The Changing Form of the International Law Commission’s Work

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Sean Murphy’s report on the sixty-fifth session of the International Law Commission (ILC) describes and analyzes the Commission’s activities and decisions from last summer. He focuses his attention, as the Commission did, on the draft articles proposed by the Special Rapporteurs on the topics “immunity of state officials from criminal jurisdiction” and “the protection of persons in the event of disaster,” as well as the Special Rapporteur’s reported draft conclusions on the topic “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Consideration of these proposals took up a significant amount of the Commission’s time, and they will garner much commentary inside and outside governments, as befits their importance. Here I focus on two elements of the Commission's procedure that, while noted in Professor Murphy's report, receive little attention generally: the final form that the Commission's work on a topic takes and what happens to that product once it is completed. The ILC Statute provides options and guidance on both issues, thereby giving the Commission some considerable flexibility to design its product as it deems appropriate. In the aggregate, the Commission's choices in this regard reveal much about how it views its role. As I will explain, the Commission's views appear to be changing.


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