THE 72ND SESSION OF THE INTERNATIONAL LAW COMMISSION...
· On June 23, 2020, the General Assembly decided to postpone the seventy-second session of the International Law Commission (ILC) due to COVID-19. The ILC undertakes the mandate of the General Assembly, as provided in Article 13(1)(a) of the Charter of the United Nations, to promote the progressive development of international law and its codification.
· In a June 24, 2020 letter addressed to Ambassador Michal Mlynar and President of the General Assembly Tijjani Muhammad-Bande, the Chairs of the ILC’s seventy-first and seventy-second sessions proposed the option of postponing the seventy-second session until 2021 and moving the seventy-third session to 2022, while extending the terms of current ILC members.
· The Chairs stated that the ILC is unable to hold formal meetings through virtual means because of the rigorous work and thoroughness required of its members, coupled with the range of time zones and multilingual character of the ILC’s work.
· Additionally, there is a concern surrounding the 2021 ILC elections. The Chairs have suggested extending the current members’ terms of office by one year. Although there is significant precedent in place for other UN bodies extending members’ terms rather than holding elections, only one precedent- General Assembly A/RES/486(V) (12 Dec. 1950)- is in place concerning the ILC. The ILC is in the advanced stages of five of the topics on its current agenda. The Chairs stated in their letter that it would be less than ideal for different Special Rapporteurs to complete this work when the current ILC members had largely developed the work.
· The agenda for the seventy-second session was to consider the following topics:
o Immunity of State officials from foreign criminal jurisdiction. During the seventy-first session, the ILC welcomed receiving any information from States in response this topic by December 31, 2019. The Eighth report on this topic was issued in beginning of 2020. The report stated draft articles 17 (settlement of disputes) and 18 were to be considered in the seventy-second session.
o Provisional application of treaties. In February 2020, the Special Rapporteur issued the Sixth report on the provisional application of treaties discussing the ILC’s consideration of the topic as well as States’ comments and observations on the drafted articles adopted by the ILC on first reading, as of December 2019. The outcome of the ILC’s work on the topic consists of two elements: a set of guidelines and model clauses with commentaries and a bibliography. The ILC was scheduled to have a second reading of the draft Guide to Provisional Application of Treaties at its seventy-second session.
o Protection of the atmosphere. This topic was first introduced in 2013 and the ILC discussed this topic in its seventieth session (2018). The second reading of the draft guidelines was to be held in 2020.
o Succession of States in respect of State responsibility. In March 2020, the Special Rapporteur issued the Fourth report on this topic. The fourth report proposed draft articles 7 bis (composite acts), 16 (restitution), 17 (compensation), 18 (satisfaction), and 19 (assurances and guarantees of non-repetition). The Special Rapporteur stated that the fifth report will focus on the legal problems arising in situations where there are several successor States. Additionally, the fifth report will address the issue of shared responsibility. The fourth report had predicted that the entire set of draft articles could be adopted on first reading in 2021 subject to the progress of the debates on the Special Rapporteur’s reports.
o General principles of law. The ILC issued the second report on general principles of law. The third report will deal with the functions of this topic and its relationship with other sources of international law. In May 2020, the UN Secretariat issued a memorandum on this topic at the request of the ILC. The memorandum surveys the case law of inter-State arbitral tribunals and international criminal courts and tribunals of a universal characters. The memorandum additionally reports on treaties that may be relevant on work for this topic.
o Sea level rise in relation to international law. In its seventy-first session, the ILC stated that the Study Group would examine the legal effects of sea-level rise in three main areas: law of the sea, statehood, and protection of person affected by sea-level rise. During its seventy-second session, the Study Group would have focused on the sub-topic of issues related to the law of the sea. On February 28, 2020, the ILC published its first issues paper on sea-level rise in relation to international law of the sea matters. It was intended that the Study Group would examine the remaining sub-topics during the 2021 session.
Had the seventy-second session taken place in 2020, additional topics were on the agenda for the 2021 session – and may well still be so. These topics are:
o Peremptory norms of general international law (jus cogens). After the seventy-first session, the ILC adopted a set of draft articles on first reading, and transmitted the articles and commentaries to States for their comments and observations. States have until December 1, 2020 to submit their comments and observations on this topic to the Secretary-General.
o Protection of the environment in relation to armed conflict. During the seventy-first session, the ILC adopted a set of draft articles and commentary on first reading, which they transmitted to States and organizations for their comments and observations. States may submit comments and observations to the Secretary-General by December 1, 2020.
· Information in regard to any changes in deadlines has not yet been released.
· Small and developing States can aid in the progress and codification of international law by providing comments and information to the International Law Commission. IILA can enhance small and developing States’ abilities to engage in this process.
For more information on the ILC and updates on the seventy-second session, see International Law Commission's website.