The 77th Session of the International Law Commission through the Eyes of Research Assistants to a Commission Member

The International Law Commission (ILC) addresses some of the most topical issues in international law. Its work is closely followed by many international lawyers. The ILC’s current and long-term programmes of work include issues that are also within the research agenda of the International and Comparative Law Research Center. At various times, the ICLRC has worked on some specific issues that are currently under consideration by the Commission, analyzing relevant State practice, and, at the request of Commission special rapporteurs on particular topics, compiling Russian-language materials on State practice and doctrine.

Since 2024, ICLRC researchers have also participated in ILC sessions as research assistants to the ILC member Mr. Evgeny Zagaynov (Russian Federation). In 2025, Aleksei Petrenko, ICLRC Senior Researcher in Public International Law, attended the meetings in Geneva in that capacity. Aleksei prepared an overview (in Russian) describing the Commission’s functions and role, the status of its work on various topics, and his personal impressions of the ILC’s 76th session.

From April 27 to June 5 and from June 29 to July 30, 2026, the Commission held its 77th session at the United Nations Office at Geneva. Egor Fedorov, Head of Research Projects (Law of the Sea), and Anastasiia Santalova and Andrey Buyankin, Associate Researchers in Public International Law, participated as research assistants to Mr. Evgeny Zagaynov and share their impressions of the convened work.

In a series of publications, Egor, Anastasiia, and Andrey discuss the principal issues and the course of the debates on the topics that they had an opportunity to work on.

A Few Words About the ILC and Its Work

It is difficult to imagine studying and working with international law without consulting the materials of the International Law Commission. Yet we most often turn to the ILC’s final “products” — specific draft articles, conclusions, or guidelines and their accompanying commentaries. Much less frequently we explore other publicly available materials that shed some light on how the Commission works on a given topic, the positions of individual Commission members on the issues under consideration, or the reasons why particular wording appears in the final text. Even those materials, however, do not always make the Commission’s working methods fully clear. Questions may remain about particular aspects of its work or why the final product took one form rather than another.

That is precisely why serving as a research assistant to a Commission member is both a privilege and a rare opportunity to observe, from within, the work of one of the most important bodies in international law: how positions are formed, how the wording is debated and negotiated, how different approaches to the same problem meet and sometimes clash, and how a final result gradually takes shape and eventually draws the attention of States, international courts, scholars, and practitioners.

This is most apparent when observing discussions in the Drafting Committee (DC). Statements by the Chair of the DC are publicly available (see, for example, the relevant statements from the ILC’s 77th session here, here, here, and here). Mr. Rolf Einar Fife (Norway) was elected Chair of the DC for the 77th session.

Serving as research assistant to a Commission member also offers an invaluable opportunity to network and discuss diverse matters with the distinguished international lawyers who serve on the Commission and with their assistants — young specialists from around the world who are passionate about international law. The number of assistants assigned to a Commission member may range from one or two to as many as over twenty.

The assistants’ work begins before the session and continues actively throughout it. It includes, among other, research on various topics on the Commission’s programme of work, critical discussion of those topics and related issues with the Commission member, exchanges of views on proposed wording for the Commission’s final output and analysis of the accompanying commentaries. Assistants may also be responsible for taking notes during meetings. Some of them, in addition to recording the main issues and ideas raised at plenary and DC meetings, even mark down the Commission members’ jokes, which often help ease the atmosphere after difficult debates (during a prolonged discussion, for example, one may hear references to a violation of the “human right to coffee”). In practice, informal discussions during coffee breaks sometimes become a way to reach consensus.

During the first part of its 77th session, the Commission worked on the following topics: immunity of State officials from foreign criminal jurisdiction; settlement of disputes to which international organizations are parties; non-legally binding international agreements; prevention and repression of piracy and armed robbery at sea; and succession of States in respect of State responsibility. During the second part of the 77th session, the ILC focused on other topics: compensation for the damage caused by internationally wrongful acts and due diligence in international law.

Immunity of State Officials from Foreign Criminal Jurisdiction

Egor Fedorov

The long and difficult history of this topic has been partially discussed and described by Aleksei Petrenko in his overview prepared after the 76th session of the Commission (see paras. 24-40). By way of reminder, at the ILC’s 76th session in 2025, the DC was expected to consider draft article 7 on exceptions to functional immunity (immunity ratione materiae) and draft articles 8-18 on procedural provisions and safeguards. Because the 76th session was shortened and a substantial amount of time was devoted to the discussion of draft article 7, the DC was able to consider and refer to the Commission only draft articles 7, 8, and 9. The Commission in plenary did not have time to consider those draft articles at the previous session.

Accordingly, at the 77th session, the Commission was expected to provisionally adopt draft articles 7, 8, and 9, while the DC was to consider the remaining draft articles on procedural provisions and safeguards (that is, draft articles 10-18), draft article 2 containing definitions used for purposes of the draft articles, and then finalise the whole set of draft articles for adoption by the Commission on second reading.

Vote on Draft Article 7

Many appeared to be especially interested in the opening meeting on 27 April 2026. In addition to several administrative matters, the agenda included the Commission’s consideration and provisional adoption of draft articles 7, 8, and 9. All other decisions that day were taken without substantial statements or comments by Commission members and, as the saying goes, went “under the gavel” (see here). The atmosphere in the room, however, made it clear that everyone was waiting for the question of the provisional adoption on second reading of draft article 7, which contained exceptions to functional immunity and had generated disagreement at every stage of its discussion, both among ILC members and among delegations in the Sixth Committee of the United Nations General Assembly (UNGA). It was obvious that its provisional adoption would not go smoothly.

As soon as the matter was put before the Commission, several ILC members — Mr. Bimal N. Patel (India), Mr. Evgeny Zagaynov, Mr. Ahmed Amin Fathalla (Egypt), Mr. Carlos J. Argüello Gómez (Nicaragua), and Mr. Xinmin Ma (China), in that order — made statements. Summaries of their principal points are available here, and an audio recording of their full statements may be listened to here.

The statements were not merely comments on the wording; they were principal objections to the proposed draft article 7. In general, those Commission members considered that draft article 7 either did not reflect lex lata or, at the very least, had to be presented much more cautiously as a possible instance of progressive development of international law, considering the divergent positions of States, inconsistent practice, and procedural safeguards.

Mr. Patel questioned the conclusion that a general exception to immunity ratione materiae existed, observing that many of the cases cited in support of that conclusion could be explained by State consent, special treaty regimes, or the exercise of territorial jurisdiction rather than by a denial of immunity as such. Mr. Zagaynov emphasized, among other things, that draft article 7 did not reflect existing international law but proposed a new rule, and that the disagreement on this issue both within the Commission and in the UNGA Sixth Committee should be expressly reflected in the commentary to draft article 7. Mr. Fathalla drew attention to the risk of upsetting the balance inherent in the international law of immunity and stressed the need to take the positions of States into account before the text was finalised. Mr. Argüello Gómez, for his part, expressed concern that, without adequate procedural safeguards, draft article 7 could facilitate the politicized application of “universal jurisdiction,” particularly against officials of developing States. Mr. Ma called for a cautious approach based on protecting sovereignty, preventing the politically motivated exercise of criminal jurisdiction over officials of foreign States, and respecting the principle of State consent.

The Commission seeks to adopt decisions by consensus. One reason is that any ILC product on a particular topic carries special weight precisely because it expresses the position of the Commission as a whole rather than the individual views of particular members. Commission materials even note that commentaries to its final outputs should not be used to record disagreements concerning a text adopted on second reading; such disagreements may instead be expressed in plenary when the text is finally adopted and duly reflected in the Commission’s report to the UNGA (see the ILC’s own observations here (para. 506), here (para. 382), and here (para. 198)).

Nevertheless, in the particular case of the provisional adoption of draft article 7, the matter was put to a vote — for the second time in the history of the Commission’s consideration of draft article 7 (the provision had also been provisionally adopted on first reading by a vote in 2017, at the Commission’s 69th session).

In this connection, Mr. Zagaynov noted that although “collegiality and consensus are essential to the Commission’s work,” the position and arguments of those opposing exceptions to functional immunity continued to be disregarded. He stressed in particular that only three Commission members at the 76th session had expressed the view that draft article 7 reflected customary international law, while at least ten members had argued that it did not. In addition, according to his count, during the discussion of draft article 7 in the UNGA Sixth Committee, only 8 of the 54 State delegations that addressed the provision stated that it reflected customary international law, while 15 delegations representing States from different regions and legal systems expressed the opposite view.

Following the vote, the Commission provisionally adopted draft article 7 on second reading: 23 votes in favor, 4 against, and 3 abstentions.

For comparison, the 2017 vote was 21 in favor, 8 against, and 1 abstention. In both 2017 and 2026, 30 of the Commission’s 34 members participated in the vote. As a side note, one may observe that the Commission’s composition in 2026 differed significantly from its composition in 2017: only 12 of the 34 members serving in 2017 remained on the Commission in 2026.

In any way, the fact that draft article 7 was put to a vote again, together with the votes against and abstentions, shows that the provision still did not command consensus within the Commission. This may also be relevant to the future discussion of whether to develop a universal treaty based on the draft articles — a recommendation the Commission will likely include in its final report to the UNGA after adopting the full text of the draft articles and commentaries thereto (on that see below).

Discussion of Procedural Safeguards and Completion of the Second Reading

The procedural provisions and safeguards were originally proposed as a kind of protective measure against potential difficulties in applying draft article 7 in practice (see para. 38 of Aleksei Petrenko’s overview). At the various stages of their consideration, these draft articles generated comparatively little disagreement, both among members of the Commission and among States in the UNGA Sixth Committee.

A summary of the DC’s discussions of the remaining issues under the topic during the 77th session is available in the report by its Chair, Mr. Fife. As the report shows, most of the discussion concerning procedural provisions and safeguards focused on the wording of the provisions, with a view to ensuring due regard and balance for the interests, rights, and obligations of both the State exercising criminal jurisdiction over an official of a foreign State (forum State) and the State of that official. As often occurs when international legal texts are drafted, the nature of obligation imposed by several provisions was discussed, including whether and when the verbs “shall,” “should,” and “may” should be used.

After agreeing on all draft articles concerning procedural provisions and safeguards, the DC returned to draft article 2, which stipulates the definitions used for purposes of the draft articles. The version of draft article 2 adopted on first reading already defined terms and phrases such as “State official” and “act performed in an official capacity.” At this stage, it was proposed to add definitions of several other terms and phrases – “exercise of criminal jurisdiction,” “forum State,” and “State of the official” – that are used throughout the draft articles. The Commission decided instead to explain their meaning in the commentaries to the final adopted set of draft articles.

After completing its work on draft article 2, the DC proceeded to the technical and editorial cleanup (toilettage) of the entire text of the draft articles, checking the wording, eliminating inaccuracies and inconsistencies, and refining the titles of the different parts. In particular, in the text of the draft articles submitted by the DC to the Commission, the provision on exceptions to functional immunity was renumbered as draft article 6, and the full text now comprises 17 draft articles.

At the conclusion of its work during the first part of the 77th session, the DC submitted the final draft articles to the Commission and recommended their adoption on second reading. The Commission adopted the draft articles on second reading at its meeting on May 15, 2026, and did so without a vote on draft article 7 (draft article 6 in the final numeration).

What Happens Next?

During the second part of the ILC’s 77th session, held from June 29 to July 30, the Commission was preparing its report on the session. The preparation and approval of the report took up most of the second part of the session. As usual, the report will be published somewhat later. It will contain a separate chapter on immunity of State officials, recording the results of the discussion at the session. That chapter will also include the final draft articles, their commentaries, and a recommendation to the UNGA concerning the future of the draft articles.

Under article 23(1) of the Statute of the ILC, the Commission may recommend that the UNGA:

• to take no action, the report having already been published;

• to take note of or adopt the report by resolution;

• to recommend the draft to States with a view to the conclusion of a treaty;

• to convoke an international conference to conclude a treaty.

It appears most likely that the Commission will recommend the draft article to the UNGA with a view to conclusion in the future of a treaty based on the final draft articles.

Accordingly, in fall 2026, the UNGA Sixth Committee will consider the Commission’s report, including the final draft articles on immunity of State officials, and submit its own report to the UNGA. That report will contain a summary of the consideration of the relevant agenda item and one or more draft resolutions recommended for adoption by the UNGA. The UNGA, in turn, will consider and adopt a resolution on the Commission’s report. It may also adopt a separate resolution or decision on a specific topic related to the Commission’s work when appropriate.

Given the difficult history of the draft articles on immunity of State officials and, in particular, the continuing disagreement over exceptions to functional immunity, it may be expected that the UNGA will take note of the draft articles and commend them to the attention of States, without prejudice to the question of their possible future development into a treaty (see, for example, the analogous UNGA resolution concerning the draft articles on responsibility of States for internationally wrongful acts –  Resolution 56/83 of December 12, 2001).

It appears that reception of the final draft articles – and especially draft article 6 on exceptions to immunity ratione materiae – by States and by international and national courts will largely depend on whether the Commission identifies in its final commentary the legal status of the proposed provisions. The ILC often indicates whether particular provisions reflect rules of customary international law or constitute progressive development of international law. Whether the Commission will include such an explanation in the final commentary to draft article 6 is a question that will soon be answered, once the ILC report on the 77th session is published.

Judging by the debates last year and this year, there was no agreement within the Commission on whether the commentaries to the draft articles should distinguish between progressive development and codification. For example, the current Special Rapporteur for the topic, Mr. Claudio Grossman Guiloff (Chile), noted at the 76th session that he “saw merit in the opinion of some members that it would not be appropriate for the Commission to make a distinction between progressive development and codification in the commentary,” because “the purpose of the draft articles was to serve as the basis for a treaty and States should have ample opportunity to discuss the scope of the provisions proposed” (see here (para. 169)). Nevertheless, it appears that the Commission’s authoritative view, expressed in the commentary, on the legal nature of the relevant provisions might play an important role in the future of the draft articles.

Overall, the Commission’s work on immunity of State officials from foreign criminal jurisdiction has come to an end. The topic itself, however, will not fall off international law’s “radar.” Debates over the existence of exceptions to immunity ratione materiae will continue. At some point, the question may indeed arise of convening an international conference and adopting a treaty based on the draft articles. Even in the absence of a universal treaty, however, the final text of the draft articles may influence the subsequent practice — both by encouraging reliance on the Commission’s work in support of the proposed exceptions to functional immunity and, conversely, by prompting States to consciously distance themselves from such exceptions. In this regard, it is worth noting that there already exist bilateral treaties that reaffirm the recognition of the functional immunities of officials of foreign States (see, for example, Russia’s bilateral treaties (in Russian) with certain States here, here, and here).