The International Law Commission (ILC) of the United Nations held its fifty-eighth session in Geneva from May 1 to June 9, and from July 3 to August 11, 2006. This was the final year of the Commission's most recent five-year term (or quinquennium), and it finished work on several topics by completing sets of draft articles on diplomatic protection, principles on international liability for transboundary harm, “guiding principles” on unilateral acts, and conclusions on fragmentation of international law. The Commission also completed its first reading of articles on transboundary aquifers; continued its work on reservations to treaties, responsibility of international organizations, and the effect of armed conflict on treaties; began its consideration of the obligation to extradite or prosecute and the expulsion of aliens; and added a variety of new topics to its long-term program.
1 Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 370-77, UN Doc. A/56/10 (2001). Commission documents, including those cited below, are available online at <http://www.un.org/law/ilc=.
2 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities: General Commentary, para. 12, in Report of the International Law Commission on Its Fifty-eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 110, 113, UN Doc. A/61/10 (2006) [hereinafter 2006 Report].
3 There are a few exceptions to the nonbinding language of the principles, each the product of hard bargaining behind the scenes. Principle 4(2) provides that any exceptions or limitations on the imposition of liability on the operator “shall be consistent” with Principle 3, which states that the purposes of the principles are to ensure prompt and adequate compensation and to preserve and protect the environment. Principle 5 provides that the state of origin of transboundary damage “shall” promptly notify other states of the incident and ensure that appropriate response measures are taken; and that states affected by the damage “shall” take all feasible measures to mitigate or eliminate that damage. Principle 6(1) provides that states “shall” provide domestic bodies with the necessary jurisdiction and competence to ensure that adequate and effective remedies are available. Principle 8(2) provides that the principles “shall” be applied without discrimination based on such factors as nationality and domicile. Otherwise, the principles are deliberately cast in nonobligatory terms: “should,” “may,” or “purpose.” 2006 Report, supra note 2, at 106-10.
4 Id. at 116, princ. 1.
5 Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) [hereinafter State Responsibility Articles].
6 2006 Report, supra note 2, at 122, princ. 2(e). The “state of origin” is defined in Principle 2(d), id., as “the State in the territory or otherwise under the jurisdiction or control of which the hazardous activity is carried out.” This includes activities conducted on the ships or high seas platforms of that state. See id. at 135.
7 Id. at 112.
8 Id. at 123, para. 1.
9 See, e.g., International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law: Comments and Observations Received from Governments, UN Doc. A/CN.4/562, at 8-9 (2006).
10 2006 Report, supra note 2, at 124, para. 3. The commentary notes that the term “is understood to refer to something more than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial’“; and that the harm must lead to a “real detrimental effect” that must “be susceptible of being measured by factual and objective standards.” Id. at 123, para. 2 (emphasis omitted).
11 Id. at 121, para. 12.
12 Some excellent analyses of these developments can be found in various documents prepared in connection with the Commission’s work on this topic, including UN Secretariat, Survey of Liability Regimes Relevant to the Topic of International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/543 (2004), available at <http://untreaty.un.org/ilc/documentation/english/a_cn4_543.pdf= P. S. Rao, Reports on the Legal Regime for the Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities, UN Docs. A/CN.4/531 (2003) (first report), A/CN.4/540 (2004) (second report), A/CN.4/566 (2006) (third report).
13 2006 Report, supra note 2, at 121-22.
14 Id. at 129, para. 13.
15 Id. at 129-30, para. 14.
16 Id. at 130-31, para. 15.
17 The operator is defined as the person “in command or control” of the activity at the time the incident causing transboundary damage occurs. Id. at 122, princ. 2(g). This liability is based on “the belief that one who created high risks seeking economic benefit must bear the burden of any adverse consequences of controlling the activity.” Id. at 155, para. 11.
18 Id. At 151,princ. 4.
19 Id. at 172. Discrimination on the basis of nationality, domicile, or residence is prohibited. Id. at 182.
20 The commentary states: For example, a lump-sum amount of compensation agreed upon as a result of negotiations between the operator or the State of origin and the victims or other concerned States following the consolidation of claims of all the victims of harm may be regarded as an adequate compensation. So would compensation awarded by a Court as a result of the litigation entertained in its jurisdiction, subject to confirmation by superior courts whenever necessary. It is ipso facto adequate as long as the due process of the law requirements are met. As long as compensation given is not arbitrary, and grossly disproportionate to the damage actually suffered, even if it is less than full, it can be regarded as adequate. In other words, adequacy is not intended to denote “sufficiency”. Id. at 154, para. 8.
21 Id. at 172, princ. 6(4). The commentary notes that the Commission “is aware of the practical difficulties, such as expenses and the time-lags involved, in pursuing claims in a transnational context or on an international plane” and stresses that it is important “not to overburden the victim with an excessively lengthy procedure which may act as a disincentive.” Id. at 177-78, para. 12. It is for this reason that the UN Compensation Commission adopted a whole series of measures to provide prompt and simplified procedures for individual claimants. See, e.g., Michael, J. Matheson, Council Unbound: the Growth of UN Decision Making on Conflict and Postconflict Issues After the Cold War 168–78 (2006).
22 2006 Report, supra note 2, at 166, princ. 5(b). The commentary notes in this regard that the state of origin “is expected to perform the obligation of due diligence both at the stage of authorization of hazardous activities and in monitoring the activities in progress after authorization and extending into the phase when damage might actually materialize, in spite of best efforts to prevent the same.” Id. at 167, para. 3 (footnote omitted).
23 Id. at 166, princ. 5(d). The commentary notes that such action by the affected state “is essential not only in the public interest but also to enable the appropriate authorities and courts to treat the subsequent claims for compensation and reimbursement of costs incurred for response measures taken as reasonable.” Id. at 171, para. 10.
24 Rio Declaration on Environment and Development, June 13, 1992, 31 ILM 874 (1992).
25 2006 Report, supra note 2, at 111, para. 5.
26 Id. at 142, para. 5.
27 Id. at 114, General Commentary, para. 13.
28 Id. at 115, para. 2, & 144-45, para. 11. This original context is embodied in Principle 16 of the Rio Declaration, supra note 24.
29 The commentary does suggest that the principle may “perhaps” be customary law in this context “in relation to States in the EC, the UNECE, and the OECD.” Id. at 147, para. 15.
30 Id. at 168 - 69, para. 6. The Commission likewise deliberately used the phrase “precautionary approach” rather than “precautionary principle” in the articles on shared natural resources. See note 109 infra.
31 2006 Report, supra note 2, at 152-53, para. 6.
32 See id. at 24-26; see also Seventh Report on Diplomatic Protection, UN Doc. A/CN.4/567, at 3-4 (2006) [hereinafter Seventh Report on Diplomatic Protection].
33 Report of the International Law Commission on Its Fifty-sixth Session, UN GAOR, 59th Sess., Supp. No. 10, at 24, & 25, para. 3, UN Doc. A/59/10 (2004) [hereinafter 2004 Report].
34 2006 Report, supra note 2, at 26, paras. 5, 6.
35 The commentary confirms that diplomatic protection does not include either consular assistance or “demarches or other diplomatic action that do not involve the invocation of the legal responsibility of another State, such as informal requests for corrective action.” Id. at 27. This distinction is important because of the limitations on diplomatic protection—in particular die requirement to exhaust local remedies before exercising such protection.
36 UN Doc. A/CN.4/561/Add.2, at 2-3 (2006).
37 Seventh Report on Diplomatic Protection, supra note 32, at 43.
38 2006 Report, supra note 2, at 97, paras. 4, 5, & 100, para. 7.
39 See id. at 47-51. Refugee status must be recognized “in accordance with internationally accepted standards.” Id. at 47, Art. 8(2).
40 In support of this view, the U.S. government cited the NAFTA decision in Loewen Group v. United States, ICSID Case No. ARB(AP)/98/3 (NAFTA Ch. 11 Arb. Trib. June 26,2003), 42 ILM 811 (2003). In that case, the NAFTA tribunal held that “in international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which date is known as the diesaquo, through the date of the resolution of the claim, which date is known as the dies ad quern.” 42 ILM at 847, para. 225. The claimant was a Canadian corporation at the time of the injury and the presentation of the claim, but was later reorganized as a U.S. corporation in bankruptcy proceedings; this was held to be a bar to the continuation of the claim by Canada against the United States.
41 See Diplomatic Protection: Comments and Observations Received from Governments, UN Doc. A/CN.4/ 561, at 17-21 (2006) [hereinafter Diplomatic Protection Comments]; Seventh Report on Diplomatic Protection, supra note 32, at 14-20.
42 This was the situation in the Loewen case. See supra note 40.
43 2006 Report, supra note 2, at 40, para. 13.
44 See id. at 52-55.
45 2004 Report, supra note 33, at 49, Art. 9.
46 This basic principle was strongly reaffirmed by the International Court of Justice in the Barcelona Traction case. Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 5 (Feb. 5).
47 Diplomatic Protection Comments, supra note 41, at 30-31, 33.
48 2006 Report, supra note 2, at 57-62.
49 Diplomatic Protection Comments, supra note 41, at 35-36.
50 The final version refers to the right of a state of nationality of shareholders to exercise protection “in respect of such shareholders.” 2006 Report, supra note 2, at 58, Art. 11. In a case where the shareholders of a corporation are of more than one nationality, a state of nationality could, of course, protect the interests of only its own shareholders, not the corporation as a whole.
51 Diplomatic Protection Comments, supra note 41, at 37-38. The United States pointed in particular to the ICJ decision in its 1989 ELSI case, where an Italian subsidiary of two American corporations had unsuccessfully challenged a seizure in Italian courts, but the ICJ did not find it necessary for the American corporations to have repeated the process themselves before the United States could advance their claim. Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 46, para. 59 (July 20).
52 2006 Report, supra note 2, at 76.
53 Id. at 72, paras. 4, 5.
54 The 2006 commentary explains that this exception applies where a person suffers harm from transboundary environmental damage, or is a passenger aboard an aircraft that is shot down while overflying the territory of the responsible state. In such cases, the Commission believed that it would be une with which he had no voluntary connreasonable to require the injured person to exhaust local remedies in a foreign statection. Id. at 80-81.
55 2004 Report, supra note 33, Art. 16(a), & 76, para. 2.
56 Diplomatic Protection Comments, supra note 41, at 41-43.
57 2006 Report, supra note 2, at 79, para. 4.
58 Diplomatic Protection Comments, supra note 41, at 44 (commenting on Art. 16(c) of the 2004 text).
59 2006 Report, supra note 2, at 83, para. 11. The commentary gives the following examples of circumstances that might fit within this exception: where the injured person is prevented from entering the territory of the respondent state to pursue his remedies; where “criminal syndicates” prevent him from bringing proceedings; or where the costs of legal proceedings are “prohibitively high.” Id.
60 Id. at 86-89.
61 Such a right was asserted in the 1999 decision of the International Tribunal for the Law of the Sea in the Saiga case. M/V Saiga (St. Vincent v. Guinea), Merits, 1999 ITLOS Rep. 10 (July 1).
62 See, e.g., Victor Rodríguez Cedeño, Ninth Report on Unilateral Acts of States, UN Doc. A/CN.4/569/Add. 1 (2006) [hereinafter Ninth Report on Unilateral Acts].
63 2006 Report, supra note 2, at 368 (preamble to the Guiding Principles).
64 Id. at 370.
65 For example, the special rapporteur’s eighth report discussed the declarations made in 1995 by the five nuclearweapon- state parties to the Nuclear Non-proliferation Treaty concerning use of nuclear weapons, and concluded that they were “mainly political statements which are not legally binding upon their authors.” UN Doc. A/CN.4/ 557, at 20-21, para. 112 (2005).
66 2006 Report, supra note 2, at 377, para. 2.
67 Ninth Report on Unilateral Acts, supra note 62, at 38, 42.
68 2006 Report, supra note 2, at 380.
69 The commentary refers to the case where the addressees of the declaration “have relied on it in good faith and have accordingly been led ‘detrimentally to change position or suffer some prejudice.’“ The list of criteria is described as “open-ended” rather than restrictive. Id. at 380-81, paras. 2-3.
70 Ninth Report on Unilateral Acts, supra note 62, at 12-28.
71 2006 Report, supra note 2, at 372, princ. 4. Heads of state, heads of government, and ministers of foreign affairs are ipso facto deemed to be competent by virtue of their official functions. Id. at 372-74.
72 Id. at 374, princ. 5.
73 Id. at 378, princ. 8.
74 See Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 259-70 (Dec. 20).
75 See UN Doc. A/CN.4/L.682 (2006). The report has the misleading title “Report of the Study Group of the International Law Commission” but makes clear that it was not the group’s product but the individual product of the chairman, written on the basis of individual studies by himself (on lex specialis and self-contained regimes), Riad Daoudi of Syria (on modification of multilateral treaties between certain of the parties), Zdzislaw Galicki of Poland (on hierarchy in international law), William Mansfield of New Zealand (on the interpretation of treaties in light of relevant rules of international law), and Teodor Melescanu of Romania (on application of successive treaties relating to the same subject matter).
76 See Conclusions of the Work of the Study Group, 2006 Report, supra note 2, at 407-23.
77 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.
78 State Responsibility Articles, supra note 5, at 208, 282, para. 2, & 283-84, paras. 4 - 6 .
79 2006 Report, supra note 2, at 419, para. 32.
80 Id., para. 33. The chairman’s own study also included the right to self-defense, the prohibition of piracy, and “the prohibition of hostilities directed at [the] civilian population.” UN Doc. A/CN.4/L.682, supra note 75, at 189, para. 374.
81 This principle was confirmed by the International Court of Justice in Questions of Interpretation and Application ofthe 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Provisional Measures, 1998 ICJ Rep. 114, 126, para. 42 (Apr. 14).
82 2006 Report, supra note 2, at 42, para. 35.
83 Id. at 421, para. 37.
84 Id. at 422, paras. 38,39. The footnotes in the conclusions cite the ICJ’s 1970 decision in the Barcelona Traction case, supra note 46, for the proposition that some fundamental human rights obligations are erga omnes. The Outer Space Treaty and the Law of the Sea Treaty are cited for the proposition that some obligations relating to the global commons are erga omnes. The 1998 decision of the Eritrea-Yemen arbitration tribunal is cited with respect to territorial issues. 2006 Report, supra note 2, at 422 nn.1039, 1040, 1043.
85 2006 Report, supra note 2, at 421-22, para. 38.
86 UN Doc. A/CN.4/L.682, supra note 75, at 176-77, para. 346.
87 2006 Report, supra note 2, at 422, para. 40.
88 For a fuller elaboration of my views on this issue and a citation to the differing views of others, see Matheson, supra note 21, at 33-39 and the notes contained therein.
89 With respect to the implementation of Council sanctions alleged to violate jus cogens, see, for example, Chia Lehnardt, European Court Rules on UN and EU Terrorist Suspect Blacklists, ASIL Insight, Jan. 31, 2007,atf<http://www.asil.org/insights/2007/01/insights070131.html=.
90 2006 Report, supra note 2, at 408-09, paras. 5, 7.
91 Id. at 409, para. 6.
92 Id., para. 9.
93 Id. at 410, para. 10. This particular conclusion had originally been phrased as a rule of “non-derogability,” which suggested that there were categories of general norms (apart from jus cogens) that could not be modified by agreement of the states concerned. UN Doc. A/CN.4/L.682/Add.l, at 6 (2006). The final text of the conclusions was changed specifically to avoid this implication.
94 See UN Doc. A/CN.4/L.682, supra note 75, at 85-97. The chairman cites, for example, the interaction between the W T O regime on trade and the environmental regime created by the Rio Declaration and other environmental instruments.
95 See id. at 82.
96 2006 Report, supra note 2, at 412, para. 16.
97 Id. at 417, paras. 26, 27.
98 Id. at 413-14, paras. 17, 19.
99 UN Doc. A/CN.4/L.682, supra note 75, at 13, para. 13.
100 UN Doc. A/CN.4/539 (2004).
101 UN Doc. A/CN.4/551 (2005).
102 2006 Report, supra note 2, at 195, Art. \(b). The term “impact” is not defined, but the commentary explains that it “relates to a forceful, strong or otherwise substantial adverse effect,” which might consist of a deterioration in water quality, reduction of water quantity, or adverse change of the functioning of the aquifer. Id. at 197-98, para. 7.
103 UN Doc. A/CN.4/577, at 6 (2007).
104 See 2006 Report, supra note 2, at 202-03 nn.491-93.
105 Id. at 203.
106 Id. at 204-05.
107 Id. at 210-11, paras. 2-4.
108 Wat 214-15.
109 The commentary notes that some commission members
strongly suggested that an independent draft article should be formulated on the basis of [the] “precautionary principle”. There are differing views whether or not the “precautionary principle” has been established as customary international law. . . . The majority of the members of the Commission considered that it would be better to avoid the conceptual and difficult discussions concerning the expression of “precautionary principle”. A less disputed expression of “precautionary approach” could satisfy the basic necessity to introduce the special consideration of scientific uncertainties and vulnerability of aquifers.
Id. at 222-23, para. 6.
110 Id. at 219, para. 4.
111 Id. at 221-22, para. 2.
112 Concern was expressed in the Sixth Committee of the UN General Assembly that this provision would allow aquifer states to veto planned activities in other states. UN Doc. A/CN.4/577, supra note 103, at 10. This is an exaggeration, since the article requires only consultation, but it could be useful to clarify the point in the text or commentary on second reading.
113 See Chusei Yamada, Second Report on Shared Natural Resources, UN Doc. A/CN.4/539/Add. 1 (2004); Stefano, Burchi & Kerstin, Mechlem, Groundwater in International Law: Compilation of Treaties and Other Legal Instruments (FAO Legislative Study 86, 2005), available at <ftp://ftp.fao.org/docrep/fao/008/y5739e/y5739e00.pdf=. Groundwaters on the U.S.-Canada border are governed by Annex 16 to the Protocol Amending the 1978 Agreement on Great Lakes Water Quality, U.S.-Can., Oct. 16, 1983,TIAS No. 11,551; groundwaters on the U.S.-Mexico border are governed by International Boundary and Water Commission, Minute No. 242 (Aug. 30, 1973).
114 Report of the International Law Commission on Its Fifty-seventh Session, UN GAOR, 60th Sess., Supp. No. 10, at 15-16, UN Doc. A/60/10 (2005) [hereinafter 2005 Report].
115 2006 Report, supra note 2, at 192-93, paras. 1, 2.
116 See UN Doc. A/CN.4/577, supra note 103, at 11-12.
117 2006 Report, supra note 2, at 306-24.
118 Id. at 315, Guidelines 2.1.7-2.1.8.
119 Id. at 316-17, Guidelines 2.3.1, 2.3.5. Unless the treaty or the “well-established practice” of the depositary indicates otherwise, a late reservation is deemed to have been accepted if no objections are made within twelve months. Id. at 316, Guideline 2.3.2.
120 M a t 319, Guideline 2.5.1.
121 Id. at 308, 318-19, Guidelines 1.2.1, 2.4.8, 2.4.10.
122 Id. at 319, Guideline 2.5.3.
123 UN Doc. A/CN.4/558 & Adds.l&2 (2005).
124 Vienna Convention on the Law of Treaties, supra note 77, Art. 19.
125 UN Doc. A/CN.4/558/Add.1 , supra note 123, at 14, Guideline 3.1.5. In 2006 the special rapporteur proposed two possible variations of the “raison d’être” formula that added references to “the essential rules, rights and obligations indispensable to the general architecture of the treaty.” UN Doc. A/CN.4/572, at 3, paras. 7, 8 (2006).
126 UN Doc. A/CN.4/558/Add.l, supra note 123, at 27, Guideline 3.1.7.
127 Id. at 21, Guideline 3.1.12. The proposed guideline says that in assessing the validity of such a reservation, “account should be taken of the indivisibility of the rights set out therein,” as well as the importance of the particular right in question and the seriousness of the impact of the reservation on that right. Guideline 3.1.10 states that in assessing the validity of a reservation relating to “non-derogable” rights, “account must be taken of the importance which the parties have conferred upon the rights at issue by making them non-derogable.” Id. at 39-40.
128 Id. at 19, Guideline 3.1.13. Such reservations are said to be incompatible with the object and purpose if the provision in question “constitutes the raison d’etre of the treaty” or if the “very purpose” of the treaty was to put such a mechanism into effect.
129 Guideline 3.2 says that dispute settlement bodies “that may be competent to interpret or apply the treaty” and treaty implementation monitoring bodies established by the treaty are competent to assess the validity of reservations. Guideline 3.2.1 says that the findings of a treaty monitoring body “shall have the same legal force as that deriving from the performance of its general monitoring role.” Guideline 3.2.3 says that states and international organizations are required to “cooperate” with such a body, to “take fully into account” its assessment of the validity of reservations, and, when the body is “vested with decision-making power,” to give effect to its decision. UN Doc. A/CN.4/558/Add.2, supra note 123, at 13-17.
130 See 2005 Report, supra note 114, at 153-60; 2006 Report, supra note 2, at 300-03.
131 State Responsibility Articles, supra note 5.
132 Article 2 defines an international organization as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” 2006 Report, supra note 2, at 253. Accordingly, the scope of the articles is limited to intergovernmental organizations with independent legal personality.
133 Id. at 254, Art. 5. The comparable state responsibility article says that an organ placed at the disposal of a state by another state is considered an act of the former state “if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.” State Responsibility Articles, supra note 5, Art. 6.
134 The commentary notes that the United Nations assumes that in principle it has exclusive control over national contingents in its peacekeeping forces and that the acts of such forces are attributable to the United Nations. 2004 Report, supra note 33, at 111-12.
135 2006 Report, supra note 2, at 257, Art. 15. There is no comparable provision in the state responsibility articles.
136 Id. at 260, Art. 22(a). The comparable provision of the state responsibility articles refers only to “an essential interest.” State Responsibility Articles, supra note 5, Art. 25.
137 2006 Report, supra note 2, at 274, para. 4.
138 Id. at 283, Art. 28.
139 Id. at 284-85.
140 See State Responsibility Articles, supra note 5, Arts. 34-54.
141 Specifically, the Commission has asked for views from states and international organizations on two questions: (a) whether members of an organization have an obligation to provide compensation to a party injured by a wrongful act of the organization where the members are not responsible for that act but the organization is not in a position to provide compensation; and (b) whether states and international organizations are obligated to cooperate to bring to an end a serious breach of a peremptory norm by an international organization. 2006 Report, supra note 2, at 10, para. 28.
142 See id. at 382-93.
143 See, e.g., Ian Brownlie, First Report on the Effects of Armed Conflicts on Treaties, UN Doc. A/CN.4/552, at 10-11 (2005); UN Secretariat, The Effect of Armed Conflict on Treaties: An Examination of Practice and Doctrine, UN Doc. A/CN.4/550, at 12-14 (2005).
144 In 2006 the special rapporteur asked for a general indication from members as to whether noninternational conflicts should be included and expressed his willingness to do so. 2006 Report, supra note 2, at 385-87.
145 The special rapporteur’s proposed draft Article 4 provided that the matter would be determined “in accordance with the intention of the parties at the time the treaty was concluded” but then added that this intention would be determined in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, as well as the “nature and extent of the armed conflict in question.” Ian Brownlie, Second Report on the Effects of Armed Conflicts on Treaties, UN Doc. A/CN.4/570, at 6, para. 17 (2006). During the 2006 debate in the Commission,, it was pointed out that it was not realistic to think that parties usually contemplate the effect of an armed conflict on a treaty at the time of its conclusion, and a preference was expressed for relying on other factors. 2006 Report, supra note 2, at 389-90.
146 The special rapporteur’s proposed draft Article 7 recited a list of categories of treaties whose operation would not be affected by the incidence of armed conflict. The categories included treaties creating “permanent rights or a permanent regime or status” and “[m]ultilateral law-making” treaties; treaties of friendship, commerce, and navigation; treaties on the protection of human rights, international watercourses, diplomatic and consular relations, and protection of the environment; and treaties relating to the settlement of disputes. See UN Doc. A/CN.4/570, supra note 145, at 10, para. 33. Objections to this approach have been made by members based on the fact that treaties do not fall into neat categories, the difference in character of various provisions within the same treaty, the inconsistency of state practice with respect to various categories, and the impracticability of observing certain types of provisions in the enumerated categories during armed conflict. See Michael, J. Matheson, The Fifty-seventh Session of the International Law Commission, 100 AJIL 416, 423–24 (2006). During the 2006 debate, the special rapporteur suggested that some of these arguments were convincing and that, instead, an annex might be included that contains an analysis of state practice and case law relating to different categories of treaties. 2006 Report, supra note 2, at 392.
147 In its advisory opinion concerning the use of nuclear weapons, the International Court of Justice stated that, while certain human rights and environmental principles do not cease in time of armed conflict, their application is determined by “the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 240, para. 25 (July 8). In his second report, the special rapporteur agreed that this principle should be appropriately reflected in the draft articles. UN Doc. A/CN.4/570, supra note 145, at 9.
148 2006 Report, supra note 2, at 394-99.
149 See Maurice, Kamto, Preliminary Report on the Expulsion of Aliens, UN Doc. A/CN.4/554 (2005); 2005 Report, supra note 114, at 117-28; Maurice Kamto, Second Report on the Expulsion of Aliens, UN Doc. A/CN.4/ 573 (2006).
150 A paper on this topic was submitted by Roman Kolodkin of Russia and may be found in 2006 Report, supra note 2, at 436.
151 A paper on this topic was submitted by Giorgio Gaja of Italy and may be found in id. at 455.
152 Papers on these three topics were submitted by the Secretariat and may be found, respectively, in id. at 464, 489, 516.
153 Id. at 12.
154 The text and historical background of these and other Commission products can be found in United Nations, The Work of the International Law Commission, UN Sales No. E.04.V.6 (6th ed. 2004).
* Of the Board of Editors. The author would like to thank George Washington Law School for its generous support in the preparation of this piece.
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