1. States shall endeavour to settle disputes concerning the interpretation or application of the present draft articles through negotiations.
2. Any dispute between two or more States concerning the interpretation or application of the present draft articles that is not settled through negotiation
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667 Crimes against humanity: Comments and observations received from Governments, internationa l
organizations and others (A/CN.4/726), chapter III.B.14, INTERPOL.
668 See paragraph 261 above.
669 See paragraphs 268 to 269 above.
shall, at the request of one of those States, be submitted to the International Court of Justice, unless those States agree to submit the dispute to arbitration. 3. Each State may declare that it does not consider itself bound by paragraph 2 of this draft article. The other States shall not be bound by paragraph 2 of this draft article with respect to any State that has made such a declaration.
4. Any State that has made a declaration in accordance with paragraph 3 of this draft article may at any time withdraw that declaration.
1. Comments and observations
280. States provided comments on draft article 15 both in writing and in statements before the Sixth Committee during the seventy-second session of the General Assembly.
281. Several States671 expressed their general support for the draft article. In contrast,
Sierra Leone concluded that the draft article “may be unworkable”, and proposed instead a text based on the dispute settlement provision in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.672 The Special Rapporteur
does not view the draft article as unworkable and notes that similar provisions exist and successfully function in numerous other widely-adhered-to conventions.673
Further, the Commission discussed using the provision contained in the 1948 Convention at first reading, but opted for a more modern version of a dispute settlement clause.674
282. With respect to paragraph 1, Sierra Leone asserted that States are unlikely to bring such disputes against other States and, in any event, a State responsible for crimes against humanity is unlikely to be willing to negotiate such a dispute.675 The
Special Rapporteur notes that disagreements may arise among States regarding the interpretation or application of these draft articles unrelated to whether a particular State itself is responsible for crimes against humanity (for example, on a matter such as extradition or mutual legal assistance). As such, there does not appear to be any basis for assuming that States will not bring disputes against other States, nor that negotiation of the dispute would inevitably fail to resolve the matter.
283. With respect to paragraph 2, Austria recommended the addition of a time limit for the negotiation of a dispute, after which the dispute may be submitted to the International Court of Justice, so as to avoid unduly protracting the settlement of the dispute.676 The Special Rapporteur notes that a specific formula for the duration of
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671 Chile, Official Records of the General Assembly, Seventy-second Session, Sixth Committee, 19th
meeting (A/C.6/72/SR.19), para. 90; Israel, ibid., 20th meeting (A/C.6/72/SR.20), para. 3;
Mexico, ibid., 18th meeting (A/C.6/72/SR.18), para. 109; and Slovakia, ibid., 19th meeting
(A/C.6/72/SR.19), para. 57. See also Commission nationale consultative des droits de l’homme,
Avis ... (footnote 305 above), p. 42.
672 Crimes against humanity: Comments and observations received from Governments, in ternational
organizations and others (A/CN.4/726), chapter II.B.16, Sierra Leone. See also Crimes against
Humanity Initiative Steering Committee, Comments and Observations ... (footnote 90 above), pp. 13–14; and A. Zimmermann and F. Boos, “Bringing States to justice for crimes against humanity: the compromissory clause in the International Law Commission draft convention on crimes against humanity”, Journal of International Criminal Justice, vol. 16 (2018),
pp. 835-855, at pp. 850–852.
673 See the addendum to the fourth report of the Special Rapporteur on crimes against humanity:
annex II: table of relevant treaty provisions (A/CN.4/725/Add.1), pp. 66–68.
674 See Report of the Commission on the work of its sixty-ninth session ... (A/72/10) (footnote 9
above), para. 46, commentary to draft article 15, paras. (1)–(6).
675 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.16, Sierra Leone.
negotiations (albeit in the context of submission thereafter to conciliation) may be found in the 2001 Stockholm Convention on Persistent Organic Pollutants (“if they have not been able to settle their dispute within twelve months following notification by one party to another that a dispute exists between them, the dispute shall be submitted …”). 677 However, most recent treaties providing for compulsory
jurisdiction of the International Court of Justice simply include a reference to “a reasonable time” of negotiation prior to the submission of a dispute to compulsory dispute settlement, such as: the 2000 United Nations Convention against Transnational Organized Crime (“that cannot be settled through negotiation within a reasonable time”);678 the 2001 Protocol against the Illicit Manufacturing of and
Trafficking in Firearms, their Parts and Components and Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime (“that cannot be settled through negotiation within a reasonable time ”);679 the 2003 United Nations
Convention against Corruption (“that cannot be settled through negotiation within a reasonable time”);680 and the 2005 International Convention for the Suppression of
Acts of Nuclear Terrorism (“which cannot be settled through negotiation within a reasonable time”).681
284. While the Special Rapporteur’s original proposal for this draft article contained a “within a reasonable time” reference,682 it was dropped by the Commission in the
course of drafting changes made during the first reading. According to some members of the Commission, having such a requirement might prevent effective dispute settlement, as a respondent State could insist that a reasonable time had not yet elapsed. Rather, it was preferable for the International Court of Justice to be immediately available to address the dispute if it has not been settled by negotiation. 285. Greece expressed the view that this draft article was in the nature of a “final clause”, which should be left to States to draft. If this topic was to be addressed, Greece preferred the initial proposal by the Special Rapporteur for paragraphs 1 and 2 of this draft article, which reflected “the tried and tested three-tier process of negotiation, arbitration and judicial settlement”.683 The Special Rapporteur notes that
it was the Commission’s view that, after negotiations, requiring States first to pursue arbitration may not be appropriate with respect to disputes relating to crimes against humanity, given their potential gravity. Rather, it should be possible to revert immediately to the International Court of Justice. As explained by the Chair of the Drafting Committee in reference to paragraph 2: “The sequence in the sentence
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18th meeting (A/C.6/72/SR.18), para. 72.
677 Stockholm Convention on Persistent Organic Pollutants (Stockholm, 22 May 2001), United
Nations, Treaty Series, vol. 2256, No. 40214, p. 119, art. 18, para. 6. As of January 2019, this Convention had 182 States parties.
678 United Nations Convention against Transnational Organized Crime, art. 35, para. 2. As of
January 2019, this Convention had 189 States parties. The two Protocols to this Convention contain the same formulation.
679 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and
Components and Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime (New York, 31 May 2001), United Nations, Treaty Series, vol. 2326, No. 39574, p. 211, art. 16, para. 2. As of January 2019, this Protocol had 116 States parties.
680 United Nations Convention against Corruption, art. 66, para. 2. As of January 2019, this
convention has 186 States parties.
681 International Convention for the Suppression of Acts of Nuclear Terrorism (New York, 13 April
2005), United Nations, Treaty Series, vol. 2445, No. 44004, p. 89, art. 23, para. 1. As of January 2019, this Convention had 114 States parties.
682 See the third report of the Special Rapporteur on crimes against humanity (A/CN.4/704),
para. 263.
683 Crimes against humanity: Comments and observations received from Governments, international
indicates that the International Court of Justice should be considered as immediately available to settle disputes regarding the interpretation or application of the [draft articles]. It is not, however, the sole possibility for adjudication. Since the draft articles encompass a very broad range of obligations that could give rise to very different types of disputes, recourse to arbitration is also left open to the parties to the dispute; but only if they mutually agree … upon such recourse.”684
286. With respect to paragraph 3, Austria and the Czech Republic proposed that it be specified that the declaration may be made no later than at the time of the expression by the State of consent to be bound by the convention.685 The Special
Rapporteur agrees that such a time limit is desirable, but notes that, in accordance with the Commission’s practice, and in advance of a decision by States as to whether to use these draft articles as the basis for a convention, the Commission has not included language characteristic of treaties (for example, that such a declaration shall be made by a State Party no later than at the time of the State ’s ratification, acceptance, approval, or accession to the convention).
2. Recommendation of the Special Rapporteur
287. No changes to draft article 15 are recommended, but the Commission may wish to consider changes to the commentary that take into account some of the comments received. The Special Rapporteur will make proposals to this effect in due course.