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Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission

Published online by Cambridge University Press:  20 January 2017

Sean D. Murphy
Sean D. Murphy*
Affiliation:
George Washington University Un International Law Commission
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Extract

The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of identification of customary international law, paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.

Type
Current Developments
Information
American Journal of International Law , Volume 109 , Issue 4 , October 2015 , pp. 822 - 844
Copyright
Copyright © American Society of International Law 2015

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References

1 See Report of the International Law Commission on the Work of Its Sixty-Seventh Session, UN Gaor, 70th Sess., Supp. No. 10, at 9, para. 4, UN Doc. A/70/10 (2015) [hereinafter 2015 Report]. This report and other ILC documents are available online at http://legal.un.org/ilc. In addition, UN documents are generally available online at http://documents.un.org/simple.asp.

2 International Law Commission, Third Report on Identification of Customary International Law, UN Doc. A/CN.4/682 (Mar. 27, 2015) (prepared by Special Rapporteur Michael Wood) [hereinafter Third Report on Identification of Customary International Law].

3 Id. at 69–70. For discussion of prior work on these draft conclusions, see Murphy, Sean D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 140–42 (2015)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Sixth Session].

4 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau, “Identification of Customary International Law,” annex (July 29, 2015), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2015_dc_chairman_statement_cil.pdf&lang=EF.

5 Third Report on Identification of Customary International Law, supra note 2, at 12, para. 23 (citation omitted).

6 Id. at 13, para. 24 (citation omitted).

7 Id. at 14, para. 25 (citation omitted).

8 Id. at 46, para. 68 (emphasis added).

9 Id. at 51, para. 74 (citation omitted).

10 Id., para. 75.

11 In the Military and Paramilitary Activities case, in the context of considering the opinio juris element, the Court focused “with all due caution” on the practice of states in relation to certain General Assembly resolutions, finding that it was not the resolution itself that establishes opinio juris but, rather, it was the consent to or rejection of the resolution by states that demonstrated their attitude towards the rule announced in the resolution. Military and Para military Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, paras. 188 –90 (June 27).

12 Similarly, in the Nuclear Weapons advisory opinion, the Court was not focused on the fact that the General Assembly on numerous occasions had adopted resolutions but, rather, on the practice of states in relation to such resolutions. For the Court,

[I]t is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 70 (July 8). Ultimately, the Court rejected claims that the resolutions established a particular rule, given that several of these resolutions were “adopted with substantial numbers of negative votes and abstentions.” Id., para. 71.

13 See Wouters, Jan & Man, Philip De, International Organizations as Law-Makers, in Research Handbook on the Law of International Organizations 190, 208 (Klabbers, Jan & Wallendahl, Asa eds., 2011)Google Scholar (“One should. .. be mindful not to equate the practice of international organizations with state practice.”); Akehurst, Michael, The Hierarchy of the Sources of International Law, 1976 Brit. Y.B. Int’l L. 273, 281Google Scholar (noting that such acts “are merely part of the practice from which customary international law develops, or. .. merely record agreements between (or promises by) States”); see also Barberis, Julio A., Les résolutions des organisations internationales en tant que source du droit des gens, in Recht Zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht: Festschrift für Rudolf Bernhardt 21, 22 (Beyerlin, Ulrich, Bothe, Michael, Hofmann, Rainer & Petersmann, Ernst-Ulrich eds., 1995)CrossRefGoogle Scholar; Pellet, Alain, Article 38, in The statute of the International Court of Justice: A Commentary 677, 752, 761 (Zimmermann, Andreas, Oellers-Frahm, Karin, Tomuschat, Christian & Tams, Christian J. eds., 2d ed. 2012)Google Scholar.

14 Third Report on Identification of Customary International Law, supra note 2, at 52, para. 76 (emphasis added).

15 The International Court of Justice appears not to have addressed the issue squarely, but in the Reservations to the Genocide Convention advisory opinion, the Court declined to recognize that the practice of an international organization established a general rule. See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15, 25 (May 28).

16 Third Report on Identification of Customary International Law, supra note 2, at 52, para. 76 nn.179–82. Some of these writings cite to the Commission’s prior work, see, e.g., Danilenko, Gennady M., The Theory of International Customary Law, 1988 Ger. Y.B. Int’l L. 9, 20Google Scholar, but a close reading of that work only reveals support for the first two propositions, not the third. See, e.g., Report of the International Law Commission on the Work of Its Second Session, UN Gaor, 5th Sess., Supp. No. 12, at 372, para. 78, UN Doc. A/CN.4/34 (1950) [hereinafter 1950 Report] (finding that “[r]ecords of the cumulating practice of international organizations may be regarded as evidence of customary international law with reference to States’ relations to the organizations “) (emphasis added).

17 Third Report on Identification of Customary International Law, supra note 2, at 53, para. 77.

18 UN GAOR, 69th Sess., 25th mtg. at 14, para. 79, UN Doc. A/C.6/69/Sr.25 (Nov. 28, 2014) (European Union).

19 Id. at 21, para. 130 (Norway, on behalf of the Nordic countries).

20 UN GAOR, 69th Sess., 26th mtg. at 18, para. 102, UN Doc. A/C.6/69/Sr.26 (Nov. 20, 2014) (Spain).

21 UN GAOR, 69th Sess., 22d mtg. at 7, para. 30, UN Doc. A/C.6/69/Sr.22 (Nov. 11, 2014) (France).

22 UN Doc. A/C.6/69/Sr.26, supra note 20, at 2, para. 3 (Portugal).

23 Id. at 12, para. 65 (Singapore).

24 Statement of Michael Wood, Special Rapporteur, Summary of the Debate on the Third Report on Identification of Customary International Law, para. 27 (May 21, 2015) (citing European Bank for Reconstruction and Development, Standard Terms and Conditions, §8.04(b)(vi)(C) (Dec. 1, 2012)) (on file with author).

25 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, opened for signature Mar. 21, 1986, 25 ILM 543 (1986) (not yet in force); see also Report of the International Law Commission on the Work of Its Thirty-Fourth Session, UN GAOR 37th Sess., Supp. No. 10, at 9, UN Doc. A/37/10 (1982).

26 Report of the International Law Commission on the Work of Its Sixty-Third Session, UN Gaor, 66th Sess., Supp. No. 10, at 54, para. 87, UN Doc. A/66/10 (2011).

27 See Third Report on Identification of Customary International Law, supra note 2, at 49, para. 72; International Law Commission, Second Report on Identification of Customary International Law, at 29, para. 43, UN Doc. A/CN.4/672 (May 22, 2014) (prepared by Special Rapporteur Michael Wood) [hereinafter Second Report on Identification of Customary International Law].

28 Second Report on Identification of Customary International Law, supra note 27, at 29, para. 43.

29 Id.

30 Third Report on Identification of Customary International Law, supra note 2, at 50, para. 73.

31 Second Report on Identification of Customary International Law, supra note 27, at 29, para. 43; see also Third Report on Identification of Customary International Law, supra note 2, at 53, para. 77.

32 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66, para. 25 (July 8).

33 UN Doc. A/C.6/69/SR.25, supra note 18, at 20, para. 130 (Norway, on behalf of the Nordic countries); UN Doc. A/C.6/69/Sr.26, supra note 20, at 2, para. 3 (Portugal); Id. at 18, para. 102 (Spain). The European Union may have taken a similar approach. UN Doc. A/C.6/69/Sr.25, supra note 18, at 13, para. 78 (European Union) (“[T]he European Union’s action was based on the responsibilities that its member States had entrusted it with.”).

34 Third Report on Identification of Customary International Law, supra note 2, at 54, para. 79.

35 UN GAOR, 69th Sess., 27th mtg. at 7, para. 37, UN Doc. A/C.6/69/Sr.27 (Nov. 24, 2014) (Jamaica).

36 Id. at 8, para. 44 (Malaysia).

37 UN Doc. A/C.6/69/Sr.25, supra note 18, at 21, para. 130 (Norway, on behalf of the Nordic countries).

38 UN Doc. A/C.6/69/Sr.26, supra note 20, at 9, para. 50 (Netherlands).

39 Asylum (Colom./Peru), 1950 ICJ Rep. 266, 276 (Nov. 20) (emphasis added).

40 Right of Passage over Indian Territory (Port. v. India), 1960 ICJ Rep. 6, 39 (Apr. 12) (emphasis added).

41 Cassese, Antonio, International Law 163 (2d ed. 2005)Google Scholar (emphasis added); see also Crawford, James, Brownlie’s principles of Public International Law 29 (8th ed. 2012)CrossRefGoogle Scholar (noting the existence of customary norms that “may be practised only within a particular region, creating a ‘local’ customary law”); Pellet, supra note 13, at 829 (noting the International Court of Justice’s acceptance of “the possibility of custom of a limited geographical scope”).

42 Shaw, Malcolm N., International law 65 (7th ed. 2014)Google Scholar (quoting Eritrea v. Yemen, Maritime Delimitation (Second Stage), 119 ILR 417, para. 92 (Perm. Ct. Arb. Dec. 17, 1999)).

43 See International Law Commission, Second Report on the Protection of the Atmosphere, UN doc. A/CN.4/681 (Mar. 2, 2015) (prepared by Special Rapporteur Shinya Murase) [hereinafter Second Report on the Protection of the Atmosphere]. For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 139.

44 Second Report on the Protection of the Atmosphere, supra note 43, at 49–50 (annex).

45 2015 Report, supra note 1, at 22, para. 50.

6 United Nations Framework Convention on Climate Change, pmbl., May 9, 1992, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 107.

47 Convention on Biological Diversity, pmbl., June 5, 1992, 31 ILM 818, 822 (1992).

48 For example, Frank Biermann finds that the “new concept” of “common concern of humankind,” as embodied in treaty practice,

may point to the conclusion that industrialised countries increasingly accept a general legal duty of “international environmental solidarity,” i.e. of providing financial assistance toward the poorer nations for their implementation of environmental policies as regards the common concerns of humankind. Such a rule of customary international law would have the effect that industrialised States have a legal duty to provide developing States with the necessary financial and technological means to adopt effective environmental policies, and that the developing countries concurrently have a legal right to request such assistance.

Biermann, Frank, “Common Concern of Humankind”: The Emergence of a New Concept of International Environmental Law, 34 Archiv des Völkerrechts 426, 462 (1996)Google Scholar (footnote omitted). He also finds that the concept means that not only will financial transfers from developed countries to developing countries occur through treaty regimes, but it also means that “developing countries could ground their claims for assistance by industrialised countries to finance environmental policies on two legal grounds: (i) reparation for wrongful conduct or (ii) a general duty of industrialised countries to financially and technologically support the environmental policies in the South insofar as common concerns of humankind are affected.” Id. at 454–55. For other views, see Boyle, Alan, International Law and the Protection of the Global Atmosphere: Concepts, Categories and Principles, in International Law and Global Climate Change 11, 11–13 (Churchill, Robin & Freestone, David eds., 1991)Google Scholar (suggesting three different possible interpretations of the concept as applied to the atmosphere, including that it possibly creates rights for individuals and future generations); Kiss, Alexandre & Shelton, Dinah, International Environmental Law 31 (3d ed. 2004)Google Scholar (finding that “common concern of humanity” creates “a legal system whose rules impose duties on society as a whole and on each individual member of the community”); Sands, Philippe, Peel, Jacqueline, Fabra, Adriana & MacKenzie, Ruth, Principles of International environmental Law 234 (3d ed. 2012)CrossRefGoogle Scholar (finding that with a “common concern” relating to a natural resource is “a legal responsibility to prevent damage to it”); Nanda, Ved P. & Pring, George (Rock), International Environmental Law and Policy for the 21st Century 39 (2d rev. ed. 2013)Google Scholar (asserting that the term “common concern” signals that all states have “the right and the duty to take joint or separate action to prevent environmental harm”). 9 2015 Report, supra note 1, at 22, para. 53.

50 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau, “Protection of the Atmosphere,” at 10–11 (June 2, 2015), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2015_dc_chairman_statement_atmosphere.pdf&lang=EF.

51 2015 Report, supra note 1, at 27, para. 54.

52 Id. at 23, para. 53.

53 Id.

54 Report of the International Law Commission on the Work of Its Sixty-Fifth Session, UN GAOR, 68th Sess., Supp. No. 10, at 115, para. 168, UN Doc. A/68/10 (2013) [hereinafter 2013 Report].

55 2015 Report, supra note 1, at 32, para. 54.

56 Id. at 34, para. 54.

57 Report of the International Law Commission on the Work of Its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, at 265, para. 266, UN Doc. A/69/10 (2014) [hereinafter 2014 Report]; see Murphy, Sixty-Sixth Session, supra note 3, at 145.

58 See 2013 Report, supra note 54, at 141, para. 3 (Annex B).

59 International Law Commission, First Report on Crimes Against Humanity, UN Doc. A/CN.4/680 (Feb. 17, 2015) (prepared by Special Rapporteur Sean Murphy).

60 2015 Report, supra note 1, at 52– 83, para. 117.

61 Id. at 52.

62 Id. at 53.

63 Id. at 58.

64 Id.

65 Id. at 72.

66 International Convention for the Protection of All Persons from Enforced Disappearance, Art. 5, Dec. 20, 2006, 2716 UNTS 3.

67 2015 Report, supra note 1, at 73.

68 Id. at 77.

69 Id. at 77–78.

70 Id. at 78.

71 Id. at 79.

72 See id. at 74 n.240.

73 Id. at 79.

74 Id. at 82– 83.

75 Murphy, Sixty-Sixth Session, supra note 3, at 136.

76 2013 Report, supra note 54, at 12–13 (citing Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969)). For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 136.

77 2013 Report, supra note 54, at 11–12 (Conclusions 1–5); 2014 Report, supra note 57, at 169–70 (Conclusions 6 –10).

78 International Law Commission, Third Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/CN.4/683 (Apr. 7, 2015) (prepared by Special Rapporteur Georg Nolte).

79 2015 Report, supra note 1, at 89, para. 129.

80 Id. at 89–94.

81 Id. at 96–98.

82 Id. at 98–102.

83 Id. at 102.

8 International Law Commission, Second Report on the Protection of the Environment in Relation to Armed Conflicts, UN Doc. A/CN.4/685 (May 28, 2015) (prepared by Special Rapporteur Marie Jacobsson) [hereinafter Second Report on the Protection of the Environment in Relation to Armed Conflicts]; see also 2015 Report, supra note 1, at 104, para. 132. For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 143.

85 The Commission has adopted a project consisting of “principles” on only three prior occasions. In 1950, the Commission completed seven “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal,” with commentaries, which were designed to influence the future development of a draft code and creation of an international criminal court. See 1950 Report, supra note 16, at 374–78. In 2006, the Commission adopted the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, with commentaries, in an effort to promote (but not compel) harmonization of national laws through recommendations rather than hard law. See Report of the International Law Commission on the Work of Its Fifty-Eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 110–82, para. 67, UN Doc. A/61/10 (2006) [hereinafter 2006 Report]; see also Report of the International Law Commission on the Work of Its Fifty-Sixth Session, UN GAOR, 59th Sess., Supp. No. 10, at 160(14), UN Doc. A/59/10 (2004) (noting that “[o]n balance, the Commission concluded that recommended draft principles would have the advantage of not requiring a potentially unachievable harmonization of national laws and legal systems”). Aso in 2006, the Commission transformed what had originally been envisaged as draft articles into the Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with commentaries. See 2006 Report, supra, at 369, para. 177.

86 2015 Report, supra note 1, at 105 n.378.

87 Id.; see also International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau, “Protection of the Environment in Relation to Armed Conflicts,” annex (July 30, 2015), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2015_dc_chairman_statement_peac.pdf&lang=EF [hereinafter Drafting Committee Chairman Statement on Protection of the Environment in Relation to Armed Conflicts].

88 2015 Report, supra note 1, at 105 n.378 (reproducing text provisionally adopted by the Drafting Committee); see also Drafting Committee Chairman Statement on Protection of the Environment in Relation to Armed Conflicts, supra note 87, at 13 (same).

89 2015 Report, supra note 1, at 105 n.378.

90 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 55(2), June 8, 1977, 1125 UNTS 3, 16 ILM 1391 [hereinafter Additional Protocol I (AP I)].

91 In connection with the deposit of its instrument of ratification to Additional Protocol I, the United Kingdom stated:

If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government.

United Kingdom, Statement on Ratification of AP I, 2020 UNTS 75, 77–78 (1998); see also Uk Ministry of Defence, The Manual of the law of Armed Conflict §16.19.2 (2004), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/Jsp3832004Edition.pdf (“This means that reprisals taken in accordance with the statement are permissible by and against the United Kingdom.”); Dinstein, Yoram, The Conduct of Hostilities Under the Law of International Armed Conflict 226 (2004)Google Scholar (noting that the UK declaration-reservation “has not elicited any objections”); Kalshoven, Frits & Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law 158 (4th ed. 2011)CrossRefGoogle Scholar (finding that the UK declaration-reservation “is an accurate formulation of the traditional requirements for recourse to belligerent reprisals”); Greenwood, Christopher J., Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, in International and National Prosecution of Crimes Under International Law: Current Developments 539, 550–56 (Fischer, Horst, Kreß, Claus & Lüder, Sascha Rolf eds., 2001)Google Scholar.

92 For the United States, see Michael J. Matheson, Deputy Legal Adviser, U.S. Dep’t of State, Remarks at the Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions (Jan. 22, 1987), in 2 Am. U. J. Int’l L. & Pol’y 419, 426 & n.33 (1987) (“On the other hand, we do not support the prohibition on reprisals in article 51 and subsequent articles, again for reasons that Judge Sofaer will explain later, and do not consider it a part of customary law.”); Abraham D. Sofaer, Legal Adviser, U.S. Dep’t of State, Position of the United States on Current Law of War Agreements (Jan. 22, 1987), in 2 Am. U. J. Int’l L. & Poly 460, 469 (1987). In 1995, the United States also described the prohibition on reprisals against the natural environment as “among the new rules established by the Protocol” and expressed that Additional Protocol I to the 1949 Geneva Conventions “contains a number of new rules on means and methods of warfare, which of course apply only to States that ratify Protocol I. (For example, the provisions on reprisals and the protection of the environment are new rules that have not been incorporated into customary law.).” Written Statement of the Government of the United States of America 25, 31 (June 20, 1995), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (Int’l Ct. Justice July 8, 1996), available at http://www.icj-cij.org/docket/files/95/8700.pdf. The 2015 U.S. Department of Defense Law of War Manual, with respect to Articles 35, paragraph 3, and 55 of Additional Protocol I, states: “The United States has not accepted these provisions and has repeatedly expressed the view that these provisions are ‘overly broad and ambiguous and not a part of customary law.’” U.S. Dep’t of Defense, Law of War Manual §6.10.3.1 (2015) (quoting Letter from John B. Bellinger Iii, Legal Adviser, U.S. Dep’t of State, and William J. HaynesIi, General Counsel, U.S. Dep’t of Defense, to Jacob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Humanitarian Law Study (Nov. 3, 2006), 46 ILM 514 (2007)). Further, the Manual asserts that “Ap I’s provisions on reprisal are counter productive and. .. they remove a significant deterrent that protects civilians and war victims on all sides of a conflict.” Id., §18.18.3.4.

93 Legality of the Threat or Use of Nuclear Weapons, supra note 12, para. 31.

94 Id. (emphasis added); see also UN Security Council, Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), at 19 (§66), UN Doc. S/1994/674 (1994) (“In international armed conflicts to which the four Geneva Conventions and Additional Protocol I apply, lawful reprisals. .. must be directed exclusively against combatants or other military objectives subject to the limitations contained in the Geneva Conventions, Protocol I and customary international law of armed conflicts. In international armed conflicts where Additional Protocol I does not apply, reprisals may be directed against a much wider category of persons and objects, but subject to the limitations of customary international law of armed conflicts.”) (emphasis added); Pocar, Fausto, To What Extent Is Protocol I Customary International Law?, in Legal and Ethical Lessons of Nato’s Kosovo Campaign 337, 349 (Wall, Andru E. ed., 2002)Google Scholar (originally published in 78 Int’l L. Stud. 337, 349 (2002)) (“It is well known that the controversy on this matter has been and still is important, and different views have been expressed both at the Geneva Diplomatic Conference where Protocol I was negotiated and subsequently. The dominant view is probably that the provisions of Protocol I [on reprisals] neither reflect pre-existing customary law nor have subsequently reached that nature, but contain significant developments in this regard.”).

95 1 International Committee of the Red Cross, Customary International Humanitarian Law: Rules 525 (Henckaerts, Jean-Marie & Doswald-Beck, Louise eds., 2005)Google Scholar (citation omitted).

96 See, e.g., Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Art. 3, Aug. 12, 1949, 75 UNTS 287.

97 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, Arts. 13–18, June 8, 1977, 1125 UNTS 609 (providing protections for the civilian population but not prohibiting belligerent reprisals). The late A. P. V. Rogers noted that, at the 1977 diplomatic conference, some delegations expressed the view that the rules on belligerent reprisals only applied to international armed conflict, and he concluded that the existence of the doctrine of belligerent reprisals “in the law of internal armed conflict, where the treaty rules are silent on the issue, must remain a matter of debate.” A. P. V. Rogers, Law on the Battlefield 235 (2d ed. 2004).

98 2015 Report, supra note 1, at 114, para. 169.

99 Id. at 107, para. 140.

100 International Law Commission, Fourth Report on the Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/686 (May 29, 2015) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Fourth Report on the Immunity of State Officials]. For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 139–40.

101 2015 Report, supra note 1, at 116 n.390.

102 Id.

103 See Fourth Report on the Immunity of State Officials, supra note 100, at 57, para. 134.

104 Id. at 58, para. 139.

105 International Law Commission, Third Report on the Provisional Application of Treaties, UN Doc. A/CN.4/687* (June 5, 2015) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo) (reissued for technical reasons on July 6, 2015). For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 143–44.

106 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau, “Provisional Application of Treaties,” annex (Aug. 4, 2015), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2015_dc_chairman_statement_pat.pdf&lang=EF.

107 Id.

108 Id.

109 2015 Report, supra note 1, at 17, para. 34. For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 144–45.

110 2015 Report, supra note 1, at 147 (annex).

111 See Report of the International Law Commission on the Work of Its Thirtieth Session, Ungaor 33d Sess., Supp. No. 10, at 27–176, para. 74, UN Doc. A/33/10 (1978).

112 2015 Report, supra note 1, at 149, para. 2.

113 Id. at 162–77, paras. 67–140.

114 Maffezini v. Kingdom of Spain, ICSID Case No. Arb/97/7, Decision on Jurisdiction (Jan. 25, 2000).

115 2015 Report, supra note 1, at 184–88, paras. 174 –93.

116 Id. at 186–87, paras. 184–88.

117 Id. at 189 –90, paras. 203–11.

118 Id. at 18, para. 41.

119 For prior discussion of this topic, see Murphy, Sixty-Sixth Session, supra note 3, at 132–35.

120 2014 Report, supra note 57, at 84–138, paras. 46–56.

121 Id. at 86, para. 53.

122 2015 Report, supra note 1, at 138, para. 286.