Cooperation between International Law Commission, Sixth Committee Has ‘Stood the Test of Time’, Chair says, as Review of Report Begins
Representatives Debate Need for Peremptory Norms List, Convention on Crimes Against Humanity
As the Sixth Committee (Legal) began its consideration of the International Law Commission report today, speakers addressed the first of three clusters of topics, critiquing the Commission’s working methods and offering competing views about the future of draft articles and conclusions on “Crimes against humanity” and “Peremptory norms of general international law” (jus cogens).
Pavel Šturma (Czech Republic), Chair of the International Law Commission, introduced the report (document A/74/10), giving an overview of the entirety of the Commission’s seventy‑first session. He observed that the Commission and the Committee share common goals and that their cooperation in the progressive development and codification of international law has “stood the test of time”.
Beginning with Cluster I, he said that the Commission adopted the entire set of draft articles on “Crimes against humanity” and recommended to the General Assembly that those texts be elaborated into a convention. The articles are based on provisions widely used in treaties addressing crimes and seek to fill gaps in international law. The Commission also adopted a set of 23 draft conclusions on “Peremptory norms of general international law (jus cogens)” and sent them to Governments for comment. Those texts provide a toolbox for systematically identifying jus cogens norms and their legal consequences, he added.
Turning to Cluster II, he said that the Commission adopted a set of 28 draft principles and commentaries on “Protection of the environment in relation to armed conflicts” and submitted them to Governments for comment. These texts aim to enhance protection of the environment in relation to such conflict, rather than modify the law of armed conflict. The Commission had previously adopted seven draft articles on “Immunity of State officials from foreign criminal jurisdiction”; nine further draft articles were proposed. Turning to the newest topic on the Commission’s programme of work — “Sea‑level rise in relation to international law” — he said that the Commission’s work in this area will focus on the Law of the Sea, Statehood and human rights.
Regarding Cluster III, he referenced the Commission’s provisionally adopted draft articles 1, 2, 5 and related commentaries on “Succession of States in respect of State responsibility”, noting they are intended to apply in the absence of an alternative solution agreed upon by the States concerned. The Commission, following its plenary debate, also decided to refer draft conclusions 1 and 3 on “general principles of law” to the Drafting Committee. He requested States to provide information on their practice in this area.
In the ensuing debate, delegations’ legal advisers and representatives offered competing stances on the need for a convention on “Crimes against humanity”, deliberated over the necessity of a non‑exhaustive list of peremptory norms (jus cogens) and highlighted areas of improvement needed in the Commission’s working methods.
The representative of France, despite praising the Commission’s vast scope of work, pointed out that international law cannot be driven by a single language. Calling for more care and resources to be allocated to its translation, he said he regretted terminological inaccuracies in the French version of the Commission’s work. He also expressed reservations about the non‑exhaustive list of peremptory norms, questioning whether the draft conclusions on these norms constitute simply a doctrinal exercise. However, the Commission’s draft articles on “Crimes against humanity” were very accomplished, he said, calling for their adoption in the form of an international convention.
Disagreeing on that last point was China’s representative who said that States are far from reaching consensus on the need for a convention on “Crimes against humanity”. Many of the draft articles derive from analogous texts found in existing international conventions, have no grounding in widespread international practice and rely primarily on the practice of international criminal tribunals without universality. He added that the draft conclusions on “Peremptory norms (jus cogens)” should avoid including a non‑exhaustive list, as the Commission failed to provide convincing arguments for including such norms in accordance with its own criteria.
The representative of Nicaragua, also addressing “Peremptory norms (jus cogens)”, highlighted the problematic nature of the non‑exhaustive list, but for different reasons. While agreeing with the norms that were included on the list, he cautioned against the possibility of erroneous messaging regarding the norms that were excluded. The draft conclusions do not seek to determine the content or concept of peremptory norms themselves, but the list threatens to undermine this aim.
Commenting on the Commission’s methodology, Sierra Leone’s delegate, also speaking for the African Group, observed that only one African member was currently serving as a Special Rapporteur within the Commission’s work. Stressing that the progressive development and codification of international law must be inclusive and draw inspiration from the world’s principal legal systems — including African customary law — he called on the Commission to consider a balanced approach and the selection of rapporteurs when deciding to add new topics. “This could help to enhance the legitimacy of the Commission’s work,” he said.
Also speaking today were representatives of Norway (also speaking for Denmark, Finland, Iceland and Sweden), Austria, Romania, Slovakia, United Kingdom, Czech Republic and Poland, as well as a representative of the European Union delegation.
The Sixth Committee will next meet at 10 a.m. on Tuesday, 29 October, to continue its consideration of topics in Cluster I from the report of the International Law Commission.
Introduction to International Law Commission Report
PAVEL ŠTURMA (Czech Republic), Chair of the International Law Commission, introduced the report of the Commission’s seventy‑first session (document A/74/10). Highlighting the shared goals between the Commission and the Committee, he underscored that their cooperation in the progressive development of international law and its codification has “stood the test of time”. Recalling the first Chair’s address to the Committee in 1949, he noted that the Commission has heard comments in recent years regarding the length of such interventions. Therefore, this year, he would make a single intervention covering the entirety of the Commission’s seventy‑first session while the Committee’s debate would continue to take place in clusters.
In Chapter IV on the topic of “Crimes against humanity”, he noted that the Commission adopted on second reading the entire set of draft articles on prevention and punishment of these crimes. The Commission has recommended these articles to the General Assembly for the elaboration of a convention by that body or by an international conference of plenipotentiaries. The articles follow the pattern of existing criminal law enforcement instruments affecting the horizontal relationship between States. The central objective has been to provide effective provisions that States are likely to accept, based on provisions often used in widely adhered-to treaties addressing crimes as a basis for a possible future convention. The articles seek to fill lacunae in international law, as there is no global convention dedicated to preventing and punishing crimes against humanity and promoting inter‑State cooperation in that regard. An end to impunity is realizable when the international community acts together.
Turning to Chapter V, “Peremptory norms of general international law (jus cogens)”, he said that the Commission adopted on first reading a set of 23 draft conclusions, a draft annex and commentaries thereto. The Commission decided to transmit the draft conclusions to Governments for comments and observations and requested that the same be submitted to the Secretary‑General by 1 December 2020. The conclusions concern the identification of jus cogens norms and their legal consequences. They define the principle’s norms; provide criteria for their identification; outline their bases in customary and other international law; and detail the elements and evidence for their acceptance and recognition and subsidiary means for their determination. The conclusions seek to provide a toolbox for a process that leads to systematic identification of jus cogens norms and their legal consequences. They also aim to provide guidance to all those called to determine the existence of peremptory norms of general international law and the consequences thereof.
The Commission also completed a first reading on “Protection of the environment in relation to armed conflicts” in Chapter VI, adopting a set of 28 draft principles and commentaries thereto, he said. The draft principles were submitted to Governments, international organizations and others for comments and observations, with a request that the same be submitted to the Secretary‑General by 1 December 2020. The international community recognizes that environmental effects occurring both during and after armed conflict have the potential to pose a serious threat to the livelihoods and existence of individuals and communities. The Commission decided to approach this topic bearing in mind three temporal phases — before, during and after armed conflicts. The texts’ purpose is not to modify the law of armed conflict, but rather to enhance the protection of the environment in relation to such conflict.
Turning to Chapter VII, “Succession of States in respect of State responsibility”, he said that the orientation is to clarify the interaction and fill possible gaps between the law of succession of States and the law of responsibility for internationally wrongful acts, while bearing in mind the importance of maintaining consistency with the previous work of the Commission on various aspects of the two areas. Noting that the Commission provisionally adopted draft articles 1, 2 and 5, with commentaries thereto, he said these articles are intended to apply in the absence of any different solution agreed upon by the States concerned. In future work, the Special Rapporteur will address forms of responsibility in the context of succession of States, as well as address procedural issues.
On Chapter VIII, “Immunity of State officials from foreign criminal jurisdiction”, the Commission had previously adopted 7 draft articles, contained in three parts, he said. In the latest reports, nine further draft articles were proposed and, following the plenary debate, the Commission decided to refer articles 8 to 16 to the Drafting Committee. While that Committee was unable to complete its work, the Commission took note of the report of its Chair on draft article 8 ante. That article seeks to make certain that the procedural provisions and safeguards to form part four of the draft articles would be applicable in relation to any criminal proceeding against a foreign State official, current or former, that concerns any of the draft articles contained in part two and part three of the draft articles.
Addressing Chapter IX, “General principles of law”, he said the Commission had before it the first report of the Special Rapporteur, which addresses the scope of the topic, the main issues to be addressed in the course of the Commission’s work as well as its previous related work. Following the plenary debate, the Commission decided to refer draft conclusions 1 to 3 to the Drafting Committee. To assist the Commission in the further consideration of the topic, he requested States to provide information on their practice relating to general principles of law, in the sense of article 38, paragraph 1(c) of the Statute of the International Court of Justice. This should include information as set out in decisions of national courts, pleadings before international courts and tribunals, statements made in international forums and treaty practice.
Regarding the newest topic on the Commission’s programme of work — Chapter X, “Sea‑level rise in relation to international law” — he said the focus was on procedural aspects and the way forward. The Commission established a study group, which decided on its programme of work, based on three identified subtopics: Law of the Sea, Statehood and human rights. Also welcoming any information that States, international organizations and the International Red Cross and Red Crescent Movement could provide on their practice and other relevant information concerning sea‑level rise, he said that in 2020, the study group is expected to focus on the subject of sea‑level rise in relation to the Law of the Sea.
Last year, the Commission completed the first reading on the topic, “Provisional application of treaties”, he said, adding that the Special Rapporteur on that topic convened informal consultations to consider a set of draft model clauses. Further, the Commission completed the first reading of the topic, “Protection of the atmosphere”. The holding of the International Law Seminar, the fifty‑fifth session of which was successfully convened, remains close to the heart of Commission members. The seventy‑second session of the Commission will be held in Geneva from 27 April to 5 June and from 6 July to 7 August 2020, he announced, also acknowledging the invaluable assistance of the Codification Division of the Office of Legal Affairs.
Statements on Cluster I
ALIE KABBA (Sierra Leone), speaking for the African Group, said the process of progressive development of international law and its codification must always be inclusive in considering law texts, State practice, precedents and doctrines. Efforts must draw inspiration from the world’s principal legal systems, including African customary law. As such, the bloc is committed to multilateralism and the rules‑based international legal system and values the contribution of the Commission in maintaining this system, he said.
He then highlighted the three draft articles tackling the scope, definitions and commentaries on “Succession of States in respect of State responsibility” as well as the consideration of the topic “Immunity of State officials from foreign criminal jurisdiction”. In this context, he expressed support for strong procedural safeguards to help ensure that the exercise of any type of foreign jurisdiction in relation to immune officials is not abused for political purposes.
He also took note of the draft model clauses on “Provisional application of treaties”. Acknowledging the work of the Commission and the Special Rapporteurs, he said that respective delegations of the African Group would comment on the specific substantive issues.
On “Sea‑level rise in relation to international law”, he said he hoped that the Commission will have the opportunity to expedite work on this important topic. There were clear threats posed by sea‑level rise to islands and other coastal areas in the Group as well as to people’s livelihoods. Moreover, the international community has not addressed the legal implications of this issue in a comprehensive manner, he observed, expressing appreciation for the accelerated consideration of the topic in this context.
He then turned to the inclusion of two topics on the Commission’s long‑term programme of work, “Reparations to individuals for gross violations of human rights law and serious violation of international humanitarian law” and “Prevention and suppression of piracy and armed robbery at sea”. The African Group, he stressed, has consistently highlighted the problem of piracy and the need to strengthen maritime security at various platforms.
There was only one African member currently serving as a Special Rapporteur, he pointed out and called on the Commission, when deciding to add new topics, to consider a balanced approach in terms of interest as well as selection of the rapporteurs. “This could help to enhance the legitimacy of the Commission’s work,” he said.
LUCIO GUSSETTI (European Union) speaking on “Crimes against humanity”, said that there is no global convention dedicated to preventing and punishing crimes against humanity and promoting inter‑State cooperation in that regard. As such, the European Union sees the elaboration of a convention on the basis of the draft articles as a major step to strengthen the international criminal justice system. Expressing support for such an instrument, he said it should be established by an international conference of plenipotentiaries.
Mr. SELAND (Norway), also speaking for Denmark, Finland, Iceland and Sweden, turned to “Crimes against humanity”, remarking that while he would prefer a definition that took into account the social construction of gender and the accompanying roles and behaviours, he was pleased that the Commission decided not to include the definition of “gender” found in article 7, paragraph 3 of the Rome Statute. Regarding the obligation to ensure that such crimes be punishable by appropriate penalties, the relevant draft article should draw inspiration from the Statute’s article 77 which does not include the death penalty. He expressed regret that that practice was not excluded in draft article 6, paragraph 7.
On “Peremptory norms of general international law (jus cogens)”, he said the topic does not lend itself to codification, considering the relatively limited and varying practice. “This calls for caution,” he added. The topic is best addressed by the Commission through a conceptual and analytical approach, rather than a view to elaborating a new normative framework for States. He also said he was unconvinced about the possibility to reconcile “regional jus cogens” with the notion of jus cogens as peremptory norms of general international law. Regarding a non‑exhaustive list of jus cogens norms in the annex to the Commission’s draft conclusions, he observed that, according to draft conclusion 23, the list is without prejudice to the existence or subsequent emergence of other peremptory norms of general international law.
JIA GUIDE (China), on “Crimes against humanity”, said States are far from reaching consensus on the need for a convention on that topic. Committee discussions point to major shortcomings in key provisions of the draft articles. Many of those drafts derive from analogous texts found in existing international conventions, have no grounding in widespread international practice and rely primarily on the practice of international criminal tribunals without universality.
Turning to “Peremptory norms of general international law (jus cogens), he said the draft conclusions should avoid treading on the relationship between Security Council resolutions and jus cogens. Any attempt to judge the validity of Council resolutions against the principle will likely lead to using jus cogens as a pretext for evading the obligation to implement those resolutions. Adding that the draft conclusions should avoid including a non‑exhaustive list of peremptory norms, he said the Commission failed to provide convincing arguments for including such norms in accordance with its own criteria for identifying jus cogens as contained in the draft conclusions.
On “Prevention and repression of piracy and armed robbery at sea”, he said the Commission should fully consider the development of law and practice in the area and avoid altering existing international legal frameworks or rules. It should base its work on respect for national legal systems, seeking practical and feasible measures to promote international cooperation and coordination in piracy‑related criminalization, extradition and mutual legal assistance in stepping up efforts to prevent and combat piracy.
With respect to “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, he noted that the international community has yet to reach an agreement on types of acts that qualify as gross violations of international human rights law and serious violations of international humanitarian law. As such, selection of this topic as one of the Commission’s long‑term projects seems premature, lacking support from international and State practice.
HELMUT TICHY (Austria), acknowledging the effort to base the draft articles on “Crimes against humanity” as much as possible on the Rome Statute of the International Criminal Court, said this approach precludes the risk of divergences. Regarding draft article 14 on mutual legal assistance, he voiced support for strengthening international cooperation as envisaged in this draft, in particular paragraph 9 concerning cooperation with international mechanisms. He also noted his support for the Commission’s recommendation to elaborate a convention based on the draft articles and called on the Committee to decide to conclude such an international convention. That would close the existing gap concerning the criminalization of crimes against humanity and would oblige States to establish jurisdiction over such crimes, he pointed out.
Turning to the draft conclusions on “Peremptory norms of general international law (jus cogens)”, he said that while a non‑exhaustive list of jus cogens norms is helpful, it is unclear whether the wording concerning the prohibition of aggression, listed as the first example of jus cogens norms in the annex, comprises all aspects of the general prohibition of the use of force pursuant to Article 2 (4) of the Charter of the United Nations. Further, the reference to basic rules of international humanitarian law as a jus cogens norm is not sufficiently precise. The draft annex is not meant to be exhaustive, he commented, adding: ”We wonder why the Commission has not made the attempt to include at least all the norms it had identified as jus cogens in its previous work.”
Turning to the Commission’s long‑term programme of work and “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, he questioned whether the intended mixture of de lege lata analysis and de lege ferenda suggestions could substantially add to the already existing “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, adopted by the General Assembly resolution 60/147.
While the topic “Prevention and repression of piracy and armed robbery at sea” has not yet been addressed by a specific comprehensive international instrument in accordance with modern international criminal law, he said it remains to be seen to what extent the Commission’s work can go beyond the Convention on the Law of the Sea.
He also voiced support for the inclusion of the topics “Universal criminal jurisdiction” and “The settlement of disputes to which international organizations are parties”. Both issues not only meet the Commission’s criteria for the selection of topics but are also of high practical relevance for States. Addressing the model clauses on “Provisional application of treaties” in the annex to the report, he said: “We miss a model clause allowing negotiating States to opt-in into the provisional application of a treaty, not just non‑negotiating states.”
JAIME HERMIDA CASTILLO (Nicaragua), commenting on “Peremptory norms of international law (jus cogens)”, said he agreed with the commentary to conclusion 1, which states that the draft conclusions do not aim to determine the content or concept of peremptory norms themselves. However, the illustrative list in conclusion 23 threatens to undermine this aim. While he agreed with the norms that have been included in the list, he pointed out the possibility of a collateral erroneous message regarding the status of excluded norms.
Further, he questioned why certain norms of a peremptory nature referenced within the commentaries to conclusion 23, including several from the Charter, were not included in the list. Commenting on several other conclusions, he highlighted the confirmation of conclusion 19 by the International Court of Justice. On this point, he referenced the Court’s advisory opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, which called for States to end violations of the right to self‑determination.
ALINA OROSAN (Romania) said that in regards to “Crimes against humanity”, she supported codifying the draft articles into a global convention. Such an instrument would establish a strong legal basis for inter‑State cooperation on the prevention, investigation and prosecution of those crimes.
Turning to “Peremptory norms of general international law (jus cogens), she said that the draft conclusions and commentaries are well‑balanced and closely follow the Vienna Convention. However, further reflection is needed whether conclusion 13, paragraph 1 — “a reservation to a treaty provision reflecting a jus cogens norm shall not affect the binding nature of the norm” — is necessary. Paragraph 4 of conclusion 21 and the corresponding commentaries only reflect the situation when the dispute actually comes before the International Court of Justice. The way the text is written might suggest that this conclusion is a basis for the Court’s jurisdiction, irrespective of the consent of both States. This is not in line with the intention of the Commission, nor with international law. Regarding conclusion 23, she said she favours a non‑exhaustive list of jus cogens norms as an annex to the conclusions.
On “Other decisions and conclusions of the Commission”, she said that draft model clause 3 reflects a certain formalism not necessarily to be found in article 25 of the Vienna Convention on the Law of Treaties. As for draft model clause 4, she said that, according to the above‑mentioned provision of the Vienna Convention, the provisional application of treaties occurs when States have agreed to that in whatever form. Therefore, if a State did not agree to a resolution that also includes a decision on a provisional application of a treaty, it was clear that application did not occur.
Regarding the Commission’s long‑term programme of work, she noted her doubts about the need to embark on an exercise of codification and progressive development on the proposed new topic, ”Reparation to individuals for gross violations of international human rights and serious violations of international humanitarian law”. The Commission’s previous work on diplomatic protection and State responsibility can offer good guidance on this matter.
On “Prevention and repression of piracy and armed robbery at sea”, she said that while existing international law, in particular the 1982 United Nations Convention on the Law of the Sea, provides a solid legal framework, it would be worthwhile to analyse whether there are any gaps in this respect in the applicable legal regime.
METOD ŠPAČEK (Slovakia), applauding the adoption of the 15 draft articles on “Crimes against humanity”, endorsed the Commission’s recommendation to elaborate a convention, either by the Assembly or by an international conference of plenipotentiaries. Expressing a preference for the second option, he said a diplomatic codification conference is the most suitable forum for such an exercise. While the Special Rapporteur’s report demonstrates a significant amount of overlap between the Mutual Legal Assistance initiative and the draft articles, these two initiatives are complementary. “We are determined to engage in procedural steps” leading to a new convention on prevention and punishment of crimes against humanity on the basis of the draft articles, he stated.
Turning to “Peremptory norms of general international law (jus cogens)”, he called for a prudent approach and in‑depth analysis. All issues surrounding peremptory norms should be considered in a reflexive and cautious manner. “Despite warning signs from many delegations” during previous sessions, the Commission and the Special Rapporteur boldly proceeded to adopt the whole set of draft conclusions on the first reading. Rushed outcomes, while disregarding apparent divergent views, could hardly lead to a success, he noted. Further, while there is potential added value in an illustrative list of peremptory norms, such a list should result from a careful, elaborated and inductive analysis of the States’ practice and their legal opinions, he stressed. However, he noted, it remains unclear what was the exact criterion for inclusion or non‑inclusion of a particular norm to the list.
On “Other decisions and conclusion of the commission”, he noted the work done on “provisional applications of treaties”. Specifically, on draft model clause I, paragraph 2, he recalled the stance his delegation took last year regarding the intention of a State to terminate the provisional application of a treaty. That intention did not always have to coincide with notification by the same State of its intention not to become a party to the treaty.
Highlighting the Commission’s inclusion on its long‑term programme of work —“Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” and “Prevention and repression of piracy and armed robbery at sea”, he said that the Commission should observe its own recommendations made at its fiftieth session regarding criteria for selecting topics. He urged the commission to consider carefully the inclusion of any new topic and to provide detailed reasoning for that inclusion.
Mr. ALABRUNE (France), while congratulating the Commission for the vast scope of work it accomplished, said that in order to improve the quality of its dialogue with the Sixth Committee, it is vital to respect multilingualism and account for the unique specificities of different national legal systems. That is crucial to universality as well as the Commission’s authority, he said, adding that international law cannot be driven by a single language. Calling for linguistic diversity in the source documents that the Commission uses, he said he regretted terminological inaccuracies in the French version of the Commission’s work and called for more care and resources to be allocated to its translation.
Welcoming the Commission’s work on “Crimes against humanity”, he said the draft articles are very accomplished and should be adopted in the form of an international convention. Voicing support for the organization of a conference of plenipotentiaries, he underscored that the draft articles are a model for the Commission, as they were a work of high quality, carried out in a reasonable time frame, on topics intended to become international instruments.
Turning to “Peremptory norms of general international law (jus cogens)”, he said the adoption and transmission of the draft conclusions allows Member States to engage with the Commission in a transparent dialogue on this matter. While the Commission acted wisely in excluding regional jus cogens from its work, he expressed reservations about the non‑exhaustive list of jus cogens. The Commission would need to proceed to an in‑depth study of many aspects of international law before issuing such a list; however, its mandate on the topic only covers secondary norms. Also highlighting the legal difficulties concerning a draft conclusion, he asked about the future of these texts and the question of whether they are a doctrinal exercise or meant to be recommendations for States. The Commission must ensure that States have a good understanding of its intentions, he stressed.
IAIN MACLEOD (United Kingdom), commenting that the Commission’s work is often taken to be an articulation of international law without considering whether it has been accepted by a treaty or otherwise underpinned by State practice and opinion juris, stressed that the situation is “becoming critical”. He emphasized the importance of continued engagement between the Commission and States, the need for both drafts and commentaries on its programme of work to be provided to States, and for the Commission’s proposed output to be subject to discussion among States. In addition, he called for fewer and more judiciously chosen topics to be adopted by the Commission, as this would aid the clarity and acceptability of the final product.
On “Other decisions and conclusions of the Commission”, he endorsed the inclusion of “Sea‑level rise in relation to international law”. However, he urged caution about the speed with which voluminous topics are being added to the Commission’s long‑term programme of work. In that regard, of the two proposed inclusions, he said he was in favour of the Commission taking up “Prevention and repression of piracy and armed robbery at sea”, adding that the other topic on “Reparation to individuals for gross violations of international human rights law” was not yet ripe for work by the Commission. Similarly, on “Universal criminal jurisdiction”, he said State practice has not yet sufficiently advanced to enable consideration of the topic.
Turning to “Crimes against humanity”, he commended the rigour and practical approach of the draft articles adopted by the Commission, saying they present a positive and useful example of the codification and progressive development of international law. He called for the removal of “gender” from draft article 3 and for a more clearly exhaustive list of measures States should undertake to prevent crimes against humanity under draft article 4. He also said he supported the elaboration of the draft articles into a convention, which would complement — rather than compete with — the Rome Statute. However, such a convention would call for his country to amend its domestic law, which presently is currently not sufficient for the exercise of jurisdiction.
Regarding “Peremptory norms of general international law (jus cogens)”, he urged the Commission to approach with caution, given the potentially far‑reaching consequences of the draft conclusions. He went on to outline his assessments of specific conclusions, noting that his overview would be followed up by detailed written comments before the December 2020 deadline. Specifically, on draft conclusion 3, he said it is “at best superfluous, and at worst unhelpful”, as well as “a potential source of confusion to States and practitioners”; it should be omitted.
He went on to say that on draft conclusion 16, he welcomed the omission of the specific reference to binding resolutions of the Security Council in the text of the conclusion itself. However, accompanying commentary noted that the conclusion applies equally to binding resolutions, decisions and acts of the Security Council. Such a reference could undermine the legality and effectiveness of binding Security Council resolutions and be used to weaken respect for them.
PETR VÁLEK (Czech Republic), on “Crimes against humanity”, stressed the need to fill the legal gap, namely the absence of a comprehensive convention on prevention and punishment of such crimes and on judicial cooperation among States in prosecuting these crimes. Expressing appreciation for the new wording of draft article 11 on fair treatment of the alleged offender, he commented on the new paragraph 12 of draft article 13 which imposes obligation on a requested State to give due consideration to the request of the State in the territory under whose jurisdiction the alleged offence has occurred.
Turning to “Peremptory norms of general international law (jus cogens)”, he said that despite the request by a number of States, the Commission decided to annex to the draft conclusion an indicative list of jus cogens, thus igniting unnecessarily the debate about its content. He called for the examples of peremptory norms of international law to not be included in the annex, but only mentioned in the commentaries with reference to the sources from State practice, jurisprudence and literature supporting their characterization as peremptory norms.
He then commented on the Commission’s long‑term programme of work, including the inclusion of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law”, and “Prevention and repression of piracy and armed robbery at sea”. Moving any of the topics from the already existing long‑term programme list to the active programme should only be done after careful consideration and proper explanation as to why the Commission was giving a preference to one topic over another. In that regard, he recalled that his country had repeatedly proposed to the Commission to include “Universal criminal jurisdiction”. Acknowledging its recent inclusion in the programme of work, he affirmed his support, given its relevance to State practice.
KONRAD MARCINIAK (Poland), expressing support for strengthening the dialogue between the Commission and States, said that the practice of publishing an advanced copy of the Commission’s report gives States more time to prepare comments and should be continued. However, he pointed out that the Commission treated certain topics differently, juxtaposing its work on the issue of immunity from foreign criminal jurisdiction and on the topic of peremptory norms of general international law. While the former was carefully discussed within the Commission and with States, the latter — though equally important — was completed in a “rather swift manner” without in‑depth dialogue with States. He expressed hope that the latter modus operandi does not set a precedent for the Commission’s future work.
Turning to the topic of “Crimes against humanity”, he said that supplementing the current international framework concerning the prevention and punishment of these crimes is of vital importance. He called for work to continue towards drafting a convention based on the articles, including the convening of an intergovernmental conference of plenipotentiaries.
On “Peremptory norms of general international law (jus cogens)”, he urged careful consideration to uphold the importance of these norms and to avoid any confusion with respect to overly easy identification and subsequent application. On this point, he questioned the Commission’s adoption of the draft conclusions on first reading, as it first took up this topic in 2015 and its reports from 2016‑2018 contained neither information that it adopted any conclusions proposed by the Special Rapporteur nor any accepted commentary to conclusions that could be subject to State comment. He also detailed objections to several specific conclusions, including conclusion 19, reiterating the need for greater scrutiny of the duty of non‑recognition. This conclusion and the commentary thereon repeat commentary from 2001, despite recent, significant practice such as the General Assembly’s resolutions on Crimea or the European Court of Human Rights’ decision concerning the scope of the exception to this duty.
Regarding “Other decisions and conclusions of the Commission” and referencing the Commission’s long‑term programme of work, he stated that the topic of “Reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law” does not merit attention. On “Prevention and repression of piracy and armed robbery at sea” being included in the long‑term programme, he said that the appropriate international legal framework for combating piracy and armed robbery at sea already exists.