Monthly Archives: November 2018

The State of the Union 2018 and Migration: a far-sighted Europe deserves more courage

Introduction

On the 12th of September 2018 the President of the European Commission, Mr. Jean Claude Juncker, pronounced the State of the Union Address of 2018 before the plenary session of the European Parliament. The State of the Union’s speech prepares the ground for the debate which will involve the highest EU Institutions the year ahead. It normally includes a report on the Union’s activities of the past year, as well as a letter of intent for the forthcoming one with the aim of underlining the priorities of the Union. While migration was included in the agenda, one might have expected a more far-sighted approach from the EU institutions. This post aims to see how the current -still improvable- EU policy on migration, as emerged from the 2018 State of the Union Address and its attachments, could act as a useful starting point for a more ambitious project in the future.

The 2018 Address: the responsibility of solidarity

‘We cannot continue to squabble to find ad hoc solutions each time a new ship arrives. Temporary solidarity is not good enough. We need lasting solidarity – today and forever more’.

‘Responsibility’ and ‘solidarity’ were two of the most frequent concepts the President Juncker made reference to in his speech. The first mention of the perpetual responsibility of the European Union comes at the very beginning of the speech together with a reference to the EU’s well-known role as the guardian of peace. As for solidarity, the President reminds how the EU operations have rescued more than half a million of people at sea since 2015, The Address brings to light several ambitious proposals linked to the main criticalities of the EU’s migration policy at the moment: the improvement of equipment and means for the European Border and Coast Guard; the reinforcement of the European Agency for Asylum; a more effective European return policy; the improvement towards more effective legal migration policy through the opening of legal pathways ( based on humanitarian reasons as well as on labor market needs) to the Union.

All of these tasks are planned according to the updated version of the project for a Common European Asylum System, which includes a stronger protection of the European external borders and a sharper distinction in terms of status between irregular and legal migrants among the EU priorities. In all fairness, the reinforcement of the European Agency for Asylum should also serve the scope of making the support of the EU to Member States more effective in order to comply with the international protection principles. At the same time, however, strengthening the European Border and Coast Guard would probably mean for the EU to stay focused on a short-term ‘border defence’ purpose rather than on a long-term management and regulation of third nationals’ inflows. On the one hand, the improvement of a EU Border and Coast Guard might lead eventually to reconsider the broad responsibility which the EU has partially discharged through the externalization of the migration management at its external borders counting on its neighbours, such as Turkey and Libya; on the other, however, the priority accorded to such a defensive objective makes extremely clear which direction has been chosen by the EU for the benefit of a certain idea of sovereignty. Besides any possible uncertainty, it is worth to bear in mind that a number of European Mediterranean countries at the border of the EU, particularly affected by the Balkan and the Central Mediterranean Route, have managed a huge humanitarian crisis since 2011 and, because of the lack of resources and obsolete EU and domestic legislation, they have faced it through all but a far-sighted approach. This has resulted in the implementation of many emergency measures within the EU, instead of a long-term and perspectival reform for a fair and common migration management.

The reform of the 2008 Return Directive: from a liberal approach to more restrictive definitions

In 2008 the EU States agreed upon several common rules for the return and the removal of irregularly staying migrants which have been transposed in the Directive 2008/115/EC of the European Parliament and the Council (hereinafter the ‘Return Directive’). Nowadays the enforcement of an amended European return policy should be considered the most significant point among the proposals announced by the EU Commission (or the Commission) on the occasion of the State of the Union: it resulted in the presentation of a Proposal for the reform of the Return Directive).

The Proposal, contrary to the more liberal case law of the Court of Justice of the European Union on the 2008 Return Directive, [1] embraces the more restrictive current approach of the Commission.[2] In the Explanatory Memorandum attached to the Proposal, the Commission underlines that an update of the EU return policy is needed due to the increasing migratory pressure on the Member States and the Union. In the past few years, Member States have indeed struggled in implementing the EU framework. They also have faced numerous difficulties in managing return procedures and complying with return decisions against irregular migrants allegedly because of their lack of cooperation in doing so.

The most delicate issues of the EU return policy deal with the relationship between the rules on detention (Article 15 of the 2008 Return Directive) and the functional definition of the “risk of absconding” (Article 6 of the Proposal), which is a condition to apply detention. The definition of the ‘risk of absconding’ has been set through the not exhaustive list of objective criteria provided by the Proposal: this parameter shall be used in the overall assessment of the specific individual case in migration-related procedure (administrative or criminal) in order to evaluate the need of preventing secondary movements of an individual within the EU. The list of criteria refers, in some cases, to extremely broad issues (such as the a risk for public security or national security), and in others to grounds that might potentially correspond to the commission of crimes (or single elements of crimes), depending on the system (e.g. see, among others, (from the list provided by the new article 6 of the proposal): (a) lack of documentation proving the identity; (b) lack of residence, fixed abode or reliable address; (c) lack of financial resources; (d) illegal entry into the territory of the Member States; (e) unauthorised movement to the territory of another Member State; (f) explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive) etc. The ‘risk of absconding’ itself could frequently be included, as occurs in the Italian criminal system, among specific procedural requirements for custody against suspects of crimes. For that reason, the use of such an ambivalent concept could create significant ambiguity in the law instruments that every Member State is requested to adopt.

After reminding that the new Directive Proposal aims at guaranteeing the principle of non refoulement, as well as the supreme protection of fundamental rights, the EU Commission turns to the use of detention (Article 18 of the Proposal) against illegal migrants. The Commission rates as a new emerging risk the fact that some third country nationals -supposedly considering the massive inflows- have posed or might pose a threat to public order or national security.

In the same way as in the externalization policy implemented and regulated by the EU and Turkey statement and the agreement between EU and Libya, the notions of public order and national security risk also in this case to appear to be empty boxes to store every undefined conduct so as to detain individuals who might be classified as ‘suspects’ of law breaching (such as irregular migrants, suspects of crimes, reported as suspects against national security). Moreover, like in the 2008 Directive, the Proposal does not refer to the precise field of law within which the detention of “irregular” migrants should find its own regulation: that is probably due to the fact that Member States apply either administrative or criminal measures depending on the risk assessment.

The unbearable uncertainty of the criteria on which the application of detention measures is based in the case of illegal migrants (i.e., irregulars, individuals affected by an order of expulsion or by a denial of international protection, “suspects” of not defined crimes) has therefore even got worse as a consequence of the undefined nature of the measures adopted. The latter might also affected the remedies at migrants’ disposal against a first instance denial of international protection or against an expulsion order, which are, again, differently-defined depending on the Member States’ legislative and judicial orders.

To sum up, notwithstanding the ambiguity in referring to the administrative or the criminal dimension indifferently has allowed every Member State to regulate freely the matters of detention against ‘illegal migrants’ according to its own legal system, a step forward in the perspective of a complete reform of the Return policy with the aim of ensuring harmonization among Member States’ practices could and should have been planned.

Conclusion

The 2018 State of the Union Address by the EU Commission promotes a ‘necessary’ switch of perspective allegedly caused by, on the one hand, an increasing pressure of migration on Member States’ boarders and, on the other, an ineffective return practice within the EU. Notwithstanding the urgency of setting out several key points – which the Proposal did meet, – such as the improvement of equipment and means for the European Border and Coast Guard, the reinforcement of the European Agency for Asylum and the reform of the return policy, the Address seems to leave behind several permanent criticalities in terms of de-harmonisation.

The protection of an idea of sovereignty of the European Union should have brought to light a more ambitious proposal, much more ambitious than a mere ‘defensive’ approach in terms of return policy and individual guarantees. The EU could have proposed the establishment of the principle of the EU sovereignty in the migration matters on the Member States’ practice through the creation of a long-term common operative équipe of experts dealing with migration within the EU by applying EU regulations and fundamental principles. This in order to erode progressively and slowly national sovereignty in a field which cannot be handled by single competent national authorities, normally politically linked to the national Government in charge (such as the Ministry of Home Affairs in Italy). This long-term revolution would ensure a far-sighted harmonization of practices within the EU in order to ‘offer – As the Commissioner for Migration, Home Affairs and Citizenship, Mr. Avramopoulos, stated –more Europe where more Europe is needed’ and ‘to support Member States to take up their responsibilities.

 

 

[1] See on this point the interesting contribution of S. Peers, Lock’em up: the proposal to amend the EU’s Return Directive, 12th September 2018 <http://eulawanalysis.blogspot.com/2018/09/lock-em-up-proposal-to-amend-eus.html&gt;; for some examples on the more ‘liberal case law’ see Judgment of the Court (Grand Chamber), 18 December 2014 Mohamed M’Bodj v État belge, Judgment of the Court (Grand Chamber), 18 December 2014, Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida, Judgment of the Court (Second Chamber) of 26 July 2017 Criminal proceedings against Mossa Ouhrami, Judgment of the Court (Grand Chamber) of 7 June 2016 Sélina Affum v Préfet du Pas-de-Calais and Procureur général de la Cour d’appel de Douai.

[2] ibidem ; see also European Commission releases proposal to recast Return Directive, 14th of September 2018, <https://www.ecre.org/european-commission-releases-proposal-to-recast-return-directive/&gt;.

 

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PARDONS FOR GROSS HUMAN RIGHTS VIOLATIONS: A FOLLOW-UP ON THE FUJIMORI CASE

1         Introduction

On 24th December 2017, the former President of Perú, Alberto Fujimori, was granted a pardon that terminated his conviction for very serious offences committed in the context of his repressive regime. As I commented in a previous post, this measure gave rise to important criticism of political bias and violation of the international duty to prosecute and punish those responsible for gross human rights (HR) violations.

The Inter-American Court of Human Rights (IACtHR) was called upon to decide whether this pardon violated the international duties of the Peruvian State and, more precisely, the sanctions imposed in the Barrios Altos and La Cantuta cases. The IACtHR decision of 30th May 2018, in the framework of the monitoring compliance proceedings for Barrios Altos and La Cantuta, confirmed the incompatibility of the pardon with the duty to prosecute and punish those responsible for gross HR violations. It also urged the competent domestic courts to revise the pardon decision, to check both its compatibility with the Constitution and the legality of its application.

As a consequence, on the 3rd October 2018 the Peruvian Supreme Court (SC) issued a decision that declared the invalidity of the pardon and ordered the resumption of the sentence serving.

In this post, I will point out the key legal arguments of both the IACtHR (Section 2) and the Peruvian Supreme Court (3) ground their decisions. In addition, I will share some critical remarks on these arguments (4), and conclude that it would have been less controversial to declare the invalidity of this pardon solely for the incompatibility with domestic legislation.

2         The reasoning of the IACtHR

The reasoning of the IACtHR takes into account two separate grounds of invalidity of the contested pardon. On the one hand, it recalls the duty of all States parties to the American Convention of Human Rights (ACHR) to prosecute and punish those responsible of serious violations of HR and the parallel prohibition of amnesties, pardons and other waivers of punishment for the same crimes.. On the other hand, it echoes the applicants’ doubts on the compliance with Peruvian legislation on pardons. For instance, with the impartiality of the medical panel certifying a serious illness, and the requirement to ground the decision on a detailed reasoning.

The first set of reasons is more relevant to an international law perspective, because it may be applied to any pardon issued for serious HR violations, regardless of the specific and critical features of the concrete benefit to Fujimori. Here, we might summarise the IACtHR’s position into three basic arguments.

Firstly, the international duty to prosecute and punish for gross HR violations encompasses the claim for proportionality between the seriousness of the offence and the degree of culpability of the offender, and the sentence imposed. This principle applies not only at the moment when the sentence is imposed, but also throughout its serving (paras. 30-31).

Secondly, the execution of the sentence is included in the victims’ right to access to justice (paras. 30, 47), in that it prevents the convictions from being a mere declaration with no practical effects. As a consequence, during the serving of the sentence “it is impermissible to grant in an undue manner beneficial measures that may lead to a form of impunity” (para. 30).

Thirdly, any measure that affects a sentence of serious HR violations, even more when based on a discretionary power of the executive, must be balanced against the other interests at play (especially the right to have access to justice), in order to guarantee its compatibility with the minimum standards set out by the Constitution and HR law (para. 57). The task of striking this balance belongs to the domestic judiciary, which the IACtHR urged to take action.

3         The Decision by the Peruvian Supreme Court

The decision by the Peruvian SC to invalidate the pardon is largely grounded in the same arguments of the IACtHR. The SC applies the “conventionality test” (control de convencionalidad), as defined by the IACtHR (para. 152 ff.), to check the compatibility of the pardon with the obligations of the American Convention and the jurisprudence of the IACtHR. In this regard, the SC comes to the same conclusion, namely, that this measure violates both the obligation to prosecute and punish and the right to access to justice.

While the IACtHR showed a degree of self-restraint in identifying the alleged illegal or unconstitutional aspects of the measure from a national law perspective, the domestic Court deals with them quite extensively. Here, the SC finds that the political context in which the pardon was issued indicates that it was a benefit granted by then President Kuczynski in exchange for political support against his impeachment (paras. 207-222). Additionally, it points out several irregularities in the administrative procedure of adoption of the pardon:  the non-impartiality of one member of the medical panel nominated to evaluate Fujimori’s health conditions; inconsistencies between the two reports issued by this panel; inadequate description of both the illness that would justify this extraordinary measure and the conditions in jail that would impede an adequate medical treatment thereof (paras. 223-245). These factors, together with the surprising rapidity of the procedure (paras. 246-256) and the lack of adequate motivation of the resolution itself (paras. 256-281), lead to the conclusion that Fujimori did not have such a medical condition as to legitimise a pardon “for humanitarian reasons”. The SC therefore declared measure to be invalid.

4         Some critical remarks

Whereas the invalidation of Fujimori’s pardon should be very welcome, the reasoning of both decisions deserve a more careful assessment.

Firstly, the distinction between the concepts of crimes against humanity (CAH) and serious HR violations. Both the IACtHR and the SC apparently apply these categories indistinctly to describe the scope of the prohibition of pardons. Yet, the scope and the foundation of such prohibition varies depending on which of the categories it refers to.[1] Moreover, both Courts reiterates that the judgment that convicted Fujimori qualified the facts as CAH, whereas, as it was noted in a previous post, Fujimori was not formally convicted of CAH, but for ordinary crimes (kidnapping, murder and serious bodily harm).

Secondly, in reaffirming the absolute ban on amnesties, pardons and other waivers of punishment, both tribunals seem to ignore the very relevant differences among these measures. In fact, pardons only affect the serving of the sentence, without excluding the search for the truth, the official declaration of responsibility, nor reparation for victims. Therefore, pardons have a minor impact than amnesties,[2] as that they do not preclude the fulfilment of key goals: truth, acknowledgment, reparation.

Thirdly, by prohibiting pardons as a whole, insofar as they cover serious HR violations, the Courts close the door ona measure that might be very useful in certain situations. Not only are pardons normally envisaged in modern criminal systems, as a tool to take into account specific considerations of criminal policy, but they might also be necessary in transitional settings.[3] In transitional contexts, the need to strike a balance between countervailing objectives might lead to the adoption of special measures (like pardons). Here, the relevant criteria is whether these measures respond to good faith policy considerations[4] or, on the contrary, their goal is to grant impunity.

5         Conclusions

The pardon granted to Fujimori “for humanitarian reasons” was a clear fraud, so the declaration of its invalidity should be welcome. Yet, in my view, the specific case should not reflect a general ban on pardons, irrespective of the features of each case and of the reasons that might, in some cases, justify them under a criminal policy perspective. It would have been much more effective and less problematic to focus exclusively on the specific features that cast doubt on its legitimacy, namely, the lack of legal justification for such a measure, , the failure to comply with domestic legislation, and the illegitimate political motive behind Fujimori’s pardon.

[1] E. Maculan, ‘Derecho penal, obligaciones internacionales y justicia de transición’, 2018 (41) Revista penal, 117-135, at section 2.2. The Inter-American jurisprudence shows a clear trend towards an expansión of the scope of the prohibition: E. Malarino, ‘Las víctimas en la jurisprudencia de la Corte Interamericana de Derechos Humanos’, in A. Gil Gil, E. Maculan (eds.), La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson, 2017), 23-44, at 41. Yet, a thorough analysis of the relevant HR jurisprudence and State practice leads to the conclusion that the prohibition is consolidated only in relation to the core international crimes: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 ff.

[2] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007), 459.

[3] In similar terms, K. McEvoy, Mallinder, ‘Amnesties in Transition: Punishment, Restoration and the Governance of Mercy’, 2012 (39) 3 Journal of Law and Society, 401-440, at 427-8.

[4] L. Mallinder, “Can Amnesties and International Justice be Reconciled?”, 2007 (1) International Journal of Transitional Justice, 208-230, at 221. no al indulto

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Redefining Jus Cogens. An Insight into the International Law Commission’s Discourse on Peremptory Norms of General International Law

Ana Srovin Coralli (Master in International Law from the Graduate Institute (Geneva) and Master in Law from the Faculty of Law (Ljubljana); ana.srovin@graduateinstitute.ch) &

Christian Bukor (Master student in Law, European Faculty of Law (Nova Gorica); cbukor@gmail.com)

 

Three months have passed since the 70thannual session of the International Law Commission (ILC) came to its conclusion in August 2018.[1]Perhaps it is no exaggeration to say that jus cogens was for the majority of the members, at least with respect to the meetings which took place in Geneva, the most intriguing topic scheduled on this year’s agenda. Indeed, the third report on peremptory norms of general international law, which resulted in 13 draft conclusions,[2]not only triggered significant interest from a great majority of the ILC members, but it also stimulated a vivid and provocative discussion among them.

 

Even though nowadays a special status of jus cogens in international law is beyond dispute, many controversies and disagreements surrounding the legal consequences and effects of peremptory norms still persist. Having this in mind, it is crystal clear that the Special Rapporteur Dire Tladi has been confronted with no easy task. Precisely because of the difficulty of the subject matter, it is important to note that the ILC members generally agreed on the quality of his third report, noting that it makes an important step forward in clarifying the consequences and the effects of the highest norms in international law.[3] This post provides a summary of the ILC’s discourse on the jus cogens debate in Geneva, with a focus on the most controversial aspects of the relevant report.

 

Overview of the report and the draft conclusions

 

At the outset, it should be explained that the ILC’s topics under consideration are mainly handled by the individual Special Rapporteurs, whose duties include the preparation of reports on the assigned topics and the proposition of draft conclusions, which could then potentially serve as guidelines or articles of a treaty. The present contribution will tackle both the newly-proposed draft conclusions on the topic of jus cogens and the yearly report of the Special Rapporteur on the same topic.

 

As a preliminary remark, it should be emphasized that the ILC generally promotes the idea of relying on the1969 Vienna Convention of the Law of Treaties(VCLT) when preparing draft conclusions on the topic of jus cogens. It has been agreed among the members that this was respected by Mr. Tladi, as his report clearly takes the VCLT into account.[4]It would, however, be premature to conclude that no concern was raised by the ILC members during the debate on the subject. Recalling that the VCLT was drafted with a particular subject in mind, namely the law of treaties, some of the members warned that the Convention should be considered with caution when adopting a new set of rules on a different topic.[5] This approach seems more correct, as it stresses that international law is an evolving and flexible system, although consistency between legal documents remains crucially important in law. It is for this reason that the ILC should consider other relevant sources and take into account the development of international law over time.

 

Another issue raised during the debates was whether it is appropriate to focus on certain consequences and effects of jus cogens.[6]Specifically, some of the members were reluctant to support the explicit reference to the United Nations Security Council (SC) resolutions and certain issues concerning international criminal law.[7]Noting that such references might be selective and consequentially problematic, the majority of members refused to include it in the draft conclusions. In so doing, an opportunity was missed to explore the consequences of jus cogens more widely, including the implications of a conflict with SC resolutions, and the impact of peremptory norms in international criminal law. There is furthermore a need for an explicit stipulation affirming that any principle or rule established through any source of international law, including general principle of law, may not be valid if it is in contrast with a norm of jus cogens nature.

 

Specific issues on the table

 

The effect of jus cogens on treaty relations has been acknowledged as one of the most uncontroversial aspects of the third report.[8]In the eyes of the ILC members, the Special Rapporteur managed to prove the inherent nature and non-derogability of jus cogens norms. Therefore, all treaties must be consistent with these norms.[9]Nevertheless, the remaining matter of controversy is the general rule on the non-severability of treaty provisions, when a provision is part of a treaty which was in conflict with jus cogens at the time of its conclusion.[10]Whereas some of the members agreed on this matter, the stability of treaty relations was prioritized by others, who claimed that the general rule of severability would be preferable. By taking the latter approach, the rule of non-severability would be presented as a special rule for cases relating to article 53 of the VCLT, which would, in effect, result in the prioritization of treaty relations without departing from the VCLT.

 

Another interesting question on the recommended dispute settlement procedure in case of invalidity of a treaty because of a conflict with jus cogens was pointed out during the debates.[11]More precisely, doubt was raised as to the immediate consequences following a decision by the International Court of Justice (ICJ) or by an arbitral tribunal; would such decision lead to the invalidation or termination of a treaty, or would it be merely declaratory in nature? In the view of the majority, the treaty would, in fact, become invalid immediately.

 

Furthermore, the draft conclusion 17 explicitly states that SC resolutions do not establish any binding obligations if they violate jus cogens norms. Recalling the aim of the presented draft conclusions, which is to formulate general rules, this approach was unwelcomed by the majority of the ILC members.[12]Indeed, as the legal order in international law now stands, it would be possible for a state to refuse the fulfillment of any obligation endorsed in SC resolutions on the basis of a conflict with jus cogens. It is nevertheless clear that if such a provision was adopted, this could not only result in political disturbances – it would be almost impossible to implement it in practice.

 

As for the responsibility of states, two draft conclusions concerning states’ obligation with respect to a situation conflicting with jus cogens have been brought into question by the ILC members.[13]To be exact, the bone of contention was whether it is justified to differentiate between the active and the passive state obligations, namely the “duty to cooperate” and the “duty not to recognize and assist”, depending on the gravity of breach of jus cogens norm. This approach conflicts with previous documents of the ILC (see article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts). In spite of the departure from the wording used in the aforementioned article, it seems reasonable to support the Special Rapporteur’s insistence to differentiate between different states’ obligations. Imposition of a lower standard, namely, not to recognize and assist in any situation which resulted from a violation of jus cogens norms, should be regarded as a welcome novelty. Indeed, it would be completely absurd to consider the gravity of the breach of jus cogens in this situation and therefore give the impression that it is lawful to recognize and assist in situations where the breach of jus cogens norms is not considered “serious”.[14]

 

Yet, the real trigger for divergent opinions were the draft conclusions addressing specific aspects of jus cogens and international criminal law. They stipulated state obligation to prosecute in cases of commission of “jus cogens crimes”, i.e. crimes violating jus cogens norms, and the irrelevance of the immunity ratione materiae for those offences.[15]These findings involve a number of highly complex issues. Firstly, any suggestion on a universal agreement concerning the duty to exert universal jurisdiction for all jus cogens crimes is insufficiently proven. This is evidenced by the fact that many states have expressed a clear reluctance towards the existence of the aforementioned duty.[16]Secondly, the discussion on the (ir)relevance of immunity ratione materiae for jus cogens crimes has demonstrated a certain level of misunderstanding among the ILC members, e.g. concerning the difference between immunity from civil and criminal proceedings. More importantly, a clear line between state and personal immunity has not been emphasized sufficiently. As a result, the reference to the ICJ judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), as proof that there exists an exception to the rules on immunity,[17]appears inaccurate and unpersuasive. In this case, the ICJ has even explicitly stated that the only immunity in question is the immunity of a state, and that in any event, this should be considered without prejudice to the immunity of an official of the state.[18]

 

What comes next?

 

The ILC’s discussions on jus cogens are to be continued next year and many challenging questions will come into play again. According to the emphasis given to the issue, an illustrative list of jus cogens norms is to be expected sometime in the future.[19]Also, the need for a separate discussion on regional peremptory norms has been stressed on many occasions.[20]It would, therefore, be interesting to see how such norms could be subsumed under the current definition of jus cogens which stipulates them as “norms accepted and recognized by the international community of States as a whole.”[21]

 

Before concluding the present analysis, it is important to point out a core concern: it is evident that the ILC considers states’ consent and agreement to be crucial in all matters related to jus cogens. In this respect, it should be noted that the values protected by jus cogens are above states and their will, hence, their consent can never be the most relevant or the only decisive factor for their definition. Regardless of states’ perception of the peremptory norms, jus cogens should be perceived as principles which aim to protect the interests of the international community as a whole, and which therefore impose legitimate limitations to some other key principles of international law, such as stability of treaty relations, or the superior and binding nature of SC resolutions. While we do not wish to prejudge the accuracy of the ILC’s current approach, we wonder whether it is truly independent from state or political influence.

 

 

 

 

[1]The session ended on 10 August 2018 as provided by the UNGA Resolution 72⁄116 (7 December 2017) UN Doc A⁄RES 72⁄116, at para 14.

[2]For the full text of the proposed draft conclusions see ILC, ‘Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc A⁄CN.4⁄714, at para 160.

[3]ILC, ‘Report of the ILC on the Work at its 70th Session (30 April–1 June and 2 July–10 August 2018) UN Doc A⁄73⁄10, at para 111.

[4]Ibid, at para 113.

[5]Apart from the individual ILC members, Mr. Tladi also raised similar concerns. Ibid, at para 153.

[6]See, e.g., ibid, at para 131.

[7]See full texts of draft conclusions 17, 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[8]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 154.

[9]See full text of draft conclusions 10 to 13 in ILC, ‘Third report’ (n 2), at para 160.

[10]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 119.

[11]Ibid, at paras 123–124.

[12]Ibid, at para 132.

[13]See full text of draft conclusions 20 and 21 in ILC, ‘Third report’ (n 2), at para 160.

[14]This argument was also introduced by the Special Rapporteur. ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 159.

[15]See full text of draft conclusions 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[16]Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the basic concept’ (2004) 2 JICJ 754. See also Dapo Akande’s response related to the topic: (…)“where universal jurisdiction is lawful the state exercising it will usually be permittedto prescribe globally. But it is not required to do so.” Galli Toma, ‘Universal Jurisdiction or Regional Lawfare’ (EJIL: Talk!, 1 June 2016)         <https://www.ejiltalk.org/universal-jurisdiction-or-regional-warfare/>  accessed 2 November 2018.

[17]See, e.g., ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 161.

[18]Jurisdictional Immunities of the State (GermanyvItaly, Greece intervening), Judgment, ICJ Reports 2012 (3 February 2012), at para 91. See also para 87 of this judgment.

[19]Ibid, at para 150.

[20]Ibid, at para 151.

[21]Vienna Convention on the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.Jus cogensJus cogensJus cogens

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