International Law Commission's Work Research Articles

Методологічне підґрунтя дослідження відповідальності держав за міжнародним правом

The complexity of modern political and legal relations that arise with the onset of international responsibility significantly increases the importance of developing a methodological basis for the concept of state responsibility under international law. The article highlights the methodological basis of the study of the sphere of international responsibility of states. The article reveals the content of civilizational, axiological, historical-legal and conceptual-comparative approaches, which contributes to a deeper understanding of the nature of international law and the essence of international responsibility, the patterns of functioning and the development of norms on the international responsibility of states. It has been established that the main principles of the civilizational approach contribute to considering the peculiarities of understanding and applying the main categories of international responsibility through the prism of the interaction of civilizations and their dialogue. From the standpoint of the axiological approach, the value of a number of categories significant for the sphere of international legal responsibility is revealed, in particular, the term "responsibility" itself, as well as such political and legal values as freedom, equality, justice, solidarity, tolerance, respect for all human rights. The application of the historical-legal approach allows, among others, to investigate of the development of international legal opinion regarding the concept of "responsibility" in international law from the earliest times; to analyze the stages of the UN International Law Commission's work on the codification of norms on the international responsibility of states; to trace the evolution of the concept of an internationally wrongful act of the state and highlight the issue of its normative consolidation, to investigate the development of the concept of the responsibility of states for lawful activity. The toolkit of the conceptual-comparative approach with its methods of macro- and micro-comparison, synchronic and diachronic, normative, textual, and doctrinal comparisons is helpful in comparing the studied phenomena. The application of the approaches analyzed in the article allows for a comprehensive study of the issues of state responsibility, to develop an international legal concept of state responsibility in international law, to consider the specifics of state responsibility for the illegal conduct of state and non-state actors in conditions of modern political and legal processes.

How far does the Systemic Approach to Immunities take us?

The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.

Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

EU migration law shaping international migration law in the field of expulsion of aliens – the case of the ILC draft articles

Since the Treaty of Maastricht, EU law has become more open to international law and has engaged with it in different forms of interactions. The influence of EU law on universal law-making has found its way through different legal channels and techniques. The article thoroughly scrutinizes the impact of EU return acquis on the development of the international law governing the ‘expulsion of aliens’, which can be best analysed through the work of the UN International Law Commission (ILC) on the expulsion of aliens (2004–2014). The ILC’s approach has come a long way from the mere ignorance of EU law and the EU’s submissions by the special rapporteur in the early stages of the codification work until it has gradually taking into account major EU migration law concepts in ILC reports and in the draft articles. The 2014 ILC draft articles on the expulsion of aliens have finally been, in many aspects, inspired and influenced by EU law, especially the Return Directive (2008/115/EC). This short piece meticulously explores the inroads EU return law made in relation to the ILC work on the expulsion of aliens, by identifying and critically evaluating the tangible impact of EU law on the UN codification project.

Środki solidarnościowe w świetle artykułów Komisji Prawa Międzynarodowego o odpowiedzialności państwa za akty sprzeczne z prawem międzynarodowym

W 2001 roku Komisja Prawa Międzynarodowego, po trwających prawie pół wieku pracach, przyjęła projekt dotyczący odpowiedzialności państwa za akty sprzeczne z prawem międzynarodowym. Zarówno koncepcja środków solidarnościowych oraz problematyka podmiotów uprawnionych do stosowania takich środków stanowiły jedną z najbardziej dyskusyjnych kwestii. Ostateczna wersja Artykułów nie pozwala, w sposób nie budzący żadnych wątpliwości, na określenie tych podmiotów. Artykuł 54 ogranicza prawo państwa, uprawnionego na podstawie art. 48, do stosowania środków zgodnych z prawem, a nie środków solidarnościowych. W komentarzu KPM stwierdziła, iż praktyka państw dotycząca stosowania środków solidarnościowych jest ograniczona i nieukształtowana. W artykule dokonano analizy prac KPM odnośnie do koncepcji środków solidarnościowych stosowanych w odpowiedzi na naruszenie interesu społeczności międzynarodowej jako całości. Środki te w zdecentralizowanym systemie prawa międzynarodowego pozbawionym, jak to określił W. Riphagen, „policjanta społeczności międzynarodowej”, mogą stanowić swoistego rodzaju gwarancję egzekwowania prawa międzynarodowego w przypadku poważnych naruszeń tego prawa. Celem artykułu jest przedstawienie procesu kształtowania się uregulowań dotyczących środków solidarnościowych stosowanych w odpowiedzi na naruszenia fundamentalnego interesu społeczności międzynarodowej. In 2001 the International Law Commission (ILC) successfully completed its work on the topic of state responsibility for internationally wrongful acts. This study presents an analysis which focuses on the ILC work on the issue of collective countermeasures taken in response of breach of an obligation owed to the international community as a whole. That conception was one of the most sensitive area in its work on state responsibility. Furthermore, ILC raises fundamental question about subject entitled to take such measures. Unfortunately the adoption of this Articles has been far from the answer to that question. Article 54 limits the right of the state entitled under article 48 to use lawful measures rather than countermeasures. ILC in its commentary stated that state practice on this subject is limited and embryonic. However, ILC mentioned a few examples in which the state, other than the injured, responds to the breach of the obligations for the protection of the general interest. The purpose of this analysis is to show the process of emergence of regulations concerning the question of solidarity measures taken in reaction to serious violation of fundamental international community interest. The concept of collective countermeasures, in a decentralized international legal system which lacks, as W. Riphagen said, “policeman of the international community”, fills a legal gap and is a guarantee of enforcement of international law in case of violation of fundamental international community interest.

The meaning of subsequent agreement and subsequent practice to be taken into account together with the context: The International Law Commission's work and the interpretation of WTO Agreements

The meaning of subsequent agreement and subsequent practice to be taken into account together with the context: The International Law Commission's work and the interpretation of WTO Agreements

Reservations to Treaties: An Introduction

This Symposium examines the International Law Commission's work on reservations, specifically its recently completed Guide to Practice on Reservations to Treaties. The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. The topic of reservations to treaties has been on the ILC's agenda since 1993; its Special Rapporteur, Professor Alain Pellet, produced 17 reports with many addenda and annexes. The ILC's work was so seemingly endless that it inspired (gentle and good-natured) parody. But now it has indeed come to an end. It needs to be assessed, and the purpose of this Symposium is to initiate that debate. The law of treaties with regard to reservations is, in our experience, one of the hardest areas of law to grasp, teach, or condense and simplify without loss of accuracy. The Guide will thus inevitably be of the greatest interest to those among us who deal with reservations regularly, for instance legal advisers in ministries of foreign affairs. The Guide will probably not be of fundamental importance to the work of practically every international lawyer out there. But this is not to say that its importance for the non-specialist should be underestimated; there are many lessons to be absorbed from the Guide and the process through which it was created. In that regard, it is remarkable to see just how much the Guide elaborates on the reservations regime of the 1969 Vienna Convention on the Law of Treaties (VCLT). That regime, consisting of six short articles, was certainly the product of its time. It was precipitated by the Reservations to the Genocide Convention Advisory Opinion of the International Court of Justice, in which the Court moved the law forward from a rigid system requiring unanimous acceptance of reservations by all �

Moving Ahead in Protecting Freshwater Resources: The International Law Commission's Draft Articles on Transboundary Aquifers

AbstractOn 11 December 2008 the UN General Assembly adopted a set of draft articles on the law of transboundary aquifers which had been prepared by the International Law Commission (ILC) between 2002 and August 2008. These draft articles are the first official instrument that lays down rules of international law for the management and protection of groundwater, which makes up 97 per cent of the Earth's freshwater resources, excluding the resources locked in polar ice. This article discusses the contribution of the draft articles to the development of international water law. It first provides some background on the importance of shared groundwater resources, then describes the ILC's work on transboundary aquifers, and finally assesses in detail the draft articles and the way ahead.

Attribution of Conduct in Peace Operations: The 'Ultimate Authority and Control' Test

The article addresses the issue of whether conduct in international peace operations is attrib- utable to the troop contributing states or to the United Nations, taking the European Court of Human Rights ' admissibility decision in the Behrami and Saramati cases as a point of ref- erence. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attrib- utable to the United Nations. The article examines the content of the ' ultimate authority and control ' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view diffi cult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's deci- sion, when seen in connection with previous case law, in practice renders the European Con- vention on Human Rights irrelevant in international peace operations.

Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations

The peaceful settlement of international disputes by judicial means held a prominent place in Max Huber's work throughout his career both as an academic and legal practitioner. For a number of good reasons, Huber's best known contribution in the field, his 1928 award in the Island of Palmas case, is still renowned as one of the leading cases of our discipline. Although somewhat less well known, the second case in which Huber acted as sole arbitrator (British Claims in the Spanish Zone of Morocco 1923–1925), served as one of the major precedents in the International Law Commission's work on state responsibility. Going far beyond the rather technical (and marginal) issues at stake, both awards owe their lasting importance not least to the firm theoretical foundations on which they rely. In contrast, a third case in which Huber was actively involved in a twofold way has almost completely fallen into oblivion. Huber not only negotiated and signed the 1921 Swiss-German treaty of arbitration and conciliation, but was also called to sit on the bench of the Jacob Salomon Kidnapping case (1935) established under the terms of that very treaty. Although no formal award was rendered, this case is nonetheless a prime example of the pressure that the mere existence of an arbitration procedure can apply even on dictatorial regimes.

Trail Smelter and the International Law Commission's Work on State Responsibility for Internationally Wrongful Acts and State Liability

In 2001, the International Law Commission (ILC) adopted Draft Articles on State Responsibility. These establish the secondary obligations that flow from a breach of an independent and preexisting primary obligation. The Draft Articles address a number of issues, including the attribution of conduct to a state, justifications for breach, circumstances precluding wrongfulness, reparation, compensation, bilateral and erga omnes obligations, and countermeasures. This Essay tracks the influence that the Canada-U.S. Trail Smelter arbitral decision has had on the Draft Articles. Trail Smelter is referenced four times in the Commentaries to the Draft Articles; it has played some part in the formulation of specific Articles regarding continuing breach, non repetition of breach, remoteness of harm, and compensation. On a more general note, though, Trail Smelter's influence may be circumscribed by shifts in international environmental law toward facilitating compliance with primary rules rather than seeking compensation for breaches of those rules. This explains why Trail Smelter's evocation of secondary obligations - and the law of state responsibility more generally - lead somewhat of a lonely existence in terms of the law-in-practice regarding international environmental protection. Trail Smelter has played a more vivid role in the ILC's work on state liability (2001), in particular the preventative aspects. Here, the primary rule of Trail Smelter - namely the obligation not to cause serious environmental harm - has acquired considerable currency, exceeding that of Trail Smelter's secondary obligation of reparation and compensation for violation of that primary rule.

The International Law Commission's Work and the Shaping of International Law

In this discussion of the impact of the International Law Commission's work, the author focuses on the law in action, as opposed to the law as it is found in the books. He gives particular emphasis to examples from the law of treaties, the law of State responsibility, international humanitarian law and, to highlight the relationships between those engaged in the law, State immunity. The author begins by discussing the relevance of the Commission's work to national law, particularly to the development and codification of national law, and then considers the effect in national and international courts of the work of the Commission. He concludes with suggestions as to how the Commission's role might be enhanced.

A Comment on the Ways and Means of Researching Customary International Law a Half-Century after the International Law Commission's Work

As a glance at his bibliography shows, Dr. Sipkov, as well as a law librarian, was a publicist in the original sense of the term — a scholar of public, in particular public international, law. It is therefore fitting that our comment deals with a basic issue that arises at the intersection of international law and librarianship. We would like to evoke the problem of defining and then finding the “material sources” of customary international law. That means understanding, then locating, the concrete, usually documentary, materials that must be used to confirm the existence of a state practice. The consistent, generalized, though not necessarily universal, practice of states forms the objective element of a customary rule. This basic problem of international legal research is not new, but as we approach the fiftieth anniversary of the United Nations International Law Commission, it makes sense to examine it again. Developments over the last half century should help in understanding how we try currently to solve the difficulties and will do so in the future.

Liability as an obligation established by a primary rule of international law: Some basic reflections on the International Law Commission's work

Few undertakings of the International Law Commission have proved to be as controversial as its study of “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law”. Despite an encouraging initial report by a working group of the Commission on the suitability of the topic for codification and progressive development, the undertaking, once launched, immediately met with strong scepticism, at times outright rejection. It is true that over the last two years support for the Commission's work on the topic has grown appreciably both within and outside the Commission. However, detractors of the study remain strongly in evidence.