CYIL vol. 14 (2023)

CZECH YEARBOOK OF PUBLIC & PRIVATE INTERNATIONAL LAW Česká ročenka mezinárodního práva veřejného a soukromého Vol. 14

Prague 2023

EDITION

SCIENCE & NEW MEDIA PASSAU • BERLIN • PRAGUE

As usual, Volume 14 (2023) presents a variety of studies and articles covering many issues of con temporary international and European law. The Yearbook begins with the studies that address issues related to the Russian aggression against Ukraine (the Register of Damage, or the use of autonomous weapon systems), the codification work of the International Law Commission, and the role of the UN Security Council or some questions of international courts (ICJ and ILOAT). The readers will also find many other traditional sec tions here, including human rights law. This section includes, in addition to the study on the review of the UN human rights treaty bodies, three articles focused on various aspects of the case-law of the European Court of Human Rights, as well as an article on due diligence in the context of violence against women. A section of international criminal law and interna tional humanitarian law presents, inter alia, articles focused on salient issues, such as prosecution of hate speech or the protection of nuclear power plants in armed conflict. As in the previous years, the CYIL also presents special sections on international nuclear law and on problems of the medical research and human rights in health law. According to its tradition, Volume 14 of the CYIL also covers some aspects of international economic law and private international law, such as asset freezing in investment arbitration, the role of international organizations in establishing the global minimum tax, and comparison of the prorogation agreements under the Hague Convention and the Brussels I bis Regulation. The Yearbook also covers the Czech practice of inter national law, in particular, a list of treaties ratified by the Czech Republic, reports on the recent works of the International Law Commission and activities of the Sixth (legal) committee of the UN General Assembly, the Diplomatic Conference on the MLA Convention, and the first Czech climate litigation. It also includes book reviews, and a survey of the Czech internatio nal law bibliography.

BOOK PASSAU • BERLIN • PRAGUE

SCIENCE & NEW MEDIA

Czech Yearbook of Public & Private International Law

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 14

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2023

Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the SCOPUS international database.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 14. – Praha : Česká společnost pro mezinárodní právo, 2023. – xvi, 529 stran Česká, anglická a slovenská resumé Vydáno v nakladatelství Eva Rozkotová. – Obsahuje bibliografii a bibliografické odkazy

ISBN 978-80-87488-54-6 (Eva Rozkotová ; brožováno)

* 341.1/.8 * 341.9 * (048.8:082) * (058) – mezinárodní právo veřejné – mezinárodní právo soukromé – kolektivní monografie – ročenky

341 - Mezinárodní právo [16]

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BOARDS AND EDITORS

EDITORIAL BOARD Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, former member and chair of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA † Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Masaryk University in Brno, Faculty of Law, former judge, Court of Justice of the European Union Professor PAUL TAVERNIER † University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague

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EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, membre associé, Institut de Droit International

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Monika Feigerlová, Jaroslav Fenyk, Monika Forejtová, Jakub Handrlica, Petr Hůrka, Filip Křepelka, Milan Lipovský, Jan Malíř, Jan Ondřej, Monika Pauknerová, Emil Ruffer, Harald Scheu, Pavel Šturma, Petr Šustek and Petr Válek.

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

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I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS Three Quarters of a Century of the UN International Law Commission – –Achievements and Problems Ernest Petrič Establishment of the Register of Damage as a Response of the Council of Europe to the Russian Aggression Against Ukraine Petr Válek Autonomous Weapon Systems under International Law and the Conflict in Ukraine Jan Ondřej The Untouchables: Is the UN Security Council Bound by International Law? Milan Lipovský Landmark Judgment 4457 of the Administrative Tribunal of the International Labour Organization, Concerning Summary Dismissal Jan Hladík Portuguese Imperial Policy in the Kotte Kingdom of Sri Lanka as a Reflection of 16th Century International Law Jan Lhotský The European Court for Human Rights and Academic Freedom Jan Malíř Racial Profiling and Identity Checks: National and International Case-Law Violeta Vasiliauskienė – Lenka Scheu The Concept of Due Diligence in the Context of Violence Against Scope, Specifics & Critique Petra Presserová Earthquakes in Türkiye as a Violation of Human Rights: Role and Position of the ECtHR Petra Ruffer Lustigová The Monetary Gold Principle Punsara Amarasinghe II. INTERNATIONAL LAW OF HUMAN RIGHTS Streamlining or Survival? Outcomes of the Human Rights Treaty Body Review

1

3

16

29

43

59

79

95

109

111

133

160

174

190

Elmira Lyapina

III. INTERNATIONAL LAW AND EUROPEAN LAW

205

Application of EU Sanctions in Memeber States – Case of the Slovak Republik

207

Peter Matuška – Nikolas Sabján

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Hate Speech – an Unclear Legal Concept in the Unclear Practice of European Minority Protection

224

Harald Christian Scheu

IV. INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL HUMANITARIAN LAW Conviction Following an Appeal Against an Acquittal in Criminal Proceedings – Wider Context, Advantages, Risks and Limits Jiří Mulák Prosecuting “Hate Speech” in International Criminal Justice: Peeping into some Notional and Philosophical Complexities

241

243

261

Avitus A. Agbor Protection of Nuclear Power Plants in International Armed Conflict

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Jan Mais

V. 60 YEARS OF THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE Fatamorgana of Universalism in International Nuclear Law: The Vienna Convention on Civil Liability for Nuclear Damage Jakub Handrlica Vienna Convention on Civil Liability for Nuclear Damage and Effects of Armed Conflicts on Nuclear Power Plants Vasilka Sancin Unravelling the Enigma of the Interplay between the Vienna Convention on Civil Liability for Nuclear Damage and EU Law on Jurisdiction and Applicable Law in Cross-Border Cases 331 Marianna Novotná 345 Telemedicine in the Czech Republic and the Convention on Human Rights and Biomedicine 347 Petr Šustek New Methods in Medicine: Czech Practice in Light of the Convention on Human Rights and Biomedicine 360 Martin Šolc Conflicts of Interest in Medical Research 373 Helena Van Beersel Krejčíková VII. INTERNATIONAL ECONOMIC LAW AND PRIVATE INTERNATIONAL LAW 393 Asset Freezing in Investment Arbitration: Lessons Learned for Unilateral Sanctions 395 Nikola Kurková Klímová The Role of International Organizations in Establishing the Global Minimum Tax 409 Pavlína Krausová 295 297 314 VI. INNOVATIONS IN MEDICINE

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Comparison of the Prorogation Agreements under the Hague Convention on Choice of Court Agreements and under the Brussels I bis Regulation, their Interrelationship and their Effects within the EU acquis

423

Dominika Moravcová

VIII. CZECH PRACTICE OF INTERNATIONAL LAW 441 The Work of the International Law Commission at the Beginning of its New Quinquennium 443 Pavel Šturma Activities of the Sixth Committee of the UN General Assembly during its 77th session 452 Marek Zukal, Anna Matoušková Not just Another Diplomatic Conference: a Successful Conclusion of the MLA Initiative and the Way Forward 465 Emil Ruffer First Czech Climate Litigation from the Perspective of International Environmental Law 471 Tomáš Bruner List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2022 tiil 31st December 2022 484 Milan Beránek

IX. SHORTER ARTICLES AND NOTES

489

Judging its own Case – the Abuse of the Veto Power by Russia Agata Kleczkowska Moot Courts on Issues of Public International Law in 2022/2023

491

499

Milan Lipovský

X. BOOK REVIEWS

501

The Cambridge Companion to The International Court of Justice Pavel Šturma The Crime of Genocide: Then and Now. Evolution of a Crime Marek Gerle International investment law in the context of the European Union

503

507

510

Petr Stejskal State Capitalism and International Investment Law

512

Ondřej Svoboda The UN Security Council and International Law (Hersch Lauterpacht Memorial Lectures) 515 Marko Svicevic

XI. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY

517

Zuzana Trávníčková

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PREFACE

Dear Readers, I have great pleasure to introduce the fourteenth issue of the Czech Yearbook of Public & Private International Law (CYIL). Volume 14 appears, as usual, in the end of autumn, which is the typical time for the readers of this Yearbook who are interested in the developments in international law. The Czech Yearbook was established by the Czech Society of International Law in 2010. It was done thanks to the Board and the members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such a specialized journal or yearbook. Since 2014, the Czech Yearbook has been published by the international publishers, RW&W, Science & New Media, Passau-Berlin-Praha, which, in cooperation with Süd Ost Service, ensures its distribution in Germany and Western Europe. As you know, the CSIL publishes the Yearbook in both printed and electronic versions ( www.cyil.eu ). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. This growth of the Czech Yearbook ranks it among the larger publications of its kind in an international comparison. However, in spite of the significant rise of publishing costs, we are proud to announce that this publication is still available for free for members of the Czech Society of International Law (included in the membership fee) and on sale for a very reasonable price. In 2023, we commemorate, inter alia, 150 th anniversary of two important private learned institutions dealing not only with research but also non-official codification of international law. First of them, the International Law Association (ILA), was established in Brussels in 1873. It is a non-for-profit organization for the study and development of public and private international law and the furtherance of international understanding and respect for international law. The objectives of the ILA are pursued through the substantive work of its international committees (currently 15). The membership (over 4500 members) is spread among more than 60 national branches across the world. One of them is the Czech Branch, as a successor of the Czechoslovak Branch, which has currently around 20 members. As the core substantive work of the ILA stays with the international committees (Czech members are involved in some of them), the domestic activities of the Czech Branch have been always linked with those of the Czech Society of International Law. Therefore, and in view of enlarging its membership and facilitating its financing, the Czech Branch of ILA has entered into the CSIL as its Working Group. However, it is still one of the internationally respected ILA branches. The aim of the board is to open the membership to new, younger scholars and practitioners in international law and to enhance the activities of members, in particular in various ILA international committees. The ILA, at 150, was also an occasion for many online events of the ILA throughout the year and, in particular, for the big international conference in Paris in June 2023, where the Czech Branch was also represented. The second organization, the Institute of International Law ( Institut de Droit International ) was founded in Ghent in 1873, even few months earlier than the ILA, by eleven highly renowned international lawyers. The Institute is a learned society, and its purpose is to promote the progress of international law. The Institute has received the Nobel Peace Prize in

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recognition of its action in favour of arbitration among States as a peaceful means of settling disputes. Like the ILA, the Institute also meets at its biannual sessions and works mainly through its commissions (17). Unlike the ILA, the Institute of International Law is composed of three categories of Members: Honorary Members, Members, and Associates. There can be no more than a total of 132 Members and Associates under the age of 80. It means that the Institute is a prestigious organization with the limited membership. The minimum number for a national group is three members or associates, so the Czech Republic does not yet have its own group, with Dr. Václav Mikulka as the only Member. However, during its 81 st session of Angers (27 August – 2 September 2023), when the Institute celebrated its 150 th anniversary, the members elected Prof. Pavel Šturma as a new membre associé . This Yearbook, as a publication of the Czech Society of International Law, takes this opportunity to recall and commend the contribution of both the ILA and the Institute (IDI) to the development and promotion of international law. It is our wish and hope that the CSIL will cooperate, through its members and authors of the Yearbook, with these international organizations. As usual, Volume 14 (2023) presents a variety of studies and articles covering many issues of contemporary international and European law. The Yearbook begins with the studies that address issues related to the Russian aggression against Ukraine (the Register of Damage, or the use of autonomous weapon systems), the codification work of the International Law Commission, and the role of the UN Security Council or some questions of international courts (ICJ and ILOAT). The readers will also find many other traditional sections here, including human rights law. This section includes, in addition to the study on the review of the UN human rights treaty bodies, three articles focused on various aspects of the case-law of the European Court of Human Rights, as well as an article on due diligence in the context of violence against women. A section of international criminal law and international humanitarian law presents, inter alia , articles focused on salient issues, such as prosecution of hate speech or the protection of nuclear power plants in armed conflict. As in the previous years, the CYIL also presents special sections on international nuclear law and on problems of the medical research and human rights in health law. According to its tradition, Volume 14 of the CYIL also covers some aspects of international economic law and private international law, such as asset freezing in investment arbitration, the role of international organizations in establishing the global minimum tax, and comparison of the prorogation agreements under the Hague Convention and the Brussels I bis Regulation. The Yearbook also covers the Czech practice of international law, in particular, a list of treaties ratified by the Czech Republic, reports on the recent works of the International Law Commission and activities of the Sixth (legal) committee of the UN General Assembly, the Diplomatic Conference on the MLA Convention, and the first Czech climate litigation. It also includes book reviews, and a survey of the Czech international law bibliography. As usual, the authors of this publication, who are from academia and legal practice, come from both Czech and foreign institutions. This volume includes several contributions from foreign professors and researchers, coming from or working in Austria, Denmark,

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France, Lithuania, Poland, Slovakia, Slovenia, South Africa, and Sri Lanka. As to the Czech institutions involved, these include Charles University in Prague, Masaryk University in Brno, Palacký University in Olomouc, Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the University of New York in Prague, the Ministry of Foreign Affairs, the Office of the Public Defender of Rights, as well as some private law firms. This publication appears thanks to a continuing financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for the generous financial support from the law firm Skils (Prague). We also wish that this volume of the Czech Yearbook will find many readers and we are already looking forward to new authors and new contributions for our next volume in 2024, when the CYIL will have its fifteenth anniversary. We are also grateful for any comments or suggestions on how to improve the quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS ACFC – Advisory Committee on the Framework Convention for the Protection of National Minorities AFAD – Disaster and Emergency Management Authority AGA – Annotated Grant Agreement AIIB – Asian Infrastructure and Investment Bank API – Additional Protocol I ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts

ASHS – Act on Specific Health Services BEPS – Base Erosion and Profit Shifting

BIT – bilateral investment treaty BRI – Belt and Road Initiative

BRICS – informal group of states comprising the Federative Republic of Brazil, Russian Federation, Republic of India, the People’s Republic of China and Republic of South Africa CEDAW – Convention on the Elimination of All Forms of Discrimination against Women CERD – International Convention on the Elimination of all Forms of Racial Discrimination

CFA – Committee on Fiscal Affairs CFR – Code of Federal Regulations CFSP – EU Common Foreign and Security Policy

CIA – Central Intelligence Agency CIL – customary international law CJEU – Court of Justice of the EU CMD – Committee of Ministers Deputies CNI – Foreign Investment in Critical National Infrastructure CoE – Council of Europe DAS – daily subsistence allowances DEVAW – UN Declaration on the Elimination of Violence against Women DTTs – double taxation treaties EC – European Commission ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECJ – European Court of Justice ECOSOC – Economic and Social Council ECRI – European Commission against Racism and Intolerance

ECtHR – European Court of Human Rights EHEA – European Higher Education Area EMA – European Medicines Agency EU – European Union FAU – Fully Autonomous Weapons

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FCNM – Framework Convention for the Protection of National Minorities FDA – Food and Drug Administration FET – fair and equitable treatment GATT – General Agreement on Tariffs and Trade GC – General Court GDP – gross domestic product GHG – greenhouse gas GR-J – Rapporteur Group on Legal Co-operation GR-PBA – Group of Rapporteurs on Programme, Budget and Administration G20 – Group of 20 HRC – Human Rights Committee IACHR – Inter-American Commission on Human Rights IACtHR – Inter-American Court of Human Rights IAEA – International Atomic Energy Agency ICC – International Criminal Court ICCPR – International Covenant on Civil and Political Rights ICERD – International Convention on the Elimination of All Forms of Racial Discrimination ICJ – International Court of Justice ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTR – International Criminal Tribunal for Rwanda ICTY – International Criminal Tribunal for the former Yugoslavia IHL – international humanitarian law IIAs – international investment treaties ILA – International Law Association ILC – UN International Law Commission ILOAT - Administrative Tribunal of the International Labour Organization

IMF – International Monetary Fund IMT – International Military Tribunal ISMs – Investment Screening Mechanisms ITBS – Integrated Treaty Body System

MLA Convention – Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and Other Crimes under International Law MLI – Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS NDC – nationally determined contributions NGO – non-governmental organization NHRC – South Korean National Human Rights Commission NPP – Nuclear Power Plant

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OECD – Organisation for Economic Cooperation and Development OEEC – Organisation for European Economic Co-operation OFAC – Office of Foreign Assets Control OHCHR – Office of the High Commissioner for Human Rights OSCE – Organization for Security and Cooperation in Europe PACE – Parliamentary Assembly Council of Europe PCA – Permanent Court of Arbitration PHS – Public Health Service REIO – Regional Economic Integration Organisation RS – Rome Statute SCEs – State-Controlled Entities SICJ – Statute of the ICJ SOEs – state-owned enterprises SWFs – sovereign wealth funds TEU – Treaty of European Union TFEU – Treaty on the Functioning of the European Union UDHR – Universal Declaration of Human Rights UK – United Kingdom UN – United Nations UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNCTAD – United Nations Conference on Trade and Development UNESCO – United Nations Educational Scientific and Cultural Organization UNFCCC – United Nations Framework Convention on Climate Change UNGA – UN General Assembly UPR – Universal Periodic Review USA – United States of America USSR – Union of Soviet Socialistic Republics USTB – Unified Standing Treaty Body VCCLND – Vienna Convention on Civil Liability for Nuclear Damage VCLT – Vienna Convention on the Law of Treaties WHO – World Health Organization UNHRC – United Nations Human Rights Council UNRoD – United Nations Register of Damage UNSC – United Nations Security Council

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I. STUDIES

IN INTERNATIONAL LAW AND ORGANIZATIONS

CYIL 14 (2023) THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION… THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION – ACHIEVEMENTS AND PROBLEMS Ernest Petrič Abstract: The three quarters century of work of the International Law Commission in codification and progressive development of international law have been a story of success in transforming of mostly international customary law into written, codified international law according to the standards of “ lex certa ”. The Commission has assisted States also in progressive development of international law in line with needs of modern, globalised international community in which most of important human activities have become international and thus requiring regulation by international law, i.e. by codification of existing international customary and by its progressive development. Thus in less than half a century the most important international activities became regulated by codified, written and clear norms of international law like the diplomatic and consular relations, the law of treaties, the law of states’ succession, the law of the sea, law of war ( jus ad bellum and jus in bello ), prevention and punishment of crimes under international law, to mention only the most important matters. Besides, in particularly in the last two decades the Commission payed its attention to clarify, by its authority of the independent expert organ several important parts or problems of international law, such as the impact of subsequent state practise and agreements on valid treaties, the provisional application of not ratified agreements, the effects of reservations and declarations on treaties, the rules of customary international law, of general principles of law and the nature and role of jus cogens in international law. Resumé: Tři čtvrtě století práce Komise pro mezinárodní právo v kodifikaci a progresivním rozvoji mezinárodního práva bylo příběhem úspěchu při transformaci převážně mezinárod ního obyčejového práva na psané, kodifikované mezinárodní právo podle standardů „ lex certa “. Komise pomáhala státům také v postupném rozvoji mezinárodního práva v souladu s potřebami moderního, globalizovaného mezinárodního společenství, v němž se většina důležitých lidských činností stala mezinárodní a vyžaduje tak regulaci mezinárodním prá vem, tedy kodifikaci stávajících mezinárodních obyčejů a jejich progresivní vývoj. Za méně než půl století se tak nejdůležitější mezinárodní aktivity staly regulovány kodifikovanými, psanými a jasnými normami mezinárodního práva, jako jsou diplomatické a konzulární styky, smluvní právo, právo sukcese států, mořské právo, válečné právo ( jus ad bellum a jus in bello ), prevence a trestání zločinů podle mezinárodního práva, abychom zmínili jen ty nejdůležitější oblasti. Kromě toho – zejména v posledních dvou desetiletích – věnovala Ko mise pozornost tomu, aby z pověření nezávislého odborného orgánu objasnila několik důle žitých částí či problémů mezinárodního práva, jako je dopad pozdějších dohod a praxe států na platné smlouvy, prozatímní provádění neratifikovaných dohod, účinky výhrad a výkla dových prohlášení na smlouvy, pravidla mezinárodního obyčejového práva, obecné zásady právní a povaha a úloha jus cogens v mezinárodním právu. Key words: International Law Commission (ILC); international law; codification; progressive development; jus cogens; aggression; protection of persons; disasters

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ERNEST PETRIČ CYIL 14 (2023) About the Author: Professor Ernest Petrič is a professor emeritus of international law and international relations at Nova univerza (New University) in Ljubljana (Slovenia), and Former member (2007–2022) of UN International Law Commission and its former Chairperson, Former judge and former President of Constitutional Court of Republic of Slovenia, Former Ambassador to India and Nepal, to USA and Mexico, to Austria, Former Permanent Representative of Republic of Slovenia to UNO, to IAEA, to OESC and Former Senior Adviser to the President of Republic of Slovenia; Member of EASA (European Academy of Science and Arts). 1. Introduction When reflecting on the three-quarters of a century of existence and work of the UN International Law Commission (ILC or Commission), one should first look back at the time of its creation and a couple of decades immediately after it. 1 This was the period immediately after the Second World War. It is true that ideas of a similar organ were already present during the period of the League of Nations, and considerations about the need for the codification of international law were present even before. However, a real organ of the international community for the codification and progressive development of international law, the International Law Commission, 2 was established after the Second World War within the UN system as a subsidiary organ of the UN General Assembly with its own founding Statute. 3 The Commission was supposed to be, and in fact it is, an independent expert body to assist States in the codification and progressive development of international law. The need for such a body was urgent. After the end of the Second World War, humanity’s desire for peace was strong and understandable. If peace were to be ensured, a clear international legal order was necessary as the precondition of the rule of law in the international community. This required clear international law, the “ lex certa ”, based on the understanding and acceptance of States on what the binding international law “ de lege lata ” actually is. In other words, clarity, and as much of consensus as possible on what is the legally binding content of norms and principles of international law. It was therefore a necessity to codify the already existing customary international law, which at the time was still far the most important corpus of international law, and the expression and reflection of the actual practice of States. However, it was unwritten law and therefore often unclear, burdened by ambiguities, and different interpretations. Unwritten customary international law at that time also still regulated the most important areas of international cooperation and the coexistence of States, such as international maritime law, international diplomatic and consular law, law of international treaties, international law of war ( jus in bello , with the exception of the Hague Conventions of 1899 and 1907) to mention only a couple of the most important areas of the international legal order that required clarity, i.e., codification. At the same time the new needs of international cooperation, reflecting the internationalisation of more and more human 1 See more about the creation and work of the Commission in The Work of the International Law Commission, 9th edition, vol.I, and vol.II, New York 2017. 2 The Commission was established by the resolution of the General Assembly on 21. 11. 1947 (GA res. 174-II); it started its work after its first members were elected in the General Assembly on 3. 11. 1948; thus, the date of its establishment, i.e., 21. 11. 2022, could be marked as the 75th anniversary of the creation of the Commission. 3 Accepted as Annex GA res, 174-II; later supplemented several times by resolutions of the General Assembly; Statute see in: The Work, op. cit. Annex I.

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CYIL 14 (2023) THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION… activities and way of life required the progressive development of international law. These, the progressive development and the codification were and still are the fundamental tasks of the Commission according to its statute. 4 2. The successful history of the Commission and its achievements After the end of the Second World War and in the context of efforts and expectations that humanity should be saved from a new, destructive world conflict, the then current question was how to ensure at the international level, i.e., with international law, the just and legally based punishment of those who were the most responsible for the outbreak of the devastating world conflict and for terrible mass crimes such as genocide, crimes against humanity, war crimes and crimes against peace, and the crime of aggression. The punishment of persons responsible for these crimes should not be an act of revenge, but rather a just punishment, based on personal responsibility and on personal guilt established in a fair judicial process, based on international law. Therefore, it is understandable that among the first tasks of the Commission was the establishment of the legal framework and foundations on which the international criminal courts established at the time, especially the Nuremberg and Tokyo courts, at which the main Nazi and Japanese war criminals were prosecuted, could operate according to rules and standards of independent, competent, and just courts. Together with the draft of the Declaration on the Rights and Duties of States 5 thus the first draft of the Code of Crimes against the Peace and Security of Mankind, the Nuremberg Principles 6 were the first major achievements of the Commission and its important contribution to the then international legal order. The Commission’s efforts to enact the Code of Crimes Against the Peace and Security of Mankind 7 were subsequently initiated in the Commission 8 and after few decades led to the draft statute (The Rome Statute) 9 of a permanent international criminal court and then to the establishment of the permanent International Criminal Court (ICC) in The Hague. 10 In complex circumstances, when humanity was threatened by the possibility of a new global conflict, an ongoing Cold War and the establishment of two military blocs, and when 4 Art. 1(1) Statute of the Commission: “The International Law Commission shall have for its object the promotion of the progressive development of international law and its codification”. 5 Draft Declaration on Rights and Duties of States, text see the Annex to GA res. 375 (IV), 6. 12. 1949.; see also Yearbook of the International Law Commission 1949. 6 Principles of International Law Recognized in the Charter of Nirenberg Tribunal and in the Judgment of the Tribunal, adopted by the Commission in 1950 and submitted to the UN General Assembly in 1950 published in Yearbook of the ILC, 1950, vol. II. (A/CN, 4/22.). 7 The task of preparing a draft Code on crimes against the peace and security of mankind was assigned to the Commission by the General Assembly already in 1947 by GA res. 177(II) simultaneously with the requirement to formulate the Nuremberg principles; In 1954, the Commission adopted Draft Code of Offenses against the Peace and Security of Mankind with comments (text see: Yearbook of the International Law Commission, 1954, vol. II.). 8 The General Assembly has by the GA resolution. 36/106 of 10. 12. 1981 called upon the Commission to continue to work on the drafting of the Code. 9 First it led to the new draft of the Code on Crimes against the Peace and Security of Mankind with Commentaries (1996); draft text see Yearbook of the International Commission, 1996, vol. II (Part two); this draft then became the basis of the draft statute of the International Criminal Court adopted at the conference of plenipotentiaries of States (17. 7. 1998) and was open for signature and ratification. 10 The Rome Statute entered into force on 1. 7. 2002 after the required sufficient number of ratifications were deposited, and in accordance with the provisions of its Statute.

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ERNEST PETRIČ CYIL 14 (2023) there were significant differences regarding some fundamental values and legal concepts between the two ideologically opposed blocs, communication based on clear international law ( lex certa ) was extremely important for maintaining dialogue and consequently the peace between the two blocs. Thus, the priority task of the Commission in the 1950s and 1960s, at the height of the Cold War, was the codification of the diplomatic and consular law 11 which until then was often unclear and differently understood and interpreted. The same applies to international treaty law. The issues of international treaties such as the rules of their conclusion, interpretation, effects, change, the end of their validity etc. have to be clearly regulated by international law since States and other subjects of international law regulate and resolve international problems and disputes, even the most controversial ones, by means of international treaties. 12 At the same time, due to technological development and new possibilities of exploiting the riches of the sea, it was necessary to codify the rules regulating relations among States at sea, which until then had also been governed by unwritten customary international law. The Commission prepared drafts of four conventions on basic issues of modern international law of the sea in 1958. 13 Those conventions were the foundations of the later UN Convention on the Law of the Sea, 14 which regulates all essential issues of relations among States on two-thirds of our planet, on the oceans and seas. At the same time, it was the period of decolonisation, when close to 100 new sovereign States joined the international community and the UN. The process of decolonisation brought to the fore in international law the issues of succession (inheritance) of new States in terms of international treaties, property, debts and guarantees, membership in international organizations, citizenship, etc. 15 11 The Commission prepared drafts of the todays fundamental treaties, sources of international diplomatic and consular law, such as the Vienna Convention on Diplomatic Relations (with two additional protocols), which entered into force on 24. 04. 1964 (text see UN Treaty Series, vol. 500); Vienna Convention on Consular Relations (with two additional protocols), which entered into force on 19. 3. 1967 (text see UN Treaty Series, vol. 596); Convention on Special Missions (with an additional protocol), which entered into force on 21. 6. 1985 (text see UN Treaty Series, vol. 1400; with these conventions, the most important parts of diplomatic and consular law are codified, but the Commission also dealt with a number of other issues of this part of international law, such as the effort to codify the status of state representatives at international organizations of universal character (Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character), adopted as a draft on 14. 03. 1975, which has not yet entered into force; text see Official Records of the United Nations Conference on the Representation of States in their Relations with International Organizations, vol. II; on the Commission’s effort to codify this matter and some other questions of diplomatic law, see The Work of vol. I, op. cit. in note 1. 12 The draft of the later Vienna Convention on the Law of Treaties is rightly considered one of the greatest achievements of the Commission. It codifies the norms of customary international treaty law, which were created over centuries of state practice; the convention entered into force on 27. 1. 1980 (text see UN Treaty Series, vol. 1155). 13 The draft articles prepared by the Commission for codification were the basis for the drafts of conventions (Convention on the High Seas; Convention on the Continental Shelf; The Convention on the Territorial Sea and the Contiguous Zone) and the Optional Protocol, which were adopted at the UN conference in Geneva in 1958 and also entered into force, and their content was later integrated into the codification efforts of the UN Conference on the Law of the Sea, which between 1973 to 1982 prepared a draft of the now UN Convention on the Law of the Sea (UNCLOS). 14 UN Convention on the Law of the Sea (UNCLOS), which entered into force on 16.11.1999 (text see UN Treaty Series, vol. I833). 15 In connection with the succession issues, the Commission prepared a draft of the articles of the Convention on the Succession of States with regard to international treaties; on this basis, the conference of plenipotentiaries of States adopted the draft of the Vienna Convention on Succession of States in Respect of Treaties, which entered

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CYIL 14 (2023) THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION… This successful codification activity of the Commission, belongs to the period when the contribution of the Commission to the development and codification of international law by its elaborated proposals for codification and progressive development of international law was indeed great and necessary. At the same time, this was the period marked by two important, though not sufficiently exposed facts in relation to the functioning and position of the Commission. First of all, the then existing great interest of States, regardless of the bloc division of the world and ideological conflict at the time, in the work of the Commission to codify and progressively develop the international law. It was the States that showed interest in the Commission’s work, especially in the 6 th Committee of the General Assembly. States followed the work of the Commission and used its results and proposals, they considered draft articles of the draft conventions or other drafts with the aim that these articles prepared by the Commission should through the codification process become drafts of international conventions and consequently via ratifications, binding international multilateral conventions. This was also the time when the members of the Commission, in spite of the bloc divisions of the world and in spite of the Cold War, were able to reach necessary consensus in the work of the Commission, which was then reflected in Commission’s drafts. This significantly contributed to the fact that drafts of several conventions were later ratified by a sufficient number of States and became important instruments of modern international law. This successful functioning of the Commission and the dialogue within it, also contributed to preservation of international peace in the dangerous times of the Cold War. The dialogue of top and highly respected international lawyers from both sides of the “iron curtain” was not interrupted in the Commission even during the most critical periods and crises and contributed to the preservation of peace. Continuous cooperation in the Commission even when the Cold War was at its peak, can today be understood as proof that on both sides of the “iron curtain” there was nevertheless a desire to preserve the international legal order and peace, based on international law. In the period before the end of the Cold War and also in the period after the symbolic fall of the Berlin Wall, the Commission prepared important drafts of future international conventions. Most of them, however, remained only drafts or because of insufficient number of ratifications did not enter into force. 16 The fact that these draft articles were not codified into force on November 6, 1996; (text see: UN Treaty Series, vol. 1946); The Commission also prepared draft articles for the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (Vienna Convention on Succession of States in Respect of State Property, Archives and Debts), which has not yet entered into force; The Commission also dealt with the succession of states in relation to the citizenship of natural persons without a successful conclusion and prepared draft articles (Articles on Nationality of Natural Persons in Relation to the Succession of States), which remained only a draft of the Commission (text of articles with comments see in Yearbook of the International Law Commission, 1999, vol.II, Part Two). 16 Let us only mention the Convention on the Reduction of Statelessness which entered into force on 13. 12. 1975 (text see UN Treaty series, vol. 989); Convention on Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents), which entered into force on 20. 2. 1977 (text see UN Treaty Series, vol. 1035); or a series of draft conventions that, in addition to some of the previously mentioned remained in the drafts like Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations; or Articles on Diplomatic Protection; Articles on the Law of Transboundary Aquifers; or Articles on the Effects of Armed Conflicts on Treaties; or the draft articles for Protection of Persons in the Event of Disasters adopted by the Commission a couple of years ago (see GA res. 71/141 of 13. 12. 2016); or the draft Articles on Prevention and Punishment of Crimes against Humanity (see A/CN.4/L.913).

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ERNEST PETRIČ CYIL 14 (2023) and did not become part of international treaty law does not mean that the work of the Commission remained without any impact on the international legal assessment of those legal issues to which these drafts referred. In any case, these drafts indicate that their content is considered by the Commission, i.e., by the UN organ authorized for the progressive development of international law and its codification, to be an expression of existing state practice, even if the practice is not yet sufficient, uniform, and prevailing so that it would lead States to complete the codification by ratifying them. 3. The new challenges and methods of work of the Commission The new era, after the end of the bloc division of the world, after the end of the Cold War, opened up more opportunities for States to agree on the codification of international law in certain areas more directly, within the framework of the GA of the UN or at specially convened international conferences without direct involvement of the Commission. This new cooperative spirit was also relevant from the point of view of the development of international law. This was true for regulation by international law of important environmental issues, especially the issues of climate change and protection of environment, but also the issues of human rights. In the absence of its major codification topics, the Commission started to focus more on the consideration, preparation, and adoption of “principles”, “conclusions”, or “guidelines” regarding interpretation of norms of international law present in already binding international conventions. The Commission’s efforts to help better understand the concepts and institutes of international law, which was and still is experiencing an extraordinary development and expansion especially after the turn of the millennium and is the result of internationalization and globalization of virtually all areas of human life and work, also belongs to this new period. The characteristics of this time, after the end of the Cold War until today is on the one hand, the extraordinary development and proliferation of international law, but at the same time, the Commission had a less exposed role in this. This does not mean that the Commission did not perform important work by explaining and defining important institutes and concepts of international law, among others, those related to international treaty law. Specifically, regarding issues that were not elaborated sufficiently by the Vienna Convention on the Law of Treaties (1969). 17 Inter alia , we have in mind the Commission’s “conclusions” on the impact of a later agreement or consensual practice on interpretation of a valid international treaty, 18 the “guiding rules” on problems and the impact of reservations to the provisions of multilateral international treaties, 19 the “guide” on the problem of the provisional application of international treaties not yet ratified. 20 This also includes the draft articles on the impact of armed conflicts on international treaties. 21 Or projects of the 17 These are some of the issues that were left undefined in the Vienna convention, mainly due to the modest scope or the large contradictions within relevant States’ practice. 18 Conclusions on Subsequent Agreements and Subsequent Practice in Relation to Interpretation of Treaties, see ILC Report, A/73/10, paras 39–52. 19 The Commission in 2011 adopted and submitted the »Guide to Practice on Reservations to Treaties« to the General Assembly for further processing and to States for use (text see Official Records of the GA, 66 th session, Supplement No. 10 (A/66/10 and Add. 1). 20 The Commission adopted a Guide to Provisional Application of Treaties, see ILC Report, A/76/10, 2021, paras. 41–52. 21 Articles on the Effect of Armed Conflict on Treaties; the Commission adopted the draft articles in 2011 and forwarded them to the General Assembly for further processing; (Text see Annex to GA res. 66/99, 9. 12. 2011).

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CYIL 14 (2023) THREE QUARTERS OF A CENTURY OF THE UN INTERNATIONAL LAW COMMISSION… Commission intended for clarifying problems of wider significance, such as “conclusions” on a better understanding, identification, and application of customary international law, its nature and role. 22 Or to contribute to better understanding of general principles of law ( principes généraux de droit ) as a formal source of general international law (in the context of Article 38(1)(c) of the ICJ Statute), in modern international law. 23 This new approach of the Commission also included “conclusions” on the extremely interesting and important topic to define jus cogens and its place and role in international law. 24 It should not be overlooked that in this same period the Commission also prepared draft articles for some international conventions, which were supposed to codify international law concerning several important matters, such as inter alia transboundary underground water resources, 25 protection of persons in the event of disasters, 26 the effects of armed conflicts on international treaties, 27 the responsibility of international organizations, 28 and the expulsion of aliens. 29 However, in the last two decades or more, none of the draft conventions prepared by the Commission have received a serious substantive consideration in the General Assembly or at an especially convened international conference of States with the purpose of elaboration of drafts prepared in the Commission and finalize them for the ratification by States. The work of the Commission thus became more a part of the doctrine of international law than a real contribution to codification and progressive development of international law. Whether this was the consequence of less of an interest of States in the results of the Commission’s works and its codification drafts or perhaps the consequence of the selection of inappropriate, not sufficiently current topics for States which the Commission has chosen and dealt with in the last couple of decades, let’s leave this as an unanswered question. The Commission definitely made an extremely important contribution to the development and understanding of international law during this period. Even if the “principles”, “conclusions”, and “guidelines” are not formally legally binding, it is often clear from them what the Commission already considers to be legally binding customary international law or it considers that should be progressively developed as international law. The use of “shall”, “should”, “will”, or “would” in draft “principles”, “conclusions”, or “guidelines” enables the Commission to indicate the differences between the norms of lex lata and norms de lege ferenda . Thus, the Commission actually, by the authority of an independent, highly specialized UN body, tasked with the codification and progressive development of international law, has an impact on the views of States, as well as the decision-making of international courts and arbitrations on what might already be international law de lege lata and what is not yet. Thus, the views of the Commission, presented as principles or conclusions or guiding rules can be in 22 In 2018, the Commission adopted Conclusions on Identification of Customary International Law, see ILC Report, A/73/10, paras. 53–66. 23 The Commission is still considering the issue of general principles of law; see work of the Commission at its 73rd Session (2022) A/CN4L.971. 24 The Commission concluded by considering the issue of jus cogens in international law at the 73rd session (2022), by adoption of Conclusions on Peremptory Norms of General International Law ( jus cogens ); see A/CN4/ L,960/ Add, 1. 25 Articles on the Law of Transboundary Aquifers; see text in The Work…, vol. II. p. 443. 26 Articles on Protection of Persons in the Event of Disasters; see text in The Work…, vol. II, p. 523 id. 27 Articles on the Effects of Armed Conflicts on Treaties; see text in The Work…. vol. II, p. 510 id. 28 Articles on the Responsibility of International Organizations; see text in The Work… vol. II. p. 429 id. 29 Articles on the Expulsion of Aliens, text see in The Work…, vol. II, p. 515 id.

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