CYIL vol. 8 (2017)

PAVEL ŠTURMA CYIL 8 ȍ2017Ȏ exceptions to immunity ratione materiae . The ILC will continue and possibly conclude its

consideration of the topic on the first reading in 2018. 2.5 Peremptory norms of general international law

In relation to the topic of Jus cogens , the Commission had before it the second report of the Special Rapporteur Mr. Dire Tladi. 25 The report sought to set out the criteria for the identification of peremptory norms ( jus cogens ), taking the 1969 Vienna Convention on the Law of Treaties as point of departure. After the plenary debate, the ILC decided to refer draft conclusions 4 to 9, as contained in the report of the Special Rapporteur, to the Drafting Committee. It also decided to change the title of the topic from “ Jus cogens ” to “Peremptory norms of general international law ( jus cogens )”, as proposed by the Special Rapporteur. The Commission subsequently took note of the interim report of the Chairperson of the Drafting Committee on draft conclusions 2 (former 3(2)), 4, 5, 6 and 7 provisionally adopted by the Committee, which was submitted to the Commission for information. These deal with the criteria for jus cogens which must be a norm of general international law, accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted, as well as well as the requirements and evidence of acceptance and recognition. It is interesting to note that some draft conclusions were amended, shortened and partially merged in the Drafting Committee. An important element of the debate concerned the additional characteristics of jus cogens , going beyond the content of Article 53 of the Vienna Convention, namely that such norms protect the fundamental values of the international community, are hierarchically superior to other norms and are universally applicable. The Special Rapporteur disagreed with the views expressed in relation to draft conclusion 3, paragraph 2, which had been referred to the Drafting Committee in 2016. He indicated that the draft conclusions were, by their nature, a mixture of normative and descriptive conclusions on the state of the law. Interestingly enough, the Drafting Committee decided to preserve the characteristics originally contained in draft conclusion 3 (2) and to make it draft conclusion 2, preceding thus the definition of jus cogens itself. 2.6 Succession of States in respect of State responsibility With regard to this new topic, placed on the current programme only in May 2017, the Commission started its consideration of the first report of the Special Rapporteur. 26 The report sought to set out the Special Rapporteur’s approach to the scope and outcome of the topic and to provide an overview of general provisions relating to the topic. The Special Rapporteur stated that the topic dealt with two areas of international law that were already the object of codification and progressive development by the Commission: namely, succession of States and State responsibility. He drew attention to the previous work of the Commission that had left gaps for examination at a later point, as well as the work concluded on the topic by the Institute of International Law. The Special Rapporteur emphasized that the aim of examining the topic was to shed more light on the question of whether there were rules of international law governing both the transfer of obligations and

25 See doc. A/CN.4/706 (2017). 26 See doc. A/CN.4/708 (2017).

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