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Provisional Application of Treaties and Other Topics: The Seventy-Second Session of The International Law Commission

Published online by Cambridge University Press:  15 October 2021

Sean D. Murphy
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Extract

The International Law Commission (ILC) held its seventy-second session from April 26 to June 4 and from July 5 to August 6, 2021 in Geneva, under the chairmanship of Mahmoud Hmoud (Jordan). This session was originally scheduled for the summer of 2020, but had to be postponed due to the outbreak of the COVID-19 pandemic. The pandemic continued in 2021 to present health risks and travel difficulties for certain members; consequently, the Commission for the first time in its history held its session in a hybrid manner, with many members physically present in Geneva, while others participated online by means of Zoom. That approach required certain adjustments to the Commission's methods of work, but allowed the Commission to move forward in addressing the several topics on its current program of work.

Type
Current Developments
Information
American Journal of International Law , Volume 115 , Issue 4 , October 2021 , pp. 671 - 687
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law

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Footnotes

*

Manatt/Ahn Professor of International Law, George Washington University, and member of the UN International Law Commission.

References

1 See Report of the International Law Commission on the Work of Its Seventy-Second Session, UN GAOR, 76th Sess., Supp. No. 10, at 1–2, paras. 1, 4, UN Doc. A/76/10 (Sept. 10, 2021) [hereinafter 2021 Report]. This report and other International Law Commission documents are available online at http://legal.un.org/ilc. In addition, UN documents are generally available online at https://documents.un.org/prod/ods.nsf/home.xsp.

2 See Murphy, Sean D., Effects of the COVID-19 Pandemic on the Work of the International Law Commission, 114 AJIL 726 (2020)CrossRefGoogle Scholar [hereinafter Murphy, Effects of the COVID-19 Pandemic].

3 For a summary of the hybrid format, see 2021 Report, supra note 1, at 180–81, paras. 313–16.

4 For the text of the draft guidelines, see id. at 53–55; for the draft annex, see id. at 55–68; for the guidelines with commentary, see id. at 68–87; for a bibliography, see id. at 87–94.

5 International Law Commission, Sixth Report on the Provisional Application of Treaties, UN Doc. A/CN.4/738 (Feb. 24, 2020) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo) [hereinafter Sixth Report on Provisional Application of Treaties]. For discussion of prior work on these draft guidelines, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 171–73 (2013)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Fourth Session]; Sean Murphy, D., Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission, 108 AJIL 41, 53–54 (2014)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Fifth Session]; Murphy, Sean D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 143–44 (2015)Google Scholar [hereinafter Murphy, Sixty-Sixth Session]; Murphy, Sean D., Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission, 109 AJIL 822, 822–32 (2015)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Seventh Session]; Murphy, Sean D., Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission, 110 AJIL 718, 742–45 (2016)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Eighth Session]; Murphy, Sean D., Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission, 111 AJIL 970, 978–80 (2017)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Ninth Session]; Murphy, Sean D., Anniversary Commemoration and Work of the International Law Commission's Seventieth Session, 113 AJIL 90, 97–100 (2019)CrossRefGoogle Scholar [hereinafter Murphy, Seventieth Session]; Murphy, Sean D., Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission, 114 AJIL 68, 85 (2020)CrossRefGoogle Scholar [hereinafter Murphy, Seventy-First Session].

6 Provisional Application of Treaties: Comments and Observations Received from Governments and International Organizations, UN Doc. A/CN.4/737 (Feb. 14, 2020).

7 2021 Report, supra note 1, at 54 (Guideline 1).

8 Id. at 54 (Guideline 4).

9 For the Commission's commentary on international organization resolutions, see id. at 76, para. (6); for the commentary on the “exceptional possibility” of a state's declaration that is “expressly accepted” by other states, see id. at 76–77, para. (7). With respect to the latter form, the special rapporteur pointed in his second and third reports to Syria's declaration accepting provisional application of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC) prior to Syria's accession to that treaty. The circumstances of that incident, however, might be best understood as involving a unilateral declaration by Syria that established a legal obligation upon it, rather than an agreement on provisional application reached between Syria and all CWC states parties (which would have established rights and obligations for all the states concerned), given that there was no express acceptance by such states. See generally Jacobsson, Marie, Syria and the Issue of Chemical Weapons: A Snapshot of a Legal Time Frame: The United Nations Security Council Resolution 2118 (2013) and the OPCW Executive Council Decision, in International Law and Changing Perceptions of Security: Liber Amicorum Said Mahmoudi 134 (Jonas Ebbesson, Marie Jacobsson, Mark Klamberg, David Langlet & Pål Wrange eds., 2014)Google Scholar. In any event, the Commission's commentary is neutral as to how best to understand the Syrian incident, simply indicating that it is “an example” of a state making a unilateral declaration about provisional application, see 2021 Report, supra note 1, at 76–77, n. 278, without resolving whether that declaration thereafter fell within the legal regime of provisional application or, alternatively, fell within the legal regime of unilateral declarations of states creating legal obligations. On the latter possibility, see Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, Y.B. Int'l L. Comm'n, Vol. I, pt. II, at 161 (2006).

10 2021 Report, supra note 1, at 54 (Guideline 6).

11 Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT].

12 2021 Report, supra note 1, at 54 (Guideline 7).

13 Id. at 55 (Guideline 9, paras. 1–2).

14 VCLT, supra note 11, Art. 25(2).

15 2021 Report, supra note 1, at 55 (Guideline 9, para. 3).

16 Id. (Guideline 9, para. 4).

17 Arms Trade Treaty, Art. 23, Apr. 2, 2013, 3013 UNTS, No. 52373 (not yet published).

18 Agreement Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Liberia-U.S., Art. 17, Feb. 11, 2004, 2963 UNTS 23.

19 2021 Report, supra note 1, at 56–60 (Annex, Sec. A).

20 Id. at 61–62 (Annex, Sec. B).

21 Id. at 62 (Annex, Sec. C).

22 Id. at 63–64 (Annex, Sec. D).

23 Id. at 64–68 (Annex, Sec. E).

24 Id. at 53, para. 49.

25 For the text of the draft guidelines, see id. at 10–13; for the guidelines with commentary, see id. at 13–51.

26 See International Law Commission, Sixth Report on the Protection of the Atmosphere, UN Doc. A/CN.4/736 (Feb. 11, 2020) (prepared by Special Rapporteur Shinya Murase) [hereinafter Sixth Report on Protection of the Atmosphere]. For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 5, at 56–57; Murphy, Sixty-Sixth Session, supra note 5, at 139; Murphy, Sixty-Seventh Session, supra note 5, at 832–35; Murphy, Sixty-Eighth Session, supra note 5, at 729–30; Murphy, Sixty-Ninth Session, supra note 5, at 980–81; Murphy, Seventieth Session, supra note 5, at 96–97.

27 Protection of the Atmosphere: Comments and Observations Received from Governments and International Organizations, UN Doc. A/CN.4/735 (Feb. 11, 2020).

28 2021 Report, supra note 1, at 10 (draft pmbl., para. 3).

29 Paris Agreement, pmbl., para. 11, Dec. 12, 2015, 55 ILM 740 (2016).

30 2021 Report, supra note 1, at 15–16, para. (3) (commentary to draft pmbl., para. 3).

31 Id. at 11 (draft pmbl., para. 8).

32 Sixth Report on Protection of the Atmosphere, supra note 26, para. 87.

33 2021 Report, supra note 1, at 11 (draft Guideline 1(b)).

34 Id. at 11 (draft Guideline 3) (emphasis added).

35 While commentary asserts that draft Guideline 3 “restates the obligation to protect the atmosphere,” id. at 26, para. (1), the commentary does not point to any such obligation in existing treaties, nor analyzes state practice and opinio juris in support of it. The commentary points to a “genesis” of such an obligation in the Trail Smelter arbitration and Stockholm Declaration Principle 21, id. at 26, para. (3), but those sources do not concern damage to the atmosphere as such; rather, they address damage by one state to the environment of another state (or to areas beyond national jurisdiction). The commentary also asserts that the phrase “prevent, reduce or control” draws upon formulations contained in five conventions, id. at 27, para. (7), nn. 80–81 but none of those conventions refers to an “obligation to protect the atmosphere”; rather, they regulate in specific ways particular types of emissions into the atmosphere because those emissions result in specific types of harm to humans or the environment.

36 Id. at 10, para. 37(b).

37 For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 5, at 169−71; Murphy, Sixty-Fifth Session, supra note 5, at 41–48; Murphy, Sixty-Sixth Session, supra note 5, at 139–40; Murphy, Sixty-Seventh Session, supra note 5, at 842; Murphy, Sixty-Eighth Session, supra note 5, at 732−42; Murphy, Sixty-Ninth Session, supra note 5, at 981–88; Murphy, Seventieth Session, supra note 5, at 106; Murphy, Seventy-First Session, supra note 5, at 81–82.

38 See 2021 Report, supra note 1, at 107–08, 110 (draft Articles 1–7 and draft Annex).

39 This draft article was adopted by the drafting committee during the seventy-first session, see Murphy, Seventy-First Session, supra note 5, at 81–82, but was only adopted by the Commission at the seventy-second session. See 2021 Report, supra note 1, at 108–09 (draft Article 8 ante).

40 See 2021 Report, supra note 1, at 109–10 (draft Articles 8–12); for the commentary to these draft articles, see id. at 110–33.

41 See Report of the International Law Commission on the Work of Its Seventieth Session, UN GAOR, 73rd Sess., Supp. No. 10, at 292, para. 323, UN Doc. A/73/10 (Sept. 3, 2018).

42 International Law Commission, Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/739 (Feb. 28, 2020) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction].

43 Id., para. 54.

44 Id., paras. 20–31.

45 Situation in Darfur, Sudan, in the Case of the Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, ICC-02/05-01/09-397-Corr, Judgment of the Appeals Chamber (May 6, 2019).

46 Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 42, para. 23.

47 Id., para. 32.

48 2021 Report, supra note 1, at 145 (draft Articles 1–2, 5).

49 Id. at 145–46 (draft Articles 7–9). For the commentary to these draft articles, see id. at 146–49.

50 For discussion of prior work on this topic, see Murphy, Sixty-Ninth Session, supra note 5, at 990–92; Murphy, Seventieth Session, supra note 5, at 104–06; Murphy, Seventy-First Session, supra note 5, at 78–81.

51 See Succession of States in respect of State responsibility, Statement of the Chair of the Drafting Committee Ms. Patrícia Galvão Teles (July 28, 2021), available at https://legal.un.org/ilc/documentation/english/statements/2021_dc_chair_statement_sosr.pdf. For example, with respect to the formulation as used in draft Article 10, the chair of the drafting committee maintained that the formulation “shall agree on how to address the injury”

does not articulate a “clean slate” rule or an automatic succession rule. Instead, it is intended to encourage States to seek a solution to questions of international responsibility in situations of a merger between States. The formulation of the wording is meant to be sufficiently flexible to give States the freedom to choose the modalities of the agreement. Such flexibility could even result in agreement between the injured State and the successor State that it was not possible to address the injury.

Id. at 5.

52 Succession of States in respect of State responsibility: Text of Draft Articles 10, 10 bis and 11 Provisionally Adopted by the Drafting Committee at the Seventy-Second Session, UN Doc. A/CN.4/L.954 (July 19, 2021) (draft Article 10).

53 Id. (draft Article 10 bis(1)). A second paragraph simply confirms that when “an internationally wrongful act has been committed by a State prior to incorporating another State, the responsibility of the State that committed the wrongful act is not affected by such incorporation.” Id. (draft Article 10 bis(2)).

54 Id. (draft Article 11).

55 See International Law Commission, Fourth Report on Succession of States in respect of State responsibility, UN Doc. A/CN.4/743 (Mar. 27, 2020) (prepared by Special Rapporteur Pavel Šturma).

56 2021 Report, supra note 1, at 136, para. 123.

57 Id. at 7, para. 25.

58 For discussion of prior work on this topic, see Murphy, Seventy-First Session, supra note 5, at 82–84.

59 Statute of the International Court of Justice, Art. 38(1)(c), Apr. 18, 1946.

60 General Principles of Law: Memorandum by the Secretariat, UN Doc. A/CN.4/742 (May 12, 2020).

61 See 2021 Report, supra note 1, at 161 (draft Conclusion 1).

62 There was initially disagreement within the Commission on the French and Spanish texts. Whereas the ICJ Statute refers to “principes généraux de droit” and “principios generales de derecho,” the terms “du droit” and “del derecho” have also been used in some more recent texts identifying this source of international law. The Commission decided to use the latter terms for the purposes of this topic, but it was understood that doing so did not imply any difference with the substance of ICJ Statute Article 38(1)(c). See id. at 161, n. 426.

63 Id. at 161 (draft Conclusion 2).

64 Id. at 162, para. (2) (commentary to draft Conclusion 2).

65 Id.

66 Id. at 162, paras. (3)–(4) (commentary to draft Conclusion 2).

67 See id., at 156–58, paras. 210–15 (summary of debate at the seventy-second session on this issue); see also Murphy, Seventy-First Session, supra note 5, at 82–84.

68 See International Law Commission, First Report on General Principles of Law, UN Doc. A/CN.4/732, at 67–73 (Apr. 5, 2019) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez).

69 International Law Commission, Second Report on General Principles of Law, UN Doc. A/CN.4/741 (Apr. 9, 2020) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez) [hereinafter Second Report on General Principles of Law].

70 See 2021 Report, supra note 1, at 161 (draft Conclusion 4).

71 Id. at 163, para. (3) (commentary to draft Conclusion 4).

72 Id.

73 Id. at 163, paras. (4)–(7) (commentary to draft Conclusion 4).

74 General Principles of Law: Addendum: Text and Title of Draft Conclusion 5, Provisionally Adopted by the Drafting Committee, UN Doc. A/CN.4/L.955/Add.1 (July 29, 2021).

75 Second Report, supra note 69, at 57–58.

76 Id. at 57 (proposed draft Conclusion 7); 2021 Report, supra note 1, at 150–51, n. 418 (same).

77 For discussion of prior consideration of this topic, see Murphy, Seventieth Session, supra note 5, at 107–08; Murphy, Seventy-First Session, supra note 5, at 84–85.

78 Sea-Level Rise in Relation to International Law: First Issues Paper by Bogdan Aurescu and Nilüfer Oral, Co-Chairs of the Study Group on Sea-Level Rise in Relation to International Law, UN Doc. A/CN.4/740 (Feb. 28, 2020) [hereinafter First Issues Paper on Sea-Level Rise in Relation to International Law]. For several corrections to the paper, see Corrigendum, UN Doc. A/CN.4/740/Corr.1 (Aug. 3, 2021).

79 First Issues Paper on Sea-Level Rise in Relation to International Law, supra note 78, at 41, para. 104(f).

80 Id. at 67, para. 190(a).

81 Id. at 54, para. 141(b).

82 Id. at 79–80, para. 218.

83 2021 Report, supra note 1, at 167–68, paras. 259–61.

84 Id. at 165−77, paras. 252−95.

85 Id. at 168, para. 265.

86 Id. at 168–69, para. 266.

87 Id. at 170, para. 270.

88 See, e.g., United Nations Convention on the Law of the Sea, Art. 5, opened for signature Dec. 10, 1982, 1833 UNTS 396 (entered into force Nov. 16, 1994).

89 2021 Report, supra note 1, at 170, para. 271.

90 Id. at 171, para. 270.

91 Id.; see, e.g., United Nations Convention on the Law of the Sea, supra note 88, Art. 16 (referring to the baselines for measuring the breadth of the territorial sea “determined in accordance with articles 7, 9 and 10”).

92 See United Nations Convention on the Law of the Sea, supra note 88, Art. 7(3).

93 2021 Report, supra note 1, at 171, para. 277.

94 Id. at 172–73, para. 281.

95 Id. at 168, para. 263.

96 Id. at 168–69, 170−71, paras. 266, 273.

97 Id. at 177, para. 296.

98 Id. at 7−8, paras. 26−28.

99 Id. at 178, para. 302.

100 Statute of the International Court of Justice, supra note 59, Art. 38(1)(d). Article 59 of the Statute provides that the “decision of the Court has no binding force except between the parties and in respect of that particular case.”

101 2021 Report, supra note 1, at 186, Annex.

102 Id. at 188, para. 6.

103 Id. at 190, para. 13.

104 Id., para. 14.

105 Id. at 190–91, paras. 15–16.

106 See Statute of the International Law Commission, Annex, Art. 11, UN Doc. A/RES/174(II) (Nov. 21, 1947).

107 2021 Report, supra note 1, at 2, para. 3.

108 See Murphy, Effects of the COVID-19 Pandemic, supra note 2, at 727.

109 For information on the 2021 election, including the slate of candidates, see 2021 Election of the International Law Commission (updated Sept. 8, 2021), at https://legal.un.org/ilc/elections/2021election.shtml.