CYIL vol. 13 (2022)

PAVEL ŠTURMA CYIL 13 ȍ2022Ȏ conflicts, Immunity of State officials from foreign criminal jurisdiction, Succession of States in respect of State responsibility, General principles of law, and Sea-level rise in relation to international law. The Commission successfully completed its debate and adopted, on its second reading, the draft conclusions with commentaries on Peremptory norms of general international law ( jus cogens ) and draft principles on Protection of the environment in relation to armed conflicts, together with commentaries. In addition, the Commission adopted on its first reading the draft articles on Immunity of State officials from foreign criminal jurisdiction with commentaries thereto. Two other topics are very close to their completion on their first reading. Therefore, this contribution will provide some brief information on all topics of the programme of the Commission. 2.1 Peremptory norms of general international law ( jus cogens ) This year, the Commission had before it the fifth report of the Special Rapporteur Dire Tladi, 2 as well as comments and observations from Governments. 3 The report examined the comments and observations made by Governments on draft conclusions, as adopted on their first reading, and proposed modifications where necessary. The Commission then adopted, on a second reading, the entire set of draft conclusions on identification and legal consequences of peremptory norms of general international law ( jus cogens ). The text adopted and included in chapter IV of the Report of the ILC comprises 23 draft conclusions, an annex, and commentaries thereto. 4 The introductory part includes three draft conclusions. Conclusion 1 sets the scope of the topic, which is the identification and legal consequences of peremptory norms of general international law. Conclusion 2, which provoked a significant debate, explains the general nature of peremptory norms of general international law ( jus cogens ). It involves three important characteristics that are not part of the well-known formal definition of jus cogens but captures the underling values of peremptory norms and their position in the international legal order. First, peremptory norms of general international law reflect and protect fundamental values of the international community. Quite significantly, there is no limitation to the “community of States” here, because the fundamental values may be produced and shared not only by States. The second sentence adds that these norms are “universally applicable and are hierarchically superior to other rules of international law”. 5 By contrast, the conclusion provides a definition of a peremptory norm of general international law ( jus cogens ). This is “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law ( jus cogens ) having the same character”. 6 In this context, the Commission considered the term “international community of States” appropriate, as States are the law-making subjects, when it comes to customary international law and, in particular, the norms of jus cogens . 2 UN doc. A/CN.4/747. 3 See UN doc. A/CN.4/748. 4 Report of the International Law Commission, 2022, General Assembly Official Records, Seventy-seventh Session, Supplement No. 10 (A/77/10), p. 10 ff.

5 Ibid., p. 18. 6 Ibid., p. 27.

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