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Published online by Cambridge University Press: 10 February 2025
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. 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) and the other for personal reasons, the Commission elected two new members from Romania and China to fill the casual vacancies that arose as a result.
Of the Board of Editors; Professor of International Law and Richard A. Hausler Chair in Law, University of Miami Law School, United States; member and special rapporteur for “subsidiary means for the determination of rules of international law,” United Nations International Law Commission. Email: [email protected].
1 The Commission elects a Bureau of five officers, based on a rotational geographic distribution, each year to ensure that all regions of the world are equally represented. For the 2024 session, they were the Chair Mr. Marcelo Vázquez-Bermúdez (Ecuador), First Vice-Chair Mr. Mārtiņš Paparinskis (Latvia), Second Vice-Chair Ms. Vilawan Mangklatanakul (Thailand), Chair of the Drafting Committee Ms. Phoebe Okowa (Kenya), and Rapporteur Ms. Penelope Ridings (New Zealand). Part of the reason for this late development is undoubtedly the gross gender imbalance in the composition of the ILC. Since 1949, states have only elected eleven women out of 249 members. The highest number of women is the current six out of the thirty-four members serving in the Commission (2023–2027 term).
2 Mr. Bogdan Aurescu (Romania).
3 Mr. Huikang Huang (China).
4 The Commission elected Ms. Alina Orosan.
5 The Commission elected Mr. Xinmin Ma.
6 For a discussion of the Commission's work in 2023, see Jalloh, Charles Chernor, The International Law Commission's Seventy-Fourth (2023) Session: General Principles of Law and Other Topics, 118 AJIL 120 (2023)Google Scholar.
7 ILC, Report of the International Law Commission on the Work of Its Seventy-Fourth Session, 10, para. 30, UN Doc. A/78/10 (2023) [hereinafter 2023 Report]. This report and other ILC documents are available online at http://legal.un.org/ilc. In addition, UN documents are available online at https://documents.un.org/prod/ods.nsf/home.xsp.
8 See ILC, First Report on General Principles of Law, UN Doc. A/CN.4/732 (Apr. 5, 2019) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez); ILC, Second Report on General Principles of Law, UN Doc. A/CN.4/741 (Apr. 9, 2020) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez); ILC, Third Report on General Principles of Law, UN Doc. A/CN.4/753 (Apr. 18, 2022) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez).
9 ILC, Report of the International Law Commission on the Work of Its Seventy-Third Session, 189, para. 66, UN Doc. A/77/10 [hereinafter 2022 Report].
10 See ILC, Report of the International Law Commission on the Work of Its Seventy-Fifth Session, 75, UN Doc. A/79/10 (2024) [hereinafter 2024 Report].
11 ILC, First Report on Immunity of State Officials from Foreign Criminal Jurisdiction, 11, UN Doc. A/CN.4/775 (May 3, 2024) (prepared by Special Rapporteur Claudio Grossman Guiloff).
12 Id.
13 ILC, Immunity of State Officials from Foreign Criminal Jurisdiction, Statement of the Chairperson of the Drafting Committee, Ms. Phoebe Okowa, 3 (July 30, 2024), at https://legal.un.org/ilc/documentation/english/statements/2024_dc_chair_statement_iso.pdf; ILC, Immunity of State Officials from Criminal Jurisdiction, UN Doc. A/CN.4/L.1001, at https://documents.un.org/doc/undoc/ltd/g24/128/51/pdf/g2412851.pdf.
14 Id. at 4.
15 2024 Report, supra note 10, at 13.
16 Id.
17 Id.
18 2022 Report, supra note 9, at 201.
19 Id.
20 ILC, Immunity of State Officials from Criminal Jurisdiction, supra note 13 (emphasis added).
21 Id.
22 For a fuller explanation of the controversy, see ILC, Immunity of State officials from Foreign Criminal Jurisdiction: Statement of the Chairperson of the Drafting Committee (3 June 2022), Statement of the Chairperson of the Drafting Committee, Mr. Ki-Gab Park, 3–4 (June 3, 2022), at https://legal.un.org/ilc/documentation/english/statements/2022_dc_chair_statement_iso.pdf.
23 Vienna Convention on the Law of Treaties, Arts. 34–35, May 23, 1969, 1155 UNTS 331.
24 ILC, May 3, 2024 Report, supra note 11, at 13.
25 Id.
26 Id. at 8.
27 Id. at 17.
28 Id. at 19.
29 Statement of the Chairperson, supra note 13, at 10.
30 Id.
31 See ILC, Immunity of State Officials from Criminal Jurisdiction, supra note 13.
32 ILC, May 3, 2024 Report, supra note 11, at 24.
33 ILC, Immunity of State Officials from Criminal Jurisdiction, supra note 13, at 2.
34 ILC, First Report, supra note 8, at 24.
35 Id. at 26.
36 ILC, Seventy-Fifth Session Report, supra note 10.
37 ILC, May 3, 2024 Report, supra note 11, at 5, para. 12.
38 For a quote of Brierly, see Charles Chernor Jalloh, The International Law Commission's First Draft Convention on Crimes Against Humanity: Codification, Progressive Development, or Both?, 52 Case W. Res. J. Int'l L. 331 (2020), at https://scholarlycommons.law.case.edu/jil/vol52/iss1/16, and Herbert W. Briggs, The International Law Commission 135 (1969) (“[C]odification cannot be absolutely limited to declaring existing law. As soon as you set out to do this, you discover that the existing law is uncertain, that for one reason or another there are gaps in it which are not covered. If you were to disregard these uncertainties and these gaps and simply include in your code, rules of existing law which are absolutely clear and certain, the work would have little value. Hence, the codifier, if he is competent for his work, will make suggestions of his own; where the rule is uncertain, he will suggest which is the better view; where a gap exists, he will suggest how it can best be filled. If he makes it clear what he is doing, tabulates the existing authorities, fairly examines the arguments pro and con, he will be doing his work properly.”).
39 See ILC, Provisional Summary Record of the 3378th Meeting, 267, UN Doc. A/CN.4/SR.3378, at https://legal.un.org/ilc/documentation/english/summary_records/a_cn4_sr3378.pdf. For thoughtful commentary on the ILC debate, see Eboe-Osuji, Chile, Late Effort at the International Law Commission to Decriminalize the Crime of Aggression Is Wrong in Law, Lawfare Media (Mar. 28, 2023)Google Scholar, at https://www.lawfaremedia.org/article/late-effort-international-law-commission-decriminalize-crime-aggression-wrong-law.
40 See ILC, Report of the International Law Commission on the Work of Its Seventy-Second Session, 186, UN Doc. A/76/10, Supp. No. 10 (2021) (Annex, Syllabus on Subsidiary Means for the Determination of Rules of International Law by Charles Chernor Jalloh).
41 Statute of the International Court of Justice, Art. 38(1)(d), Apr. 18, 1946.
42 2023 Report, supra note 6, at 74, 76.
43 See ILC, First Report on Subsidiary Means for the Determination of Rules of International Law, UN Doc. A/CN.4/760 (Feb. 13, 2023) (prepared by Special Rapporteur Charles Chernor Jalloh).
44 Id.
45 Id.
46 Id.
47 See ILC, Second Report on Subsidiary Means for the Determination of Rules of International Law, UN Doc. A/CN.4/769 (Feb. 13, 2023) (prepared by Special Rapporteur Charles Chernor Jalloh) [hereinafter Second Report on Subsidiary Means].
48 Id.
49 2024 Report, supra note 10, at 31.
50 Id. at 32.
51 Id. at 35.
52 Id. at 36.
53 Id. at 38.
54 Id.
55 Id. at 39.
56 Id. at 40.
57 Id.
58 Id. at 41.
59 Id. at 42.
60 Id.
61 Id. at 43.
62 Id.
63 Id.
64 Id. at 46.
65 Id. at 47.
66 Id. at 48.
67 2022 Report, supra note 9, Supp. No. 10, 342, para. 238. The topic had been included in the long-term program of work of the Commission during its sixty-eighth session (2016), on the basis of the proposal by Michael Wood contained in an annex to the report of the Commission to that session: ILC Y.B., 2011, Vol. II (Pt. 2), Annex I, 183, UN Doc. A/CN.4/SER.A/2011/Add.1.
68 See Draft Articles on the Responsibility of International Organizations, in ILC Y.B., supra note 67, at 40.
69 See ILC, First Report on the Settlement of International Disputes to Which International Organizations Are Parties, 3, UN Doc. A/CN.4/756 (Feb. 3, 2023) (prepared by Special Rapporteur August Reinisch).
70 2024 Report, supra note 10, at 17.
71 Id. at 18.
72 Id. at 19.
73 Id. at 20.
74 Id. at 18.
75 Id. at 19.
76 Id. at 24.
77 Id. at 25.
78 Id. at 26.
79 See id.
80 ILC, Second Report on the Settlement of International Disputes to Which International Organizations Are Parties, 85, UN Doc. A/CN.4/766 (Mar. 1, 2024) (prepared by Special Rapporteur August Reinisch)
81 See 2024 Report, supra note 10, at 54.
82 See, in this regard, ILC, Seventy-Fifth Session, Prevention and Repression of Piracy and Armed Robbery at Sea, Statement of the Chair of the Drafting Committee, Ms. Phoebe Okowa (July 1, 2024), at https://legal.un.org/ilc/documentation/english/statements/2024_dc_chair_statement_piracy.pdf.
83 ILC, Prevention and Repression of Piracy and Armed Robbery at Sea, UN Doc. A/CN.4/L.1000 (May 31, 2024).
84 Statement of the Chair of the Drafting Committee on Piracy and Armed Robbery at Sea, supra note 82, at 5.
85 Id. at 8.
86 Id.
87 Id.
88 See ILC, Provisional Summary Record of the 3692nd Meeting, 8, UN Doc. A/CN.4/SR.3692, at https://legal.un.org/ilc/documentation/english/summary_records/a_cn4_sr3692.pdf.
89 ILC Provisional Summary Record of the 3701st Meeting, 3, UN Doc. A/CN.4/SR.3701, at https://legal.un.org/ilc/documentation/english/summary_records/a_cn4_sr3701.pdf.
90 2022 Report, supra note 9, Annex I, at 353–65.
91 2024 Report, supra note 10, at 78.
92 Id.
93 Id.
94 However, the Commission has not taken a formal position on the normative value of its different types of outputs. That said, based on a proposal of the current author submitted in 2018, discussions have been underway to clarify the normative meaning and differences between the various types of outputs such as articles, conclusions, and guidelines, in the context of the working group on methods of work and procedures. States have welcomed those deliberations since some of them had been seeking such guidance from the ILC. It is hoped that the Commission will present its position on the matter by the end of the present quinquennium (i.e., 2027).
95 ILC, UN General Assembly, Sea-Level Rise in Relation to International Law, Additional Paper to the Second Issues Paper (2022) by Patrícia Galvão Teles and Juan José Ruda Santolaria, Co-Chairs of the Study Group on Sea-Level Rise in Relation to International Law, UN Doc. A/CN.4/774 (Feb. 19, 2024).
96 See ILC, UN General Assembly, Addendum: Selected Bibliography Related to (A) Statehood Issues and (B) Issues Related to the Protection of Persons Affected by Sea-Level Rise, UN Doc. A/CN.4/774/Add.1 (June 11, 2024).
97 See 2024 Report, supra note 10, Ch. X.
98 Id., Annex, at 130.
99 Id. at 131.
100 Id.
101 Id. at 151.
102 Id. at 147.
103 Id. at 151–52.
104 Id.
105 Id. at 155.
106 Id., Annex I, at 125–45.