United Nations International Law Commission Research Articles

First Report of the Special Rapporteur on Subsidiary Means for the Determination of Rules of International Law. United Nations International Law Commission, A/CN.4/760, 13 February 2023

First Report of the Special Rapporteur on Subsidiary Means for the Determination of Rules of International Law. United Nations International Law Commission, A/CN.4/760, 13 February 2023

Turning Fantasy into Inclusion … Regional Approaches and Unity of International Law

Is international law in crisis, torn as it is between assertions of its unity and the growth of regional groupings in its study and approach? The rhetoric and fears of fragmentation at the turn of the century do not seem to have ended with the reassuring report of the Study Group of the United Nations International Law Commission on the issue. Concerned about preserving the integrity and essence of their discipline, the international legal community is apprehensive about regional approaches and visions, which it sees as potentially leading to the eventual undermining of international law. Analysing this dynamic, of the call for pluralism within international law and the principle of the discipline’s unity, that has been erected as a dogma, this article stresses that the two are not irreconcilable. It explores the ways and means and indicates the conditions under which regional approaches can be a source of enrichment for international law by introducing more diversity, without calling into question either the unity or the universality of the discipline. Indeed, pluralism and multiculturalism are not legal concepts but political and sociological choices that correspond to a vision of society, to the construction of a more inclusive model of society. Regional approaches to international law, by facilitating the construction of a representative, pluralistic, and multicultural international law, allows for its true universality. This universality, in turn, strengthens the unity of international law while nourishing itself from it. However, this is only possible if the concept of unity is dusted off to avoid a dogmatic vision of it.

The United Nations International Law Commission’s Draft Articles on Transboundary Aquifers

Despite being an important source of supply for basic human needs and development, groundwater has been largely out of sight and out of mind. Activities worldwide are rapidly increasing the pressure on this important but invisible resource, causing quantity depletion and quality degradation. A significant development in the process of helping to make groundwater governance visible was the development in 2008 of the United Nations International Law Commission’s Draft Articles on Transboundary Aquifers. This article considers the implications of the Draft Articles from the perspective of international law, reflecting in particular on the overlap with the United Nations Convention on the Law of the Non- Navigational Uses of International Watercourses, the principle of limited sovereignty in the context of shared groundwater resources and the possible future form of the Draft Articles. It also considers the work of other international institutions which have supported the Commission’s work. This article concludes that the Draft Articles have struck the right balance and have provided an important step forward in helping to make this invisible resource visible in international law. This article has been prepared in anticipation of the 2022 UN World Water Day on ‘Groundwater: Making the Invisible Visible’ and the International Groundwater Resources Assessment Centre Groundwater Summit on 22–23 March 2022.

Temporary application of international treaties: legal aspects

Problem setting. Nowadays the problem of the provisional application of treaties can be described as actual. It is no accident that it has been the subject of the attention of the United Nations International Law Commission with the task of elaborating the most important problems of international law. Furthermore, the above-mentioned subsidiary body of the United Nations General Assembly recognized the need to analyze the provisional application of treaties, the need for the progressive development and codification of international law in respect of the topic dealt with in this article. Аnalysis of research and publications. Aspects of the problem of provisional application of treaties are reflected primarily in the works of in the works of I.I. Lukashuk, O.V. Kyivets, O.V. Pushniak, I.I. Maryniv, T. Leber. Target of research is to describe the legal institution of the provisional introduction of international treaties and to find reasons for its use. Article’s main body. The article is devoted to the question of the temporary use of an international treaty as a fundamental institution of international law. The study discusses the need for provisional application of treaties. Attention was paid to the works of legal academics, who had considered this issue, their works and summaries were reviewed regarding the question under consideration. The author analyzed the formulations of the article 25 of the 1969 Vienna Convention on the Law of Treaties. Legal aspects and shortcomings were considered. First of all, it was noted that there is no definition of the temporary application of international treaties in the 1969 Vienna Convention on the Law of Treaties and article 25 of the Convention had been criticized for being difficult to understand and lacking legal precision. In the article, the author noted that in general, the provisional use takes place before the entry into force of the treaty, when countries have not yet completed the necessary internal state procedures for its entry into force and have not internationally expressed consent to be bound. The author also stressed that the application of the treaty before it enters into force or will enter in the moment when it is implemented, the parties will address to their commitments and thus the object of the treaty would disappear. The author highlighted another legal aspect of the international legal institution under consideration is that, in order to implement the institution of provisional application of treaties, A special law and regulations may be enacted in domestic law (constitutional and legislative). What is more, the author mentioned that it is appropriate to devote attention to the work of the father of the national science on the law of international treaties I.I. Lukashuk. Conclusions. The author concluded that the institution of the provisional use of treaties is one of the key institutions in the law of treaties enabling the parties to urgently address cooperation issues. Another conclusion of the author of this article is that countries resort to this legal instrument under consideration for several reasons: urgent resolution of issues to which the relevant treaties apply; the desire of countries to adopt and immediately implement confidence-building measures; preventing time gaps in the operation of a number of international treaties, which have been successively adopted and replace each other on the same subject.

The integration paradox: an ILC view on the EU contribution to the codification and development of rules of general international law

The contribution of international organisations (IOs) to the process of identification, codification or development of rules of general international law is one still enveloped in a measure of mystery. While the United Nations (UN) International Law Commission (ILC) has long relied on IOs’ practice, and the practice of States within IOs, in carrying out its work, it has only recently begun to address the role that IOs might play in the formation or expression of rules of customary international law, jus cogens or general principles of law. In this process, the European Union (EU) has long been seen as an ‘odd’ fit. From the point of view of general international law, EU integration forms an apparent paradox: on the one hand, the degree of transfer of powers to the organisation renders it particularly well suited to be a ‘jus generative’ force and a useful source of practice for the ILC’s work; on the other, its ‘exceptionalism’ often militates against the reliance on EU-related practice as evidence of existing or emerging rules of general application. This article looks at the effects of this ‘integration paradox’ in the ILC’s work by reviewing the references to, and the use of, EU practice in eight distinct codification projects, combined with interviews with ILC members and EU officials. It provides an ILC (outside) view on the relevance of EU practice for the identification, codification, and development of rules of general international law. This view, in turn, has implications for the operation of an EU (inside) foreign policy objective: its ambition to contribute to the development of international law, as expressed in Article 3(5) of the Treaty on European Union (TEU).

Contemplating A Convention On Crimes Against Humanity

Sean Murphy, Professor of Law at the George Washington University and Member of the United Nations International Law Commission (ICL) pressed upon the requirement of “a global convention on crimes against humanity (as it) appears to be a key missing piece in the current framework of international humanitarian law, international criminal law, and human rights law”. While the consideration for this is well-founded and is the essence of the hour. One is compelled to consider crimes against humanity as formulated in the Rome Statute forming themselves as parts of customary international law thus vitiating the requirement of a Convention.

Private military and security companies in international law

INTRODUCTION.The article analyses the sources of international law, national legislation of the Russian Federation, as well as that of certain foreign States regulating the operation of private military and security companies (PMSCs) in armed conflict. The article highlights the out-comes of the work of the UN Special Rapporteurs and Working Groups to study the activity of PMSCs and the impact it had on the observance of human rights. The authors further analyze the status of PMSC personnel under international humanitarian law. The article also looks at the positions expressed by the delegations of Member States during the discussion of the 2010 Draft Convention on Private Military and Security Companies (PMSCs) and provides recommendations for developing an appropriate international regulatory framework. The authors also examined State practice of the implementation of the The Montreux Document on Pertinent International Legal Obligations and Good Practices for Statesт Related to Operations of Private Military and Security Companies During Armed Conflict related to the operation of private military and security companies during armed conflict.MATERIALS AND METHODS.The article contains an analysis of the main sources of international law, the documents drafted by the United Nations International Law Commission, special rapporteurs and working groups on the matter, and State practice. It also addresses Russian and foreign legal scholarship. From a methodological perspective, this study relied on the general scientific (analysis, synthesis, systemic approach) and private legal methods of knowledge (formal-legal, comparative legal studies).RESEARCH RESULTS.Based on the study, it is argued that an international treaty should be adopted to regulate the activities of PMSCs, which would establish mechanisms to monitor and hold PMSCs and their employees legally accountable.

Sea-Level Rise and the Law of the Sea in the Western Pacific Region

Sea-level rise (SLR) is considered one of the most serious consequences of climate change. The risk of SLR compels legal consideration of this phenomenon related to many interrelated domains including the Law of the Sea. The Western Pacific region contains the most low-lying coastal countries and small island States seriously affected by SLR in the world. This research has been carried out as a contribution paper on the State practice in the Western Pacific region to the topic of “Sea-level rise in relation to international law” conducted by the Study Group of the United Nations International Law Commission in the period of 2020-2021. It aims to summarize the consequences of SLR for the Western Pacific States and outline their legal positions in relation to the sea-level rise. It also discusses specific issues, challenges and opportunities facing the Western Pacific States in supporting the maintenance of maritime baselines and limits notwithstanding physical changes caused by SLR.

Development of the concept of state responsibility in succession situations in the light of draft articles of the UN international law commission

INTRODUCTION. The article considers the concept of a succession of states with regard to the responsibility of states, which has become the subject of discussion by the UN International Law Commission and the preparation of the relevant draft articles. The author studies the methodology of considering the topic with a view to substantiating the idea of transferability of rights and obligations in the context of the responsibility of states, which is to a certain extent contradictory, due to the limited practice of states in this area. In this regard, questions are raised as to whether the new project can solve the problem of fill ing the gap between the regimes of state succession and state responsibility.MATERIALS AND METHODS. The author made a theoretical and empirical analysis of the main sources of international law, the materials of the work of the UN International Law Commission: reports of the special reporter on the succession of states regarding state responsibility, comments and observations of states, state practice, and the practice of international courts on the subject matter. Methodological foundation of research is composed by general scientific (analysis method, synthesis method, systems approach) and private-law methods of obtaining knowledge (formal legal, comparative legal).RESEARCH RESULTS. Based on the study, it is argued that the key ILC approach – the general rule of the lack of succession in respect of international responsibility is not absolute in nature, also contains potentially conflicting aspects. The author comes to the conclusion that the concept of transferability of rights and obligations in the context of state responsibility is to a certain extent contradictory, due to the limited practice of states in this area.DISCUSSION AND CONCLUSIONS. This article highlights a number of problematic aspects of the draft articles provisionally adopted by the Drafting Committee of the United Nations International Law Commission, as well as the proposed new draft articles in the regulation of specific categories of succession of States in respect of the obligations arising from responsibility. The author concludes that the norms formulated under the theme should take into account the complex legal regime of state responsibility for internationally wrongful acts, which differs from other regimes of succession.

Eurasian Economic Union Court and WTO Dispute Settlement Body: Two Housewives in One Kitchen

Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, “forum shopping” may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court’s right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable.

Identification of Customary International Law in the Works of the United Nations International Law Commission

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The identification of Customary International Law: a process that defies prescription

The subject of identification of customary international law (CIL) has been under consideration by the United Nations International Law Commission (ILC) since 2012, evoking responses from States and scholars. The ILC has finalized in its second and final reading a set of 16 conclusions.I discuss these conclusions in the light of the well-established doctrine on the formation of CIL. I disucss the “two elements” approach – general practice and its acceptance as law – and offer guidance on capturing the moment of creation of CIL, focusing on relevant factors, in particular the temporal factor. I emphasise the role power, persuasion, consensus, common interests or commonly shared community policies play in the formation of CIL, while noting various forms of practice including the United Nations General Assembly resolutions as important indicators for this purpose. I find many of the conclusions adopted by the Commission well balanced and in consonance with the well-established principles governing the formation of customary international law. Mention may be made in this connection of the conclusion that the practice of international organizations in certain cases also constitutes relevant practice, even as it is clear that it is State practice that predominantly figures in the evolution of “general practice”. It is, however, felt that the principle of persistent objector and that the concept of “specially affected States” has no real basis in practice and are otherwise best accommodated by other well-known principles of international law, such as acquiescence or estoppel or historic rights.

The discourse on ‘protection of the atmosphere’ in the International Law Commission

At its 65th session in August 2013, the United Nations International Law Commission included the topic ‘protection of the atmosphere’ in its programme of work, and has since begun to draft a set of legal guidelines, on the basis of four reports prepared by its Special Rapporteur on the subject, albeit under a severely restricted mandate. This article comments on the work so initiated, in light of the deliberations in the Commission and the draft guidelines provisionally adopted.

United Nations Activities

The present paper discusses the work of the United Nations International Law Commission (ILC) during its sixty-seventh session (2015) regarding the topic ‘Protection of the environment in relation to armed conflicts’. First, it sketches out a summary of the debate that took place in the plenary session of the ILC with respect to the issue at hand. Then, the paper moves on to analyze the draft articles provisionally adopted by the Drafting Committee, offering at the same time some critical remarks.

Slavery and the League of Nations: Ethiopia as a Civilised Nation

In 1949, the United Nations International Law Commission quietly decided to “refrain from using the e�pression ‘civilized countries’”1 in its deliberations. An era had apparently died away, only to be resurrected as part of the discourse of the post-September 11, 2001, United States’ “War on Terror”. Despite the resurgence of rhetorical use of “civilisation”, the notion of “civilised nation” never truly left the stage of international relations, as it remains on the books today, a part of international law. Article 38(1) of the Statute of the International Court of Justice mandates that the International Court apply international law from three sources, not only treaty and customary law, but also: “(c) the general principles of law recognized by civilized nations”. This provision is a much needed window onto a bygone era, as some have said an embarrassing reminder that international law acted as an instrument of imperial design. Much needed, as at the time such a designation as “civilised nations” would have appeared neutral and benign. This begs the questions: Is international law, and does it remain, structurally biased in favour of the West and its informal empire, while couched in more benevolent, universal language of, say, human rights? This article considers an instance of the transition from the “law of Christian nations” and the “public law of Europe” of the nineteenth century to “international law” of the twentieth century wherein non-European States were allowed to join the international qua European system of international relations on the basis of a fluctuating rule of “civilisation” dictated by European colonial powers. The standard of civilisation which was applied in the Ethiopian conte�t, upon which its admission to the League of Nations was predicated and later used to justify Italian aggression, was the abolition of slavery and the slave trade on its territory. The Ethiopian e�perience is considered here as a vehicle to study the emergence of slavery as the “first” human right given voice internationally; the manner in which the League of Nations, having established the abolition of slavery and the slave trade as a criteria of “civilisation” moved to codify it;

From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of International Organizations (DARIO)—The Responsibility of the WTO and the UN

In 2002, the United Nations (UN) International Law Commission (ILC) decided to include the subject of the responsibility of international organizations (IOs) in its program of work. By 2011, the Commission adopted sixty-six draft articles with commentaries, known as the Draft Articles on the Responsibility of International Organizations (DARIO). The adoption of the DARIO represents an enterprise of revolutionary implications for public international law and the future development of both international law and global relations and governance. It may leverage the international personality of the IO to a status previously unknown, particularly when compared to the supreme international actor, the State.

The International Law Commission's flawed Draft Articles on the Law of Transboundary Aquifers: the way forward

In 2008 the United Nations International Law Commission finalized Draft Articles on the Law of Transboundary Aquifers; they were annexed to a United Nations General Assembly resolution later that year. In Autumn 2011, the General Assembly will decide on the final form of these articles. Unfortunately, the articles overlap with the 1997 United Nations Watercourses Convention and contain an even more serious flaw: they introduce the novel and potentially dangerous concept that a state has sovereignty over the portion of a transboundary aquifer located within its territory. After providing background on the Draft Articles, this paper proposes possible remedies for these problems.

Codification of the Law of Transboundary Aquifers (Groundwaters) by the United Nations

Having served as a Special Rapporteur for the United Nations International Law Commission's topic of Shared Natural Resources, the author was responsible for formulating the Draft Articles on the Law of Transboundary Aquifers, which was submitted to the United Nations General Assembly in 2008. In this article, the author discusses the background to the Draft Articles, their formulation in cooperation with hydrogeologists and groundwater administrators, the principles and concepts contained in the Draft Articles, positions of various states, and the future prospect of the Draft Articles.

The International Law Commission Adopts Draft Articles on Transboundary Aquifers

At its 2008 session the United Nations International Law Commission (ILC) completed work on a set of nineteen draft articles on the law of transboundary aquifers and transmitted the draft to the General Assembly. The ILC recommended that the Assembly take note of the draft articles and at a later stage consider the elaboration of a convention based upon them.

RESPONSABILIDADE INTERNACIONAL DO ESTADO POR VIOLAÇÃO DO JUS COGENS

O objetivo deste artigo é o de apresentar as conseqüências, no campo da responsabilidade internacional, previstas na hipótese de violação de norma de jus cogens. O estudo baseia-se no Projeto de Artigos sobre Responsabilidade Internacional dos Estados por Ato Internacionalmente Ilícito de 2001 elaborado pela Comissão de Direito Internacional das Nações Unidas. A análise do Projeto permite distinguir diferentes regimes de responsabilidade, com destaque para o regime comunitário agravado que trata de violações graves de normas imperativas de direito internacional geral.