Deputy Legal Adviser
U.S. Mission to the United Nations
New York, New York
November 5, 2020
Thank you, Chair.
We would like to express our gratitude to the chair designate and secretary of the International Law Commission for their reports today, and we ask them to accept our thanks on behalf of the entire Commission for its work. We also thank the Office of Legal Affairs, and particularly its Codification Division, for its continued effort to support the work of the ILC.
The United States remains committed to the important work of the ILC. We reaffirm the written and oral comments that we offered last year on several ILC projects, and we look forward to submitting our written comments by June 2021 on the drafts regarding peremptory norms in general international law or jus cogens, and protection of the environment in armed conflict. We urge the members of the Commission to take these comments fully into account as they revise their work products.
We also read with interest the reports drafted last spring by the various special rapporteurs, as well as the chairs of the sea-level rise working group. We will not be providing comments on those reports today, as the full Commission did not have an opportunity to work through those reports over the summer. To comment on those projects now would therefore be premature. Our silence on those matters today should not, however, be regarded as indicative one way or the other of the U.S. position on any specific aspect of those reports.
The United States appreciates the difficulty faced by the ILC in conducting its business during the pandemic, and the complications presented by virtual meetings. We trust the ILC’s assessment of what is, and what is not, possible to accomplish on its substantive projects before it reconvenes in Geneva.
In this regard, the United States has a modest proposal for procedural work that might be accomplished virtually. As the U.S. delegation and others have pointed out in previous years, there is some confusion about the range of ILC work products, which in the past two decades has included draft articles, principles, conclusions, guides, and guidelines. The precise difference between some of these various frameworks is not readily apparent. Even when adopting the same framework over multiple projects the format and content of the final work products vary significantly. In addition, some recent products styled as draft “principles” or “conclusions” have included material more appropriate for draft articles — including, for example, binding language and dispute resolution clauses.
The United States therefore proposes that the ILC consider drafting a practice guide for the selection of the framework of its work products. This practice guide could detail the criteria for the selection of a particular work product framework, the types of provisions that may be included within that framework, and what the legal implications of the framework choice might be, if any.
We hope the ILC finds this proposal useful. On behalf of the United States, we send our best wishes for the health and safety of the ILC Members and their families during these difficult times.
Thank you, Chair.