reflects customary international law but does not contemplate sea-level rise. There are more recent practices, such as the Pacific Islands Forum's 2023 Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise, which presumed the continuity of statehood regardless of the impact of sea-level rise. Discussion took place of the various basis for the continuity of statehood, including the right of states to preserve their existence; the role of recognition in the continuity of statehood; the right of each state to defend its territorial integrity; the right of self-determination of peoples; and consent on the part of the state facing a loss of habitable territory. The imperatives of ensuring stability, certainty and predictability; equity and justice; sovereign equality of states; permanent sovereignty of states over their natural resources; the maintenance of international peace and security; the stability of international relations; and international cooperation were emphasized during the discussions.
As regards the subtopic of protection of persons in cases of sea-level rise, the Study Group noted the gap in the current international legal framework, which was not only fragmented but also not specifically anticipatory of sea-level rise. It was emphasized that protection of persons affected by sea-level rise should nonetheless be guided by the current international legal frameworks, and key principles such as the protection of human dignity as a guiding principle for any action to be taken in the context of sea-level rise; the need for combined needs-based and rights-based approaches as the basis for the protection of persons affected by sea-level rise; the need to delineate human rights obligations of different human rights duty bearers; the recognition of the importance of general human rights obligations in the context of the protection of persons affected by sea-level rise; the acknowledgement of the various tools that may be applicable to address the protection of persons; and the importance of the duty to cooperate for the protection of persons in the context of sea-level rise.
In 2025, the Study Group is expected to present a final consolidated report on all the sub-topics, namely, law of the sea, statehood, and protection of persons affected by sea-level rise for a final time. The report is expected to prepare a set of conclusions that consolidates the work done by the Commission on the topic since its addition to the program of work in 2018.
III. Addition of New Topics to the Long-Term Program of Work
In the last week of the seventy-fourth session, the Commission included two new topics on to the long-term program of work, namely: (1) compensation for internationally wrongful acts; and (2) due diligence in international law. According to the syllabus prepared by Mārtiņš Paparinskis (Latvia), for the first topic, it aims to build on the prior work of the Commission in the context of the Articles on the Responsibility of States for Internationally Wrongful Acts to clarify the contemporary practice relating to compensation contained in Article 36. It will therefore address the “issues necessarily implicated by identification of rules on compensation and commonly involved with their application in practice.”Footnote 98
To limit the scope of the topic, it is proposed that it be “delineated by reference to two elements: entities to which the right to compensation accrues, and entities that are obliged to provide compensation.”Footnote 99 On the former, it will predominantly focus on compensation in the interstate setting although it would also address such matters where “the right to compensation accrues directly to any person or entity other than a State” such as in the Ahmadu Sadio Diallo case at the International Court of Justice.Footnote 100 On the latter, the topic will address compensation arising under the law of state responsibility as well as the responsibility of international organizations. Regarding the final outcome, the topic will either be in the form of a set of draft principles or a set of draft articles. While the proponent of the topic prefers the former, he left the door open to the possibility that the Commission might prefer the latter. The ultimate choice will probably turn on the response received in the state comments from the Sixth Committee of the General Assembly.
Concerning the second topic, due diligence in international law proposed by Penny Ridings (New Zealand), the topic “would seek to clarify the legal character, scope and content of the due diligence obligation” in relation to states only.Footnote 101 Due diligence, which is widely associated with international environmental law but is in fact not limited to that subfield, is defined “as a duty or standard of care that should be applied to a state's actions on its territory or activities subject to its jurisdiction or control, which harm the rights and interests of other States.”Footnote 102 The topic would seek to discern the nature and scope of the due diligence obligation by identifying the “common elements of the due diligence obligation that can be applied both generally in international law and to special regimes of international law.”Footnote 103 The idea is to locate “the core characteristics of due diligence that are not dependent on the primary obligation to which due diligence is attached.”Footnote 104
Regarding the output, it was proposed that since the primary aim is the codification of the practice relating to the due diligence obligation, the Commission should prepare a set of draft principles “which can be used to assist States in their implementation of the due diligence requirement.”Footnote 105 Further information on the above topics can be found in the syllabuses for the topic contained in Annexes 1 and 2 to the Report of the Commission on the work of its seventy-fifth session.Footnote 106 The Commission will now await the comments of states on the above topics, and at later stage, will determine whether to take them forward into the current program of work. While it has a rigorous method for assessments of topics for inclusion on the long-term work program, there is much room for improvement on the process for taking new topics.
Overall, in its seventy-fifth anniversary year, the Commission made great progress on the topics on its work program. It also commemorated its anniversary with two side events in Geneva and New York. It is anticipated that, next year, the Commission will wrap up three current topics and progress two others to first reading. One challenge for achieving that goal will be the availability of sufficient time in Geneva given the acute budgetary crisis facing the United Nations which had led to the shortening of last year's session from twelve to ten weeks. The Commission plans to finalize, on second reading, the topics “Immunity of State officials from foreign criminal jurisdiction” and “General principles of law” and first readings on “Subsidiary means for determination of rules of international law” and “Settlement of disputes to which international organizations are parties.” The 2018 session was similarly packed. Yet, with creativity, the Commission completed two second readings and two first readings in 2018. Whether it can do so again in 2025 will largely turn on several factors: (1) whether it is able to retain its full General Assembly approved twelve-week session; (2) the cooperation and flexibility of all members, especially a willingness to progress all the topics through informal consultations; (3) cooperation between the special rapporteurs, on the one hand, and co-chairs of the sea-level rise study group on the other; and (4) the level of support that would be available for all the topics from the Commission's otherwise excellent Secretariat (which, like other UN bodies, also faces staff losses and other budget cuts).
