CYIL vol. 8 (2017)

PAVEL ŠTURMA CYIL 8 ȍ2017Ȏ Draft guidelines 5, 6, 7 and 8 deal with commencement of provisional application, legal effects of provisional application, 14 responsibility for breach and termination upon notification of intention not to become a party. Last but not least, provisional application of treaties is also a problem related to internal law. The ILC addressed this issue in draft guidelines 9 to 11. A general rule is that a State (or an international organization) that has agreed to the provisional application may not invoke the provisions its internal law (rules of the organization) as justification for its failure to perform an obligation arising under such provisional application. 15 The next guideline, which mirrors Article 46 of the Vienna Convention, says that “a State may not invoke the fact that its consent to the provisional application of a treaty or a part of a treaty has been expressed in violation of a provision of its internal law regarding competence to agree to the provisional application of treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. 16 The same rule applies to the rules of the international organization. By contrast, the situations of substantive (non-)consistency of the provisional applied treaty or a part of the treaty are addressed in the form of a “without prejudice” clause in guideline 11. 17 It is possible to conclude that, after some years when draft guidelines stayed within the Drafting Committee, significant progress was achieved. It is envisaged that, in 2018, on the basis of the next report, the Commission will be able to conclude the topic on first reading. 2.4 Immunity of State officials from foreign criminal jurisdiction In relation to this topic, the Commission continued its consideration of the fifth report of the Special Rapporteur Ms. Concepción Escobar Hernández, 18 which had started during the last session in 2016. 19 The fifth report analyzed the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction and proposed a single draft article on the issue. Following the plenary debate, which revealed a division of views among its members, the Commission referred draft article 7, as proposed by the Special Rapporteur, 20 to the 14 Ibid. , p. 2: “The provisional application of a treaty or a part of a treaty produces the same legal effect as if the treaty were in force between the States or international organizations concerned, unless the treaty provides otherwise or it is otherwise agreed.” 17 “The present draft guidelines are without prejudice to the right of a State or an international organization to agree in the treaty itself or otherwise to the provisional application of the treaty or a part of the treaty with limitations deriving from internal law of the State or from the rules of the organization.” 18 See doc. A/CN.4/701 (2016). 19 Cf. also ŠTURMA, P., The International Law Commission at the End of Quinquennium: an Exceptional Session and Positive Results, Czech Yearbook of Public & Private International Law , vol. 7 (2016), pp. 447-448. 20 Draft article 7: Crimes in respect of which immunity does not apply 1. Immunity shall not apply in relation to the following crimes: (a) Genocide, crimes against humanity, war crimes, torture and enforced disappearances; (b) Crimes of corruption; (c) Crimes that cause harm to persons, including death and serious injury, or to property, when such crimes are committed in the territory of the forum State and the State official is present in said territory at the time that such crimes are committed. 2. Paragraph 1 shall not apply to persons who enjoy immunity ratione personae during their term of office. 15 Ibid. , p. 2. 16 Ibid ., p. 2.

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