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UN Legal Experts Make Progress on State Immunity, Compensation, and Due Diligence
The International Law Commission (ILC), the United Nations' expert body responsible for developing and codifying international law, made significant progress on three major legal issues during its 77th Session in Geneva (April–July 2026). The Commission finalised its long-awaited draft on State officials' immunity from foreign criminal jurisdiction and began detailed work on two emerging areas of international law—compensation for internationally wrongful acts and due diligence obligations of States.
These developments are expected to influence future international treaties, judicial decisions, and the interpretation of international law worldwide.
1. State Officials' Immunity: Balancing Sovereignty and Accountability
The ILC completed nearly two decades of work by adopting the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction on second reading.
The project addresses a fundamental legal question:
Can a government official be prosecuted by the courts of another country for crimes committed while performing official duties?
International law traditionally protects senior State officials through the doctrine of State immunity, ensuring that countries respect each other's sovereignty.
The draft distinguishes between:
The Most Debated Provision: Draft Article 7
The greatest controversy surrounds Draft Article 7, which proposes that officials should not enjoy immunity for certain grave international crimes, including:
Supporters argue that immunity should never become a shield for international crimes, while several States believe existing customary international law does not yet recognize these exceptions.
Although the draft articles have now been adopted by the ILC, they will be forwarded to the UN General Assembly, where Member States will decide their future legal status.
2. Compensation for Internationally Wrongful Acts
The Commission also advanced work on a new topic concerning compensation owed by States for internationally wrongful acts.
International law already recognizes that when one State violates international law, it must make full reparation. However, many practical questions remain unanswered, such as:
To address these gaps, the ILC appointed Professor Martins Paparinskis as Special Rapporteur.
During the 2026 session, the Commission examined the first report on the subject, marking the beginning of efforts to develop clearer international rules for awarding compensation.
If completed, this project could provide valuable guidance in disputes involving armed conflicts, environmental damage, treaty violations, and other internationally wrongful acts.
3. Due Diligence in International Law
The ILC also began substantive work on Due Diligence in International Law, one of the newest topics on its agenda.
Due diligence refers to the legal duty of States to take reasonable preventive measures to avoid causing harm beyond their borders or allowing harmful activities within their territory.
The principle applies across several branches of international law, including:
The Commission's Special Rapporteur, Dr. Penelope Ridings, presented the first report examining State practice, judicial decisions, and existing legal principles.
The report seeks to answer an important question:
What level of care is a State legally required to exercise before it can be held internationally responsible for preventable harm?
The project remains in its early stages but is expected to clarify one of the most widely used yet least defined principles of international law.
Why These Developments Matter
The ILC's work may not immediately create binding law, but it plays a crucial role in shaping the future of international legal standards.
The 2026 session demonstrates three major trends:
International courts, arbitral tribunals, and governments frequently rely on the ILC's work when interpreting or developing international law. Many of its previous draft articles have eventually become widely accepted legal principles or international treaties.
Conclusion
The International Law Commission's 77th Session marks another important milestone in the evolution of international law. By completing its work on State officials' immunity and launching substantive discussions on compensation and due diligence, the Commission has addressed some of the most pressing legal challenges facing the international community today.
While debates continue—particularly over whether State officials should enjoy immunity for serious international crimes—the Commission's work provides an important foundation for future negotiations, judicial decisions, and the continued development of international law.
Reference
Tags : International Legal Article
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