CYIL vol. 9 (2018)

PAVEL ŠTURMA

CYIL 9 ȍ2018Ȏ

2.7 Succession of States in respect of State responsibility With regard to this topic, placed on the current programme only in May 2017, the Commission considered the second report of the Special Rapporteur. 59 The report addressed the issue of legality of succession, the general rules on succession of States in respect to State responsibility, and certain categories of State succession to the obligations arising from responsibility. 60 The Special Rapporteur stated that his second report took into account the comments from the members of the Commission and from the delegates in the Sixth Committee. In relation to the general rule underlying the topic of succession to responsibility, he considered that a general theory of non-succession should not be replaced by another similar theory in favour of succession; a more flexible approach was needed. He also put emphasis on the previous work of the ILC on State responsibility for internationally wrongful acts. Following the long and rich debate in plenary, the Commission decided to refer draft articles 5 to 11, as contained in the report of the Special Rapporteur, to the Drafting Committee. The ILC subsequently took note of the interim report of the Chairperson of the Drafting Committee on draft article 1, paragraph 2 (subsidiary nature of the draft articles), and draft articles 5 (legality of succession) and 6 (attribution of the act committed before the date of succession) provisionally adopted by the Committee. Due to the lack of time, the Drafting Committee was not able to discuss other new draft articles. As proposed by the Special Rapporteur, draft articles 3 and 4 remained within the Drafting Committee, so as members could benefit from the next reports which would shed more light on the general (residual) rules on the transfer or not, of rights and obligations in various kinds of succession of States. 2.8 Immunity of State officials from foreign criminal jurisdiction In relation to this topic, the Commission commenced its consideration of the sixth report of the Special Rapporteur Ms. Concepción Escobar Hernández, 61 which was finally available in all six official languages on 27 July 2018. The report addressed procedural aspects of immunity from foreign criminal jurisdiction, in particular analysing the way in which procedural aspects had been dealt with previously in the work of the Commission, how such aspects fit within the framework of the present topic. It also outlined the approach which the Special Rapporteur intended to follow, and provided an analysis of three components of procedural aspects related to the concept of jurisdiction, namely (a) timing, (b) kinds of acts affected, and (c) the determination of immunity. The report did not exhaust all procedural aspects and did not propose any draft articles. For various reasons, the debate of the Commission on this report was partial and will be completed next year. In a sense, it is similar to the situation with the fifth report which had started in 2016 and was completed in 2017. 62 One can only hope that the next report will bring more elaborated procedural provisions and safeguards which will also satisfy at least certain concerns of some members of the Commission who expressed doubts about the 59 See doc. A/CN.4/719 (2018). 60 See Chapter X of the ILC report, doc. A/CN.4/L.923 (2018), pp. 2-4. 61 See doc. A/CN.4/722 (2018). 62 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.

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