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Sixty-sixth session

Report of the International Law Commission on the work of its
sixty-third session (Agenda item 81)

Summary of work

Background (source: A/66/100)

The International Law Commission was established by the General Assembly at its second session, in 1947, with a view to giving effect to Article 13, paragraph 1 a, of the Charter and with the objective of promoting the progressive development of international law and its codification (resolution 174 (II)).
The statute of the Commission, annexed to resolution 174 (II), was subsequently amended (resolutions 485 (V), 984 (X), 985 (X) and 36/39). The Commission consists of 34 members elected for a term of five years. The last election was held at the sixty-first session of the General Assembly (decision 61/411), and the next election will be held during the current session.
At its sixty-fifth session, the General Assembly recommended that the Commission continue its work on the topics in its current programme; expressed its appreciation to the Commission for the work accomplished at its sixty-second session, in particular on the specific issues identified in chapter III of its report regarding reservations to treaties and treaties over time; invited Governments to submit to the secretariat of the Commission any further observations on the entire set of draft guidelines constituting the Guide to Practice on Reservations to Treaties, provisionally adopted by the Commission at its sixty-second session, with a view to finalizing the Guide at the sixty-third session; requested Governments to provide their comments and observations on the draft articles and commentaries on the topic “Responsibility of international organizations” adopted on first reading by the Commission at its sixty-first session; invited the Commission to give priority to its consideration of the topics “Immunity of State officials from foreign criminal jurisdiction” and “The obligation to extradite or prosecute (aut dedere aut judicare)”; took note of the report of the Secretary-General on assistance to special rapporteurs of the International Law Commission and of paragraphs 396 to 398 of the report of the Commission; requested the Secretary-General to continue his efforts to identify concrete options for support for the work of special rapporteurs, additional to those provided under General Assembly resolution 56/272 of 27 March 2002; encouraged the continued practice of informal consultations in the form of discussions between the members of the Sixth Committee and the members of the Commission attending the sixty-sixth session of the Assembly; and recommended that the debate on the report of the International Law Commission at the sixty-sixth session of the Assembly commence on 24 October 2011 (resolution 65/26).

Consideration at the sixty-sixth session

The Sixth Committee considered the item at its 18th to 28th meetings and at its 30th meeting, from 24 to 28 October, on 31 October and on 1, 2, 4 and 11 November 2011 (see A/C.6/66/SR.18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 30).

The Chairman of the International Law Commission at its sixty-third session introduced the report of the Commission in three parts: chapters I to V at the 18th meeting, on 24 October, chapters VI, VIII and IX at the 21st meeting, on 27 October, and chapters VII, X, XI, XII and XIII at the 25th meeting, on 31 October.

Statements were made by the representatives of Denmark (on behalf of the Nordic countries), Chile (on behalf of the Rio Group), Switzerland, Colombia, El Salvador, Italy, Mexico, Japan, the Czech Republic, Austria, the United Kingdom of Great Britain and Northern Ireland, China, the Congo, the Netherlands, the Republic of Korea, Greece, Spain, India, Niger, Canada, South Africa, Hungary, Malaysia, Argentina, the Russian Federation, Cuba, Angola, Slovenia, the United States of America, Singapore, Portugal, Belarus, Bangladesh, Chile, France, Poland, Romania, Viet Nam, Australia, Nigeria,  Finland (on behalf of the Nordic Countries), the Philippines, Belgium, Colombia, Germany, Israel, Niger, Iran (Islamic Republic of), Indonesia, Slovakia, Thailand, Pakistan, Ireland, Algeria, Egypt, Norway (on behalf of the Nordic Countries), Peru, Sri Lanka, New Zealand and  Kenya. 

Statements were also made by the Holy See, the European Union, the European Union (the Candidate Countries Croatia, the former Yugoslav Republic of Macedonia, Montenegro and Iceland, the Countries of the Stabilization and Association Process and potential candidates Albania, Bosnia and Herzegovina, as well as the Republic of Moldova, aligned themselves with the declaration), the World Bank (also on behalf of the African Development Bank (AFDB), the Asian Development Bank (ADB), the European Bank for Reconstruction and Development (EBRD), the International Bank for Reconstruction and Development (IBRD), the International Criminal Police Organization (INTERPOL), the International Development Association (IDA), the International Fund for Agricultural Development (IFAD), the International Labour Organization (ILO), the International Maritime Organization (IMO), the International Monetary Fund (IMF), the International Telecommunication Union (ITU), the Organisation for Economic Co-operation and Development (OECD), the Organization for the Prohibition of Chemical Weapons (OPCW), the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Industrial Development Organization (UNIDO), the World Health Organization (WHO), the World Intellectual Property Organization (WIPO), the World Meteorological Organization (WMO) and the World Tourism Organization (UNWTO)),  UNESCO (also on behalf of the International Civil Aviation Organization (ICAO), IFAD, ICO, IMO, IOM, ITU, OPCW, the Preparatory Commission for CTBTO, UNIDO, UNTWO, WHO, WIPO, WMO and UNWTO) and the International Federation of Red Cross and Red Crescent Societies. A statement was also made by the Legal Counsel of the United Nations.

Mr. Alain Pellet, Special Rapporteur for the topic “Reservations to Treaties”, Mr. Giorgio Gaja, Special Rapporteur for the topic “Responsibility of International Organizations”, Mr. Lucius Caflisch, Special Rapporteur for the topic “Effects of Armed Conflicts on Treaties”, Mr. Maurice Kamto, Special Rapporteur for the topic “Expulsion of aliens” ,  Mr. Eduardo Valencia-Ospina, Special Rapporteur for the topic “Protection of persons in the event of disasters” and Mr. Zdzislaw Galicki, Special Rapporteur for the topic “The obligation to extradite or prosecute (aut dedere aut judicare)”  made statements.

Pursuant to paragraph 7 of resolution 65/26, the Director of the Codification Division gave an oral report on assistance to Special Rapporteurs of the International Law Commission.

A summary of the discussions on this agenda item may be found in the Topical summary of the discussion held in the Sixth Committee of the General Assembly, during its sixty-sixth session, prepared by the Secretariat (A/CN.4/650 and Add.1).

Action taken by the Sixth Committee

The Sixth Committee adopted three draft resolutions on the item:

(a) Draft resolution A/C.6/66/L.26 (Report of the International Law Commission on the work of its sixty-third session)

At the 30th meeting, on 11 November 2011, the representative of Guatemala, on behalf of the Bureau, introduced a draft resolution entitled “Report of the International Law Commission on the work of its sixty-third session” (A/C.6/66/L.26). At the same meeting, the Committee adopted draft resolution A/C.6/66/L.26 without a vote. By the terms of the draft resolution, the General Assembly, inter alia, would express its appreciation to the International Law Commission for the work accomplished at its sixty-third session; recommend that the Commission continue its work on the topics in its current programme, taking into account the comments and observations of Governments, whether submitted in writing or expressed orally in debates in the Sixth Committee; commend the Commission for the completion of its work on the draft articles on the responsibility of international organizations, the draft articles on the effects of armed conflicts on treaties, and the Guide to Practice on Reservations to Treaties; decide that the consideration of chapter IV of the report of the Commission on the work of its sixty-third session, dealing with the topic “Reservations to treaties”, shall be continued at the sixty-seventh session of the General Assembly, during the consideration of the report of the Commission on the work of its sixty-fourth session; draw the attention of  Governments to the importance for the Commission of having their views on the various aspects of the topics on the agenda of the Commission, in particular on all the specific issues identified in chapter III of its report, regarding: (i) Immunity of State officials from foreign criminal jurisdiction; (ii) Expulsion of aliens; (iii) Protection of persons in the event of disasters; (iv) The obligation to extradite or prosecute (aut dedere aut judicare); (v) Treaties over time; (vi) The most-favoured-nation clause; take note, in particular, of the inclusion of the topics “Formation and evidence of customary international law”, “Protection of the atmosphere”, “Provisional application of treaties”, “The fair and equitable treatment standard in international investment law” and “Protection of the environment in relation to armed conflicts” in the long-term programme of work of the Commission, and also take note of the respective comments made by Member States; and invite the Commission to continue to give priority to, and work towards the conclusion of, the topics “Immunity of State officials from foreign criminal jurisdiction” and “The obligation to extradite or prosecute (aut dedere aut judicare)”.

Also at the same 30th meeting, the representative of Chile, on behalf of the Rio Group, made a statement in explanation of position after the adoption of the draft resolution (see A/C.6/66/SR.30).

(b) Draft resolution A/C.6/66/L.21 (Effects of armed conflicts on treaties)

At the 30th meeting, on 11 November 2011, the representative of Thailand, on behalf of the Bureau, introduced a draft resolution entitled “Effects of armed conflicts on treaties” (A/C.6/66/L.21). At the same meeting, the Committee adopted draft resolution A/C.6/66/L.21, without a vote.  By the terms of the draft resolution, the General Assembly would welcome the conclusion of the work of the International Law Commission on the Effects of armed conflicts on treaties and its adoption of the draft articles and a detailed commentary on the subject; express its appreciation to the Commission for its continuing contribution to the codification and progressive development of international law; take note of the articles on the Effects of armed conflicts on treaties (annexed to the draft resolution), and commend them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action; and decide to include in the provisional agenda of its sixty-ninth session an item entitled “Effects of armed conflicts on treaties” with a view to examining, inter alia, the question of the form that might be given to the articles.

(c) Draft resolution A/C.6/66/L.22 (Responsibility of international organizations)

At the 30th meeting, on 11 November 2011, the representative of Thailand, on behalf of the Bureau, introduced a draft resolution entitled “Responsibility of international organizations” (A/C.6/66/L.22). The draft resolution was orally revised by adding the following paragraph as the fifth preambular paragraph: “Taking note of the comments of Governments and the discussion in the Sixth Committee at the sixty-sixth session of the General Assembly on this topic”.

At the same meeting, the Committee adopted draft resolution A/C.6/66/L.22, as orally revised, without a vote.  By the terms of the draft resolution, the General Assembly would welcome the conclusion of the work of the International Law Commission on Responsibility of international organizations and its adoption of the draft articles and a detailed commentary on the subject; express its appreciation to the Commission for its continuing contribution to the codification and progressive development of international law; take note the articles on the responsibility of international organizations (annexed to the draft resolution), and commend them to the attention of Governments and international organizations without prejudice to the question of their future adoption or other appropriate action; and decide to include in the provisional agenda of its sixty-ninth session an item entitled “Responsibility of international organizations”, with a view to examining, inter alia, the question of the form that might be given to the articles.

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