CYIL vol. 14 (2023)

MAREK ZUKAL – ANNA MATOUŠKOVÁ CYIL 14 (2023) inconsistent. However, such a description is inappropriate, as the two issues are very different. Firstly, in both cases the ILC recommendation is being followed: whereas in the case of the CAH the ILC recommended the conclusion of a convention, in the case of the ARSIWA it recommended taking note of them and considering, at a later stage, the possibility of convening a conference of plenipotentiaries. This is precisely what the Sixth Committee has been doing since then. Secondly, unlike the CAH, the ARSIWA contain secondary, non directly applicable norms that do not require transposition into the domestic legal systems of Member States (norms regulating crimes against humanity will, in most cases, require such transposition due to the principle of nullum crimen sine lege and due to the need for legal certainty). With regard to the argument of possible fragmentation of case-law and the risk of jeopardizing the ARSIWA by not taking any further action, this does not seem to be a real risk. On the contrary, the practice of national and international courts does not appear to be fragmented. The rules of customary international law are crystallizing on the basis of the ARSIWA, a process that is taking place through State practice. It is worth recalling that customary international law and international treaties are equivalent sources of international law, based on Article 38 of the Statute of the International Court of Justice. The subsequent negotiations, which took place both in the format of a working group and informal consultations, were largely framed by a discussion on a non-paper 19 submitted by Portugal together with Argentina, Colombia, Lebanon, Micronesia and Mexico. The non paper described procedural precedents for action on products of the ILC (e.g. taking note of the product without deciding to further include the item on the agenda, ending consideration of the topic, moving a topic from the Sixth Committee to the Plenary, establishment of subsidiary organs such as ad hoc committee or a working group, convening a conference of plenipotentiaries, etc.). The pro-codification delegations proposed that the General Assembly in its resolution request the Secretary-General to prepare a report on all procedural options with regard to the ARSIWA. After lengthy negotiations, the resolution requests “a report on all procedural options based on precedents regarding actions taken on other products of the International Law Commission, without prejudice to the question of whether such possible action is appropriate”. 20 This can be seen as a concession by the codification-opposing delegations. On the other hand, the triennial periodicity of consideration was upheld. The resolution also dropped the request for the Secretary-General to report on references to the ARSIWA made in submissions presented by Member States before international courts, tribunals and other bodies, as the Secretariat informed the Committee that this would require more resources to continue to properly conduct such an analysis. The negotiations have revealed a strong divide between Member States (including between Member States of the EU – although it should be noted that divisions on substance are legitimate given the underlying concerns) and, despite the increasing pressure from the pro-codification side, progress towards any kind of agreement between delegations seems to 19 United Nations. Working paper on procedural precedents for action on products of the International Law Commission submitted by the delegations of Argentina, Colombia, Lebanon, the Federated States of Micronesia, Mexico and Portugal for the consideration of the Working Group. Available here: https://documents-dds-ny.un.org/doc/ UNDOC/GEN/N22/659/09/PDF/N2265909.pdf?OpenElement. 20 Resolution of the General Assembly A/RES/77/97, adopted on 19 December 2022. Available here: https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N22/741/22/PDF/N2274122.pdf?OpenElement.

460