CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CRIMES AGAINST HUMANITY, PEREMPTORY NORMS … be submitted to the International Court of Justice, unless those States agree to submit the dispute to arbitration”. 17 The ILC adopted, on second reading, the entire set of draft articles on prevention and punishment of crimes against humanity, together with commentaries. The Commission decided, in conformity with article 23 of its statute, to recommend the draft articles to the General Assembly. In particular, the Commission recommended the elaboration of a convention by the General Assembly or by an international conference on the basis of the draft articles. 18 This is an important moment, because, during the past decades, the Commission did not address such a recommendation to the General Assembly. In fact, many of the recently adopted outcomes of the work of the ILC were conclusions, guidelines, and even draft articles where it did not find it suitable for elaboration of a convention. The last example of a treaty instrument, elaborated and adopted on the basis of draft articles of the Commission, was the 2004 UN Convention on the Jurisdictional Immunities of States and their Property. 19 Therefore, it will be extremely interesting to follow the debate during the Sixth Committee this year. It may indicate if prospects of a new convention based on the present draft articles are feasible. 2.2 Peremptory norms of general international law ( jus cogens ) With respect to this topic, the Commission had before it the fourth report of the Special Rapporteur Dire Tladi, which discussed the question of regional jus cogens and the inclusion of an illustrative list, based on norms previously recognized by the Commission as possessing a peremptory nature. 20 The debate revealed different views as to whether there is something like a regional jus cogens . However, the proposal of the Special Rapporteur not to include any draft conclusions on this issue prevailed. Following the plenary debate, the Commission decided to refer the draft conclusion 23 (referring to a non-exhaustive list of jus cogens norms) to the Drafting Committee. In particular, the topic of jus cogens and, in particular, the non-exhaustive list of norms attracted a very rich debate. The Commission subsequently adopted, on its first reading, 23 draft conclusions and a draft annex, together with commentaries thereto, on peremptory norms of general international law ( jus cogens ). 21 The text of the draft conclusions is divided into four parts. PartOne includes draft conclusions on scope, definition, and general nature of peremptory norms of general international law. Conclusion 1 sets forth that the draft conclusions concern the identification and legal consequences of peremptory norms of general international law ( jus cogens ). Conclusion 2 takes over the definition of a peremptory norm from article 53 of the Vienna Convention on the Law of Treaties (1969). More important and innovative, though controversial for some members, is conclusion 3 that provides that “peremptory norms of general international 17 Ibid., p. 111. 18 See doc. A/CN.4/L.928 (2019), p. 2, § 9. 19 Convention on Jurisdictional Immunities of States and Their Property , Rep. of the Sixth Committee , U.N. Doc. A/59/508, at 1 (2004). 20 See doc. A/CN.4/727 (2019). 21 See doc. A/CN.4/L.929 (2019) and Add.1, Add.2.

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