CYIL 2015

THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2015, BUSINESS AS USUAL? The ILC only took note of the interim report of the Chairman of the Drafting Committee, including the six draft principles provisionally adopted by theCommittee, 26 which was presented to the Commission for information and would appear just in footnotes of the ILC’s report on the work in 2015. The ILC will adopt them only at the next session, together with commentaries. As a matter of information, the above draft principles deal with both preventive measures to be adopted before an armed conflict (Designation of protected zones) and principles applicable during armed conflict. They include general protection of the environment, application of the law of armed conflict to the environment, environmental consideration that shall be taken into account when applying the principle of proportionality and the rules on military necessity, prohibition of reprisals against the environment, and special protection of protected zones against any attack. As to the future programme of work, the Special Rapporteur expressed, and some members supported, the proposal to address in her third report the law applicable in post-conflict situations, issues that had not yet been examined during the second phase, and to provide a summary analysis of the three phases. 27 2.6 Immunity of State officials from foreign criminal jurisdiction In relation to this topic the Commission had before it the fourth report of the Special Rapporteur Ms. Concepción Escobar Hernández, which was focused on the consideration of the remaining aspects of the material scope of immunity ratione materiae , namely what constituted an official act, and its temporal scope. 28 The report also contained proposals of draft Article 2(f ) defining an “act performed in an official capacity” and draft Article 6 on scope of immunity ratione materiae . Following the extensive debate in Plenary, 29 the ILC decided to refer both draft articles to the Drafting Committee. In the end of its session the Commission took note of the interim report of the Chairman of the Drafting Committee, including draft Articles 2(f ) and 6 provisionally adopted by the Committee. 30 In this topic again the ILC will formally adopt those draft articles with commentaries in 2016. Just for the sake of information, an “act performed in an official capacity” means any act performed by a State official in the exercise of State authority. Concerning the key provision on scope of immunity, it makes clear that State officials enjoy immunity ratione materiae only with respect to acts performed in an official capacity. This immunity continues to subsist after the individuals concerned have ceased to be State officials. As to the future programme of work, the Special Rapporteur confirmed her intention to address the issue of limits and exceptions to the immunity in her next 26 See doc. A/CN.4/L.870 (2015). 27 See doc. A/CN.4/L.862 (2015), p. 10, § 33. 28 See doc. A/CN.4/686 (2015). 29 Cf . doc. A/CN.4/L.863 (2015), §§ 19-52. 30 See doc. A/CN.4/L.865 (2015).

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