CYIL 2014

THE INTERNATIONAL LAW COMMISSION AT THE MIDǧPOINT OF ITS QUINQUENNIUM Court interpreted the object and purpose of the Convention against Torture (1984) as giving rise to “obligations erga omnes partes”, whereby each State Party had a “common interest” in compliance with such obligations. 18 The issue of jus cogens was not central to this point. In the view of the Commission, the Court was saying that States Parties to the Convention against Torture had a common interest to prevent acts of torture and to ensure that, if they occurred, those responsible did not enjoy impunity. Other treaties may lead to obligations erga omnes partes as well. 19 It is similar when it comes to the customary nature of the obligation to extradite or prosecute. The former Special Rapporteur Galicki proposed in 2011 a draft article on international custom as source of the obligation aut dedere aut judicare . However, there was disagreement with the conclusion that the customary nature of this obligation could be inferred from the existence of customary rules proscribing specific international crimes. When the ILC adopted the Draft Code of Crimes against the Peace and Security of Mankind (1996), the provision on the obligation to extradite or prosecute represented progressive development of international law. Since that time there may have been further development in international law. The ICJ in Begium v. Senegal ruled that it had no jurisdiction to entertain Belgium’s claims relating to Senegal’s alleged breaches under customary international law. Therefore the Court did not have an opportunity to determine the customary international law status of the obligation to extradite or prosecute. The Commission did not give an answer either. 20 2.4 Subsequent agreements and subsequent practice in relation to the interpretation of treaties With respect to this topic, the Commission had before it the second report of the Special Rapporteur Georg Nolte, 21 which contained six draft conclusions relating to the identification of subsequent agreements and subsequent practice, the possible effects of subsequent practice under Article 31(3)(b) of the Vienna Convention on the Law of Treaties, agreement of the parties regarding the interpretation of a treaty, decisions adopted within the framework of a Conference of States Parties, and the scope for interpretation by subsequent agreements and subsequent practice. Following to the rich debate in Plenary and the Drafting Committee, the Commission provisionally adopted five draft conclusions (conclusions 6 to 10), together with commentaries thereto. 22 18 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, § 67-70. 19 See doc. A/CN.4/L.839 (2014), p. 21, § 46-47. 20 Ibid., pp. 24-25. 21 See doc. A/CN.4/671 (2014). 22 See doc. A/CN.4/L.840, Add. 1, Add. 2 and Add. 3.

459