CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CRIMES AGAINST HUMANITY, PEREMPTORY NORMS … clarification, as it deals with the separability of treaty provisions conflicting with a peremptory norm of general international law. Conclusion 12 makes clear consequences of the invalidity and termination of a treaty conflicting with a peremptory norm of general international law. Parties to such a treaty have an obligation to “eliminate as far as possible the consequences of any act performed in reliance on any provision of the treaty which conflicts with a peremptory norm of general international law” and bring their mutual relations into conformity with jus cogens . 28 Conclusion 13 addresses the absence of effect of reservations to treaties on treaty provisions that reflect peremptory norms. The following draft conclusions concern the legal consequences of jus cogens norms on other sources of international law, namely rules of customary international law (conclusion 14), obligations created by unilateral acts of States (conclusion 15), and obligations created by resolutions, decisions or other acts of international organizations (conclusion 16). Conclusion 17 clarifies that peremptory norms of general international law give rise to “obligations owed to the international community as a whole (obligations erga omnes ), in which all States have a legal interest”. 29 Conclusions 18 and 19 are based on Articles on responsibility of States for internationally wrongful acts; 30 they address the impossibility to invoke circumstances precluding wrongfulness and particular consequences of serious breaches of peremptory norms of general international law ( jus cogens ). 31 The next two draft conclusions are different in nature, as they concern mainly interpretation and procedural requirements. Conclusion 20 aims at avoiding a conflict between a peremptory norm and another rule of international law. Where it appears that there may be such a conflict, the latter rule “is, as far as possible, to be interpreted and applied so as to be consistent with the former”. 32 By contrast, conclusion 21 deals with the situation, where a State invokes a peremptory norm of general international law as a ground for the invalidity or termination of a rule of international law, and provides for notification, objection, peaceful settlement of such a dispute, including an offer to submit the matter to the International Court of Justice. This draft conclusion is without prejudice to the procedural requirements set forth in the Vienna Convention on the Law of Treaties. 33 Its purpose is to prevent a unilateral invalidation or termination of treaty or other rules of international law. Finally, Part Four of the draft conclusions includes just two conclusions. However, they are a result of long and difficult debates within the Commission. Conclusion 22 is a simple without prejudice clause “to consequences that specific peremptory norms of general international law ( jus cogens ) may otherwise entail”. 34 However, it replaced two other provisions, proposed originally by the Special Rapporteur, which referred to international criminal jurisdiction and the issue of immunity. In the end, conclusion 23 introduces “without prejudice to the existence or subsequent emergence of other peremptory norms” a non-exhaustive list of norms that the Commission has previously referred to as having that 28 Ibid., pp. 33-34. 29 See doc. A/CN.4/L.929/Add.2, p. 11. 30 Yearbook…, 2001, vol. II (Part Two) and corrigendum; or GA resolution 56/83 of 12 December 2001, annex. 31 See doc. A/CN.4/L.929/Add.2, pp. 14-15. 32 Ibid., p. 20. 33 See doc. A/CN.4/L.929/Add.1, pp. 36-37. 34 See doc. A/CN.4/L.929/Add.2, p. 22.

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