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Peremptory Norms of General International Law (Jus Cogens) (Revisited) and Other Topics: The Seventy-Third Session of the International Law Commission

Published online by Cambridge University Press:  25 January 2023

Sean D. Murphy*
Affiliation:
Manatt/Ahn Professor of International Law, George Washington University, Washington D.C., United States, and member of the UN International Law Commission.

Extract

The International Law Commission (ILC) held its seventy-third session from April 18 to June 3 and from July 4 to August 5, 2022 in Geneva, under the chairmanship of Dire Tladi (South Africa). This session was the final one of the quinquennium, which originally would have occurred in the summer of 2021. (Since the Commission did not meet in the summer of 2020 due to the outbreak of the COVID-19 pandemic, the 2020 and 2021 sessions were postponed to 2021 and 2022 respectively.) Although the pandemic continued in 2022, the members faced fewer health risks and travel difficulties; consequently, the Commission held its session with almost all members physically present in Geneva, and just a few occasionally participating online by means of Zoom.

Type
Current Developments
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press for The American Society of International Law

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Footnotes

My thanks to George Mackie (LLM 2023) for assistance in preparing this Essay.

References

1 See Report of the International Law Commission on the Work of Its Seventy-Third Session, UN GAOR, 77th Sess., Supp. No. 10, at 2, para. 3, UN Doc. A/77/10 (2022) [hereinafter 2022 Report]. This report and other International Law Commission 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 See generally Murphy, Sean D., Effects of the COVID-19 Pandemic on the Work of the International Law Commission, 114 AJIL 726 (2020)CrossRefGoogle Scholar [hereinafter Murphy, Effects of the COVID-19 Pandemic].

3 For the text of the draft conclusions and annex, see 2022 Report, supra note 1, at 11–16; for the draft conclusions and annex with commentary, see id. at 16–89.

4 See International Law Commission, Fifth Report on Peremptory Norms of General International Law (Jus Cogens), UN Doc. A/CN.4/747 (Jan. 24, 2022) (prepared by Special Rapporteur Dire Tladi). For discussion of prior work on this topic, see Murphy, Sean D., Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission, 110 AJIL 718, 730–31 (2016)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Eighth Session]; Murphy, Sean D., Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission, 111 AJIL 970, 988–90 (2017)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Ninth Session]; Murphy, Sean D., Anniversary Commemoration and Work of the International Law Commission's Seventieth Session, 113 AJIL 90, 100–03 (2019)CrossRefGoogle Scholar [hereinafter Murphy, Seventieth Session]; Murphy, Sean D., Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission, 114 AJIL 68, 68–72 (2020)CrossRefGoogle Scholar [hereinafter Murphy, Seventy-First Session].

5 Peremptory Norms of General International Law (Jus Cogens): Comments and Observations Received from Governments, UN Doc. A/CN.4/748 (Mar. 9, 2022) [hereinafter Peremptory Norms, Comments and Observations].

6 See Peremptory Norms of General International Law (Jus Cogens), Statement of the Chair of the Drafting Committee, Mr. Ki-Gab Park, at 2 (May 17, 2022), at https://legal.un.org/ilc/documentation/english/statements/2022_dc_chairman_statement_jc.pdf [hereinafter Peremptory Norms, Statement of the Chair of the Drafting Committee].

7 Vienna Convention on the Law of Treaties, May 23, 1969, Art. 53, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT].

8 2022 Report, supra note 1, at 12 (draft conclusion 3).

9 Peremptory Norms, Comments and Observations, supra note 5, at 21–26.

10 See Peremptory Norms, Statement of the Chair of the Drafting Committee, supra note 6, at 2–3.

11 2022 Report, supra note 1, at 11 (draft conclusion 2).

12 Id. (draft conclusion 7) (emphasis added).

13 Id. at 40, para. (8) (commentary to draft conclusion 7).

14 Id. at 60, para. (12) (commentary to draft conclusion 14).

15 Id. at 13 (draft conclusion 8, para. 2) (“resolutions adopted by an international organization or at an intergovernmental conference; and other conduct of States”) (emphasis added); see Peremptory Norms, Statement of the Chair of the Drafting Committee, supra note 6, at 11 (“In the end, the Drafting Committee adopted the proposal of the Special Rapporteur to include a more all-encompassing reference to State conduct . . . .”).

16 2022 Report, supra note 1, at 15 (draft conclusion 20).

17 See VCLT, supra note 7, Arts. 65–67.

18 Peremptory Norms, Comments and Observations, supra note 5, at 90–98.

19 2022 Report, supra note 1, at 15–16 (draft conclusion 21).

20 Id. at 16 (draft conclusion 21, para. 3).

21 For reactions by states to this draft conclusion, see Peremptory Norms, Comments and Observations, supra note 5, at 74–80.

22 Chapter VII empowers the Council to adopt decisions to address threats to the peace, breaches of the peace and acts of aggression, including economic sanctions and authorizations to use military force. Article 25 provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Article 103 provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” UN Charter, at https://www.un.org/en/about-us/un-charter.

23 2022 Report, supra note 1, at 64, para. (5) (commentary to draft conclusion 16) (citations and footnotes omitted).

24 See, e.g., Peremptory Norms, Comments and Observations, supra note 5, at 84 (Colombia).

25 See, e.g., id. at 84 (Australia); id. at 87 (Netherlands).

26 See, e.g., id. at 85 (Israel).

27 Japan observed that:

in the advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, the International Court of Justice stated that all Member States are under an obligation to cooperate with the United Nations in order to complete decolonization, without referring to jus cogens. Similarly, according to the advisory opinion of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall,” but there was no explicit reference to jus cogens.

Id. at 87 (citation omitted); see also id. at 86 (Italy) (“In fact, both advisory opinions grounded the identification of legal consequences for third parties on the erga omnes nature of the obligations breached, rather than on the peremptory nature of the corresponding norm and/or the serious violation of those obligations/norms.”).

28 See, e.g., id. at 89 (United Kingdom).

29 2022 Report, supra note 1, at 73–74, para. (9) (commentary to draft conclusion 19).

30 GA Res. ES-11/3 (Apr. 8, 2022) (cited at 2022 Report, supra note 1, at 74, n. 251).

31 See International Law Commission, Provisional Summary Record of the 3599th Meeting, at 7–12, UN Doc. A/CN.4/SR.3599 (July 26, 2022); International Law Commission, Provisional Summary Record of the 3600th Meeting, at 7–10, UN Doc. A/CN.4/SR.3600 (July 27, 2022); International Law Commission, Provisional Summary Record of the 3601st Meeting, at 6–8, UN Doc. A/CN.4/SR.3601 (July 27, 2022). These summary records may be accessed at https://legal.un.org/ilc/sessions/73/docs.shtml.

32 2022 Report, supra note 1, at 11, para. 41.

33 See Statement by Mr. Matúš Košuth (Slovakia), Coordinator of the Draft Resolution on “Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens)” (Item 77) (Nov. 18, 2022), at https://www.un.org/en/ga/sixth/77/pdfs/statements/ilc/36mtg_slovakia_juscogens.pdf (“I regret to inform the Sixth Committee that, despite all these efforts, general agreement on the way forward has not yet been reached.”).

34 See Sixth Committee (Legal)—77th Session, Summaries of Meetings, 36th Plenary Meeting (Nov. 18, 2022), at https://www.un.org/en/ga/sixth/77/summaries.shtml (indicating adoption by the Sixth Committee of a draft resolution, which may be found in UN Doc. A/C.6/77/L.16 (Nov. 10, 2022), as amended orally on November 18 by the representative of Colombia with respect to treatment of the ILC topic on jus cogens). The official summary of this meeting will be issued in due course as UN Doc. A/C.6/77/SR.36.

35 For the text of the draft principles, see 2022 Report, supra note 1, at 92–96; for the draft principles with commentary, see id. at 96–187.

36 International Law Commission, Third Report on Protection of the Environment in Relation to Armed Conflicts, UN Doc. A/CN.4/750 (Mar. 16, 2022) (prepared by Special Rapporteur Marja Lehto) [hereinafter Third Report on Protection of the Environment in Relation to Armed Conflicts]. For discussion of prior work on these draft principles, see Sean D. Murphy, Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission, 108 AJIL 41, 55–56 (2014) [hereinafter Murphy, Sixty-Fifth Session]; Sean Murphy, D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 143 (2015)Google 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, 838–41 (2015)Google Scholar [hereinafter Murphy, Sixty-Seventh Session]; Murphy, Sixty-Eighth Session, supra note 4, at 731–32; Murphy, Sixty-Ninth Session, supra note 4, at 992; Murphy, Seventieth Session, supra note 4, at 103–04; Murphy, Seventy-First Session, supra note 4, at 72–75.

37 See Protection of the Environment in Relation to Armed Conflicts: Comments and Observations Received from Governments, International Organizations and Others, UN Doc. A/CN.4/749 (Jan. 17, 2022).

38 See, e.g., 2022 Report, supra note 1, at 102, n. 349; 143, n. 642; 147, n. 663; 156, n. 723; 161, n. 750.

39 See, e.g., id. at 103, n. 354.

40 See, e.g., id. at 112–14, paras. (3)–(4).

41 See, e.g., id. at 140, n. 618 (citing to the Paquete Habana case on principles of humanity in time of war).

42 See, e.g., id. at 127, n. 519; 133, para. (5); 134, n. 574; 181–82, paras. (2)–(3).

43 Third Report on Protection of the Environment in Relation to Armed Conflicts, supra note 36, at 104–06, paras. 308–11.

44 2022 Report, supra note 1, at 92, pmbl. cl. 2.

45 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Vol. I, Resolutions adopted by the Conference, Res. 1, Annex I, p. 7, prin. 24 (UN publication, Sales No. E.93.I.8 and Corrigendum; A/CONF/151/26/Rev.1 (Vol. I) and Corr.1).

46 2022 Report, supra note 1, at 92, draft pmbl. cl. 3.

47 See, e.g., OECD Nuclear Energy Agency, Ukraine: Current Status of Nuclear Power Installations, at https://www.oecd-nea.org/jcms/pl_66130/ukraine-current-status-of-nuclear-power-installations.

48 2022 Report, supra note 1, at 108–10, paras. (1)–(8) (commentary to draft principle 5).

49 Id. at 93 (draft principle 9, para. 1).

50 Id. (draft principle 9, para. 2).

51 Id. at 124, para. (10) (commentary to draft principle 9).

52 Id. at 93 (draft principle 9, para. 3).

53 Id. at 125, para. (12) (commentary to draft principle 9).

54 Id. at 141–43, paras. (6)–(9) (commentary to draft principle 13).

55 Id. at 141, para. (5) (commentary to draft principle 13).

56 See Third Report on Protection of the Environment in Relation to Armed Conflicts, supra note 36, at 112 (proposal to delete principle 15 as it appeared in the first reading text).

57 Id. at 64–65, paras. 173–77.

58 Id. at 65, para. 178.

59 Draft principle 14 now reads: “The law of armed conflict, including the principles and rules on distinction, proportionality and precautions shall be applied to the environment, with a view to its protection.” 2022 Report, supra note 1, at 94.

60 See Third Report on Protection of the Environment in Relation to Armed Conflicts, supra note 36, at 61, para. 164.

61 2022 Report, supra note 1, at 91, para. 55.

62 UN Doc. A/C.6/77/L.22 (Nov. 11, 2022). For adoption of this text by the Sixth Committee, see Sixth Committee (Legal)—77th Session, Summaries of Meetings, 36th Plenary Meeting, supra note 34. This decision not to “commend” the ILC instrument to states was also taken in November 2021 with respect to the draft guidelines on the protection of the atmosphere. See GA Res. 76/112 (Dec. 9, 2021).

63 For discussion of prior work on this topic, see Sean D. Murphy, The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 169−71 (2013); Murphy, Sixty-Fifth Session, supra note 36, at 41–48; Murphy, Sixty-Sixth Session, supra note 36, at 139–40; Murphy, Sixty-Seventh Session, supra note 36, at 842; Murphy, Sixty-Eighth Session, supra note 4, at 732−42; Murphy, Sixty-Ninth Session, supra note 4, at 981–88; Murphy, Seventieth Session, supra note 4, at 106; Murphy, Seventy-First Session, supra note 4, at 81–82; Sean Murphy, D., Provisional Application of Treaties and Other Topics: The Seventy-Second Session of the International Law Commission, 115 AJIL 671, 677–79 (2021)CrossRefGoogle Scholar [hereinafter Murphy, Seventy-Second Session].

64 For the text of the draft conclusions and annex, see 2022 Report, supra note 1, at 189–94; for the draft conclusions and annex with commentary, see id. at 194–286.

65 2022 Report, supra note 1, at 191–94.

66 The very first draft article (draft article 8) simply clarifies that the procedural provisions and safeguards apply with respect to any exercise of criminal jurisdiction relating to any of the earlier draft articles. Among other things, this draft article implicitly makes clear that all the procedural provisions and safeguards apply in situations where draft article 7 is invoked. For discussion, see Murphy, Seventy-First Session, supra note 4, at 81–82.

67 2022 Report, supra note 1, at 190–91 (draft article 7). These crimes are as defined by reference to certain treaties listed in the draft annex. Id. at 194 (draft annex).

68 Id. at 192–93 (draft article 14, paras. 2–3).

69 Id. at 193 (draft article 15, para. 2).

70 Id. at 193–94 (draft article 16, paras. 2–3).

71 Id. at 194 (draft article 18, para. 2).

72 International Law Commission, Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/739 (Feb. 28, 2020) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction].

73 Id. at 8–11, paras. 20–31.

74 Id.; see also Situation in Darfur, Sudan, in the Case of the Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, ICC-02/05-01/09-397-Corr, Judgment of the Appeals Chamber (May 6, 2019).

75 Eighth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 72, para. 23.

76 2022 Report, supra note 1, at 190 (draft article 1, para. 3)

77 Id. at 202, para. (20) (commentary to draft article 1, para. 3).

78 Id. at 231, para. (3) (commentary to draft article 7).

79 See International Law Commission, Provisional Summary Record of the 3378th Meeting, at 9–13, UN Doc. A/CN.4/SR.3378 (July 20, 2017) (summarizing the explanations of vote in opposition to adoption of draft article 7 by Mr. Kolodkin, Mr. Murphy, Mr. Wood, Mr. Huang, Mr. Rajput, Mr. Petrič, and the Chair (Mr. Nolte)); Murphy, Sixty-Ninth Session, supra note 4, at 984–88; see also Murphy, Sean D., Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where Is the State Practice in Support of Exceptions?, 112 AJIL Unbound 4 (2018)CrossRefGoogle Scholar. Several members of the Commission who voted in favor of draft article 7 said they did not regard it as lex lata. See Murphy, Sixty-Ninth Session, supra note 4, at 985, n. 108. Draft article 7 also proved controversial when debated by governments in the fall of 2017. See Janina Barkholdt & Julian Kulaga, Analytical Presentation of the Comments and Observations by States on Draft Article 7, Paragraph 1, of the ILC Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, United Nations General Assembly, Sixth Committee, 2017 (KFG Working Paper Ser. No. 14), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3172104. Other practice since 2017 is sparse, at best conflicting, and dominantly found in Europe. Compare Case No. 3 StR 564/19, Federal Court of Justice of Germany (Bundesgerichtshof), Judgment of Jan. 28, 2021 (finding that immunity ratione materiae from foreign criminal jurisdiction does not apply to a war crime committed by “foreign lower-ranking officials,” albeit in circumstances where immunity had not been invoked by either Afghanistan or the soldiers concerned), with French Court of Cassation, Criminal Division, Appeal No. 20-80.511, Judgment of Jan. 13, 2021, para. 25 (stating, in a criminal case brought against foreign government officials for alleged torture and other acts, that: “International custom is against allowing State officials, in the absence of contrary international provisions binding on the parties concerned, to be prosecuted for acts falling within this category before the criminal courts of a foreign State”) (author's translation from the French)).

80 See 2022 Report, supra note 1, at 231, para. (4) (“This commentary reproduces, with minor updates, the commentary adopted in 2017.”).

81 For discussion of prior work on this topic, see Murphy, Sixty-Ninth Session, supra note 4, at 990–92; Murphy, Seventieth Session, supra note 4, at 104–06; Murphy, Seventy-First Session, supra note 4, at 78–81; Murphy, Seventy-Second Session, supra note 63, at 679–81.

82 See International Law Commission, Fifth Report on Succession of States in Respect of State Responsibility, at 8–19, paras. 23–63, UN Doc. A/CN.4/751 (Apr. 1, 2022) (prepared by Special Rapporteur Pavel Šturma).

83 Id. at 29–34, Annex III.

84 2022 Report, supra note 1, at 290, para. 86.

85 Id. at 287, para. 75.

86 Id. at 293 (draft guideline 10).

87 Id. (draft guideline 10bis, para. 1).

88 Id. (draft guideline 11).

89 Id. at 294 (draft guideline 15).

90 For example, in 2021 the Commission completed draft guidelines and a draft annex on the topic of provisional application of treaties.

91 For example, for the topic “The Obligation to Extradite or Prosecute (aut dedere aut judicare),” which was commenced in the form of draft articles, the Commission in 2014 instead produced a final report. The Obligation to Extradite or Prosecute (aut dedere aut judicare), Final Report of the International Law Commission, Y.B. Int'l L. Comm'n, Vol. II (Part Two) (2014), at https://legal.un.org/ilc/texts/instruments/english/reports/7_6_2014.pdf.

92 For example, the Commission has previously discontinued work on topics such as “Fundamental Rights and Duties of States,” on “Status, Privileges and Immunities of International Organizations, Their Officials, Experts, Etc.,” on “Juridical Régime of Historic Waters, Including Historic Bays,” and on “Shared Natural Resources (Oil and Gas).”

93 For discussion of prior work on this topic, see Murphy, Seventy-First Session, supra note 4, at 82–84; Murphy, Seventy-Second Session, supra note 63, at 681–83.

94 Statute of the International Court of Justice, Art. 38(1)(c), Apr. 18, 1946.

95 International Law Commission, Third Report on General Principles of Law, UN Doc. A/CN.4/753 (Apr. 18, 2022) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez).

96 Id. at 53, para. 148.

97 2022 Report, supra note 1, at 317 (draft conclusion 5).

98 Id. at 320, para. (4) (commentary to draft conclusion 5, para. 2).

99 Id. at 307–08, n. 1189 (draft conclusion 6).

100 Id. at 316 (draft conclusion 3, para. (b)).

101 Id. at 318–19 (commentary to draft conclusion 3, para. (b)) (citations omitted).

102 Id. at 317 (draft conclusion 7).

103 Id. at 322, para. (2) (commentary to draft conclusion 7).

104 Id., n. 1202.

105 Id. at 308 (draft conclusion 10).

106 Id. (draft conclusion 11, paras. 1−2).

107 Id. (draft conclusion 11, para. 3).

108 For discussion of prior consideration of this topic, see Murphy, Seventieth Session, supra note 4, at 107–08; Murphy, Seventy-First Session, supra note 4, at 84–85; Murphy, Seventy-Second Session, supra note 63, at 683–85.

109 Sea-Level Rise in Relation to International Law: Second Issues Paper by Patricia Galvão Teles and Juan José Ruda Santolaria, Co-Chairs of the Study Group on Sea-Level Rise in Relation to International Law, UN Doc. A/CN.4/752 (Apr. 19, 2022) [hereinafter Second Issues Paper on Sea-Level Rise in Relation to International Law]. For a bibliography related to these issues, see UN Doc. A/CN.4/752/Add.1 (June 14, 2022).

110 2022 Report, supra note 1, at 325–39, paras. 158–233.

111 Id. at 340–41, paras. 234–36.

112 Id. at 7−8, paras. 25−28.

113 Id. at 8−9, paras. 29−31.

114 See Report of the International Law Commission on the Work of Its Sixty-Eighth Session, UN GAOR, 71st Sess., Supp. No. 10, at 387, Annex A, para. 2, UN Doc. A/71/10 (2016).

115 See A New Approach to Cholera in Haiti: Report by the Secretary-General, UN Doc. A/71/620* (Nov. 25, 2016); UN Press Release, Secretary-General Apologizes for United Nations Role in Haiti Cholera Epidemic, Urges International Funding of New Response to Disease, UN Doc. SG/SM/18323-GA/11862 (Dec. 1, 2016). For litigation in a U.S. court against the United Nations on this issue, see Georges v. United Nations, 834 F.3d 88 (2016) (finding the United Nations immune from suit).

116 2022 Report, supra note 1, at 342, para. 238 (quotations and citation omitted).

117 Id.

118 Id. at 342, para. 239. For previous discussion of this topic, see Murphy, Seventy-First Session, supra note 4, at 86.

119 See Report of the International Law Commission on the Work of Its Seventy-First Session, UN GAOR, 74th Sess., Supp. No. 10, at 376, Annex C, para. 27, UN Doc. A/74/10 (2019).

120 2022 Report, supra note 1, at 342, para. 240. For previous discussion of this topic, see Murphy, Seventy-Second Session, supra note 63, at 685–86.

121 See Report of the International Law Commission on the Work of Its Seventy-Second Session, UN GAOR, 76th Sess., Supp. No. 10, at 186, Annex, UN Doc. A/76/10 (2021) [hereinafter 2021 Report].

122 Statute of the International Court of Justice, supra note 94, Art. 38(1)(d).

123 2022 Report, supra note 1, at 344, para. 251.

124 Id., Annex I, at 353, para. 2.

125 Id. at 356–60.

126 See, e.g., 2021 Report, supra note 121, at 183–84, para. 329.

127 GA Res. 76/111, para. 34 (Dec. 9, 2021).

128 2022 Report, supra note 1, at 366, Annex II.

129 See UN Doc. A/C.6/77/L.16, para. 36 (Nov. 10, 2022).

130 See Murphy, Effects of the COVID-19 Pandemic, supra note 2.

131 For information on the 2021 election, see 2021 Election of the International Law Commission (updated Nov. 12, 2021), at https://legal.un.org/ilc/elections/2021election_outcome.shtml.

132 GA Res. 76/119, para. 4 (Dec. 9, 2021) (deciding to examine the draft articles and the ILC's recommendation of the elaboration of a convention within the framework of a working group of the Sixth Committee).

133 See UN Doc. A/C.6/77/L.4, para. 4 (Nov. 14, 2022) (text of draft resolution for submission to the UN General Assembly, according to which the Sixth Committee will exchange substantive views on all aspects of the draft articles and further consider the ILC's recommendation of the elaboration of a convention within the framework of two resumed sessions of the Sixth Committee, to be held in April of 2023 and 2024). The Sixth Committee adopted this text, without a vote, on November 18. See Sixth Committee (Legal)—77th Session, Summaries of Meetings, 36th Plenary Meeting, supra note 34.

134 Even so, some efforts in this regard will encounter insurmountable political resistance, as may be the case for the Commission's draft articles on the expulsion of aliens (2014).

135 See note 62 supra.

136 See notes 33–34 supra.

137 An example of the ILC failing to recognize a topic as best suited to regional or bilateral solutions may be its topic on the obligation to extradite or prosecute (aut dedere aut judicare), which began as draft articles guided by a special rapporteur, but had to be transformed into a report of a working group in 2014. See note 91 supra.

138 See Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the International Law Commission on the Work of its Fifty-Eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 407, para. 251, UN Doc. A/61/10 (2006); Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Mr. Martti Koskenniemi, UN Doc. A/CN.4/L.682 and Add.1* (Apr. 13, 2006).

139 See Omri Sender & Michael Wood, The Work of the International Law Commission Between 1997 and 2022: A Positive Assessment, Max Planck Y.B. UN L. Online (Sept. 22, 2022), at https://doi.org/10.1163/18757413_02501012.