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The Heritage Of The Articles On State Responsibility For The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the two decades since their adoption in 2001, the International Law Commission (ILC)’s Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) have had an extraordinary influence, not just on the field of international law generally, but also on the work of the ILC itself. Indeed, the ILC concluded four projects that directly resulted from or were closely related to the ASR in the first decade after its adoption. Moreover, references to the ASR have worked their way into most (albeit not all) of the ILC topics completed since 2001.

Yet those express references tell just part …

Peremptory Norms Of General International Law (Jus Cogens) (Revisited) And Other Topics: The Seventy-Third Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

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 but for the COVID-19 pandemic.

During the seventy-third session, the Commission completed the second reading of two topics: peremptory norms of general international law (jus cogens); and protection of the environment in relation to armed conflicts. The Commission completed a first reading of the topic on immunity of …

Taking Stock Of The “Compatibility Requirement”: What Limitations Does It Impose For High Seas Fishing?, Sean D. Murphy

GW Law Faculty Publications & Other Works

Under the contemporary law of the sea, coastal States enjoy sovereign rights within their exclusive economic zones (EEZs) to manage and exploit fishery resources. At the same time, States maintain the traditional freedom to fish on the high seas subject to some treaty obligations, including those arising from regional management fisheries organizations (RMFOs) and other treaties, such as (once it enters into force) the agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ agreement). Given that straddling stocks and highly migratory species of fish move with ease between EEZs and the high …

Provisional Application Of Treaties And Other Topics: The Seventy-Second Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission (ILC) held its seventy-second session from April 26 to June 4 and from July 5 to August 6, 2021 in Geneva, under the chairmanship of Mahmoud Hmoud (Jordan). This session was originally scheduled for the summer of 2020, but had to be postponed due to the outbreak of the COVID-19 pandemic. The pandemic continued in 2021 to present health risks and travel difficulties for certain members; consequently, the Commission for the first time in its history held its session in a hybrid manner, with many members physically present in Geneva, while others participated online by means …

Peremptory Norms Of General International Law (Jus Cogens) And Other Topics: The Seventy- First Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Šturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading of its topic on protection of the environment in relation to armed conflict and completed the second reading of its topic on crimes against humanity. Progress was also made in developing draft articles on succession …

Codifying The Obligations Of States Relating To The Prevention Of Atrocities, Sean D. Murphy

GW Law Faculty Publications & Other Works

Exactly what types of obligations of States fall within the realm of “prevention” of atrocities, such as genocide, war crimes and crimes against humanity? It could generally be thought that some types of obligations are directly connected to prevention (obligations of prevention), while others are of a different nature, though bearing upon the issue of prevention (obligations relating to prevention). Based on a review of major multilateral treaties, this essay identifies six key obligations of States that relate, directly or indirectly, to the prevention of atrocities. Such obligations were deemed essential for inclusion in the International Law Commission’s 2019 articles …

Effects Of The Covid-19 Pandemic On The Work Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission (ILC) was scheduled to hold its seventy-second session from April 27 to June 5 and from July 6 to August 7, 2020 in Geneva. 1 The COVID-19 pandemic, however, precluded the Commission members traveling to and meeting in Geneva. This short essay explains that it became necessary to postpone the session until 2021 and to address various collateral matters, including whether the current five-year terms of Commission members should be extended by one year, so as to conclude in 2022 instead.

The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of “identification of customary international law,” paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.

Additionally, the Commission provisionally adopted with commentaries initial draft guidelines on “protection of the atmosphere” and initial draft articles on “crimes against humanity,” as well as one further …

New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy

GW Law Faculty Publications & Other Works

Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).

As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …

Immunity Ratione Personae Of Foreign Government Officials And Other Topics: The Sixty-Fifth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7 and from July 8 to August 9, 2013. The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction; subsequent agreements and subsequent practice in relation to the interpretation of treaties; and protection of persons in the event of disasters. Notably, the Commission adopted three draft articles and commentary identifying three senior governmental officials as entitled to immunity ratione personae from foreign criminal jurisdiction – heads of state, heads of government, and foreign ministers – …

The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, …

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy

GW Law Faculty Publications & Other Works

If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …

Codification, Progressive Development, Or Scholarly Analysis? The Art Of Packaging The Ilc's Work Product, Sean D. Murphy

GW Law Faculty Publications & Other Works

Over its life, the U.N. International Law Commission has developed various ways of “packaging” its work product. Multiple techniques are available for balancing the Commission’s roles in advancing the codification and progressive development of international law – choices about the format of the project, about how to characterize the project in the associated commentary, and about the recommendation to the U.N. General Assembly on what should be done with the completed project. While creative use of such techniques to suit the particular topics on the Commission’s agenda is to be welcomed, the Commission’s authority and legacy ultimately will turn on …

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy

GW Law Faculty Publications & Other Works

If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …