CIVIL

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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