CYIL vol. 12 (2021)

pavel šturma CYIL 12 (2021) According to the commentary, such limitations may relate to substantive or procedural rules, or a combination of both. 9 In the end, the Commission recommended to the General Assembly to take note of the Guide to Provisional Application of Treaties and to ensure its widest possible dissemination, to commend the Guide to the attention of states and international organizations, and to request the Secretary-General to prepare a volume of the United Nations Legislative Series compiling the practice of states and international organizations in the provisional application of treaties. 10 2.3 Immunity of state officials from foreign criminal jurisdiction This topic is the oldest one on the current programme of the Commission, which had before it the eighth report of the Special Rapporteur, Ms. Concepción Escobar Hernández. 11 This report examined the relationship between the immunity of state officials from foreign criminal jurisdiction and international criminal tribunals, as well as a mechanism for the settlement of disputes between the forum state and the state of the official. It presented proposals for draft Articles 17 and 18 dealing with those issues. The Special Rapporteur also considered the issue of good practices that could help to solve the problems that arise in the process of determining and applying immunity, but she did not present any proposals to this effect. Following the debate in plenary, the ILC decided to refer draft Articles 17 and 18 to the Drafting Committee, taking into account the debate and proposals made in plenary. Draft Article 17 includes two proposals. First, if there remain differences with regard to the determination and application of immunity, the forum state and the state of the official “shall endeavour to settle the dispute as soon as possible through negotiations”. Second, if no negotiated solution is reached within a reasonable period of time, either of two states “may suggest to the other party that the dispute be referred to arbitration or to the International Court of Justice”. Draft Article 18 is a without prejudice clause that should safeguard the separation and independence of the regimes applicable to immunity before national courts and international criminal tribunals. 12 As it was suggested in plenary debate and accepted by the Special Rapporteur, this clause might be incorporated as paragraph 3 of draft Article 1. 13 However, the Drafting Committee did not discuss the newly referred draft articles, as it had a number of draft articles left from the 2019 session. The Committee discussed and eventually adopted five such draft articles. Later, the Commission received the reports of the Drafting Committee and adopted the following draft Articles: 8 ante (Application of Part Four), 8 (Examination of immunity by the forum state), 9 (Notification of the state of the official), 10 (Invocation of immunity), 11 (Waiver of immunity), and 12 (Request for information). The ILC also adopted commentaries thereto. 14

9 UN doc. A/CN.4/L.945/Add.2, p. 20, § 1. 10 UN doc. A/CN.4/L.945, p. 3, § 9. 11 UN doc. A/CN.4/739. 12 “The present draft articles are without prejudice to the rules governing the functioning of international criminal tribunals”. 13 See UN doc. A/CN.4/L.946, p. 12, § 56. 14 See UN doc. A/CN.4/L.946/Add.1 and Add.2.

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