CYIL vol. 15 (2024)

PAVEL ŠTURMA 2. The topics on the Agenda of the ILC

In 2024, the Commission had a total number of six topics on the agenda. During the 10-week session, the ILC was able to discuss the following topics: “Immunity of State officials from foreign criminal jurisdiction”, “Sea-level rise in relation to international law”, “Settlement of disputes to which international organizations are parties”, “Prevention and repression of piracy and armed robbery at sea”, “Subsidiary means for the determination of rules of international law”, and “Non-legally binding international agreements”. The Commission commenced but not completed the second reading of the oldest topic on its agenda, i.e., Immunity of State officials from foreign criminal jurisdiction. Another topic, namely “General principles of law”, which had been provisionally adopted (on first reading) last year, was not discussed in 2024. Its second reading can start next year. 2.1 Immunity of State officials from foreign criminal jurisdiction Draft articles adopted on first reading in 2022 are the result of the long and complicated debate within the Commission. Based on this experience, it has been expected that the second and final reading might last more than one session. This could also meet the concerns of some members of the ILC. The new Special Rapporteur, Mr. Claudio Grossmann, decided to split the matter into two years. In his present report, he summarized the comments of governments and proposed some amendments to draft articles 1 to 6. 4 In turn, he promised to cover draft articles 7 to 18 in 2025. The Special Rapporteur justified his approach by the lack of time, as some comments from governments were submitted close to the deadline or even later. 5 This fact as well as the placement of the discussion on the topic in the second part of the session (in July) would make it impossible to complete the second reading this year. Based on the careful examination of comments and observations from Member States, the Special Rapporteur proposed in his report only limited amendments to draft articles 1, 4, 5, and 6. The most important changes relates to draft Article 1, where the exclusory clause in paragraph 3 should be more explicit: ‘The present draft articles do not affect the rights and obligations of States under: (a) treaties establishing international criminal courts and tribunals as between the parties to those agreements; or (b) binding resolutions establishing international courts and tribunals.’ 6 Indeed, this amendment makes it clear that there is a difference between the non applicability of immunities before international or hybrid criminal tribunals established by agreements (with the effect inter partes ) and the case of tribunals established by resolutions of the Security Council (binding erga omnes ). In the end of the debate in plenary and the Drafting Committee, the Commission took note of draft articles 1, 3, 4, and 5[6] provisionally adopted by the Drafting Committee. The Committee decided to leave draft Article 2, which deals with definitions, until the next session when members will have a clearer picture of the entire set of the draft articles, in particular draft articles 7 to 18. The draft articles adopted by the Drafting Committee include some amendments proposed by the Special Rapporteur.

See UN doc. A/CN.4/775 (2024).

4

Ibid ., p. 5, para. 12. Ibid ., p. 14, para. 57.

5

6

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