CYIL 2014

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.

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33 See doc. A/CN.4/L.847 (2014), p. 3.