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 โCrimes against humanityโ, 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 โPeremptory norms of general international law (jus cogens)โ, 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 โProtection of the environment in relation to armed conflictsโ, 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 โSuccession of States in respect of State responsibilityโ, 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 โImmunity of State officials from foreign criminal jurisdictionโ, 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 โGeneral principles of lawโ, 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 โSea-level rise in relation to international lawโ, 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. YacoubaCissรฉ, Ms. PatrรญciaGalvรฃoTeles, Ms. Nilรผfer Oral and Mr. Juan Josรฉ 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 Aprilโ7 June and 8 Julyโ9 August 2019)
United Nations โข 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
- Text of the draft articles 11
- 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
- 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
- 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
- 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
- Introduction by the Special Rapporteur of the first report …………………………………….. 329
- Summary of the debate ……………………………………………………………………………………. 333
- 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 Commissionโs agenda ………………………………………………………………………. 344
D. Programme, procedures and working methods of the Commission and its documentation .. 344 - Working Group on the long-term programme of work ………………………………………… 345
- Working Group on methods of work of the Commission …………………………………….. 345
- Consideration of General Assembly resolution 73/207 of 20 December 2018
on the rule of law at the national and international levels …………………………………….. 345 - Honoraria ………………………………………………………………………………………………………. 347
- Documentation and publications ………………………………………………………………………. 347
- Yearbook of the International Law Commission …………………………………………………. 348
- Assistance of the Codification Division …………………………………………………………….. 348
- Websites …………………………………………………………………………………………………. 348
- 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
