Report of the International Law Commission- 71 Session 2019

The International Law Commission held the first part of its seventy-first session from 29 April to 7 June 2019 and the second part from 8 July to 9 August 2019 at its seat at the United Nations Office at Geneva. The session was opened by Mr. Eduardo Valencia-Ospina, Chair of the seventieth session of the Commission.

Summary of the work of the Commission at its seventy-first session

With respect to the topic “Crimes against humanity”, the Commission had before it the fourth report of the Special Rapporteur (A/CN.4/725 and Add.1), as well as comments and observations received from Governments, international organizations and others (A/CN.4/726, Add.1 and Add.2). The fourth report addressed the comments and observations made by Governments, international organizations and others on the draft articles and commentaries adopted on first reading and made recommendations for each draft article.

With regard to the topic “Peremptory norms of general international law (jus cogens)”, the Commission had before it the fourth report of the Special Rapporteur (A/CN.4/727), which discussed the question of the existence of regional jus cogens and the inclusion of an illustrative list, based on norms previously recognized by the Commission as possessing a peremptory character. Following the plenary debate, the Commission decided to refer the draft conclusion proposed in the fourth report to the Drafting Committee.

With respect to the topic “Protection of the environment in relation to armed conflicts”, the Commission had before it the second report of the Special Rapporteur (A/CN.4/728), which discussed questions related to the protection of the environment in non-international armed conflicts, and matters related to responsibility and liability for environmental damage. Following the plenary debate, the Commission decided to refer the seven draft principles, as proposed by the Special Rapporteur in her second report, to the Drafting Committee.

With regard to the topic “Succession of States in respect of State responsibility”, the Commission had before it the third report of the Special Rapporteur (A/CN.4/731), which addressed introductory issues, including certain general considerations, questions of reparation for injury resulting from internationally wrongful acts committed against the predecessor State as well as its nationals, and technical proposals in relation to the scheme of the draft articles. Following the debate in plenary, the Commission decided to refer draft articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the titles of Part Two and Part Three, as contained in the third report of the Special Rapporteur, to the Drafting Committee. Upon its consideration of a first report of the Drafting Committee, the Commission provisionally adopted draft articles 1, 2 and 5, with commentaries thereto. Furthermore, the Commission took note of the interim report of the Chair of the Drafting Committee on draft articles 7, 8 and 9 provisionally adopted by the Committee, which was presented to the Commission for information only (chap. VII).

 With regard to the topic “Immunity of State officials from foreign criminal jurisdiction”, the Commission had before it the sixth (A/CN.4/722) and the seventh (A/CN.4/729) reports of the Special Rapporteur, which were devoted to addressing procedural aspects of immunity from foreign criminal jurisdiction. In particular, the sixth report, on which the debate was not completed at the seventieth session in 2018, provided an analysis of three components of procedural aspects related to the concept of jurisdiction, namely: (a) timing; (b) kinds of acts affected; and (c) the determination of immunity. The seventh report completed the examination of the procedural aspects of immunity regarding the relationship between jurisdiction and the procedural aspects of immunity; addressed questions concerning the invocation of immunity and the waiver of immunity; examined aspects concerning procedural safeguards related to the State of the forum and the State of the official, considered the procedural rights and safeguards of the official, and proposed nine draft articles. Following the debate in plenary, the Commission decided to refer draft articles 8 to 16 to the Drafting Committee, taking into account the debate and proposals made in plenary. The Commission received and took note of the interim report of the Chair of the Drafting Committee on draft article 8 ante, which was presented to the Commission for information only (chap. VIII).

 With regard to the topic “General principles of law”, the Commission had before it the first report of the Special Rapporteur (A/CN.4/732), which addressed the scope of the topic and the main issues to be addressed in the course of the work of the Commission. The report also addressed previous work of the Commission related to general principles of law and provided an overview of the development of general principles of law over time, as well as an initial assessment of certain basic aspects of the topic and future work on the topic. Following the debate in plenary, the Commission decided to refer draft conclusions 1 to 3, as contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft conclusion 1 provisionally adopted by the Committee, which was presented to the Commission for information only (chap. IX).

With respect to the topic “Sea-level rise in relation to international law”, the Commission decided to include the topic in its programme of work and established a Study Group, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr. YacoubaCissé, Ms. PatríciaGalvãoTeles, Ms. Nilüfer Oral and Mr. Juan José RudaSantolaria. The Study Group held one meeting, at which time it agreed on its composition, methods and programme of work, based on the three subtopics identified in the syllabus. The Commission subsequently took note of the joint oral report of the Co-Chairs of the Study Group (chaps. X and XI, sect. B).

Report of the International Law Commission 2019

Seventy-first session
(29 April–7 June and 8 July–9 August 2019)

United Nations • New York, 2019

Summary of contents

I. Introduction 1

II. Summary of the work of the Commission at its seventy-first session 5

III. Specific issues on which comments would be of particular interest

to the Commission 8

IV. Crimes against humanity 10

V. Peremptory norms of general international law (jus cogens) 141

VI. Protection of the environment in relation to armed conflicts 209

VII. Succession of States in respect of State responsibility 297

VIII. Immunity of State officials from foreign criminal jurisdiction 310

IX. General principles of law 329

X. Sea-level rise in relation to international law 340

XI. Other decisions and conclusions of the Commission 342

Annexes

A. Draft model clauses on provisional application of treaties 353

B. Reparation to individuals for gross violations of international human rights law

and serious violations of international humanitarian law 358

C. Prevention and repression of piracy and armed robbery at sea 370

Contents

I. Introduction 1

A. Membership 1

B. Officers and the Enlarged Bureau 2

C. Drafting Committee 2

D. Working Groups and Study Group 3

E. Secretariat 4

F. Agenda 4

II. Summary of the work of the Commission at its seventy-first session 5

III. Specific issues on which comments would be of particular interest to the Commission 8

A. Immunity of State officials from foreign criminal jurisdiction 8

B. General principles of law 8

C. Sea-level rise in relation to international law 8

IV. Crimes against humanity 

A. Introduction 10

B. Consideration of the topic at the present session 10

C. Recommendation of the Commission 10

D. Tribute to the Special Rapporteur 11

E. Text of the draft articles on prevention and punishment of crimes against humanity 11

1. Text of the draft articles 11
2. Text of the draft articles and commentaries thereto 22

General commentary 22

Preamble 23

Commentary 24

Article 1 Scope 26

Commentary 26

Article 2 Definition of crimes against humanity 27

Commentary 28

Article 3 General obligations 47

Commentary 47

Article 4 Obligation of prevention 54

Commentary 54

Article 5 Non-refoulement 62

Commentary 62

Article 6 Criminalization under national law 66

Commentary 66

Article 7 Establishment of national jurisdiction 84

Commentary 84

Article 8 Investigation 87

Commentary 87

Article 9 Preliminary measures when an alleged offender is present 90

Commentary 90

Article 10 Aut dedere aut judicare 92

Commentary 92

Article 11 Fair treatment of the alleged offender 98

Commentary 98

Article 12 Victims, witnesses and others 102

Commentary 102

Article 13 Extradition 110

Commentary 111

Article 14 Mutual legal assistance 121

Commentary 122

Article 15 Settlement of disputes 129

Commentary 129

Annex 131

Commentary 134

V. Peremptory norms of general international law (jus cogens) 141

A. Introduction 141

B. Consideration of the topic at the present session 141

C. Text of the draft conclusions on peremptory norms of general international law

(jus cogens), adopted by the Commission on first reading 142

1. Text of the draft conclusions 142

• Text of the draft conclusions on peremptory norms of general international

law (jus cogens) and commentaries thereto 147

Part One

Introduction

Conclusion 1 Scope 147

Commentary 147

Conclusion 2 Definition of a peremptory norm of general

international law (jus cogens) 148

Commentary 148

Conclusion 3 General nature of peremptory norms of general

international law (jus cogens) 150

Commentary 150

Part Two

Identification of peremptory norms of general international law (jus cogens)

Conclusion 4 Criteria for the identification of a peremptory norm of

general international law (jus cogens) 157

Commentary 157

Conclusion 5 Bases for peremptory norms of general

international law (jus cogens) 158

Commentary 159

Conclusion 6 Acceptance and recognition 164

Commentary 164

Conclusion 7 International community of States as a whole 165

Commentary 165

Conclusion 8 Evidence of acceptance and recognition 168

Commentary 168

Conclusion 9 Subsidiary means for the determination of the peremptory

character of norms of general international law 170

Commentary 170

Part Three

Legal consequences of peremptory norms of general international law (jus cogens)

Conclusion 10 Treaties conflicting with a peremptory norm of general

international law (jus cogens) 174

Commentary 174

Conclusion 11 Separability of treaty provisions conflicting with a peremptory

norm of general international law (jus cogens) 177

Commentary 177

Conclusion 12 Consequences of the invalidity and termination of treaties

conflicting with a peremptory norm of general

international law (jus cogens) 179

Commentary 179

Conclusion 13 Absence of effect of reservations to treaties on peremptory norms

of general international law (jus cogens) 180

Commentary 180

Conclusion 14 Rules of customary international law conflicting with a

peremptory norm of general international law (jus cogens) 181

Commentary 182

Conclusion 15 Obligations created by unilateral acts of States conflicting

with a peremptory norm of general international law (jus cogens) .. 186

Commentary 186

Conclusion 16 Obligations created by resolutions, decisions or other acts

of international organizations conflicting with a peremptory

norm of general international law (jus cogens) 188

Commentary 188

Conclusion 17 Peremptory norms of general international law (jus cogens)

as obligations owed to the international community

as a whole (obligations erga omnes) 190

Commentary 190

Conclusion 18 Peremptory norms of general international law (jus cogens) and

circumstances precluding wrongfulness 193

Commentary 193

Conclusion 19 Particular consequences of serious breaches of peremptory

norms of general international law (jus cogens) 193

Commentary 194

Conclusion 20 Interpretation and application consistent with peremptory norms

of general international law (jus cogens) 198

Commentary 198

Conclusion 21 Procedural requirements 199

Commentary 200

Part Four

General provisions

Conclusion 22 Without prejudice to consequences that specific peremptory

norms of general international law (jus cogens)

may otherwise entail 203

Commentary 203

Conclusion 23 Non-exhaustive list 203

Commentary 203

Annex 208

VI. Protection of the environment in relation to armed conflicts 209

A. Introduction 209

B. Consideration of the topic at the present session 210

C. Text of the draft principles on protection of the environment in relation

to armed conflicts, adopted by the Commission on first reading 211

1. Text of the draft principles 211

• Text of the draft principles on protection of the environment in relation

to armed conflicts and commentaries thereto 215

Part One

Introduction

Commentary 215

Principle 1 Scope 216

Commentary 216

Principle 2 Purpose 216

Commentary 216

Part Two

Principles of general application

Principle 3 Measures to enhance the protection of the environment 217

Commentary 217

Principle 4 Designation of protected zones 221

Commentary 221

Principle 5 Protection of the environment of indigenous peoples 225

Commentary 225

Principle 6 Agreements concerning the presence of military forces

in relation to armed conflict 227

Commentary 227

Principle 7 Peace operations 230

Commentary 230

Principle 8 Human displacement 232

Commentary 232

Principle 9 State responsibility 235

Commentary 235

Principle 10 Corporate due diligence 238

Commentary 238

Principle 11 Corporate liability 243

Commentary 243

Part Three

Principles applicable during armed conflict

Principle 12 Martens Clause with respect to the protection of the

environment in relation to armed conflict 247

Commentary 247

Principle 13 General protection of the natural environment

during armed conflict 250

Commentary 250

Principle 14 Application of the law of armed conflict

to the natural environment 254

Commentary 254

Principle 15 Environmental considerations 256

Commentary 256

Principle 16 Prohibition of reprisals 257

Commentary 257

Principle 17 Protected zones 260

Commentary 260

Principle 18 Prohibition of pillage 260

Commentary 261

Principle 19 Environmental modification techniques 264

Commentary 264

Part Four

Principles applicable in situations of occupation

Introduction

Commentary 265

Principle 20 General obligations of an Occupying Power 268

Commentary 268

Principle 21 Sustainable use of natural resources 276

Commentary 276

Principle 22 Due diligence 278

Commentary 279

Part Five

Principles applicable after armed conflict

Principle 23 Peace processes 280

Commentary 281

Principle 24 Sharing and granting access to information 284

Commentary 284

Principle 25 Post-armed conflict environmental assessments

and remedial measures 288

Commentary 288

Principle 26 Relief and assistance 289

Commentary 289

Principle 27 Remnants of war 292

Commentary 292

Principle 28 Remnants of war at sea 295

Commentary 295

VII. Succession of States in respect of State responsibility 297

A. Introduction 297

B. Consideration of the topic at the present session 297

1. Introduction by the Special Rapporteur of the third report 299

• Summary of the debate 301
• Concluding remarks of the Special Rapporteur 304

C. Text of the draft articles on succession of States in respect of State responsibility

adopted so far by the Commission …………………………………………………………………. 306
1. Text of the draft articles ……………………………………………………………………………… 306
2. Text of the draft articles and commentaries thereto provisionally adopted
by the Commission at its seventy-first session ………………………………………………… 307
Article 1Scope ………………………………………………………………………………………….. 307
Commentary ………………………………………………………………………………… 307
Article 2Use of terms …………………………………………………………………………………. 308
Commentary ………………………………………………………………………………… 309
Article 5Cases of succession of States covered by the present draft articles ………. 309
Commentary ………………………………………………………………………………… 309
VIII. Immunity of State officials from foreign criminal jurisdiction ………………………. 310
A. Introduction ………………………………………………………………………………………………………….. 310
B. Consideration of the topic at the present session ……………………………………………… 311
1. Introduction by the Special Rapporteur of the sixth and seventh reports ………….. 312
2. Summary of the debate ……………………………………………………………………………………. 318
3. Concluding remarks of the Special Rapporteur …………………………………………………… 325
IX. General principles of law …………………………………………………………………………………… 329
A. Introduction ………………………………………………………………………………………………………….. 329
B. Consideration of the topic at the present session …………………………………………………. 329

1. Introduction by the Special Rapporteur of the first report …………………………………….. 329
2. Summary of the debate ……………………………………………………………………………………. 333
3. Concluding remarks of the Special Rapporteur ……………………………………………… 336
   X.Sea-level rise in relation to international law …………………………………………………….. 340
   A. Introduction ……………………………………………………………………………………………………… 340
   B. Consideration of the topic at the present session ……………………………………………… 340
   XI.Other decisions and conclusions of the Commission …………………………………………. 342
   A. Provisional application of treaties ………………………………………………………………….. 342
   B. Sea-level rise in relation to international law ………………………………………………………. 344
   C. Request by the Commission for the Secretariat to prepare studies
   on topics in the Commission’s agenda ………………………………………………………………………. 344
   D. Programme, procedures and working methods of the Commission and its documentation .. 344
4. Working Group on the long-term programme of work ………………………………………… 345
5. Working Group on methods of work of the Commission …………………………………….. 345
6. Consideration of General Assembly resolution 73/207 of 20 December 2018
   on the rule of law at the national and international levels …………………………………….. 345
7. Honoraria ………………………………………………………………………………………………………. 347
8. Documentation and publications ………………………………………………………………………. 347
9. Yearbook of the International Law Commission …………………………………………………. 348
10. Assistance of the Codification Division …………………………………………………………….. 348
11. Websites …………………………………………………………………………………………………. 348
12. United Nations Audiovisual Library of International Law ……………………………………. 349
    E. Date and place of the seventy-second session of the Commission ………………………… 349
    F. Cooperation with other bodies …………………………………………………………………………………. 349
    G. Representation at the seventy-fourth session of the General Assembly ……………….. 350
    H. International Law Seminar ………………………………………………………………………… 350
    Annexes
    A. Draft model clauses on provisional application of treaties …………………………………. 353

B. Reparation to individuals for gross violations of international human rights law

and serious violations of international humanitarian law 358

C. Prevention and repression of piracy and armed robbery at sea 370

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