CYIL 2015

THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2015, BUSINESS AS USUAL? 2. The topics on the Agenda of the ILC In 2015 the Commission had more topics on the agenda than usual. The ILC was able to discuss the following topics: “Protection of the atmosphere”, “Identification of customary international law”, “Crimes against humanity”, “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, “Protection of the environment in relation to armed conflict”, “Immunity of State officials from foreign criminal jurisdiction”, and “Provisional application of treaties”. In addition, it received and welcomed the final report on the work of the Study Group on the topic “The Most-Favoured-Nation clause”. Only the last topic was adopted in the form of the final report. Other topics represent work in progress, some of them are closer to final product, while the others are still at the early stage of study by the ILC. Therefore this contribution will provide brief information on all topics on the programme of the Commission. 2.1 Protection of the atmosphere In relation to this topic, the ILC considered the second report of the Special Rapporteur Shinya Murase. 4 The report addressed the further analysis of the draft guidelines submitted in the first report. The Special Rapporteur also presented a set of revised draft guidelines concerning the Use of terms; the Scope of the draft guidelines; and the Common concern of humankind, as well as draft guidelines on the General obligation of States to protect the atmosphere and on International cooperation. Following its extensive debate, the Commission decided to refer draft guidelines 1, 2, 3 and 5, as contained in the Special Rapporteur’s second report to the Drafting Committee, with the understanding that draft guideline 3 (on “common concern of humankind”) be considered in the context of a possible preamble. Upon consideration of the Report of the Drafting Committee, the Commission provisionally adopted draft guidelines 1, 2 and 5 and four preambular paragraphs. Draft guideline 1 includes definitions of the following terms: “atmosphere”, “atmospheric pollution” and “atmospheric degradation”. The long commentary on the definition of atmosphere draws mostly from scientific sources. 5 However, some members of the Commission expressed the view that the atmosphere is not a legal concept and its scientific definition is not really necessary for drafting legal principles aiming at its protection. According to draft guideline 2, the present draft guidelines deal with the protection of the atmosphere from atmospheric pollution and atmospheric degradation. Para. 2 makes it clear that the present draft articles “do not deal with, but are without prejudice to questions concerning the polluter-pays principle, the precautionary principle, common but differentiated responsibilities,

4 See doc. A/CN.4/681 and Corr.1 (2015). 5 See doc. A/CN.4/L.858/Add.1 (2015), pp. 6-7.

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