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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.

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.

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,

See doc. A/CN.4/681 and Corr.1 (2015).

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