475 / 532
459
THE INTERNATIONAL LAW COMMISSION AT THE MIDǧPOINT OF ITS QUINQUENNIUM
Court interpreted the object and purpose of the Convention against Torture (1984)
as giving rise to “obligations erga omnes partes”, whereby each State Party had a
“common interest” in compliance with such obligations.
18
The issue of
jus cogens
was not central to this point. In the view of the Commission,
the Court was saying that States Parties to the Convention against Torture had a
common interest to prevent acts of torture and to ensure that, if they occurred, those
responsible did not enjoy impunity. Other treaties may lead to obligations
erga omnes
partes
as well.
19
It is similar when it comes to the customary nature of the obligation to extradite
or prosecute. The former Special Rapporteur Galicki proposed in 2011 a draft
article on international custom as source of the obligation
aut dedere aut judicare
.
However, there was disagreement with the conclusion that the customary nature of
this obligation could be inferred from the existence of customary rules proscribing
specific international crimes. When the ILC adopted the Draft Code of Crimes
against the Peace and Security of Mankind (1996), the provision on the obligation
to extradite or prosecute represented progressive development of international law.
Since that time there may have been further development in international law. The
ICJ in
Begium v. Senegal
ruled that it had no jurisdiction to entertain Belgium’s claims
relating to Senegal’s alleged breaches under customary international law. Therefore
the Court did not have an opportunity to determine the customary international law
status of the obligation to extradite or prosecute. The Commission did not give an
answer either.
20
2.4 Subsequent agreements and subsequent practice in relation
to the interpretation of treaties
With respect to this topic, the Commission had before it the second report of
the Special Rapporteur Georg Nolte,
21
which contained six draft conclusions relating
to the identification of subsequent agreements and subsequent practice, the possible
effects of subsequent practice under Article 31(3)(b) of the Vienna Convention
on the Law of Treaties, agreement of the parties regarding the interpretation
of a treaty, decisions adopted within the framework of a Conference of States
Parties, and the scope for interpretation by subsequent agreements and subsequent
practice. Following to the rich debate in Plenary and the Drafting Committee, the
Commission provisionally adopted five draft conclusions (conclusions 6 to 10),
together with commentaries thereto.
22
18
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, ICJ Reports
2012, § 67-70.
19
See doc. A/CN.4/L.839 (2014), p. 21, § 46-47.
20
Ibid., pp. 24-25.
21
See doc. A/CN.4/671 (2014).
22
See doc. A/CN.4/L.840, Add. 1, Add. 2 and Add. 3.