CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE INTERNATIONAL LAWCOMMISSION AT THE END OF ITS QUINQUENNIUM… Paragraph 2 provides for criminalization of the commission of a crime against humanity, attempt and other forms of criminal participation. Paragraph 3 addresses the concept of command responsibility. Paragraph 4 requires that an order of a Government or of a superior is not a ground for excluding criminal responsibility of a subordinate. Para. 5 provides for exclusion of any statute of limitations. Para. 6 requires that the offences referred to in this draft article shall be punishable by appropriate penalties. 28 In addition, para. 7 addresses the liability of legal persons, 29 modelled on the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000). 30 Other draft articles are shorter and deal with establishment of national jurisdiction (article 6), investigation (article 7), preliminary measures when an alleged offender is present (article 8) and the obligation aut dedere aut judicare (article 9). Draft article 10 (Fair treatment of the alleged offender) provides for guarantees of fair treatment and full protection of rights under applicable national and international law, including human rights law. In addition, any person who is in prison, custody or detention in a State that is not of his or her nationality shall be entitled to communicate without delay with the nearest appropriate representative of his or her State, to be visited by a representative of that State or those States, and to be informed without delay of his or her rights. 31 2.5 Protection of the atmosphere Concerning the topic “Protection of the atmosphere”, the Commission had before it the third report of the Special Rapporteur Shinya Murase. 32 The report analyzed the obligations of States to prevent atmospheric pollution and mitigate atmospheric degradation and the requirement of due diligence and environmental impact assessment. It also dealt with questions concerning sustainable and equitable utilization of the atmosphere and the legal limits on certain activities aimed at intentional modification of the atmosphere. The Special Rapporteur also organized a dialogue with scientists. Following the plenary debate, the Commission decided to refer the five draft guidelines, together with one preambular paragraph, as contained in the third report, to the Drafting Committee. Upon its consideration of the report of the Drafting

28 See doc. A/CN.4/L.885/Add.1 (2016), pp. 2-3. 29 “Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.” 30 United Nations, Treaty Series, vol. 2171, No. 27531, p. 227. 31 See doc. A/CN.4/L.885/Add.1, p. 28 ff. 32 See doc. A/CN.4/692 (2016).

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