478 / 532
462
PAVEL ŠTURMA
CYIL 5 ȍ2014Ȏ
2.10 The Most-Favoured-Nation clause
The ILC reconstituted the Study Group on this topic. The Study Group began
its consideration of the draft final report, prepared by its Chairman (Donald McRae),
based on the working papers and other informal documents that had been considered
since 2009.The draft final report is divided in three parts. Part I provides the background,
including the origins and purpose of the work, the ILC’s prior work on the 1978 Draft
Articles on the Most-favoured-nation clause, and subsequent developments. Part II
addresses the contemporary relevance of and issues concerning MFN clauses, including
in the context of the GATT and the WTO, other trade agreements and investment
treaties. It also surveys the different approaches in the case law to the interpretation of
MFN clauses in investment treaties. Part III analyzes, inter alia, policy considerations
relating to the interpretation of investment agreements, implications of investment
dispute settlement as “mixed arbitration”, and factors relevant in the interpretation of
MFN clauses.
33
The Study Group envisages a revised draft final report to be presented
for consideration at the next session of the ILC in 2015.
3. Conclusion
The session of the ILC in 2014 had a very busy programme, both by the number
of topics discussed and by the outcomes. The Commission addressed not less than
10 different topics, although the consideration of some of them was relatively brief,
for the above mentioned reasons, or conducted mainly in the respective Working or
Study Groups.
On the one hand, the Commission achieved the adoption of two sets of draft
articles on the Expulsion of aliens and the Protection of persons in the event of
disasters, respectively on second and on first reading. On the other hand, the ILC
discussed some other topics where the reports reflected an early stage of elaboration
and a need to further clarify the approach and possible outcomes.
Finally, the Commission concluded its consideration of the topic
Aut dedere aut
judicare
without any other result than the final report. It might be considered as
a failure but it is rather a wise and pragmatic decision by the ILC. The long years
of work proved that the approach to the obligation to extradite or prosecute as an
alone-standing obligation, without substantive rules (definitions of crimes) and rules
on criminal jurisdiction, including universal jurisdiction, would not be feasible.
On balance, the Commission decided to place on its programme a new topic, the
Crimes against humanity, which may result in draft articles concerning, in particular,
a horizontal cooperation of States in criminal matters, including extradition, for one
important category of crimes.
To sum up, something ends and something starts, but issues of international
criminal law remain in the work of the ILC. It seems that the Commission awaits a
very demanding and interesting programme in next years.
33
See doc. A/CN.4/L.847 (2014), p. 3.