The International Law Commission (ILC) issued its 2021 report (ILC Report) on September 10, 2021. The ILC Report reviews the status of the current topics in its program of work, the selection of which is governed by the Statute of the International Law Commission, which was adopted by the United Nations General Assembly in 1947. The current topics of study for the ILC are the immunity of state officials from foreign criminal jurisdiction, provisional application of treaties, protection of the environment in relation to armed conflicts, protection of the atmosphere, peremptory norms of general international law (jus cogens), succession of states in respect of state responsibility, general principles of law, and sea-level rise in relation to international law.
The 2021 ILC Report also includes a new topic for study — subsidiary means for the determination of rules of international law — to be included in the ILC’s work on the codification and progressive development in international law in relation to the classical topic of sources of international law.
Specific Issues for States’ Comments
In its 2021 report, the ILC reiterated its 2019 request for state comments on the topics of immunity of state officials from foreign criminal jurisdiction and general principles of law. In addition, the ILC requested information from states on their practice relevant to the applicable law in the case of succession of states, including treaties, domestic law, and decisions of domestic, regional, and subregional courts and tribunals. The ILC also indicated its desire for information from states and international organizations on their practice and other relevant information regarding sea-level rise in relation to international law.
Proposal of New Topic for ILC Study
In addition to the existing program of work of the ILC, ILC member Professor Charles C. Jalloh proposed a new topic for study — subsidiary means for the determination of rules of international law based on article 38(1)(d) of the Statute of the International Court of Justice (ICJ). Article 38(1)(d) provides that the ICJ must apply, in relevant part, “subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.”
In his proposal, Jalloh outlines how the ILC has devoted significant time in studying other sources of international law indicated in Article 38(1) — international conventions, international custom, and general principles of law. However, Jalloh argues that the topic on subsidiary means for the determination of rules of international law fulfills the ILC’s criteria for new topics because (1) it reflects the needs of states in respect of the progressive development of international law and its codification, (2) it is a sufficiently advanced topic in terms of state practice to permit progressive development and codification, and (3) it is concrete and feasible for progressive development and codification.
The proposed topic of subsidiary means for the determination of rules of international law has been included in the long-term program of work of the ILC.