1 See Report of the International Law Commission on the Work of Its Sixty-Eighth Session, UN Gaor, 71st Sess., Supp. No. 10, at 2, para. 3, UN Doc. A/71/10 (Sept. 19, 2016) [hereinafter 2016 Report]. This report and other ILC documents are available online at http://legal.un.org/ilc. In addition, UN documents are generally available online at https://documents.un.org/prod/ods.nsf/home.xsp.

2 International Law Commission, Eighth Report on the Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/697 (Mar. 17, 2016) (prepared by Special Rapporteur Eduardo Valencia-Ospina). For discussion of prior work on these draft articles, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 168–69 (2013)Google Scholar [hereinafter Murphy, Sixty-Fourth Session]; Murphy, Sean D., Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission , 108 AJIL 41, 51–52 (2014)Google Scholar [hereinafter Murphy, Sixty-Fifth Session]; Murphy, Sean D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 132–35 (2015)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Sixth Session]; Murphy, Sean D., Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission, 109 AJIL 822, 843–44 (2015)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Seventh Session].

3 2016 Report, supra note 1 at 21 (draft Article 3(a)).

4 Id. at 17–73, para. 49.

5 Id. at 17, pmbl.

6 Id. at 17–18.

7 Statute of the International Law Commission, Art. 23, GA Res. 174 (II) (Nov. 21, 1947).

8 2016 Report, supra note 1 at 13, para. 46.

9 Id. at 15.

10 UN GAOR, 67th Sess., 19th mtg. at 10, para. 58, UN Doc. A/C.6/67/SR.19 (Dec. 4, 2012).

11 UN GAOR, 67th Sess., 18th mtg. at 9, para. 53, UN Doc. A/C.6/67/SR.18 (Dec. 4, 2012).

12 Id. at 14, para. 88.

13 UN GAOR, 68th Sess., 25th mtg. at 8, para. 38, UN Doc. A/C.6/68/SR.25 (Dec. 2, 2013).

14 UN Doc. A/C.6/67/SR.19, supra note 10, at 11, para. 65.

15 UN Charter, Arts. 1(3), 55, 56.

16 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), annex (Oct. 24, 1970).

17 Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, GA Res. 46/182, annex, para. 5 (Dec. 19, 1991) (“The magnitude and duration of many emergencies may be beyond the response capacity of many affected countries. International cooperation to address emergency situations and to strengthen the response capacity of affected countries is thus of great importance. Such cooperation should be provided in accordance with international law and national laws. Intergovernmental and non-governmental organizations working impartially and with strictly humanitarian motives should continue to make a significant contribution in supplementing national efforts.”).

18 2016 Report, supra note 1, at 42.

19 UN GAOR, 68th Sess., 17th mtg. at 19, para. 113, UN Doc. A/C.6/68/SR.17 (Nov. 8, 2013).

20 UN GAOR, 68th Sess., 24th mtg. at 14, para. 91, UN Doc. A/C.6/68/SR.24 (Nov. 20, 2013).

21 UNGAOR,68th Sess., 23d mtg. at 11, para. 48,UN Doc. A/C.6/68/SR.23 (Dec. 5, 2013);UNGAOR,69th Sess., 20th mtg. at 19, para. 120, UN Doc. A/C.6/69/SR.20 (Nov. 10, 2014) (referring to draft Article 11, which was subsequently renumbered as draft Article 9).

22 UN Doc. A/C.6/68/SR.23, supra note 21, at 14, para. 63. Austria appears to have interpreted the original mandate as focusing only on post-disaster responses and not on pre-disaster measures relating to prevention, mitigation, and preparation.

23 Protection of Persons in the Event of Disasters,Commentsand Observations Received from Governments and International Organizations, at 38, UN Doc. A/CN.4/696 (Mar. 14, 2016).

24 UN Doc. A/C.6/68/SR.24, supra note 20, at 3, para. 15.

25 UN Doc. A/C.6/68/SR.25, supra note 13, at 8, para. 41 (referring to draft Article 16, which was subsequently renumbered as draft Article 9);UN GAOR, 69th Sess., 19th mtg. at 14, para. 105, UN Doc. A/C.6/69/SR.19 (Nov. 17, 2014).

26 UN Doc. A/C.6/68/SR.25, supra note 13, at 8, para. 41; UN Doc. A/C.6/69/SR.19, supra note 25, at 14, para. 105.

27 2016 Report, supra note 1, at 50 (draft Article 10(1)).

28 Id. at 51.

29 Id. at 52.

30 See Report of the International Law Commission on the Work of Its Sixty-First Session, UN GAOR, 64th Sess., Supp. No. 10, at 335, para. 156,UN Doc. A/64/10 (2016) (“As regards the concept of ‘responsibility to protect,’ the Special Rapporteur recalled the 2009 report of the Secretary-General on implementing the responsibility to protect, which clarified that the concept did not apply to disaster response.”); id. at 338, para. 164 (“Agreement was expressed with the Special Rapporteur's conclusions on the non-applicability of the concept of responsibility to protect … .”).

31 UN GAOR, 65th Sess., 23d mtg. at 9, para. 58, UN Doc. A/C.6/65/SR.23 (Dec. 1, 2010).

32 2016 Report, supra note 1, at 53 (draft Article 11).

33 UN GAOR, 66th Sess., 23d mtg. at 5, para. 23, UN Doc. A/C.6/66/SR.23 (Nov. 14, 2011).

34 Id. at 9, para. 38.

35 UN GAOR, 66th Sess., 24th mtg. at 13, para. 70, UN Doc. A/C.6/66/SR.24 (Dec. 1, 2011).

36 Id. at 20, para. 114.

37 Id. at 7, para. 37.

38 UN Doc. A/C.6/66/SR.23, supra note 33, at 10, para. 45.

39 UN Doc. A/CN.4/696, supra note 23, at 40–41 (referring to draft Article 13, which was subsequently renumbered as draft Article 11).

40 UN Doc. A/C.6/67/SR.19, supra note 10, at 12, para. 73 (referring to draft Article 10, which was subsequently renumbered as draft Article 11).

41 UN Doc. A/C.6/69/SR.19, supra note 25, at 14, para. 107.

42 UN Doc. A/C.6/69/SR.20, supra note 21, at 5, para. 25.

43 UN Doc. A/C.6/66/SR.24, supra note 35, at 10, para. 50; UN GAOR, 67th Sess., 20th mtg. at 3, para. 14, UN Doc. A/C.6/67/SR.20 (Dec. 7, 2012).

44 The text at first reading provided: “To the extent that a disaster exceeds its national response capacity, the affected State has the duty to seek assistance from among other States, the United Nations, other competent intergovernmental organizations and relevant non-governmental organizations, as appropriate.” Report of the International Law Commission on the Work of Its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, at 119, UN Doc. A/69/10 (2014) [hereinafter 2014 Report].

45 2016 Report, supra note 1, at 59 (draft Article 13).

46 See, e.g., UN Doc. A/CN.4/696, supra note 23, at 43 (Australia) (referring to draft Article 14, which was subsequently renumbered as draft Article 13); UN Doc. A/C.6/66/SR.23, supra note 33, at 10, para. 42 (China) (referring to draft Article 11, which was subsequently renumbered as draft Article 13).

47 For examples of states seeking clarification of “arbitrarily,” see, for example, UN Doc. A/C.6/66/SR.23, supra note 33, at 8, para. 33 (Israel); UN GAOR, 66th Sess., 25th mtg. at 3, para. 10, UN Doc. A/C.6/66/SR.25 (Dec. 9, 2011) (Argentina) (referring to draft Article 11, which was subsequently renumbered as draft Article 13); UN Doc. A/C.6/67/SR.20, supra note 43, at 4, para. 20 (India). Other states sought clarification as to who would decide if an arbitrary refusal of consent occurred. E.g., UN GAOR,66th Sess., 24th mtg. at 20, para. 118, UN Doc. A/C.6/66/SR/24 (Dec. 1, 2011) (Malaysia); UN Doc. A/C.6/66/SR.25, supra, at 4, para. 22 (Ireland).

48 UN Doc. A/CN.4/696, supra note 23, at 40–41 (Austria); see also id. at 44 (Germany) (noting that “[w]e concur that although the consent of the affected State shall not be withheld arbitrarily, consent is nevertheless an indispensable requirement for every provision of external assistance”) (referring to draft Article 14, which was subsequently renumbered as draft Article 13).

49 UN Doc. A/C.6/66/SR.24, supra note 35, at 10, para. 52 (Iran).

50 See, e.g., id. at 7, para. 37 (Russia).

51 See, e.g., Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Arts. 23, 55, 59–63, 109–11, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Arts. 69–71, June 8, 1977, 1125 UNTS 3, 16 ILM 1391 (1977); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, Art. 18, June 8, 1977, 1125 UNTS 609.

52 2016 Report, supra note 1, at 72 (draft Article 18).

53 International Law Commission, Fourth Report on Identification of Customary International Law, UN Doc. A/CN.4/695 (Mar. 8, 2016) (prepared by Special Rapporteur Michael Wood); see also Fourth Report on Identification of Customary International Law, Addendum, UN Doc. A/CN.4/695/Add.1 (May 25, 2016) (extensive bibliography on the topic).

54 For discussion of prior work on these draft conclusions, see Murphy, Sixty-Fourth Session, supra note 2, at 174; Murphy, Sixty-Fifth Session, supra note 2, at 52–53; Murphy, Sixty-Sixth Session, supra note 2, at 140–42; Murphy, Sixty-Seventh Session, supra note 2, at 822–32.

55 2016 Report, supra note 1, at 80–117.

56 Id. at 79–80 (footnotes omitted).

57 For comments already received from states, see International Law Commission, Analytical Guide to the Work of the International Law Commission, Identification of Customary International Law (Aug. 16, 2016), at http://legal.un.org/ilc/guide/1_13.shtml.

58 2016 Report, supra note 1, at 75, para. 56.

59 For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 2, at 176; Murphy, Sixty-Fifth Session, supra note 2, at 48–51; Murphy, Sixty-Sixth Session, supra note 2, at 136–38; Murphy, Sixty-Seventh Session, supra note 2, at 836–38.

60 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT].

61 2016 Report, supra note 1, at 119, para. 70 (citing International Law Commission, Fourth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, at 5–36, paras. 10–94, UN Doc. A/CN.4/694 (Mar. 7, 2016) (prepared by Special Rapporteur Georg Nolte)). The fourth report's original proposal for this draft conclusion was numbered draft Conclusion 12. The fourth report also proposed a draft Conclusion 13 on “decisions of domestic courts,” which ultimately was not referred to the drafting committee.

62 Id. at 123 (draft Article 13).

63 Id. at 233–34 (footnotes omitted).

64 Id. at 234–37.

65 Id. at 229.

66 Id. at 239–40.

67 Id. at 123–240, para. 76.

68 2014 Report, supra note 44, at 265, para. 266. For discussion of prior work on these draft articles, see Murphy, Sixty-Seventh Session, supra note 2, at 835–36.

69 See Report of the International Law Commission on the Work of Its Sixty-Fifth Session, UN GAOR, 68th Sess., Supp. No. 10, at 140, para. 3 (Annex B), UN Doc. A/68/10 (2013).

70 Report of the International Law Commission on the Work of Its Sixty-Seventh Session, UN GAOR, 70th Sess., Supp. No. 10, at 50–52, UN Doc. A/70/10 (2015).

71 International Law Commission, Second Report on Crimes Against Humanity, UN Doc. A/CN.4/690 (Jan. 21, 2016) (prepared by Special Rapporteur Sean Murphy) [hereinafter Second Report on Crimes Against Humanity].

72 2016 Report, supra note 1, at 242, paras. 82, 83; see also id. at 246–80, para. 85.

73 Id. at 247 (draft Article 5(1)–(2)).

74 Id. (draft Article 5(3)).

75 Rome Statute of the International Criminal Court, Art. 28, July 17, 1998, 2187 UNTS 90.

76 2016 Report, supra note 1, at 247–48 (draft Article 5(4)–(6)).

77 Id. at 248 (draft Article 5(7)). This provision is modeled on Article 3(4) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, 2171 UNTS 227.

78 2016 Report, supra note 1, at 265–66 (draft Article 6).

79 Id. at 269 (draft Article 7).

80 Id. at 269–71.

81 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 12, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85 (“Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”).

82 2016 Report, supra note 1, at 271 (draft Article 8).

83 Id.

84 Id.

85 Id. at 271–72.

86 Id. at 273 (draft Article 9).

87 Id. at 273–76.

88 Id. at 276–77 (draft Article 10).

89 Second Report on Crimes Against Humanity, supra note 71, at 100, para. 202.

90 See International Law Commission, Third Report on the Protection of the Atmosphere, UN Doc. A/CN.4/692 (Feb. 25, 2016) (prepared by Special Rapporteur Shinya Murase). For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 2, at 56–57; Murphy, Sixty-Sixth Session, supra note 2, at 139; Murphy, Sixty-Seventh Session, supra note 2, at 832–35.

91 2016 Report, supra note 1, at 282, para. 93.

92 Id. at 286 (draft Guideline 3).

93 Id.

94 Id. at 288–89 (draft Guideline 4).

95 Id. at 291 (draft Guideline 5).

96 Id. at 292 (draft Guideline 6).

97 Id. at 293 (draft Guideline 7).

98 Id. at 294.

99 Id. For example, in 2010, states parties to the Convention on Biological Diversity, meeting in Nagoya, Japan, decided that

Convention on Biological Diversity, Tenth Meeting of the Conference of the Parties, Decision X/33, Biodiversity and Climate Change, Doc. No. UNEP/CBD/COP/DEC/X/33, para. 8(w) (2010) (citation omitted), available at http://www.cbd.int/decisions/cop/?m_cop-10.

100 2016 Report, supra note 1, at 296.

101 Report of the International Law Commission on the Work of Its Sixty-Seventh Session, UN GAOR, 70th Sess., Supp. No. 10, at 138, para. 286, UN Doc. A/70/10 (Aug. 14, 2015).

102 See International Law Commission, First Report on Jus Cogens, UN Doc. A/CN.4/693 (Mar. 8, 2016) (prepared by Special Rapporteur Dire Tladi) [hereinafter First Report on Jus Cogens].

103 2016 Report, supra note 1, at 297, para. 100.

104 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Pavel Šturma, “Jus Cogens,” annex (Aug. 9, 2016), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2016_dc_chairman_statement_jc.pdf&lang=E [hereinafter Statement of the Chairman of the Drafting Committee on Jus Cogens].

105 Id.

106 VCLT, supra note 60, Art. 53.

107 2016 Report, supra note 1, at 299, para. 110 n.1296.

108 Id. at 303, paras. 125–27.

109 Statement of the Chairman of the Drafting Committee on Jus Cogens, supra note 104, at 5.

110 First Report on Jus Cogens, supra note 102, at 46, para. 75.

111 Id.

112 Id. at 46, para. 76.

113 International Law Commission, Third Report on the Protection of the Environment in Relation to Armed Conflicts, UN Doc. A/CN.4/700 (June 3, 2016) (prepared by Special Rapporteur Marie Jacobsson) [hereinafter Third Report on the Protection of the Environment in Relation to Armed Conflicts]. For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 2, at 55–56; Murphy, Sixty-Sixth Session, supra note 2, at 143; Murphy, Sixty-Seventh Session, supra note 2, at 838–41.

114 See Murphy, Sixty-Fourth Session, supra note 2, at 174–75.

115 2016 Report, supra note 1, at 308, para. 145; id. at 321–40, para. 189.

116 Id. at 308, para. 146 & n.1309.

117 International Law Commission, Fifth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/701 (June 14, 2016) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Fifth Report on Immunity of State Officials]. For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 2, at 169–71; Murphy, Sixty-Fifth Session, supra note 2, at 41–48; Murphy, Sixty- Sixth Session, supra note 2, at 139–40; Murphy, Sixty-Seventh Session, supra note 2, at 842.

118 2016 Report, supra note 1, at 342, para. 193.

119 Id., para. 196 n.1408.

120 Id., para. 193.

121 Id. at 342–45, paras. 196–208.

122 Id. at 344, para. 204.

123 Id. at 342, para. 193.

124 See id. at 345–51, paras. 209–46.

125 Id. at 346, para. 214.

126 See, e.g., Fifth Report on Immunity of State Officials, supra note 117, at 11, para. 19(i) (“clear and growing trend”); see also id. at 53, para. 121 (noting that “the majority trend is to accept the existence of certain limitations and exceptions to such immunity”); id. at 73, para. 179 (“clear trend”); id. at 76, para. 184(a) (“trend in favour”); id. at 78, para. 188 (“clear trend”); see also 2016 Report, supra note 1, at 344, para. 204 (“a clear trend towards considering the commission of international crimes as a bar to the application of the immunity ratione materiae of State officials from foreign criminal jurisdiction”); id., para. 205 (“[A]lthough there might be doubt as to the existence of a relevant general practice amounting to a custom, there was a clear trend that reflected an emerging custom.”).

127 Fifth Report on Immunity of State Officials, supra note 117, at 56, para. 127 (citing Nuremberg Principles, [1950] 2 Y.B. Int’l L. Comm’n 374, UN Doc. A/CN.4/SER.A/1950/Add.I (pt. 2)).

128 Id. at 50 n.233 (citing Att’y Gen. of Israel v. Eichmann, 36 ILR 5 (Dist. Ct. Jerusalem 1961), aff’d, 36 ILR 277 (Isr. Sup. Ct. 1962)).

129 Id. at 25, para. 44 (citing Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.)).

130 Id. at 50, para. 114 n.233 (citing Fédération Nationale des Déportées v. Barbie, Cour de cassation [Supreme Court for Judicial Matters], Oct, 6, 1983, 78 ILR 124 (Fr.)).

131 Id. at 68, para. 163.

132 Id. at 24, paras. 55–59 (citing to the Netherlands’ 2003 International Crimes Act, a 2003 amendment to Niger's Penal Code, and various laws adopted by states when joining the Rome Statute); see also id. at 74, para. 181 (listing overall factors).

133 See Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14) [hereinafter Arrest Warrant]; Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), 2008 ICJ REP. 177 (June 4); Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), 2012 ICJ REP. 99 (Feb. 3) [hereinafter Jurisdictional Immunities].

134 Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 761 (Grand Chamber); McElhinney v. Ireland, 2001-XI Eur. Ct. H.R. 763 (Grand Chamber); Kalogeropoulou v. Greece, 2002-X Eur. Ct. H.R. 415; Jones v. United Kingdom, App. No. 34356/06 (Eur. Ct. H.R. Jan. 14, 2014).

135 For example, the fifth report places some reliance on Belgium's national law regulating international crimes. See Fifth Report on Immunity of State Officials, supra note 117, at 29, para. 54. To the extent that such a law is relevant, the law was scaled back considerably from its origins so that “Belgian courts … only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium; if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case.” Human Rights Watch, Belgium: Universal Jurisdiction Law Repealed (Aug. 1, 2003), at https://www.hrw.org/news/2003/08/01/belgium-universal-jurisdiction-law-repealed. Thus, the revised law “considerably reduce[d] the victims’ ability to obtain direct access to the courts—unless the accused is Belgian or has his primary residence in Belgium, the decision whether to proceed with any complaint rests entirely with the state prosecutor.” Id. Such developments do not sit easily with the idea of a “trend” in one direction.

136 Fifth Report on Immunity of State Officials, supra note 117, at 13, para. 20(a).

137 Id. at 74–78, paras. 181–89.

138 Id. at 71–73, paras. 170–76.

139 Id. at 83–86, paras. 206–14 (e.g., access of victims to remedies).

140 Ultimately, the report concludes that exceptions to one regime cannot be transposed onto the other. Id. at 66, para. 155. But see Hazel Fox & Philippa Webb, The law of State Immunity 85 (3d ed. 2013) (“Civil jurisdiction can thus in the last resort, and even with the special rules relating to satisfaction of judgments against State property introduced by the restrictive doctrine of immunity, be regarded as based on criminal jurisdiction.”).

141 Fifth Report on Immunity of State Officials, supra note 117, at 51–53, paras. 116–20.

142 Id. at 39–42, paras. 87–95.

143 Id. at 17–24, paras. 23–41.

144 Id. at 18–19, paras. 26–27 (citing in part United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004)).

145 Id. at 19, para. 28 (citing in part European Convention on State Immunity, May 16, 1972, ETS No. 74, 1495 UNTS 182).

146 Fifth Report on Immunity of State Officials, supra note 117, at 17–18, para. 24. The Commission's topic does not address immunities that exist under “special rules of international law,” such as those on the immunity of diplomats and consular officials. As noted in the fifth report, draft Article 1, paragraph 2, provides: “The present draft articles are without prejudice to the immunity from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with diplomatic missions, consular posts, special missions, international organizations and military forces of a State.” Id. at 96 (Annex I).

147 Id. at 17, para. 24 (citing Vienna Convention on Diplomatic Relations, Art. 31(1), Apr. 18, 1961, 500 UNTS 95, and Vienna Convention on Consular Relations, Arts. 43, 53, Apr. 24, 1963, 596 UNTS 261).

148 Id. at 18, paras. 24–25.

149 Id. at 21, para. 33 (citing Convention on the Prevention and Punishment of the Crime of Genocide, Art. 4, Dec. 9, 1948, 78 UNTS 277 (“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”)).

150 The same is true of the report's discussion of the Commission's 1996 Draft Code of Crimes, which indicated the irrelevance of official position with respect to “criminal responsibility” and mitigation of “punishment,” not withholding of immunity. See id. at 56, para. 128 n.262 (quoting Draft Code of Crimes Against the Peace and Security of Mankind, Art. 7, in Report of the International Law Commission on the Work of Its Forty-Eighth Session, [1996] 2 Y.B. Int’l L. Comm’n 17, UN GAOR, 51st Sess., Supp. No. 10,UN Doc. A/51/10 (1996)). The Commission's commentary simply referred to punishment in “appropriate proceedings,” id. at 57–58, para. 130, and did not indicate whether national courts should include foreign courts.

151 Id. at 23–24, paras. 37–41. For example, the United Nations Convention Against Corruption provides in part:

UN Convention Against Corruption, Art. 30(2), Oct. 31, 2003, 2349 UNTS 41 (emphasis added).

152 International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, 2716 UNTS 3 [hereinafter Enforced Disappearance Convention].

153 An initial draft of the Enforced Disappearance Convention contained an article explicitly excluding immunity of state officials other than diplomats. See Draft International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. E/CN.4/Sub.2/1998/19, annex, Art. 10(2) (Aug. 19, 1998) (“No privileges, immunities or special exemptions shall be granted in such trials, subject to the provisions of the Vienna Convention on Diplomatic Relations.”). States decided to drop that article in the final version of the Convention. The Convention does address immunities but only in the context of granting them to the members of that treaty's committee of experts. See Enforced Disappearance Convention, supra note 152, Art. 26(8).

154 See Arrest Warrant, supra note 133, para. 59 (“[A]lthough various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law … .”).

155 Fifth Report on Immunity of State Officials, supra note 117, at 21, para. 33.

156 Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 ICJ REP. 15, para. 50 (July 20).

157 Fifth Report on Immunity of State Officials, supra note 117, at 24–31, paras. 42–59; see also International Law Commission, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, paras. 81–86, 94(p), UN Doc. A/CN.4/631* (June 10, 2010) (prepared by Special Rapporteur Roman Kolodkin); International Law Commission, Memorandum by the Secretariat on Immunity of State Officials from Foreign Criminal Jurisdiction, paras. 162–65, UN Doc. A/CN.4/596 (Mar. 31, 2008).

158 Fifth Report on Immunity of State Officials, supra note 117, at 25, para. 44.

159 Ultimately, this analogous exception to immunity from criminal jurisdiction is extremely broad in exposing state officials to local criminal jurisdiction. The exception apparently covers not just a foreign state officialwhoallegedly engages in espionage, hacks into a database over the Internet, sexually assaults a maid in a hotel, or mistreats a nanny, but also a foreign state official who is alleged to have defamed another person, failed to pay parking tickets, written graffiti on a wall, and so on. In other words, it basically exposes the official to the possibility of a criminal prosecution at any time that he or she travels to a foreign state, for any possible allegation of criminal activity under that state's national law.

160 See id. at 37–38, 41, 89–90, paras. 80, 82, 93, 228.

161 Id. at 26, para. 45.

162 It should be noted that, during an international armed conflict, international law provides no immunity to state officials in the custody of the enemy belligerent with respect to alleged violations of the law of war or acts of unprivileged belligerency.

163 Jurisdictional Immunities, supra note 133, paras. 65–79.

164 Fifth Report on Immunity of State Officials, supra note 117, at 30–31, para. 59.

165 Id. at 30, para. 58 (listing Burkina Faso, the Comoros, Ireland, Mauritius, and South Africa).

166 Id. at 31–45, paras. 60–108.

167 See Arrest Warrant, supra note 133, para. 78(2).

168 See Jurisdictional Immunities, supra note 133, para. 139.

169 Fifth Report on Immunity of State Officials, supra note 117, at 36–37, paras. 75, 78 (“The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful … .”).

170 Jurisdictional Immunities, supra note 133, para. 84.

171 Id., para. 82 (“At the outset, however, the Court must observe that the proposition that the availability of immunity will be to some extent dependent upon the gravity of the unlawful act presents a logical problem. Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is, therefore, necessarily preliminary in nature … . If … the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim.”).

172 For example, see the Canadian Supreme Court's 2014 decision in Kazemi Estate v. Islamic Republic of Iran, [2014] SCC62 (Can.), a civil case against Iranian officials (and Iran) for torture. The Supreme Court upheld immunity, citing the conclusion of the International Court of Justice (ICJ) in Jurisdictional Immunities that immunity is a procedural norm that is not superseded by a substantive norm of jus cogens. Id., para. 204.

173 One of the cases in Italian courts noted by the ICJ concerned a claim against a former German official, see Jurisdictional Immunities, supra note 133, para. 29, but Germany's claims before the ICJ focused on civil claims against the Federal Republic of Germany itself.

174 Though downplaying the majority views, the fifth report gives some weight to dissenting opinions in these cases. See, e.g., Fifth Report on Immunity of State Officials, supra note 117, at 33–35, 40–41, paras. 68–70, 92.

175 Id. at 42–43, para. 98 (citing Prosecutor v. Blaškić, No. IT-95-14-AR 108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, para. 41(2) (Oct. 29, 1997)).

176 Id. at 43, paras. 99–100.

177 E.g., Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, para. 34 (Dec. 12, 2011), at http://www.icc-cpi.int/iccdocs/doc/doc1287184.pdf (citing Antonio Cassese, International Criminal Law 312 (2d ed. 2008)).

178 Fifth Report on Immunity of State Officials, supra note 117, at 46–54, paras. 114–22.

179 Id. at 53–54, para. 121.

180 Id. at 48, para. 114 n.230 (listing Regina v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.); Re Pinochet, Tribunal de Premième Instance [Court of First Instance] Brussels, Nov. 6, 1998, 119 ILR 345 (Belg.); In re Hussein, Oberlandesgericht [Higher Regional Court] Cologne, May 16, 2000, No. 2 Zs 1330/99; In re Bouterse, Hof Amsterdam, Nov. 20, 2000, NJ 2001, 51, Eng. trans. at 2001 neth. Y.B. Int’l L. 266, aff ‘d, Hoge Raad [Supreme Court], Sept. 18, 2001, NJ 2002, 59, Eng. trans. at 2001 Neth. Y.B. Int’l L. 282; H.S.A. v. S.A. (Ariel Sharon), Cour de cassation, Feb. 12, 2003, No. P.02.1139.F, 127 ILR 110, 42 ILM 596 (2003) (Belg.); Peru v. Fujimori, Corte Suprema de Justicia [Supreme Court], July 11, 2007, No. 5646-05 (Chile);Hv. Public Prosecutor, Hoge Raad, July 8, 2008, No. 07/10063 (E), Int’l L. Domestic CTS. [ILDC] 1017 (Neth.); Lozano v. Italy, Corte suprema di cassazione, sez, un., July 24, 2008, No. 31171/2008, ILDC 1085 (It.); A. v. Office of the Public Prosecutor, Bundesstrafgericht [Federal Criminal Court], July 25, 2012, No. BB.2011.140 (Switz.); FF v. Director of Public Prosecutions (Prince Nasser case), [2014] EWHC (Admin) 3419 (Eng.)); id. at 50, para. 115 n.234 (listing Eichmann, supra note 128).

The only other criminal case cited in support of withholding immunity ratione materiae for “international crimes” is United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997), a case that concerned U.S. drug trafficking laws. See Fifth Report on Immunity of State Officials, supra note 117, at 52, para. 120 n.243. Additional cases cited earlier, id. at 50, para. 114 n.233, apparently did not involve any issue of claimed immunity. Other German cases are cited, id. at 50, para. 115 n.236, which concluded that “immunity is not applicable based on the fact that the State of the official no longer exists and that, therefore, the accused no longer has the status of [an] official.”

181 For the Commission's formulation of the required practice when identifying customary international law, see draft Conclusion 8(1) of the draft conclusions on identification of customary international law, 2016 Report, supra note 1, at 94 (“The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.”).

182 Fifth Report on Immunity of State Officials, supra note 117, at 49 n.231 (citing in part Adamov v. Fed. Office of Justice, Tribunal penale federale, Dec. 22, 2005, No 1A 288/2005, ILDC 339 (Switz.)); Fujimori, supra note 180; Nguema Obiang Mangue, Cour d’appel Paris, June 13, 2013 (Fr.)). These same three “corruption” cases are also cited later in this report as speaking to the denial of immunity of state officials “in the context of criminal proceedings,” along with a fragmentary reference to a U.S. case. Id. at 90, para. 230 n.352. The U.S. case, best cited as Doe I v. Li Qui, 349 F.Supp.2d 1258 (N.D. Cal. 2004), is neither a corruption case nor a criminal law case.

183 Fifth Report on Immunity of State Officials, supra note 117, at 49 n.232 (citing DC 10 UTA, Courd’assises [court of original jurisdiction] Paris, Mar. 10, 1999 (Fr.); R. v. Mafart (Rainbow Warrior case), [1985] NZHC243, 74 ILR 241 (1994) (N.Z.); Association des familles des victimes du Joola, Cour de cassation, Jan. 19, 2010,No.09-84818(Fr.), available at https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte_JURITEXT000021729943).

184 Id. at 48, para. 114 n.230 (citing Hussein, supra note 180).

185 Id. (citing Bouterse, supra note 180).

186 See cases cited at id. at 51–53, paras. 118–20 nn.239–40, 244.

187 Id. at 48–50, para. 114.

188 Id. at 87, para. 220.

189 Id. at 95, para. 249.

190 International Law Commission, Fourth Report on the Provisional Application of Treaties, at 38, para. 179, UN Doc. A/CN.4/699 (June 23, 2016) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo) [hereinafter Fourth Report on Provisional Application of Treaties]. The addendum to the report, UN Doc. A/CN.4/699/Add.1 (June 23, 2016), addresses examples of recent European Union practice on provisional application of agreements with third states.

191 2016 Report, supra note 1, at 365, para. 256.

192 For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 2, at 171–73; Murphy, Sixty-Fifth Session, supra note 2, at 53–54; Murphy, Sixty-Sixth Session, supra note 2, at 143–44; Murphy, Sixty-Seventh Session, supra note 2, at 842–43.

193 For the text of the draft guidelines, see 2016 Report, supra note 1, at 365, para. 257 n.1454.

194 Id. at 365–66, para. 257 n.1454.

195 Fourth Report on Provisional Application of Treaties, supra note 190, at 38.

196 Energy Charter Treaty, Art. 45(1), Dec. 17, 1994, 2080 UNTS 95, 34 ILM 360 (1995) (“Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.”).

197 See Yukos Universal Ltd. v. Russian Federation, PCA Case No. AA 227, Interim Award on Jurisdiction and Admissibility, para. 415 n.100 (Nov. 30, 2009), available at http://www.italaw.com/documents/YULvRussianFederation-InterimAward-30Nov2009.pdf.

198 See Russian Fed’n v. Veteran Petroleum Ltd., Rechtbank Den Haag [Hague District Court], Apr. 20, 2016, Nos. C/09/477160/HA ZA 15-1, C/09/477162/HA ZA 15-2, C/09/481619/HA ZA 15-112 (Neth.), available at http://uitspraken.rechtspraak.nl/inziendocument?id_ECLI:NL:RBDHA:2016:4230.

199 VCLT Article 46 indicates in part that a “State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.” VCLT, supra note 60, Art. 46, para. 1.

200 VCLT Article 25(2) provides: “Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.” VCLT, supra note 60, Art. 25, para. 2.

201 See 1 The Vienna Conventions on the Law of Treaties: A Commentary 646 (Oliver Corten & Pierre Klein eds., 2011) [hereinafter Vienna Conventions].

202 VCLT, supra note 60, Art. 27.

203 Vienna Conventions, supra note 201, at 646.

204 2016 Report, supra note 1, at 387, Annex A.

205 Id. at 400, Annex B.