CYIL 2013

PAVEL ŠTURMA CYIL 4 ȍ2013Ȏ This draft article gave rise to a large debate. Some members of the Commission were in favour of limitation of the list of State officials to only the Heads of State. Other members supported the view that other high-ranking officials should be included in Draft Article 3. In the end the Commission decided that under the current draft articles other high-ranking officials than the so-called troika should not enjoy immunity ratione personae but that this was without prejudice to the rules pertaining to immunity ratione materiae . 24 The most complex provision seems to be in Draft Article 4, which deals with the scope of immunity ratione personae from both the temporal and material standpoint. Paragraph 1 addresses the temporal aspect: “Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae only during their term of office.” According to paragraph 2 such immunity ratione personae covers all the acts performed, whether in a private or official capacity, by Heads of State, Heads of Government and Ministers for Foreign Affairs during or prior to their term of office. Although it may appear so, there is no contradiction between these two rules. The first rule sets the period of time when the above officials enjoy immunity. The second rule deals with the material scope of immunity, which extends to all acts (both official and private) performed during or prior to their term of office. It implies that acts committed after the end of office are not covered by this immunity. However, as pointed out in para. 3, the cessation of immunity ratione personae is without prejudice to the application of the rules of international law concerning immunity ratione materiae . 25 3.3 Protection of persons in the event of disasters This topic belongs to the old ones on the agenda of the ILC. The Commission had before it the sixth report of the Special Rapporteur E. Valencia-Ospina, dealing with aspects of prevention in the context of the protection of persons in the event of disasters. 26 The Commission decided to refer two draft articles, as proposed by the Special Rapporteur, to the Drafting Committee. At this session, the ILC provisionally adopted seven draft articles with commentaries, namely Draft Articles 5 bis and 12 to 15, which it had taken note of at its sixty-fourth session (2012), dealing with forms of cooperation, offers of assistance, conditions on the provision of external assistance, facilitation of external assistance. It also adopted new draft articles, 5 ter and 16. 27 According to Draft Article 5 ter , cooperation shall extend to the taking of measures intended to reduce the risk of disasters. While Draft Article 5 bis deals with the response to a disaster, Draft Article 5 ter also covers the pre-disaster phase and addresses the reduction of disaster risk. 28 In a sense, this provision has just completed Draft Article 5 and its final placement will be decided later. 24 See doc. A/CN.4/L.820/Add.3, pp. 7-10, § 8, 10-12. 25 See doc. A/CN.4/L.820/Add.1, p. 2.

26 See doc. A/CN.4/661 (2013). 27 See doc. A/CN.4/L.821, p. 3. 28 See doc. A/CN.4/L.821/Add.2, p. 2.