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Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission

Published online by Cambridge University Press:  18 January 2018

Sean D. Murphy
Sean D. Murphy*
Affiliation:
Manatt/Ahn Professor of International Law, George Washington University, and member of the UN International Law Commission.
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American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 970 - 993
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Copyright © 2018 by The American Society of International Law 

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References

1 See Report of the International Law Commission on the Work of Its Sixty-Ninth Session, UN GAOR, 72nd Sess., Supp. No. 10, at 2, para. 3, UN Doc. A/72/10 (Sept. 11, 2017) [hereinafter 2017 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 Report of the International Law Commission on the Work of Its Sixty-Sixth Session, UN GAOR, 69th Sess., Supp. No. 10, at 265, para. 266, UN Doc. A/69/10 (2014). For discussion of prior work on these draft articles, see Murphy, Sean D., Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission , 109 AJIL 822, 835–36 (2015)Google Scholar [hereinafter Murphy, Sixty-Seventh Session]; 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, 727–29 (2016)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Eighth Session].

3 See Report of the International Law Commission on the Work of Its Sixty-Fifth Session, UN GAOR, 68th Sess., Supp. No. 10, at 140, para. 3 (Annex B), UN Doc. A/68/10 (2013).

4 Report of the International Law Commission on the Work of Its Sixty-Seventh Session, UN GAOR, 70th Sess., Supp. No. 10, at 49–50, paras. 113–14, UN Doc. A/70/10 (2015).

5 Report of the International Law Commission on the Work of Its Sixty-Eighth Session, UN GAOR, 71st Sess., Supp. No. 10, at 242, paras. 82–83, UN Doc. A/71/10 (Sept. 19, 2016) [hereinafter 2016 Report].

6 International Law Commission, Third Report on Crimes Against Humanity, UN Doc. A/CN.4/704* (Jan. 23, 2017) (prepared by Special Rapporteur Sean Murphy) [hereinafter Third Report].

7 2017 Report, supra note 1, at 22.

8 Rome Statute of the International Criminal Court, Art. 7, July 17, 1998, 2187 UNTS 90.

9 2017 Report, supra note 1, at 12. In 2017, the Commission renumbered some of the previously adopted draft articles, resulting in a new set of numbering. An earlier number associated with a draft article is indicated in square brackets. Thus, draft Article 5 adopted in 2017 resulted in the prior draft Article 5 (adopted in 2016) being renumbered as draft Article 6[5].

10 Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Art. 45, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

11 Convention Relating to the Status of Refugees, Art. 33, para. 1, July 28, 1951, 189 UNTS 137 (“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”).

12 Id. Art. 33, para. 2.

13 International Convention for the Protection of All Persons from Enforced Disappearance, Art. 16, Dec. 20, 2006, 2716 UNTS 3 [hereinafter Convention on Enforced Disappearance].

14 2017 Report, supra note 1, at 15.

15 Id. at 98, para. (19).

16 Id. at 15–16.

17 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 8, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 UNTS 85 [hereinafter Convention Against Torture]. Article 8 contains just four paragraphs, as compared with the eighteen paragraphs of the UN Convention Against Corruption.

18 Convention on Enforced Disappearance, supra note 13, Art. 13. Article 13 contains seven paragraphs.

19 UN Convention Against Corruption, Art. 44, Oct. 31, 2003, 2349 UNTS 41. Article 44 largely replicates provisions contained in Article 16 of the UN Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 UNTS 209.

20 2017 Report, supra note 1, at 100–01, para. 5.

21 2017 Report, supra note 1, Draft Article 13, at 15, para. 1.

22 Id. at 16, para. 3.

23 Id., para. 4.

24 Id., para. 5.

25 Id. at 15–16, para. 2.

26 Id. at 16, para. 6.

27 Id., para. 7

28 Id., para. 10.

29 Id., para. 8.

30 Id., para. 9.

31 2017 Report, supra note 1, at 16–17.

32 Id. at 18–20.

33 2017 Report, supra note 1, Draft Article 14, at 17, para. 7.

34 Id., at 16, paras. 1 (with respect to natural persons), 2 (with respect to legal persons).

35 Id., at 17, para. 3.

36 Id., para. 6.

37 2017 Report, supra note 1, Draft Annex, at 18, para. 1.

38 Id., paras. 3–5.

39 Id. at 18–19, paras. 6–12.

40 Id. at 19, paras. 13–14.

41 Id. at 19–20, paras. 15–16 (persons not in detention in the requested state), paras. 17–19 (persons in detention).

42 Id. at 20, para. 20.

43 2017 Report, supra note 1, at 17–18.

44 For a listing of treaties providing the Court with jurisdiction in contentious cases, see http://www.icj-cij.org/en/treaties. The last treaty to do so was the Convention on Enforced Disappearance, Art. 42(1).

45 Convention on the Prevention and Punishment of the Crime of Genocide, Art. IX, Dec. 9, 1948, 78 UNTS 277.

46 Most treaties that address crimes under national law and that provide for inter-state dispute settlement allow a state party to opt out of compulsory dispute settlement. See, e.g., Convention Against Torture, supra note 17, Art. 30, para. 2; UN Convention Against Transnational Organized Crime, supra note 19, Art. 35, para. 3; Convention on Enforced Disappearance, supra note 13, Art. 42, para. 2; UN Convention Against Corruption, supra note 19, Art. 66, para. 3. When this occurs, most states do not opt out. For example, at present there are 181 states parties to the Convention Against Corruption; of those, only forty-two states parties have filed a reservation declaring that they do not consider themselves bound by paragraph 2 of Article 66.

47 The proposal is explained in the Third Report, supra note 6, at 92–96.

48 Id. at 96.

49 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Aniruddha Rajput, “Crimes Against humanity” (June 1, 2017), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2017_dc_chairman_statement_cah.pdf&lang=E.

50 See Rome Statute, supra note 8, Art. 17.

51 The proposal is explained in the Third Report, supra note 6, at 97–99.

52 Id. at 99.

53 Article 29 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT] provides: “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”

54 Crimes Against Humanity, Statement of the Chairman of the Drafting Committee, supra note 49.

55 Third Report, supra note 6, at 100–04.

56 Memorandum Prepared by the Secretariat on Information on Existing Treaty-Based Monitoring Mechanisms Which May Be of Relevance to the Commission's Future Work on the Topic “Crimes Against Humanity,” UN Doc. A/CN.4/698 (2016).

57 Third Report, supra note 6, at 105–13.

58 Id. at 113.

59 Id.

60 Id. at 127–28.

61 Id. at 131.

62 This inability to raise one's official position to claim a lack of responsibility is similar to the inability of an alleged offender to raise a “superior order” defense to avoid responsibility. See 2017 Report, supra note 1, Draft Article 6, at 13–14, para. 4.

63 Id. at 13, para. 5.

64 2017 Report, supra note 1, at 69, para. (31).

65 Id. at 86–88, paras. (8)–(10).

66 Id. at 88, para. (11).

67 Third Report, supra note 6, at 139.

68 Id. at 140–50.

69 2017 Report, supra note 1, at 10.

70 For discussion of prior work on these draft guidelines, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission , 107 AJIL 164, 171–73 (2013)Google Scholar [hereinafter Murphy, Sixty-Fourth Session]; 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, 53–54 (2014)Google Scholar [hereinafter Murphy, Sixty-Fifth Session]; Murphy, Sean D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission , 109 AJIL 125, 143–44 (2015)Google Scholar [hereinafter Murphy, Sixty-Sixth Session]; Murphy, Sixty-Seventh Session, supra note 2, at 822–32 (guidelines 1–3); Murphy, Sixty-Eighth Session, supra note 2, at 742–45 (guidelines 4, 6–9; guidelines 6–9 were renumbered in 2017 to be guidelines 5–8).

71 2017 Report, supra note 1, at 130.

72 VCLT, supra note 53.

73 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Mar. 21, 1986, 25 ILM 543 (1986) [hereinafter VCLTIO] (not yet in force).

74 2017 Report, supra note 1, at 130.

75 Id.

76 See, e.g., Energy Charter Treaty, Art. 45(1), Dec. 17, 1994, 2080 UNTS 95, 34 ILM 360 (1995) (providing that each “signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations”).

77 2017 Report, supra note 1, at 128.

78 Id.

79 For example, compare Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), with Draft Articles on the Responsibility of International Organizations, in Report of the International Law Commission on the Work of Its Sixty-Third Session, UN GAOR, 66th Sess., Supp. No. 10, at 54, UN Doc. A/66/10 (2011).

80 For example, the Commission's current project on subsequent agreement and subsequent practice in relation to the interpretation of treaties is based on the 1969 VCLT, not on both the 1969 VCLT and 1986 VCLTIO. See 2016 Report, supra note 5, at 124. Likewise, in the Commission's current project on jus cogens (discussed below), the focus to date is on acceptance and recognition of a norm as jus cogens “by a very large majority of States” and while “the positions of other actors may be relevant in providing context and for assessing acceptance and recognition by the international community of States as a whole, these positions cannot, in and of themselves, form a part of such acceptance and recognition.” See International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Aniruddha Rajput, “Peremptory Norms of General International Law (Jus Cogens),” Annex (July 26, 2017), available at file:///C:/Users/Owner/Documents/ILC/CANZ%20Briefing%20(Aug%202017)/Jus%20Cogens%20Drafting%20Comm%20Report.pdf. On the other hand, the Commission's current project on identification of customary international law assimilates states and international organizations to a degree in draft conclusion 4. It provides that the “practice” at issue throughout the draft conclusions is “primarily” the practice of states but also consists “[i]n certain cases” of international organizations. See 2016 Report, supra note 5, at 76.

81 The principal examples being the Commission's draft articles leading to the 1969 VCLT (focused on states) and the 1986 VCLTIO (focused on international organizations).

82 2017 Report, supra note 1, at 129.

83 International Law Commission, Fourth Report on the Provisional Application of Treaties, at 38, para. 182, UN Doc. A/CN.4/699 (June 23, 2016) (prepared by Special Rapporteur Juan Manuel Gómez-Robledo).

84 For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 70, at 56–57; Murphy, Sixty-Sixth Session, supra note 70, at 139; Murphy, Sixty-Seventh Session, supra note 2, at 832–35; Murphy, Sixty-Eighth Session, supra note 2, at 729–30.

85 See International Law Commission, Fourth Report on the Protection of the Atmosphere, UN Doc. A/CN.4/705 (Jan. 31, 2017) (prepared by Special Rapporteur Shinya Murase).

86 2017 Report, supra note 1, at 151, para. 67.

87 Id. at 151.

88 Id. at 152.

89 Id. at 153.

90 For recent scholarship on this issue, see McLachlan, Campbell, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention , 54 Int'l & Comp. L. Q. 279 (2005)CrossRefGoogle Scholar; Rachovitsa, Adamantia, The Principle of Systemic Integration in Human Rights Law—A Critical Appraisal , 66 Int'l & Comp. L. Q. 557 (2017)Google Scholar.

91 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, 58th Sess., UN Doc. A/CN.4/L.682 (Apr. 13, 2006), as corrected UN Doc. A/CN.4/L.682/Corr.1 (Aug. 11, 2006). There were forty-two conclusions associated with the report. See Report of the International Law Commission, UN GAOR, 58th Sess., May 1–June 9, July 3–Aug. 11, 2006, 61st Sess., Supp. No. 10, at 407–23, UN Doc. A/61/10 (2006) (presenting the Study Group's Conclusions). Neither the Report nor the Conclusions were adopted by the Commission. The Commission, however, “decided to take note” of the Conclusions, “commended them to the attention of the General Assembly,” and requested that the Report be made available on the Commission's website and published in its Yearbook. Id. at 402. Thereafter, the General Assembly also took note of the Conclusions “together with” the Report on which they were based. GA Res. 61/34, UN Doc. A/RES/61/34, at 2, para. 4 (Dec. 18, 2006).

92 2017 Report, supra note 1, at 155.

93 International Law Commission, Fifth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, at 95, UN Doc. A/CN.4/701 (June 14, 2016) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Fifth Report]. For discussion of prior work on this topic, see Murphy, Sixty-Fourth Session, supra note 70, at 169–71; Murphy, Sixty-Fifth Session, supra note 70, at 41–48; Murphy, Sixty-Sixth Session, supra note 70, at 139–40; Murphy, Sixty-Seventh Session, supra note 2, at 842.

94 Report of the International Law Commission on the Work of Its Sixty-Third Session, UN GAOR, 63rd Sess., Supp. No. 10, at 335–38, paras. 294–99, UN Doc. A/63/10 (2008).

95 No exceptions or limitations to immunity ratione personae have been proposed or adopted within the Commission. The Commission, however, has previously decided on a provision that would restrict such immunity to heads of state, heads of government, and foreign ministers, and only during their time in office. See 2017 Report, supra note 1, at 175 (draft Article 4).

96 See Second Report of Roman Kolodkin, at 56, para. 90, UN Doc. A/CN.4/631 (2010) (“In the opinion of the Special Rapporteur, the arguments set out above demonstrate that the various rationales for exceptions to the immunity of officials from foreign criminal jurisdiction prove upon close scrutiny to be insufficiently convincing.”). For the summary records of the interventions in the Commission's 2011 debate, see A/CN.4/SR.3086–3088 and 3111–3115. For a general summary of the debate, see Chapter VII of the 2011 Report.

97 For summaries of the interventions in the first part of the debate, see UN Docs. A/CN.4/SR.3328–3331 (2016). For a general summary of this part of the debate, see Chapter XI of the 2016 Report, supra note 5, at 341–63.

98 For summaries of the interventions in the second part of the debate, see UN Docs. A/CN.4/SR.3360–3365 (2017). For a general summary of this part of the debate, see Chapter VII of the 2017 Report, supra note 1, at 163–91.

99 See UN Doc. A/CN.4/SR.3365, supra note 98, at 18. The same member earlier in the morning had urged that members wait until after the summing up by the special rapporteur to discuss issues concerning referral of draft Article 7 to the drafting committee. Id. at 7–8.

100 See id. at 18.

101 International Law Commission, Statement of the Chairperson of the Drafting Committee, Mr. Aniruddha Rajput, “Immunity of State Officials from Foreign Criminal Jurisdiction,” at 3 (July 20, 2017), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2017_dc_chairman_statement_iso.pdf&lang=E

102 Id. at 13.

103 For summaries of the interventions on whether to adopt draft Article 7 and the annex, see UN Docs.A/CN.4/SR.3378 (2017). For the record of the vote, see 2017 Report, supra note 1, Chapter VII, at 164–65.

104 UN Doc. A/CN4/L.903/Add.2 (July 19, 2017).

105 UN Docs. A/CN.4/SR.3387–3389 (2017).

106 2017 Report, supra note 1, at 178–79, para. (5).

107 Id. at 181, para. (6).

108 A/CN.4/SR.3360, at 8 (statement of Mr. Park) (“Given the uncertainty of that situation, it would be better to consider such a limitation or exception as lex ferenda.”); A/CN.4/SR. 3361, at 6 (statement of Mr. Tladi) (noting that while the Commission did not need to define whether each article was lex lata or lex ferenda, “ways could be found to reflect the fact that relevant law was in a state of flux”); A/CN.4/SR.3361, at 9 (statement of Ms. Galvão Teles) (stating that “current practice in relation to immunity was not clear enough to enable approaches applicable to all aspects of the limitations and exceptions to immunity, particularly immunity ratione materiae,” to be identified); A/CN.4/SR.3362, at 3 (statement of Mr. Vázquez Bermúdez) (finding that there was “at least a clear trend towards the emergence of a customary rule”); id. at 9 (statement of Mr. Šturma) (“Although State practice afforded a number of examples supporting the idea that there were exceptions to the immunity of State officials, such practice was far from uniform and also offered good arguments to the contrary.”); id. at 10 (statement of Ms. Lehto) (finding that it was “difficult to identify the existence of a clear and undisputed customary law rule” granting immunity of State officials from foreign criminal jurisdiction); id. at 12 (statement of Mr. Jalloh) (stating that customary international law does not provide exceptions to immunity for war crimes, crimes against humanity, and genocide); A/CN.4/SR.3364, at 3 (statement of Ms. Oral) (“It was indeed questionable whether there was adequate support for concluding that customary law permitted any exceptions to immunity ratione materiae from foreign criminal jurisdiction.”); id. at 6 (statement of Mr. Cissé) (noting “there could be no doubt that a customary rule did not exist”); Statement of Mr. August Reinisch, Member of the International Law Commission 1 (May 24, 2017) (on file with author) (“I also have some doubts about the qualification of certain developments as already reflective of established custom.”).

109 See A/CN.4/SR.3388, supra note 105, at 4; see also Recording of the International Law Commission's 3388th meeting, Aug. 3, 2017, at time 24:55 (“En lo que sí hubo un planteamiento general, o una posición general, es en señalar que lo que sí se puede identificar es una tendencia, no una norma consuetudinaria, y eso está clarísimamente expresado en el comentario.”).

110 A/CN.4/L.903/Add.2, supra note 104, at 2, para. (1).

111 2017 Report, supra note 1, at 178, para. (1) (emphasis added).

112 See A/CN.4/SR.3387, supra note 105, at 10.

113 See id. at 10–13; see also Recording of the International Law Commission's 3387th meeting, Aug. 3, 2017, at time 103:12 (Dire Tladi (South Africa): while opposing inclusion of the sentence, “this is without prejudice to my own views about the extent to which this reflects or does not reflect law”); at time 112:30 (Marcelo Vázquez-Bermúdez (Ecuador): “Tenemos entendido … que la Comisión está trabajando dentro de su mandato general de desarrollo progresivo y codificación.”; translation: “We understand … that the Commission is working within its general mandate of progressive development and codification.”); at time 128:40 (Georg Nolte (Germany): “I have not heard an argument that the sentence was wrong in substance… . There was not a majority of members who said that draft article 7 is customary international law. There is a number of members who voted in favor of draft article 7 but who also said it was an exercise in progressive development.”); at time 130:32 (Pavel Šturma (Czech Republic): “I don't have substantive problems with the proposal. I think the Commission is divided.”); at time 136:45 (Kigab Park (South Korea): “Concerning the insertion of a new sentence. I can accept as it is because there is no substantive difficulty … .”; at time 137:49 (Aniruddha Rajput (India): “The sense that I got of the debate was that we are not disagreeing as to which domain we are in. We are progressively developing. There is no problem with the substance of the second sentence. What I understood was that there is a problem with whether to have it or not to have it.”); at time 152:20 (Sean Murphy (United States): “What I've heard from those that are not happy with the sentence I was proposing was not so much on the substance of it but more on the placement or the propriety, given our other work … I'll withdraw the sentence, although I think that the debate suggested that this is in fact the view of the Commission.”).

114 2017 Report, supra note 1, at 178–81, paras. (5)–(7) (including footnotes 762–64).

115 Id. at 181–83, para. (8) (including footnotes 765–68); see also id. at 185, para. (17) (“Some members noted, however, that the inclusion of [the crime of genocide, crimes against humanity, and war crimes] in draft article 7 found little if any support in practice, in national and international jurisprudence or in national legislation.”); id. at 187, para. (19) (“Some members noted, however, that the inclusion of [the crime of apartheid, torture and enforced disappearance] in draft article 7 found little if any support in practice, in national and international jurisprudence or in national legislation.”).

116 Fifth Report, supra note 93, at 90–92, 95 (proposing an exception for “corruption-related crimes”).

117 2017 Report, supra note 1, at 188, para. (23).

118 Id. at 188, para. (22).

119 Id. at 174, para. 138 (special rapporteur indicating “that the provision should principally apply to matters of ‘grand corruption,’ a term that was to be further specified in the commentaries”).

120 Id. at 188, para. (24).

121 Kolodkin Second Report, supra note 96, at 59–60 (“A situation where criminal jurisdiction is exercised by a State in whose territory an alleged crime has taken place, and this State has not given its consent to the performance in its territory of the activity which led to the crime and to the presence in its territory of the foreign official who committed this alleged crime, stands alone in this regard as a special case. It would appear that in such a situation there are sufficient grounds to talk of an absence of immunity.”).

122 Fifth Report, supra note 93, at 88–89, 95 (proposing an exception for crimes “that cause harm to persons, including death and serious injury, or to property, when such crimes are committed in the territory of the forum State and the State official is present in said territory at the time that such crimes are committed”).

123 2017 Report, supra note 1, at 188, para (24).

124 Id. The Commission's commentary refers generally to “murder” though what is likely meant is not a common crime of murder but, rather, murder of an important person for political purposes (assassination).

125 Id. at 185–86, para. (18).

126 Id. at 187, para. (20).

127 Recording of the International Law Commission's 3387th meeting, supra note 113, at time 123:47 (“If ever this Commission had in front of itself something which was typical progressive development, then it's this article 7. It is not only progressive development. It is rather arbitrary progressive development. And not even agreed in this Commission.”) (comment of Ernest Petrič (Slovenia)).

128 Report of the International Law Commission on the Work of Its Sixty-Seventh Session, supra note 4, at 138, para. 286.

129 For discussion of prior work on this topic, see Murphy, Sixty-Eighth Session, supra note 2, at 730–31.

130 See International Law Commission, Second Report on Jus Cogens, UN Doc. A/CN.4/706 (Mar. 16, 2017) (prepared by Special Rapporteur Dire Tladi).

131 2017 Report, supra note 1, at 193.

132 Peremptory Norms of General International Law (Jus Cogens), Statement of the Chairman of the Drafting Committee, supra note 80, at 2, 10–12.

133 Second Report on Jus Cogens, supra note 130, at 46, para. 76.

134 Report of the International Law Commission on the Work of Its Sixty-Seventh Session, supra note 4, at 138, para. 286.

135 For the syllabus of the topic, see 2016 Report, supra note 5, at 400, Annex B.

136 International Law Association, Report of the Seventy-Third Conference, Rio de Janeiro, Aug. 17–21 2008, at 250 et seq.

137 Institute of International Law, Fourteenth Commission, State Succession in Matters of State Responsibility, Provisional Report of the Rapporteur, Mr. Marcelo G. Kohen; Institute of International Law, Resolution on Succession of States in Matters of International Responsibility, Aug. 28, 2015.

138 See International Law Commission, First Report on Succession of States in Respect of State Responsibility, UN Doc. A/CN.4/708 (May 31, 2017) (prepared by Special Rapporteur Pavel Šturma).

139 International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Aniruddha Rajput, “Succession of States in Respect of State Responsibility,” Annex (July 31, 2017), available at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2017_dc_chairman_statement_ssrsr.pdf&lang=E.

140 See Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1978, 1946 UNTS 3; Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (Vienna, Apr. 8, 1983), United Nations, Juridical Yearbook 1983 (not yet in force); Articles on Nationality of Natural Persons in Relation to the Succession of States, United Nations General Assembly, Resolution 55/153 of 12 December 2000, Annex.

141 Succession of States in Respect of State Responsibility, Statement of the Chairman of the Drafting Committee, supra note 139, Annex.

142 See, e.g., State Succession: Codification Tested Against the Facts 193–94 (P.M Eisemann & M. Koskenniemi eds., 2000); Craven, M.C.R., The Problem of State Succession and the Identity of States Under International Law , 9 Eur. J. Int'l L. 142, 148–49 (1998)CrossRefGoogle Scholar; Krystyna Marek, Identity and Continuity of States in Public International Law 11, 189 (1968); Daniel Patrick O'Connell, State Succession in Municipal Law and International Law 482 (1967); Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR – A Study of the Tension Between Normativity and Power in International Law 257 (2003); Cavaglieri, A., Regles generals du droit de la paix , in 26 Collected Courses of the Hague Academy of International Law 374, 378, 416 et seq. (1929)Google Scholar; Monnier, J.P., La succession d'Etats en matière de responsibilité international, 8 Annuaire Francaise de Droit International 65 (1962)Google Scholar; Malenovsky, J., Problemes juridiques lies a la partition de la Tchevoslavaquie, y compris tracé de la frontière , 39 Annuaire Francaise de Droit International 305, 334 (1993)Google Scholar.

143 See First Report on Succession of States in Respect of State Responsibility, supra note 138, at 11–18, paras. 38–64.

144 Id. at 30, para. 111.

145 Id. at 34–35, para. 132.

146 Id. at 35, para. 133.

147 For discussion of prior work on this topic, see Murphy, Sixty-Fifth Session, supra note 70, at 55–56; Murphy, Sixty-Sixth Session, supra note 70, at 143; Murphy, Sixty-Seventh Session, supra note 2, at 838–41; Murphy, Sixty-Eighth Session, supra note 2, at 731–32.

148 2017 Report, supra note 1, at 211, paras. 256–57.

149 Id. at 212, para. 262.

150 Id. at 224–241, Annex A.

151 Id. at 242–55, Annex B.