The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC's Draft Articles on Crimes against Humanity

BIAZATTI, Bruno

doi:10.1093/ejil/chad024

Article (Scientific journals)

The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC's Draft Articles on Crimes against Humanity

BIAZATTI, Bruno

2023 • In European Journal of International Law, 34 (2), p. 449 - 489

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Keywords :

Political Science and International Relations; Law

Abstract :

[en] Treaty-making often occurs through the reuse of existing legal solutions. Instead of creating new language, drafters often replicate past treaty wording in the instrument under negotiation. The Draft Articles on Prevention and Punishment of Crimes against Humanity (DACaH), formulated by the International Law Commission (ILC or the Commission), were an example. This article evaluates the ILC's reliance on past treaty language to produce the DACaH. In addition to assessing some contextual reasons why, and the manner in which, the Commission used such a drafting approach, this article notes that, given its mandate as an expert body subsidiary to the United Nations General Assembly, the ILC may face specific challenges while using this technique. Taking the DACaH as a case study, the article also explores some pragmatic and normative considerations that may motivate or impact the replication of past treaty language in international law-making. In conclusion, the ILC's reliance on existing treaty wording to craft the DACaH was deeply consequential as it was part of the Commission's broader goal of placating states via the adoption of an effective, but minimalist and conformist, set of draft articles with greater chances of becoming a widely adhered to treaty.

Disciplines :

Criminal law & procedure

Author, co-author :

BIAZATTI, Bruno ; University of Luxembourg > Luxembourg Centre for European Law (LCEL) > LCEL Research ; Max Planck Institute Luxembourg, International European and Regulatory Procedural Law, Luxembourg ; Federal University of Minas Gerais, Brazil

External co-authors :

Language :

English

Title :

The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC's Draft Articles on Crimes against Humanity

Publication date :

May 2023

Journal title :

European Journal of International Law

ISSN :

0938-5428

eISSN :

1464-3596

Publisher :

Oxford University Press

Volume :

Issue :

Pages :

449 - 489

Peer reviewed :

Peer Reviewed verified by ORBi

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https://academic.oup.com/ejil/article-pdf/34/2/449/50829501/chad024.pdf

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Bibliography

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Allee and Elsig, ‘Are the Contents of International Treaties Copied and Pasted? Evidence from Preferential Trade Agreements’, 63(3) International Studies Quarterly (ISQ) (2019) 603, at 603; Carstens, ‘Interpreting Transplanted Treaty Rules’, in A. Bianchi, D. Peat and M. Windsor (eds), Interpretation in International Law (2015) 229, at 232.
Peacock, Milewicz and Snidal, ‘Boilerplate in International Trade Agreements’, 63(4) ISQ (2019) 923; Poulsen and Waibel, ‘Boilerplate in International Economic Law’, 115 American Journal of International Law (AJIL) Unbound (2021) 253; Waibel, ‘Fair and Equitable Treatment as Boilerplate’, 30(1) American Review of International Arbitration (2019) 85.
Ronald Dworkin stated: ‘[A]nalogy without theory is blind. An analogy is a way of stating a conclusion, not a way of reaching one, and theory must do the real work.’ Dworkin, ‘In Praise of Theory’, 29 Arizona State Law Journal (1997) 353, at 371. The same may be said about using previous treaty language as a drafting technique in international law-making.
See, e.g., Encarnacion, ‘Boilerplate Indignity’, 94(4) Indiana Law Journal (2019) 1305; Baird, ‘The Boilerplate Puzzle’, 104(5) Michigan Law Review (MLR) (2006) 933.
E. Raftopoulos, The Inadequacy of the Contractual Analogy in the Law of Treaties (1990); Hertogen, ‘The Persuasiveness of Domestic Law Analogies in International Law’, 29(4) European Journal of International Law (EJIL) (2018) 1127, at 1137–1138.
See, e.g., M.J. Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2012); Gilo and Porat, ‘The Hidden Roles of Boilerplate and Standard-Form Contracts: Strategic Imposition of Transaction Costs, Segmentation of Consumers, and Anticompetitive Effects’, 104(5) MLR (2006) 983.
Allee and Elsig, supra note 2, at 605; Peacock, Milewicz and Snidal, supra note 3; Poulsen and Waibel, supra note 3; Waibel, supra note 3; Alschner and Skougarevskiy, ‘Mapping the Universe of International Investment Agreements’, 19 Journal of International Economic Law (2016) 561. For some rare examples of studies on this topic not focused on economic law, see Carstens, supra note 2; Sivakumaran, ‘Techniques in International Law-Making: Extrapolation, Analogy, Form and the Emergence of an International Law of Disaster Relief’, 28(4) EJIL (2017) 1097, at 1116–1117; Ahlborn, ‘The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations: An Appraisal of the “Copy-Paste Approach”’, 9(1) International Organizations Law Review (2012) 53; Wiener, ‘Something Borrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law’, 27 Ecology Law Quarterly (2001) 1295.
For some rare examples of studies not focused on diplomatic law-making, see Sivakumaran, supra note 8, at 1116–1117; Ahlborn, supra note 8.
International Law Commission (ILC), Draft Articles on Prevention and Punishment of Crimes against Humanity, with Commentaries (DACaH), Report on the Work of Its Seventy-first Session, UN Doc. A/74/10 (2019), at 23.
ILC, 3468th Meeting, UN Doc. A/CN.4/SR.3468, 22 May 2019, at 14.
ILC, 3499th Meeting, UN Doc. A/CN.4/SR.3499, 5 August 2019, at 4.
For example, the Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/37/10, 1982, and the Draft Articles on the Responsibility of International Organizations, UN Doc. A/66/10, 2011, mirror, mutatis mutandis, the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, and the Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/83, 2001, respectively. The Draft Articles on the Law of Transboundary Aquifers, UN Doc. A/63/10, 2008, have several provisions analogous to the Convention on the Law of the Non-Navigational Uses of International Watercourses 1997, 2999 UNTS 77, which was adopted based on a set of ILC draft articles. The use of past language in the Draft Articles on the Protection of Persons in the Event of Disasters, UN Doc. A/71/10, 2016, was less prominent. Still, the ILC used analogies with international humanitarian law to formulate this draft. Möldner, ‘Responsibility of International Organizations: Introducing the ILC’s DARIO’, 16 Max Planck Yearbook of United Nations Law (2012) 281, at 322–323; F. Bordin, The Analogy between States and International Organizations (2018), at 35–47; Sivakumaran, supra note 8, at 1116–1117.
The exception was the Draft Articles on the Protection of Persons in the Event of Disasters. See note 13 above.
DACaH, supra note 10, at 23; ILC, Fourth Report on Crimes against Humanity (Fourth Report), UN Doc. A/CN.4/725 (2019), para. 19.
See section 2.B.
ILC, ‘Annex II: Crimes against Humanity (Mr. Sean D. Murphy)’, 2(2) ILCYearbook(2013) 93, at 95.
ILC, First Report on Crimes against Humanity (First Report), UN Doc. A/CN.4/680 (2015), para. 17; Statute of the International Criminal Court (Rome Statute) 1998, 2187 UNTS 3.
First Report, supra note 18, para. 20.
See section 3.
In 1997, Cherif Bassiouni identified 323 of them. M.C. Bassiouni (ed.), International Criminal Law Conventions and Their Penal Provisions (1997), at 1.
One could mention the following courts: the International Criminal Tribunal for the former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), the International Criminal Court (1998), the Special Panels for Serious Crimes in East Timor (2000), the Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2003) and the Special Tribunal for Lebanon (2007).
United Nations Convention against Transnational Organized Crime (UNCTOC) 2000, 2225 UNTS 209; United Nations Convention against Corruption (UNCAC) 2003, 2349 UNTS 41.
Šturma, ‘The International Law Commission and Its Impact: Some Comments’, in United Nations (UN) (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (2021) 154, at 155.
Secretariat of the ILC, ‘Introduction’, in UN, supra note 24, 1, at 14–19.
Ibid.
Murphy, ‘Striking the Right Balance for a Draft Convention on Crimes against Humanity’, Just Security, 17 September 2021, available at www.justsecurity.org/78257/striking-the-right-balance-fora-draft-convention-on-crimes-against-humanity/.
ILC, Second Report on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), UN Doc. A/ CN.4/585 (2007), paras. 18–19; ILC, Third Report on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), UN Doc. A/CN.4/603 (2008), paras. 110–111.
ILC, Fourth Report on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), UN Doc. A/ CN.4/648 (2011), para. 95.
ILC, Final Report of the Working Group on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), UN Doc. A/CN.4/L.844 (2014), para. 10.
ILC, 2011 Election of the International Law Commission, 2016, available at https://legal.un.org/ilc/elections/2011election.shtml.
ILC, Report of the Working Group on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), UN Doc. A/CN.4/L.829 (2013), para. 10.
Final Report on the Obligation to Extradite or Prosecute, supra note 30, para. 11.
Fourth Report, supra note 15, para. 19; DACaH, supra note 10, at 23.
Pellet, ‘Values and Power Relations: The “Disillusionment” of International Law?’, 34 KFG Working Paper Series (2019) 1, at 4–5; Krieger, ‘Populist Governments and International Law’, 30(3) EJIL (2019) 971; Lupel, ‘The Multilateralism Index: Measuring Transformation in a Time of Crisis and Uncertainty’, IPI Global Observatory, 9 January 2023, available at https://theglobalobservatory.org/2023/01/the-multilateralism-index-measuring-transformation-in-a-time-of-crisis-and-uncertainty/.
Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’, 11(3) Journal of International Criminal Justice (JICJ) (2013) 505, at 506–508.
C. Stahn, A Critical Introduction to International Criminal Law (2019), at 413.
DACaH, supra note 10, at 23.
The author acknowledges that there are numerous reasons besides the crisis of multilateralism to the complex phenomenon of the stagnation in traditional international law-making. See Pauwelyn, Wessel and Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’, 25(3) EJIL (2014) 733; Kravik, ‘An Analysis of Stagnation in Multilateral Law-Making – and Why the Law of the Sea Has Transcended the Stagnation Trend’, 34(4) Leiden Journal of International Law (LJIL) (2021) 935.
ILC, Remarks by Nolte, 3353rd Meeting, UN Doc. A/CN.4/SR.3353, 8 May 2017, at 14 (‘the Special Rapporteur had tried to meet that challenge [posed by the current unfavourable political climate] by proposing certain well-known and proven models and by leaving out certain potential sticking points’).
The words ‘positive’ and ‘negative’ are used here without implying any value judgement.
Murphy, supra note 27; ILC, Fourth Report on Crimes against Humanity, Addendum (Fourth Report Addendum), UN Doc. A/CN.4/725/Add.1 (2019).
Fourth Report, supra note 15, paras. 36, 38, 39, 52, 57, 66, 70, 72, 114, 125, 127, 150, 156, 166, 167, 170, 172, 173, 174, 179, 186, 190, 191, 216, 217, 223, 225, 231, 244, 247, 261, 262, 265, 266, 267, 281, 290, 291, 293, 305.
Ibid., para. 19; DACaH, supra note 10, at 23.
See section 2.A.
Fourth Report, supra note 15, paras. 19, 200; DACaH, supra note 10, at 23.
Jalloh, ‘The International Law Commission’s First Draft Convention on Crimes against Humanity: Codification, Progressive Development, or Both?’, 52 Case Western Reserve Journal of International Law (CWRJIL) (2020) 331, at 349–354.
DACaH, supra note 10, at 23; Fourth Report, supra note 15, para. 19.
The ILC did not apply this clear-cut separation into two distinct phases in a rigorous and express manner in its work pertaining to the DACaH. The author established this division for analytical purposes, taking into account the nature and objective of the requirements used by the ILC to select existing treaty language for inclusion in the Draft.
DACaH, supra note 10, at 23; Fourth Report, supra note 15, para. 19.
On the relationship between legitimacy and the methods of treaty-making, see A. Boyle and C. Chinkin, The Making of International Law (2007), at 99–103; Azaria, ‘The Working Methods of the International Law Commission: Adherence to Methodology, Commentaries and Decision-Making’, in UN, supra note 24, 172.
Fourth Report Addendum, supra note 42, at 2.
Ibid.
As for the number of states parties of each treaty discussed in this section, the author presented the number provided by the ILC as of 9 November 2018, the time of the drafting of the DACaH.
See, e.g., DACaH, supra note 10, Article 4 (obligation of prevention), Article 7 (establishment of national jurisdiction), Article 9 (preliminary measures when an alleged offender is present), Article 10 (aut dedere aut judicare) and Article 11 (fair treatment of the alleged offender). Fourth Report Addendum, supra note 42, at 10–13, 23–29, 31–45.
Fourth Report Addendum, supra note 42, at 7–9. Figure 1 indicates that Article 2 of the DACaH was based on two treaties. This is because Article 2(3) was based on the Rome Statute, supra note 18, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984, 1465 UNTS 85. However, the definition of crimes against humanity as such (Article 2(1)–(2), DACaH) was, indeed, based solely on the Rome Statute.
While Article 12(3) of the DACaH proposed a comprehensive reparative framework, inspired by Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) 2006, 2716 UNTS 3, other conventions on crimes addressed only compensation. Fourth Report Addendum, supra note 42, at 49; ILC, Third Report on Crimes against Humanity (Third Report), UN Doc. A/CN.4/704 (2017), para. 190.
Fourth Report Addendum, supra note 42, at 14.
Ibid., at 22.
Ibid., at 58.
Ibid., at 60.
Ibid., at 61–65.
Ibid., at 80–82.
Ibid., at 83.
See, e.g., note 73 below.
They were the Charter of the Tokyo Tribunal 1946, TIAS No 1589; Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN Doc. A/ CN.4/34, 1950; Draft Code of Offences against the Peace and Security of Mankind, UN Doc. A/CN.4/88, 1954; Draft Code of Crimes against the Peace and Security of Mankind, UN Doc. A/51/10, 1996; Model Treaty on Mutual Assistance in Criminal Matters, GA Res. 45/117, 14 December 1990; Statute of the International Criminal Tribunal for the Former Yugoslavia 1993, 32 ILM 1159 (1993); Statute of the International Criminal Tribunal for Rwanda 1994, 33 ILM 1598 (1994).
See Figure 1.
As exceptions, the ILC relied on the Convention Relating to the Status of Refugees 1951, 189 UNTS 150, and the Vienna Convention on Consular Relations 1963, 596 UNTS 261, to frame the provisions on non-refoulement and consular assistance of the DACaH, respectively. However, the Commission referred to conventions addressing crimes alongside these two treaties. DACaH, supra note 10, Arts. 5, 11(2); Fourth Report Addendum, supra note 42, at 14, 43-45.
Such as the ICPPED, supra note 57, and the CAT, supra note 56.
Fourth Report Addendum, supra note 42.
Ibid.
The top 10 treaties most referred to were the ICPPED, supra note 57 (59 states parties/ used 23 times by the ILC); UNCTOC, supra note 23 (189 states parties/ used 21 times); UNCAC, supra note 23 (186 states parties/ used 21 times); CAT, supra note 56 (165 states parties/ used 20 times), 1999 International Convention for the Suppression of the Financing of Terrorism 1999, 2178 UNTS 197 (188 states parties/ used 14 times); International Convention for the Suppression of Terrorist Bombings 1997, 2149 UNTS 256 (170 states parties/ used 13 times); International Convention against the Taking of Hostages 1979, 1316 UNTS 205 (176 states parties/ used 11 times); Convention for the Suppression of Unlawful Seizure of Aircraft 1970, 860 UNTS 105 (185 states parties/ used 10 times); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents 1973, 1035 UNTS 167 (180 states parties/ used 10 times); Rome Statute, supra note 18 (123 states parties/ used nine times); and the IACAT, supra note 65 (18 states parties/ used nine times).
Fourth Report Addendum, supra note 42.
First Report, supra note 18, paras. 85–88; Third Report, supra note 57, paras. 158–167; Fourth Report, supra note 15, para. 207.
If one adds the ICPPED, the average adherence of the top 10 universal treaties most referred to falls to 162 states parties (84 per cent of the total UN membership).
See note 73 above.
The exception to this trend was the ICPPED due to its limited adherence.
For the number of times the ILC referred to each of these treaties, see note 73 above.
DACaH, supra note 10, at 23; Fourth Report, supra note 15, para. 19.
This acceptability pre-judgement was very prominent, for example, for the replication of the definition of crimes against humanity from Article 7 of the Rome Statute in Article 2 of the DACaH; the decision not to add overly prescriptive language on the different forms of individual criminal responsibility in Article 6(2) of the DACaH; the broad standard of cooperation in the context of mutual legal assistance under Article 14(1) of the DACaH; and the non-inclusion of certain unsettled issues, such as immunity and civil jurisdiction. Fourth Report, supra note 15, paras. 55, 137, 261, 146, 149.
Murphy, supra note 27.
See section 2.B.1.
Fourth Report, supra note 15, paras. 137, 179, 247, 261–262, 266–267.
Murphy, supra note 27 (‘there is nothing unusual about the ILC’s text; the only thing new is the application of such provisions to crimes against humanity’).
See section 3.B.2.a.ii.
ILC, Remarks by Forteau, 3297th Meeting, UN Doc. A/CN.4/SR.3297, 12 May 2016, at 3; ILC, Remarks by Michael Wood, 3298th Meeting, UN Doc. A/CN.4/SR.3298, 13 May 2016, at 15; ILC, Remarks by Escobar Hernández, 3350th Meeting, UN Doc. A/CN.4/SR.3350, 3 May 2017, at 3.
ILC, Remarks by Rajput, 3454th Meeting, UN Doc. A/CN.4/SR.3454, 30 April 2019, at 14.
Whether in a conference of plenipotentiaries or in an international organization.
For an assessment of the particular role of experts in international law, see D. Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (2016).
Pellet, ‘Responding to New Needs through Codification and Progressive Development’, in V. Gowlland-Debbas (ed.), Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in International Legislative Process (2000) 13, at 16; Tomuschat, ‘The International Law Commission: An Outdated Institution’, 49 German Yearbook of International Law (GYIL) (2006) 77, at 81 (‘it is lawyers’ law upon which [the ILC] can pronounce authoritatively’).
Chen, ‘Between Codification and Legislation: A Role for the International Law Commission as an Autonomous Law-Maker’, in UN, supra note 24, 233, at 263.
Cogan, ‘The Changing Form of the International Law Commission’s Work’, in R. Virzo and I. Ingravallo (eds), Evolutions in the Law of International Organizations (2015) 275.
Voulgaris, ‘The International Law Commission and Politics: Taking the Science Out of International Law’s Progressive Development’, 33(3) EJIL (2022) 761, at 772.
Ibid., at 772–773; Pellet, supra note 91, at 16.
Pellet, ‘Between Codification and Progressive Development of the Law: Some Reflections from the ILC’, 6(1) International Law Forum du Droit International (2004) 15, at 20.
Ibid.
Ibid. For a different position, see Lauterpacht, ‘Codification and Development of International Law’, 49(1) AJIL (1955) 16, at 29 (‘unlike codification in other fields, codification of international law must be substantially legislative in nature. It must consist essentially in inducing governments (or some governments) to accept new law’).
See section 2.B.2.
In fact, assessing political acceptability as an inner component of the ILC’s drafting process was not endemic to the DACaH, but has been described as a persistent feature in the ILC’s work throughout the decades. See Voulgaris, supra note 94, at 778; B.G. Ramcharan, The International Law Commission: Its Approach to the Codification and Progressive Development of International Law (1977), at 132–133; J. S. Morton, The International Law Commission of the United Nations (2000), at 112.
Voulgaris answered in the affirmative, claiming that, given the ILC’s focus on the acceptability of the DACaH, ‘it is highly unlikely that the Commission’s articles will be converted to a convention’. Voulgaris, supra note 94, at 778.
See section 3.B.2.a.
Third Report, supra note 57, paras. 281–284, 286–289, 297; Fourth Report, supra note 15, paras. 146, 149, 303–305.
Jalloh, supra note 47, at 397–400; Sadat, ‘A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes against Humanity’, 16(4) JICJ (2018) 683, at 696–700; Kreß and Garibian, ‘Laying the Foundations for a Convention on Crimes against Humanity: Concluding Observations’, 16(4) JICJ (2018) 909, at 939–952; Relva, ‘Three Propositions for a Future Convention on Crimes against Humanity: The Prohibition of Amnesties, Military Courts, and Reservations’, 16(4) JICJ (2018) 857, at 860–868; Nouwen, ‘Is There Something Missing in the Proposed Convention on Crimes against Humanity? A Political Question for States and a Doctrinal One for the International Law Commission’, 16(4) JICJ (2018) 877, at 898–903, 906–907.
ILC, Remarks by Escobar Hernández, 3366th Meeting, UN Doc. A/CN.4/SR.3366, 1 June 2017, at 8; ILC, Remarks by Jalloh, 3366th Meeting, UN Doc. A/CN.4/SR.3366, 1 June 2017, at 7.
Nouwen, supra note 104, at 907.
See section 2.B.2. This framing of the acceptability pre-judgement in terms of widely adhered to past treaty language could be perceived as an attempt by the ILC to place its choices regarding the DACaH in the universe of political decisions that are tolerable to be taken by lawyers involved in a codification or progressive development project. Voulgaris, supra note 94, at 773.
Jalloh, supra note 47, at 352.
Wood, ‘The UN International Law Commission and Customary International Law’, Gaetano Morelli Lectures, ‘Sapienza’ University of Rome (2017), para. 12, available at www.scienzegiuridiche.uniroma1.it/sites/default/files/varie/GML/2017/GML_2017-Wood.pdf.
Sadat, ‘Little Progress in the Sixth Committee on Crimes against Humanity’, 54 CWRJIL (2022) 89, at 98–101.
Ibid., at 104–105.
Ramcharan, supra note 100, at 88–89; Alabrune, ‘Presentation by François Alabrune’, in UN, supra note 24, 51, at 52–53.
See section 2.B.
UN, Remarks by Geng (China), 8th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/76/SR.8, 13 October 2021, para. 54; UN, Remarks by Bhat (India), 8th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/76/SR.8, 13 October 2021, para. 95; UN, Remarks by Bagherpour Ardekani (Iran), 20th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/72/SR.20, 25 October 2017, para. 34.
ILC, Remarks by Murase, 3296th Meeting, UN Doc. A/CN.4/SR.3296, 11 May 2016, at 11–12; ILC, Remarks by Huang, 3352nd Meeting, UN Doc. A/CN.4/SR.3352, 5 May 2017, at 9–11.
Remarks by Murase, supra note 115, at 11–12.
Ibid.
Ibid. Murase’s concerns may echo Nikolaos Voulgaris’ conclusion that ‘[s]ince the ILC is not prima facie a legislative organ, state authorization to engage in “legislation” must be given in unequivocal terms and cannot be presumed when not clearly endorsed’. Voulgaris, supra note 94, at 779.
ILC, Remarks by Murphy (Special Rapporteur), 3301st Meeting, UN Doc. A/CN.4/SR.3301, 19 May 2016, at 4; Statute of the International Law Commission (ILC Statute), GA Res. 174 (II), 21 November 1947.
Rosenne, ‘The Role of the International Law Commission’, 64(4) AJIL (1970) 24; Ziemele, ‘The Functions of the International Law Commission: Identifying Existing Law or Proposing New Law?’, in UN, supra note 24, 265; Rodiles, ‘The International Law Commission and Change: Not Tracing but Facing It’, in UN, supra note 24, 115; Berman, ‘The ILC within the UN’s Legal Framework: Its Relationship with the Sixth Committee’, 49 GYIL (2006) 107.
This article does not aim at being exhaustive in identifying these factors.
Neuhold, ‘The Inadequacy of Law-Making by International Treaties: “Soft Law” as an Alternative?’, in W. Rudiger and V. Roeben (eds), Developments of International Law in Treaty Making (2005) 39, at 40–43.
Allee and Elsig, supra note 2, at 605, 611; Carstens, supra note 2, at 232–233; Poulsen and Waibel, supra note 3, at 254.
Peacock, Milewicz and Snidal, supra note 3.
Ibid., at 395.
ILC, Remarks by Murphy (Special Rapporteur), 3354th Meeting, UN Doc. A/CN.4/SR.3354, 9 May 2017, at 3.
Jalloh, supra note 47, at 348.
On 18 July 2014, the ILC included the topic ‘Crimes against humanity’ in its programme of work and appointed Sean Murphy as the special rapporteur. On 5 August 2019, the ILC decided to recommend the adoption of a convention by the United Nations General Assembly or by an international conference of plenipotentiaries on the basis of the DACaH. ILC, 3227th Meeting, UN Doc. A/CN.4/3227, 18 July 2014; ILC, 3499th Meeting, UN Doc. A/CN.4/SR.3499, 5 August 2019.
Such as: (i) the special rapporteur’s decision to write only four reports on crimes against humanity; (ii) the fruitful engagement with states and other stakeholders throughout the drafting of the DACaH; and (iii) the development and specification of norms on crimes against humanity over decades, through national legislation and case law of international, hybrid and domestic courts.
DACaH, supra note 10, Art. 2.
Fourth Report, supra note 15, para. 55.
Sadat, supra note 104, at 696.
For an assessment of the shortcomings of this definition, see ibid.; Bolton, ‘The Proposed Convention on the Prevention and Punishment of Crimes against Humanity: Developments and Deficiencies’, in M. Bergsmo and S. Tianying (eds), On the Proposed Crimes against Humanity Convention (2014) 369, at 376–385.
See section 2.C.
Third Report, supra note 57, para. 297.
On the distinction between blanket and conditional amnesties, see Ambos, ‘The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’, in K. Ambos, J. Large and M. Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Conflict Resolution and Development (2009) 19; Dugard, ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’, 12(4) LJIL (1999) 1001.
ILC, Remarks by Grossman Guiloff, 3351st Meeting, UN Doc. A/CN.4/SR.3351, 4 May 2017, at 10; ILC, Remarks by Saboia, 3351st Meeting, UN Doc. A/CN.4/SR.3351, 4 May 2017, at 10; ILC, Remarks by Peter, 3352nd Meeting, UN Doc. A/CN.4/SR.3352, 5 May 2017, at 8. Contrariwise, Michael Wood maintained that this study was unnecessary and that the ILC should not pursue the matter of amnesty further due to its complexity and largely political nature. ILC, Remarks by Michael Wood, 3352nd Meeting, UN Doc. A/CN.4/SR.3352, 5 May 2017, at 4.
ILC, Remarks by Rajput (Chairman of the Drafting Committee), 3366th Meeting, UN Doc. A/CN.4/ SR.3366, 1 June 2017, at 6–7.
ILC, Remarks by Escobar Hernández, 3366th Meeting, UN Doc. A/CN.4/SR.3366, 1 June 2017, at 8; ILC, Remarks by Jalloh, 3366th Meeting, UN Doc. A/CN.4/SR.3366, 1 June 2017, at 7.
ILC, Remarks by Nolte, 3455th Meeting, UN Doc. A/CN.4/SR.3455, 1 May 2019, at 13; ILC, Remarks by Galvão Teles, 3456th Meeting, UN Doc. A/CN.4/SR.3456, 2 May 2019, at 4; ILC, Remarks by Petrič, 3457th Meeting, UN Doc. A/CN.4/SR.3457, 3 May 2019, at 10; ILC, Remarks by Escobar Hernández, 3457th Meeting, UN Doc. A/CN.4/SR.3457, 3 May 2019, at 16; ILC, Remarks by Laraba, 3458th Meeting, UN Doc. A/CN.4/SR.3458, 7 May 2019, at 7. On the other hand, Jalloh supported the inclusion in the DACaH of an outright prohibition to amnesties covering crimes against humanity. ILC, Remarks by Jalloh, 3458th Meeting, UN Doc. A/CN.4/SR.3458, 7 May 2019, at 14.
DACaH, supra note 10, at 95–98.
Sadat, supra note 110.
GA Res. A/RES/77/249, 9 January 2023.
ILC, Remarks by Rajput, 3454th Meeting, UN Doc. A/CN.4/SR.3454, 30 April 2019, at 14; ILC, Remarks by Petrič, 3457th Meeting, UN Doc. A/CN.4/SR.3457, 3 May 2019, at 8. Contrariwise, Huikang claimed that the use of past language would result in lack of state support. ILC, Remarks by Huikang, 3458th Meeting, UN Doc. A/CN.4/SR.3458, 7 May 2019, at 4.
Carstens, supra note 2, at 233.
The same effect might occur with transplanting into the instrument under negotiation language from treaty provisions with multiple reservations. The reserving states might once again oppose the transplanted provisions that they previously reserved in the borrowed treaties and that are now in the new treaty.
Alschner and Skougarevskiy, supra note 8, at 566; Poulsen and Waibel, supra note 3, at 255.
Poulsen and Waibel, supra note 3, at 255.
Peacock, Milewicz and Snidal, supra note 3, at 925.
Ibid.
Allee and Elsig, supra note 2, at 605.
Allee and Elsig mentioned the example of South Africa, which incorporated dispute settlement language from its bilateral investment treaty with the United Kingdom into treaties with other states. It was only years later, when South Africa was sued for a massive amount, that it realized the high costs of that decision. Ibid. In a broader finding, Poulsen noted this uncritical borrowing of language as a dangerous trend in investment treaties in developing states. L.N.S. Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (2015), at 19; Poulsen, ‘Bounded Rationality and the Diffusion of Modern Investment Treaties’, 58(1) ISQ 2014 1.
Carstens, supra note 2, at 247; see also MOX Plant (Ireland v. United Kingdom) – Order of Provisional Measures, 3 December 2001, ITLOS Reports (2001) 95, para. 51; ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/ CN.4/L.682 (2006), para. 12.
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 December 1980, ICJ Reports (1980) 73. The impact of the use of past language in treaty interpretation was central to this case because the text of the provision of the host agreement between the World Health Organization (WHO) and Egypt that was the object of the advisory opinion mirrored the host agreement between the WHO and Switzerland, which in turn was originally patterned on the host agreement between the International Labour Organization and Switzerland.
Carstens, supra note 2, at 240–243, 245–247.
According to Carstens, ‘[i]ncomplete borrowing occurs where the source rule has been adopted without corresponding provisions that are necessary to its application or understanding. This may occur either because the drafters of the treaty under interpretation failed to transfer all the corresponding provisions from the source treaty or because the adapted context does not possess the necessary framework for the rule without the addition of further provisions’. Ibid., at 234.
Ibid., at 243, 246–247.
See section 2.B.1.
Sadat, supra note 110, at 97–105.
GA Res. A/RES/77/249, 9 January 2023.
Fourth Report Addendum, supra note 42, at 3–4, 8–9, 16–17, 20, 48.
UN, Remarks by Abdelaziz (Egypt), 8th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/76/SR.8, 13 October 2021, para. 44; UN, Remarks by Puentes (Cuba), 8th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/76/SR.8, 13 October 2021, para. 51; UN, Remarks by Geng (China), 8th Meeting, UNGA Sixth Committee, UN Doc. A/C.6/76/SR.8, 13 October 2021, para. 54.
ILC, Remarks by Nguyen, 3455th Meeting, UN Doc. A/CN.4/SR.3455, 1 May 2019, at 7 (Nguyen is national of Viet Nam, a non-state party to the Rome Statute).
Fourth Report, supra note 15, paras. 20–21.
DACaH, supra note 10, at 37–42.
W. Schabas, International Criminal Court: A Commentary on the Rome Statute (2nd edn, 2016), at 157–164; Ambos et al., ‘Article 7 Crimes against Humanity’, in K. Ambos (ed.), Rome Statute of the International Criminal Court, Article-by-Article Commentary (4th edn, 2021) 135, at 254–264.
Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’, Ntaganda (ICC-01/04-02/06-2666-Red), Appeals Chamber, 30 March 2021, Separate Opinion of Judge Luz Del Carmen Ibáñez Carranza on Mr Ntaganda’s Appeal, para. 99.
Chaitidou, ‘The ICC Case Law on the Contextual Elements of Crimes against Humanity’, in M. Bergsmo and S. Tianying (eds), On the Proposed Crimes against Humanity Convention (2014) 47, at 100–101.
As proposed by Mexico and Chile. Fourth Report, supra note 15, para. 69.
As proposed by Estonia. Ibid.
See section 3.B.2.b.ii.
DACaH, supra note 10, at 23.
The ILC has often justified the use of language from treaties dealing with crimes that are different from crimes against humanity on the assumption that the replicated legal solution could be applied to any crime. This reasoning justified, for example, mirroring Arts. 13 and 14 of the DACaH (extradition and mutual legal assistance, respectively) on Arts. 44 and 46 of the UNCAC, respectively. Third Report, supra note 57, paras. 83, 152.
Peacock, Milewicz and Snidal, supra note 3, at 925, 935; Alschner and Skougarevskiy, supra note 8, at 565. Allee and Elsig cautiously agree, on a tentative level, with the harmonizing potential of relying on past language, but they pointed to the need for more research. Allee and Elsig, supra note 2, at 611.
Peacock, Milewicz and Snidal, supra note 3, at 935.
Poulsen and Waibel mentioned as an example of this ‘network effect’ the consequences of Case C-284/16 (Slovak Republic v. Achmea), in which the Court of Justice of the European Union ruled in 2018 that boilerplate language on investor-state arbitration in the Netherlands-Slovakia Bilateral Investment Treaty 1991, 2242 UNTS 205, was invalid under European Union (EU) law. This ruling had a reverberating effect, potentially impacting all treaties within the EU with analogous language. Accordingly, more than 100 of these treaties were terminated soon after, via the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union 2020, (2021) 60 ILM 99. Poulsen and Waibel, supra note 3, at 255.
Alschner and Skougarevskiy, supra note 8, at 565.
Carstens, supra note 2, at 231, 242.
Ibid., at 231.
Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua intervening), Judgment, 11 September 1992, ICJ Reports (1992) 350, para. 374; Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment, 2 February 2017, ICJ Reports (2017) 3, para. 91.
Carstens, supra note 2, at 233–235. See section 3.A.2.a.
DACaH, supra note 10, at 22–23; Third Report, supra note 57, para. 197; First Report, supra note 18, para. 20.
First Report, supra note 18, paras. 20–26.
Ibid., para. 26.
ILC, Remarks by McRae, 3298th Meeting, UN Doc. A/CN.4/SR.3298, 13 May 2016, at 14.
See also Chaitidou, supra note 170, at 100–101.
See section 3.A.2.a.
ILC, Remarks by Michael Wood, 3454th Meeting, UN Doc. A/CN.4/SR.3454, 30 April 2019, at 13.
Alschner and Skougarevskiy, supra note 8, at 565.
Allee and Elsig, supra note 2, at 605.
Kennedy, supra note 90, at 7.
Ibid.
Ibid.
Allee and Elsig, supra note 2, at 611.
Dire Tladi raised this point regarding conflicting requests of extradition, an issue not addressed in the DACaH. ILC, Remarks by Tladi, 3348th Meeting, UN Doc. A/CN.4/SR.3348, 1 May 2017, at 8.
Allee and Elsig, supra note 2, at 611.
UN, Survey of International Law in Relation to the Work of Codification of the International Law Commission, UN Doc. A/CN.4/1/Rev.1 (1949), para. 13 (‘[c]odification which constitutes a record of the past rather than a creative use of the existing materials – legal and others – for the purpose of regulating the life of the community is a brake upon progress’).
ILC, Crimes against Humanity: Comments and Observations Received from Governments, International Organizations and Others (Comments and Observations), UN Doc. A/CN.4/726 (2019), at 37.
Ibid., at 33.
Art. 7(3) of the Rome Statute, supra note 18, defines ‘gender’ as ‘the two sexes, male and female, within the context of society’. For a critical assessment of this definition, see Oosterveld, ‘The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’, 18 Harvard Human Rights Journal (2005) 55.
Fourth Report, supra note 15, para. 215; Vienna Convention on Consular Relations, supra note 69.
DACaH, supra note 10, Art. 5; Jöbstl, ‘An Unforeseen Pandora’s Box? Absolute Non-Refoulement Obligations under Article 5 of the ILC Draft Articles on Crimes against Humanity’, EJIL: Talk! (20 May 2019), available at www.ejiltalk.org/an-unforeseen-pandoras-box-absolute-non-refoulement-obligations-under-article-5-of-the-ilc-draft-articles-on-crimes-against-humanity/.
DACaH, supra note 10, Art. 12(3); Third Report, supra note 57, paras. 186–195.
DACaH, supra note 10, Arts. 6(8), 6(6).
UN, Remarks by Xu (China), 22nd Meeting, UNGA Sixth Committee, UN Doc. A/C.6/70/SR.22, 6 November 2015, para. 64.
Although Art. 6(c) of the Charter of the Nuremberg Tribunal linked crimes against humanity to the existence of an armed conflict, a relevant breakthrough in Art. 7 of the Rome Statute was the confirmation that these crimes can occur in both armed conflicts and peace time.
Fourth Report, supra note 15, para. 57.
Amnesty International, UN: Time Has Come to Turn the Draft Articles on Prevention and Punishment of Crimes against Humanity, Duly Amended, into a UN Convention: Public Statement, Doc. IOR 40/3150/2020 (2020), available at https://www.amnesty.org/en/documents/ior40/3150/2020/en/.
Kreß and Garibian, supra note 104, at 957.
See sections 2.C and 3.A.1.b.
Third Report, supra note 57, paras. 286–289, 297; Fourth Report, supra note 15, para. 305.
ILC, Second Report on Crimes against Humanity, UN Doc. A/CN.4/690 (2016), para. 189.
Third Report, supra note 57, paras. 281–284.
Comments and Observations, supra note 200, at 102, 104, 108.
Art. 24(2) states: ‘Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.’
Fourth Report, supra note 15, para. 231; see also Naqvi, ‘The Right to the Truth in International Law: Fact or Fiction?’, 88 International Review of the Red Cross (2006) 245.
ECtHR, Case of Janowiec and Others v. Russia, Appls. nos. 55508/07 and 29520/09, Judgment of 21 October 2013, Joint Partly Dissenting Opinion of Judges Ziemele, De Gaetano, Laffranque and Keller, para. 9.
Fourth Report Addendum, supra note 42, at 49. See section 2.B.1.
Murphy, supra note 27.
Ibid.
Ibid.
Allee and Elsig, supra note 2, at 605; Carstens, supra note 2, at 233–235.
Carstens, supra note 2, at 235; Bergsmo and Tianying, ‘A Crimes against Humanity Convention after the Establishment of the International Criminal Court’, in M. Bergsmo and S. Tianying (eds), On the Proposed Crimes against Humanity Convention (2014) 1, at 15.
Allee and Elsig, supra note 2, at 605.
Carstens, supra note 2, at 235; ILC, Remarks by Hassouna, 3349th Meeting, UN Doc. A/CN.4/SR.3349, 2 May 2017, at 6.
Carstens, supra note 2, at 235.
Ibid., at 232–235; Remarks by Hassouna, supra note 229, at 6.
Allee and Elsig, supra note 2, at 605; ILC, Remarks by Jalloh, 3350th Meeting, UN Doc. A/CN.4/SR.3350, 3 May 2017, at 8.
As an example of a different value standpoint, in the 1990s, former communist states rushed to tighten their trade relations with Western states via agreements. For those former communist states, the priority was not to craft meaningfully tailored treaties but, rather, to rely on largely unaltered past language to achieve the conclusion of numerous treaties as soon as possible. In this case, due to political and economic incentives, it seems that quantity was the critical factor. Allee and Elsig, supra note 2, at 611; Poulsen and Waibel, supra note 3, at 254.
See section 3.B.3.a.
ILC, Remarks by Hassouna, 3298th Meeting, UN Doc. A/CN.4/SR.3298, 13 May 2016, at 3; ILC, Remarks by Park, 3349th Meeting, UN Doc. A/CN.4/SR.3349, 2 May 2017, at 8.
Such as Portugal and Sierra Leone. Comments and Observations, supra note 200, at 15, 17.
Ibid., at 15.
ILC, Remarks by Murphy (Special Rapporteur), 3354th Meeting, UN Doc. A/CN.4/SR.3354, 9 May 2017, at 3–5.
Third Report, supra note 57, paras. 83, 152.
ILC, Remarks by Nguyen, 3349th Meeting, UN Doc. A/CN.4/SR.3349, 2 May 2017, at 11; ILC, Remarks by Park, 3349th Meeting, UN Doc. A/CN.4/SR.3349, 2 May 2017, at 8; ILC, Remarks by Tladi, 3454th Meeting, UN Doc. A/CN.4/SR.3454, 30 April 2019, at 4; ILC, Remarks by Escobar Hernández, 3350th Meeting, UN Doc. A/CN.4/SR.3350, 3 May 2017, at 3; ILC, Remarks by Pavel Šturma, 3351st Meeting, UN Doc. A/CN.4/SR.3351, 4 May 2017, at 11.
ILC, Remarks by Nolte, 3353rd Meeting, UN Doc. A/CN.4/SR.3353, 8 May 2017, at 14.
ILC, Remarks by Rajput, 3353rd Meeting, UN Doc. A/CN.4/SR.3353, 8 May 2017, at 11; ILC, Remarks by Reinisch, 3350th Meeting, UN Doc. A/CN.4/SR.3350, 3 May 2017, at 7; ILC, Remarks by Kolodkin, 3351st Meeting, UN Doc. A/CN.4/SR.3351, 4 May 2017, at 3.
DACaH, supra note 10, Arts. 13–14.
Ibid., at 23. The following examples of modifications were made under this reasoning: (i) the connection with other core crimes as an element of persecution found in Art. 7(1)(h) of the Rome Statute was deleted in Art. 2(1)(h) of the DACaH; (ii) while the original text of the DACaH’s provision on the responsibility of commanders (Art. 6(3)) was based verbatim on Art. 28(a) of the Rome Statute, it was later replaced by a more streamlined provision; and (iii) unlike Art. 67 of the Rome Statute, Art. 11 of the DACaH does not contain a detailed list of rights to which a suspect or defendant is entitled. Fourth Report, supra note 15, paras. 92, 142, 212.
For example, in its reaction to Art. 6(8) of the DACaH (liability of legal persons), France proposed that this provision should mirror the lengthy and detailed language from Art. 5 of the International Convention for the Suppression of the Financing of Terrorism 1999, 2178 UNTS 197. The special rapporteur rejected France’s suggestion by recalling that, since ‘article 5 was crafted in the context of an act (financing of terrorism) that frequently involves legal persons (financial institutions), such … greater detail in that context may have been especially warranted’. Thus, Art. 6(8) of the DACaH contains a much more streamlined language in comparison to said Art. 5. Fourth Report, supra note 15, para. 156.
Fourth Report, supra note 15, paras. 68, 157. This reasoning justified the non-inclusion of provisions reflecting, for example, the in dubio pro reo and the ne bis in idem principles, suggested by the Nordic countries and Chile, respectively. Ibid., paras. 68, 206.
See section 3.B.3.b.
Peacock, Milewicz and Snidal, supra note 3, at 925; see also Allee and Elsig, supra note 2, at 605–606.
Peacock, Milewicz and Snidal, supra note 3, at 925.
Ibid., at 926.
Allee and Elsig, supra note 2, at 606.
Ibid.
Kennedy, supra note 90, at 7.
Schachter, ‘International Law in Theory and Practice’, 178(5) Recueil des Cours (1982) 13, at 96.
M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006), at 606–607; Schachter, ‘The Nature and Process of Legal Development in International Society’, in R. St. J. MacDonald and D.M. Johnston (eds), The Structure and Process of International Law (1983) 745, at 751–754.
Peacock, Milewicz and Snidal, supra note 3, at 935.
Ibid.
Allee and Elsig, supra note 2, at 611.
Ibid.
Ibid.; Peacock, Milewicz and Snidal, supra note 3, at 935.
Koskenniemi, supra note 255, at 21–22. In light of its indeterminacy, Koskenniemi concluded ‘that international law is singularly useless as a means for justifying or criticizing international behaviour’. Ibid., at 67.
Ibid., at 606–607.
Ibid., at 607.
Koskenniemi, ‘The Politics of International Law: 20 Years Later’, 20 EJIL (2009) 7, at 9.
Koskenniemi, supra note 255, at 606–607.
Koskenniemi, supra note 264, at 9.
Koskenniemi, supra note 255, at 610.
Koskenniemi, supra note 264, at 11–12.
Koskenniemi defined the ‘politics of re-definition’ as ‘the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias. Here, only imagination sets the limit’. Ibid., at 11.
Koskenniemi referred to this phenomenon as ‘hegemonic contestation’: ‘[T]he process by which international actors routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents. … To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their partial view of that meaning appear as the total view, their preference seem like the universal preference.’ Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, 17(2) Cambridge Review of International Affairs (2004) 197, at 199.
Koskenniemi, supra note 264, at 11–12.
Murphy, supra note 27.
See section 3.B.2.a.ii.
See Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’, 27 Sydney Law Review (2005) 5, at 11.
Koskenniemi, supra note 264, at 11–12.
Ibid., at 9.
See sections 2.A and 2.C.
Ramcharan, supra note 100, at 132–133; Morton, supra note 100, at 112.
Murphy’s Proposal of Topic, supra note 17, at 93. Georg Nolte summarized the ILC’s level of pressure in drafting the DACaH as follows: ‘[I]f a convention on crimes against humanity was not widely ratified, or if the ratification process languished for a long time, it might affect the working and perception of international criminal justice more generally. The Commission had no option but to make the project a success.’ ILC, Remarks by Nolte, 3353rd Meeting, UN Doc. A/CN.4/SR.3353, 8 May 2017, at 15.
ILC, Remarks by McRae, 3298th Meeting, UN Doc. A/CN.4/SR.3298, 13 May 2016, at 13.
See section 2.B.1.
ILC, Remarks by Murphy (Special Rapporteur), 3301st Meeting, UN Doc. A/CN.4/SR.3301, 19 May 2016, at 5.
See section 2.B.1.
As noted by Koskenniemi, ‘[f]ormalism can no longer be blind to its own politics. Having shed the pretensions of objectivity it must enter the political terrain with a programme of openness and inclusiveness, no longer interpreted as effects of neutral reason but of political experience and utopian commitment’. Koskenniemi, ‘“The Lady Doth Protest Too Much”: Kosovo, and the Turn to Ethics in International Law’, 65(2) Modern Law Review (2002) 159, at 174.
See sections 2.A and 2.C.
In fact, Voulgaris pointed out that ‘policy considerations have taken centre stage in the day-to-day work of the ILC’. Voulgaris, supra note 94, at 774; see also Morton, supra note 100, at 112.
Alschner and Skougarevskiy, supra note 8, at 566.
See sections 2.A and 2.C.
See section 2.C.2.
See section 3.B.2.a.ii.
Voulgaris, supra note 94, at 781.
Simma, ‘Consent: Strains in the Treaty System’, in MacDonald and Johnston, supra note 255, 484, at 487–494.
Murphy, supra note 27.