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PAVEL ŠTURMA
CYIL 6 ȍ2015Ȏ
the liability of States and their nationals, and the transfer of funds and technologies
to developing countries, including intellectual property rights”.
6
Draft guideline 5 is a key provision on cooperation. According to this guideline,
States have the obligation to cooperate, as appropriate, with each other and with relevant
international organizations for the protection of the atmosphere from atmospheric
pollution and atmospheric degradation. Cooperation could include exchange of
information and joint monitoring.
7
2.2 Identification of customary international law
Concerning the topic “Identification of customary international law”, the
Commission considered the third report of the Special Rapporteur, Sir Michael Wood.
8
It contained additional paragraphs to three draft conclusions proposed in the second
report
9
and five new draft conclusions relating to the relationship between the two
constituent elements of customary international law, the role of inaction, the role of
treaties and resolutions, judicial decisions and writings, the relevance of international
organizations, as well as particular custom and the persistent objector. Following
the debate in Plenary, the ILC decided to refer all draft conclusions to the Drafting
Committee, which provisionally adopted additional paragraphs for two of the draft
conclusions and six new draft conclusions.
The new draft conclusions 11 to 16 deal with the role of treaties, resolutions
of international organizations and intergovernmental conferences, decisions of
courts and tribunals (both international and national), teachings of the most highly
qualified publicists (i.e. doctrine), the persistent objector and particular customary
international law (regional, local or other).
10
As there was not enough time to
submit commentaries to the newly adopted draft conclusions, the Commission
only took note of the report of the Drafting Committee. The draft conclusions with
commentaries will be adopted by the Plenary during the next session.
In his concluding remarks, the Special Rapporteur noted that many colleagues have
suggested that there should be a separate conclusion on the role of the International Law
Commission among the subsidiary means for the determination of rules of customary
international law, in addition to general role of teachings.
11
However, some members
of the ILC also suggested that the next report should also address the role of decisions
and general comments of quasi-judicial human rights bodies.
12
6
Ibid
., p. 10.
7
Ibid
., pp. 12-13.
8
See A/CN.4/682 (2015).
9
See A/CN.4/672 (2014).
10
See A/CN.4/L.869 (2015), pp. 3-4.
11
See doc. A/CN.4/L.859 (2015), p. 11, § 47.
12
This view was also expressed during the Seminar on Customary International Law and Human Rights,
organized by the University of Oslo (Faculty of Law) and the Université de Genève (Faculty of Law)