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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.
For most of its history, the International Law Commission has been in the business of producing draft articles. Yet, Sean Murphy’s coverage of the Commission’s sixty-fifth session reveals that the Commission has decisively turned away from this format. As Jacob Katz Cogan’s earlier post observes, the Commission is demonstrating a new-found preference for outputs that are explicitly non-binding and betray no aspiration to form the basis for multilateral treaties. The Commission’s embrace of alternative formats is a promising response to some of the risks and criticisms associated with producing draft articles. But it is also an incomplete response. To ensure that its work continues to be relevant, ambitious, and influential, the Commission must revise its working methods as well as its outputs. In particular, the Commission should develop procedures for engaging with and soliciting input from the non-state actors who are becoming an increasingly important audience for the Commission’s work.