The Sixth Committee of the UN General Assembly is expected to discuss the Report of the International Law Commission on the work of its sixty-ninth session (A/72/10) on 23-27 and 31 October and 1 November 2017. In addition to coverage of the progress in consideration of the items that are currently on the Commission’s programme of work, the Report contains inter alia an outline of two new topics, that the ILC has decided to include in its long-term programme of work. These are (a) general principles of law; and (b) evidence before international courts and tribunals. Detailed notes on the scope and the legal questions to be addressed under these two new topics have been annexed to the ILC report. The note on General principles of law was drafted by Mr. Marcelo Vázquez-Bermúdez, while the note on Evidence before international courts and tribunals was prepared by Mr. Aniruddha Rajput.
The ILC report stresses that in the selection of those topics, ‘the Commission was guided by the following criteria that it had agreed upon at its fiftieth session (1998), namely that the topic: (a) should reflect the needs of States in respect of the progressive development and codification of international law; (b) should be at a sufficiently advanced stage in terms of State practice to permit progressive development and codification; (c) should be concrete and feasible for progressive development and codification; and (d) that the Commission should not restrict itself to traditional topics, but could also consider those that reflect new developments in international law and pressing concerns of the international community as a whole. The Commission would welcome the views of States on those new topics.
Requests by the ILC for comments by States on certain issues
There are a number of outstanding requests by the ILC to States for information on certain topics. The Commission has stated that it considers as still relevant the requests contained in the 2014 report on the topic “Protection of the atmosphere”, as well as those in the 2015 report on the topics “Provisional application of treaties” and “Jus cogens”. In addition, the 2017 report mentions that the ILC would welcome any information on the following topics:
Immunity of State officials from foreign criminal jurisdiction
The Commission would appreciate being provided by States with information on their national legislation and practice, including judicial and executive practice, with reference to the following issues:
(a) the invocation of immunity;
(b) waivers of immunity;
(c) the stage at which the national authorities take immunity into consideration (investigation, indictment, prosecution);
(d) the instruments available to the executive for referring information, legal documents and opinions to the national courts in relation to a case in which immunity is or may be considered;
(e) the mechanisms for international legal assistance, cooperation and consultation that State authorities may resort to in relation to a case in which immunity is or may be considered.
Succession of States in respect of State responsibility
It would assist the Commission if States could provide it with any relevant international agreements, national legislation or decisions of national courts related to succession in, or distribution of, rights and obligations arising from internationally wrongful acts of, or against, a predecessor State.
Such information is to be provided by 15 January 2018, in order for it to be taken into account in the respective reports of the Special Rapporteurs.
Future ILC work and the upcoming 70th anniversary of the Commission
The Commission also stated in its report that it ‘would welcome any proposals that States may wish to make concerning possible topics for inclusion in its long-term programme of work. It would be helpful if such proposals were accompanied by a statement of reasons in their support, taking into account the criteria, referred to above, for the selection of topics’. The Commission also noted that the commemoration of its seventieth anniversary to be held during its seventieth session in New York and Geneva ‘would provide an opportunity for an exchange of views between States and members of the Commission on possible topics that could be considered by the Commission in the future’. A commemorative event under the theme ‘70 years of the International Law Commission — Drawing a balance for the future’, will be held in two parts, the first in New York on 21 May 2018, during the first part of its 70th session and the second, to be held in Geneva on 5 and 6 July 2018, during the second part of the session.