CYIL vol. 13 (2022)

MAREK ZUKAL – JAN MAIS CYIL 13 ȍ2022Ȏ product (draft articles) was the United Nations Convention on Jurisdictional Immunities of States and Their Property in 2001. And not even this convention can be regarded as an entirely successful project – more than 20 years after its adoption, it has not yet entered into force, as it has only been ratified by 22 States (30 ratifications are required for entry into force). Crimes against humanity could have been an opportunity to put the “machinery” back on track, as prevention and punishment of crimes against humanity is prima facie an uncontroversial issue. Majority of States as well as many experts actually agree that conclusion of a convention on prevention and punishment of crimes against humanity continues to be needed, so that a gap in the international treaty law is closed. This was most recently reiterated by representatives of many States as well as by the President of the International Court of Justice Joan E. Donoghue, UN High Commissioner for Human Rights Michelle Bachelet or Member-elect of the ILC Professor Dapo Akande during an open debate of the UN Security Council on strengthening the accountability for violations of international law on June 2, 2022. The reason why the Committee did not achieve any progress on the issue of crimes against humanity is its politicization. The draft articles have been taken hostage by some delegations which for several reasons might not have interest on further progressive development and codification of international law in these particular areas. Creating and adhering to rules of international law means that States make their foreign policy subject to these rules and, consequently, limit themselves. Although the attempts to achieve progress on the issue of crimes against humanity were unsuccessful during the 76 th session of the General Assembly, a limited progress was achieved on another ILC product, draft articles on protection of persons in the event of disasters. We have to wait and see if such a development represents a beginning of breakthrough in the consideration of ILC products, or not. On the other hand, it is fair to admit, that a progress towards elaboration of a convention is not always desirable. The ILC products must be dealt with on a case-by-case basis. For example, it is the view of the Czech Republic, that the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) would not benefit from discussion on substance with a view to elaborate a convention on their basis. Not only that in this case, the ILC did not recommend elaboration of convention (unlike in the case of draft articles on crimes against humanity), but also the ARSIWA, in the view of the Czech Republic, mostly represent codification of customary international law and as such are widely used by both international and national courts and organs. Re-opening them for negotiations among States might result in their complete redrafting – not necessarily leading to improvement of their legal quality – so this would most likely cause more loss than benefit. From the description of the consideration of agenda item Crimes against humanity, it is obvious that the work of the Sixth Committee is being politicized. That was also the case with the two other agenda items described above – The scope and application of the principle of universal jurisdiction and the UN Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. Outside the session of the Sixth Committee, but still within the frame of the 76 th session of the General Assembly, the politicization was traditionally visible in the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (Charter Committee). First of all, it was irony that on February 24, 2022, when the Russian

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