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The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission

Published online by Cambridge University Press:  20 January 2017

Sean D. Murphy
Sean D. Murphy*
Affiliation:
George Washington University, and the UN International Law Commission
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Extract

The International Law Commission held its sixty-sixth session in Geneva from May 5 to June 6, and from July 7 to August 8, 2014, under the chairmanship of Kirill Gevorgian (Russian Federation). Notably, the Commission revisited on second reading its work concerning the expulsion of aliens so as to finalize thirty-one draft articles, along with commentaries. The general thrust of this project has been to acknowledge the sovereign right of a state to expel an alien from its territory and to identify or propose rules—protective of the rights of the alien—that the state must follow when doing so.

Type
Current Developments
Information
American Journal of International Law , Volume 109 , Issue 1 , January 2015 , pp. 125 - 145
Copyright
Copyright © American Society of International Law 2015

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Footnotes

*

My thanks to Jennifer Babaie (JD/MA ’15), Gwendelynn Bills (JD ’15), and Laura Withers (JD ’16) for assistance in preparing this essay.

References

1 See Report of the International Law Commission on the Work of Its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, at 2, para. 3, UN Doc. A/69/10 (2014) [hereinafter 2014 Report]. Most UN documents are available online at http://documents.un.org/simple.asp.

2 Id. at 11– 83.

3 Id. at 10–11, paras. 37–38. For a discussion of the draft articles after first reading, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 164–68 (2013)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Fourth Session ].

4 SC Res. 2178, para. 5 (Sept. 24, 2014) (providing, inter alia, that “Member States shall, consistent with international human rights law, international refugee law, and international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and the financing of their travel and of their activities” (emphasis added)).

5 2014 Report, supra note 1, at 12 (draft Article 2(a)).

6 Id.

7 Id. at 21–22.

8 Id. at 12, 19–20 (relating to draft Article 1(2)).

9 Id. at 12 (draft Article 3).

10 Id. (draft Articles 4, 5).

11 Id. at 12–13.

12 Id. at 13.

13 Id. at 14.

14 Id. at 42 (footnote omitted).

15 Id. at 14–15.

16 Id.

17 Id. at 15–16.

18 Id. at 15.

19 Id. at 16.

20 Id. at 16–17.

21 Id. at 17.

22 International Law Commission, Ninth Report on the Expulsion of Aliens, paras. 62–63, UN Doc. A/CN.4/670 (Mar. 25, 2014) (prepared by Special Rapporteur Maurice Kamto).

23 2014 Report, supra note 1, at 17.

24 See generally Murphy, Sean D., Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product, in The Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie 29 (Ragazzi, Maurizio ed., 2013)CrossRefGoogle Scholar.

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

26 Of the nine topics remaining on the Commission’s agenda, only three appear on track to be draft “articles” (protection of persons in the event of disasters, immunity of state officials from foreign criminal jurisdiction, and crimes against humanity). The remaining topics will use other labels: subsequent agreements and subsequent practice in relation to the interpretation of treaties (“conclusions”); identification of customary international law (“con clusions”); protection of the atmosphere (“guidelines”); provisional application of treaties (“guidelines” or “conclusions”); protection of the environment in relation to armed conflicts (“guidelines,” “conclusions,” or “recommendations”); and the most-favored-nation clause (study group “report”).

27 Those sixteen states were Australia, Canada, the Czech Republic, Denmark (on behalf of all the Nordic countries), Germany, Greece, Iran, Israel, the Netherlands, Portugal, Romania, Singapore, Spain, Thailand, the United Kingdom, and the United States. Summaries of the interventions may be found at Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its Sixty-Seventh Session, at 3–6, UN Doc. A/CN.4/657 (Jan. 18, 2013). Some of the original statements before the Sixth Committee may be accessed through the United Nations’ Paper Smart portal at https://papersmart.unmeetings.org/ga/sixth/67th-session/statements.

28 Thirteen states—Australia, Austria, Belgium, Canada, Cuba, the Czech Republic, El Salvador, Germany, Morocco, the Netherlands, the Republic of Korea, the United Kingdom, and the United States—provided written comments as reflected in International Law Commission, Expulsion of Aliens: Comments and Observations Received from Governments, at 3, UN Doc. A/CN.4/669 (Mar. 21, 2014) [hereinafter Comments and Observations Received from Governments], while the Russian Federation submitted written comments thereafter. In these comments, Australia, the Czech Republic, Germany, the Netherlands, the Republic of Korea, the United Kingdom, and the United States objected to the use of “draft articles” as the outcome of this project. Id. at 8–9.

29 Two states not only objected to concluding the project as draft articles but essentially called for terminating the project. Denmark, speaking on behalf of the Nordic countries, noted that they “remained unconvinced of the usefulness of the Commission’s efforts to identify general rules of international law on the expulsion of aliens, since it was an area of law covered by detailed regional rules,” though the Commission’s work “contained some useful elements of guidance.” Sixth Committee, Summary Record of the 18th Meeting, para. 45, UNGAOR, 67th Sess., UN Doc. A/C.6/67/SR.18 (Dec. 4, 2012) [hereinafter Summary Record of the 18th Meeting]. The United Kingdom asserted that the “topic was problematic and raised many difficult and complex issues which intruded directly into the domestic sphere of States. It was... not... suitable for codification or consolidation at [this] time.” Sixth Committee, Summary Record of the 19th Meeting, para. 67, UN GAOR, 67th Sess., UN Doc. A/C.6/67/SR.19 (Dec. 4, 2012) [hereinafter Summary Record of the 19th Meeting].

30 See, e.g., Summary Record of the 19th Meeting, supra note 29, para. 38 (Thailand); id., para. 88 (Romania); Sixth Committee, Summary Record of the 20th Meeting, para. 11(Iran), UNGAOR 67th Sess., UNDoc. A/C.6/67/SR.20 (Dec. 7, 2012) [hereinafter Summary Record of the 20th Meeting]; id., para. 37 (Israel); Sixth Committee, Summary Record of the 22nd Meeting, para. 26 (Greece), UN GAOR, 67th Sess., UN Doc. A/C.6/67/SR.22 (Dec. 4, 2012) [hereinafter Summary Record of the 22nd Meeting]; Comments and Observations Received from Governments, supra note 28, at 8 (Czech Republic).

31 See, e.g., Summary Record of the 18th Meeting, supra note 29, para. 116 (Spain); see also Summary Record of the 19th Meeting, supra note 29, para. 16 (Canada); Summary Record of the 20th Meeting, supra note 30, para. 4 (Australia); Comments and Observations Received from Governments, supra note 28, at 8 (Germany); id. at 9 (United States).

32 See, e.g., Summary Record of the 18th Meeting, supra note 29, para. 68 (European Union); id., para. 99 (Ger many).

33 See, e.g., Summary Record of the 19th Meeting, supra note 29, para. 60 (Portugal).

34 See, e.g., Comments and Observations Received from Governments, supra note 28, at 8 (Netherlands).

35 See, e.g., id. (Netherlands); Summary Record of the 22nd Meeting, supra note 30, para. 26 (Greece).

36 Comments and Observations Received from Governments, supra note 28, at 3 (Australia).

37 Id. at 4 (Canada).

38 Id. at 6 (Netherlands).

39 Id. (Republic of Korea).

40 See, e.g., Summary Record of the 18th Meeting, supra note 29, para. 45 (Denmark, on behalf of the Nordic countries).

41 See, e.g., id., para. 68 (European Union); id., para. 99 (Germany).

42 See, e.g., Summary Record of the 19th Meeting, supra note 29, para. 38 (Thailand).

43 2014 Report, supra note 1, at 18.

44 Id. at 74, 75.

45 Id. at 16 (emphasis added).

46 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85. By contrast, pursuant to Articles 2 and 16 of the Convention, a state party has the duty to prevent acts of torture, as well as other acts of cruel, inhuman, or degrading treatment or punishment that do not amount to torture, in any territory under its jurisdiction.

47 See, e.g., The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 49 (J. Herman Burgers & Hans Danelius eds., 1988) (explaining that the original Swedish draft of what became Article 3 contained both torture and “cruel, inhuman or degrading treatment or punishment,” but, after debate, the latter was removed in the revised draft).

48 See, e.g., S. V. (name withheld) v. Canada, Communication No. 49/1996, UN Doc. CAT/C/26/D/49/1996 (2001); B. S. (name withheld) v. Canada, Communication No. 166/2000, UN Doc. CAT/C/27/D/166/2000 (2001); T. M. (name withheld) v. Sweden, Communication No. 228/2003, UN Doc. CAT/C/31/D/228/2003 (2003); see also Manfred Nowak & Elizabeth Mcarthur, The United Nations Convention Against Torture: A Commentary 165 (2008).

49 Article 7 of the International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 UNTS 171, provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” but does not expressly address the issue of expulsion to a place where a person might be exposed to such treatment. ICCPR Article 13 expressly addresses protections for an individual who is being expelled, but those protections do not relate to torture or to cruel, inhuman, or degrading treatment or punishment. Even so, in General Comment No. 20, the Human Rights Committee asserted in 1992: “In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.” UN Human Rights Committee, General Comment No. 20, at 31, para. 9, UN Doc. HRI/GEN/1/Rev.1 (1994).

50 The Committee on the Elimination of Racial Discrimination, when interpreting the provisions of the international Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195, and, in particular, Article 5 requiring states parties to prohibit and eliminate discrimination based on race, color, descent, and national or ethnic origin, recommended in 2004 that states parties “[e]nsure that non-citizens are not returned or removed to a country or territory where they are at risk of being subject to serious human rights abuses, including torture and cruel, inhuman or degrading treatment or punishment.” Committee on the Elimination of Racial Discrimination, General Recommendation 30, para. 27, UN Doc. CERD/C/64/Misc.11/Rev.3 (2004).

51 2014 Report, supra note 1, at 60–61.

52 Id. at 5, para. 12.

53 See Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 25, paras. 72–73, UN Doc. A/56/10 (2001), available at http://legal.un.org/ilc/reports/2001/2001report.htm.

54 International Law Commission, Provisional Summary Record of the 3235th Meeting, at 3, UN Doc.A/CN.4/SR.3235 (Oct. 10, 2014).

55 For prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 3, at 168–69; 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)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Fifth Session ].

56 2014 Report, supra note 1, at 84–138.

57 See, e.g., Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, Sept. 26, 1986,1457 UNTS 133;Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, June 18, 1998, 2296 UNTS 5; Framework Convention on Civil Defence Assistance, May 22, 2000, 2172 UNTS 231.

58 See, e.g., Inter-American Convention to Facilitate Disaster Assistance, June 7, 1991, OAS Treaty No. A-54, available at http://www.oas.org/juridico/english/treaties/a-54.html; Agreement Establishing the Caribbean Disaster Emergency Response Agency (CDERA), Sept. 2005, available at http://www.caricom.org/jsp/secretariat/legal_instruments/agreement_cdera.jsp (renamed in 2009 to Caribbean Disaster Emergency Management Agency (CDEMA)); Association of Southeast Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response, July 26, 2005, available at http://www.asean.org/news/item/asean-agreement-on-disaster-management-and-emergency-response-vientiane-26-july-2005-2.

59 See, e.g., GA Res. 45/100 (Dec. 14, 1990); GA Res. 46/182 (Dec. 19, 1991); Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation and the Plan of Action, UN Doc. A/CONF.172/9, Chap. I, Res. 1, Annex I (Sept. 27, 1994); UN Economic and Social Council (ECOSOC) Res. 2008/36(July 25, 2008); Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, UNDoc.A/CONF.206/6, Chap.I, Res.2 (Mar.16, 2005); Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief (Oslo Guidelines) (2006, Rev. Nov. 28, 2007), available at http://www.refworld.org/pdfid/47da87822.pdf.

60 See, e.g., Council of the International Institute of Humanitarian Law, Guiding Principles on the Right to Humanitarian Assistance (Apr. 1993), available at http://www.iihl.org/iihl/Album/GUIDING%20PRINCIPLES.doc; Institute of International Law, Resolution on Humanitarian Assistance (Sept. 2, 2003), available at http://www.idiiil.org/idiE/resolutionsE/2003_bru_03_en.PDF; Int’l Fed’n of Red Cross & Red Crescent Soc’ys, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2007), available at http://www.ifrc.org/en/what-we-do/idrl/idrl-guidelines.

61 See, e.g., Philippine Disaster Risk Reduction and Management Act of 2010, Act No. 10121 (July 27, 2009), available at https://ifrc.org/docs/idrl/957EN.pdf; see also 2014 Report, supra note 1, at 113–14.

62 See, e.g., Budayeva v. Russia, Chamber (First Section), App. Nos. 15339/02, 21166/02, 20058/02, 11673/02 & 15343/02, para. 116 (Eur. Ct. H.R. Mar. 20, 2008) (noting that the “applicants complained that the authorities had failed to comply with their positive obligations to take appropriate measures to mitigate the risks to their lives against the natural hazards”).

63 International Law Commission, Protection of Persons in the Event of Disasters: Memorandum by the Secretariat, UN Doc. A/CN.4/590 (Dec. 11, 2007) (with addenda).

64 The numbering of the draft articles in the 2014 Report includes bracketed numbers previously used in the course of the Commission’s work; those bracketed numbers are not repeated here.

65 2014 Report, supra note 1, at 87.

66 Id. at 93–94.

67 Id. at 94.

68 Id.

69 Id. at 87.

70 Id. at 102.

71 Id. at 88 (draft Article 9).

72 Id. at 107.

73 Id. at 88 (draft Article 12(2)).

74 Id. (draft Article 11).

75 Id. (draft Article 12(1)).

76 Id. (draft Article 13).

77 Id. at 120.

78 Id. at 89 (draft Article 16).

79 Id. at 88 (draft Article 14).

80 Id. at 124.

81 Id. at 88 (draft Article 15).

82 Id. at 89 (draft Article 17).

83 Id. (draft Article 18).

84 Id. (draft Article 19).

85 Id. (draft Article 20).

86 Id. at 137.

87 Id. at 89 (draft Article 21).

88 Id. at 138.

89 Id. at 86, para. 53.

90 For prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 54–55; Murphy, Sixty-Fourth Session, supra note 3, at 174 –76.

91 See Report of the International Law Commission on the Work of Its Sixty-Fifth Session, UN GAOR, 68th Sess., Supp. No. 10, Annex A, UN Doc. A/68/10 (2013) [hereinafter 2013 Report].

92 International Law Commission, Final Report on the Working Group on the Obligation to Extradite or Prosecute (aut dedere aut judicare), UN Doc.A/CN.4/L.844 (June 5, 2014).

93 2014 Report, supra note 1, at 140, para. 64.

94 Id. at 143–65. For the working group’s 2009 General Framework, see id., at 162, n.521.

95 Id. at 161.

96 Id.

97 International Law Commission, Survey of Multilateral Conventions Which May Be of Relevance for the Work of the International Law Commission on the Topic “The Obligation to Extradite or Prosecute (aut dedere aut judicare)”: Study by the Secretariat, UN Doc. A/CN.4/630 (June 18, 2010).

98 2014 Report, supra note 1, at 161&nn.519 –20 (discussing Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 ICJ Rep. 422 (July 20)).

99 Id. at 154.

100 See infra text accompanying footnotes 163– 64.

101 2014 Report, supra note 1, at 140–65.

102 Id. at 140, para. 64.

103 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679.

104 See Murphy, Sixty-Fifth Session, supra note 55, at 48–51; 2014 Report, supra note 1, at 167, para. 69; see also Murphy, Sixty-Fourth Session, supra note 3, at 176.

105 International Law Commission, Second Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/CN.4/671 (Mar. 26, 2014) (prepared by Special Rapporteur Georg Nolte) [hereinafter Second Report on Subsequent Agreements and Subsequent Practice].

106 2014 Report, supra note 1, at 170 –217.

107 Id. at 169.

108 Id.

109 Id.

110 Id.

111 Id.

112 See 2013 Report, supra note 91, at 23, 34–35, 37, 41.

113 2014 Report, supra note 1, at 169.

114 Id. at 170 (emphasis added).

115 Id. at 203.

116 [Author’s note: The special rapporteur intends to address in a future report whether and how the decision of an organ of an international organization may fall within the scope of VCLT Article 31 or 32.]

117 2014 Report, supra note 1, at 170.

118 Second Report on Subsequent Agreements and Subsequent Practice, supra note 105, para. 167.

119 International Law Commission, First Report on the Protection of the Atmosphere, at 47, 52, 57, UN Doc.A/CN.4/667 (Feb. 14, 2014) (formatting adjusted) (prepared by Special Rapporteur Shinya Murase) [hereinafter First Report on the Protection of the Atmosphere]. For the Commission’s decision limiting the scope of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 56 –57.

120 First Report on the Protection of the Atmosphere, supra note 119, at 57, para. 90 (draft Guideline 3).

121 2014 Report, supra note 1, at 225, para. 107.

122 Id. at 228, para. 121.

123 Id.

124 Id. at 227, para. 116.

125 International Law Commission, Third Report on the Immunity of State Officials from Foreign Criminal Jurisdiction, UNDoc.A/CN.4/673 (June 2, 2014) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Third Report on the Immunity of State Officials]. For prior discussion of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 41– 48; Murphy, Sixty-Fourth Session, supra note 3, at 169 –71.

126 2014 Report, supra note 1, at 231, para. 131.

127 Id.

128 Id. at 236 –37.

129 See Third Report on the Immunity of State Officials, supra note 125, para. 152.

130 Id.

131 International Law Commission, Second Report on Identification of Customary International Law, UNDoc.A/CN.4/672 (May 22, 2014) (prepared by Special Rapporteur Michael Wood) [hereinafter Second Report on the Identification of Customary International Law]. For prior discussion of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 52–53; Murphy, Sixty-Fourth Session, supra note 3, at 174; see also Sean D. Murphy, Identifying the Rules for Identifying Customary International Law, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/identifying-rules-identifying-customary-international-law; Daniel Bodansky, Does Custom Have a Source?, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/does-custom-have-source; David M. DeBartolo, Identifying International Organizations’ Contributions to Custom, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/identifying-international-organizations%E2%80%99-contributions-custom; Bernard H. Oxman, Some Observations on the Draft Conclusions on Identification of Customary Law Provisionally Adopted by the ILC’s Drafting Committee at the Sixty-Sixth Session, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/some-observations-draft-conclusions-identification-customary-law-provisionally-adopted-ilc%E2%80%99s; Jeremy K. Sharpe, The Potential Impact on Investment Arbitration of the ILC’s Work on Customary International Law, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/potential-impact-investment-arbitration-ilc%E2%80%99s-work-customary-international-law; Edward T. Swaine, Identifying Customary international Law: First Thoughts on the ILC’s First Steps, AJIL Unbound (Dec. 23, 2014), at http://www.asil.org/blogs/identifying-customary-international-law-first-thoughts-ilc%E2%80%99s-first-steps.

132 See 2014 Report, supra note 1, at 238–48, paras. 137– 85.

133 Id. at 238, para. 136.

134 Id.

135 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Gilberto Saboia, “Identification of Customary International Law,” at 18–19 (Aug. 7, 2014) (footnotes omitted), available at http://legal.un.org/ilc/sessions/66/DC_ChairmanStatement(IdentificationofCustom).pdf. This statement provides helpful guidance about the reasoning of the drafting committee in developing the draft conclusions. The numbers of the draft conclusions listed here do not include their bracketed original numbers or the subject headings. See id. at 18 n.1.

136 2014 Report, supra note 1, at 248, para. 185.

137 See Second Report on the Identification of Customary International Law, supra note 131, at 67– 68, annex (draft Conclusion 10 (role of acceptance as law) and draft Conclusion 11 (evidence of acceptance as law)); 2014 Report, supra note 1, at 6, para. 19;id. at 240, para. 138. The remaining draft conclusion of the special rapporteur— the proposed conclusion on definitions—was omitted by the drafting committee.

138 Second Report on the Identification of Customary International Law, supra note 131, at 4, para. 11.

139 2014 Report, supra note 1, at 243, para. 153; id. at 248, para. 184; Second Report on the Identification of Customary International Law, supra note 131, at 63, para. 81.

140 International Law Commission, Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, UNDoc. A/CN.4/674 (May 30, 2014) (prepared by Special Rapporteur Marie Jacobsson) [hereinafter Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts]. For prior discussion of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 55–56.

141 See 2014 Report, supra note 1, at 6, para. 20; id. at 249, para. 188.

142 See id. at 254, para. 217; see also Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 140, para. 68.

143 Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 140, para. 58; see also Murphy, Sixty-Fifth Session, supra note 55, at 56.

144 Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 140, paras. 117–56.

145 2014 Report, supra note 1, at 252, para. 206.

146 Id. at 254, para. 214.

147 See id., para. 218.

148 Id. at 250, para. 191.

149 International Law Commission, Second Report on the Provisional Application of Treaties, UN Doc. A/CN.4/675 (2014) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo) [hereinafter Second Report on the Provisional Application of Treaties]. For prior discussion of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 53–54; Murphy, Sixty-Fourth Session, supra note 3, at 171–73.

150 Second Report on the Provisional Application of Treaties, supra note 149, at 3, para. 14; see also id. at 5, para. 24.

151 Id. at 3, para. 14.

152 2014 Report, supra note 1, at 258, para. 236.

153 Id. at 260, para. 243.

154 Id. at 261, para. 248.

155 Id. at 262, para. 251. For prior discussion of this topic, see Murphy, Sixty-Fifth Session, supra note 55, at 55; Murphy, Sixty-Fourth Session, supra note 3, at 176 –77.

156 2014 Report, supra note 1, at 262, para. 250.

157 Id. at 264, para. 262.

158 See Report of the International Law Commission on the Work of Its Thirtieth Session, UN GAOR, 33rd Sess., Supp. No. 10, at 16–73, para. 74, UN Doc. A/33/10 (1978).

159 2014 Report, supra note 1, at 263, para. 255.

160 Id., para. 257.

161 Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (Jan. 25, 2000).

162 2014 Report, supra note 1, at 263– 64, para. 258.

163 Id. at 265, para. 266; see Murphy, Sixty-Fifth Session, supra note 55, at 57.

164 2013 Report, supra note 91, at 140–41, Annex B.

165 2014 Report, supra note 1, at 265, para. 268; see id. at 274–82, annex.

166 Id. at 280, para. 13, annex.

167 Id. at 266, para. 271.