CYIL vol. 7 (2016)

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PAVEL ŠTURMA

CYIL 7 ȍ2016Ȏ

specifically to them. Conduct of other actors is not practice that contributes to the

formation of rules of CIL but may be relevant when assessing the practice of States

or international organizations. According to conclusion 5, State practice consists of

conduct of the State, whether in the exercise of its executive, legislative, judicial or

other functions. Practice may take a wide range of forms. It includes both physical

and verbal acts. It may, under certain circumstances, include inaction. Conclusion 6

also provides examples of forms of State practice. All available practice of a particular

State are to be assessed as a whole (conclusion 7). The practice must be general,

which means that it must be sufficiently widespread, representative and consistent

(conclusion 8). No particular duration is required, provided that the practice is

general.

Part Four addresses the requirement of acceptance as law (

opinio juris

). It means

that the practice in question must be undertaken with a sense of legal right or

obligation. Conclusion 10 provides examples of forms of evidence of acceptance

as law. Failure to react over time to a practice may serve as evidence of

opinio juris

“provided that States were in a position to react and the circumstances called for

some reaction”.

Part Five includes draft conclusions 11 to 14 dealing 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 two final parts (conclusions 15 and 16) relate

to the persistent objector and particular customary international law (whether

regional, local or other). To have the effect of non-opposability the objection to a rule

in the process of formation must be clearly expressed, made known to other States,

and maintained persistently.

Nevertheless, the issue of persistent objector was one

of the most debated and criticized by some members of the ILC. It had and will also

have impact on the discussion on the determination of

jus cogens

norms.

2.3 Subsequent agreements and subsequent practice in relation

to the interpretation of treaties

With respect to this topic, the Commission had before it the fourth report of

the Special Rapporteur Georg Nolte,

which addressed the legal significance of

pronouncements of expert treaty bodies and of decisions of domestic courts. The

report also discussed the structure and scope of the draft conclusions.

Following on the debate in Plenary and the Drafting Committee, the Commission

adopted on first reading a set of 13 draft conclusions, together with commentaries

thereto.

It also decided to transmit the draft conclusions to Governments for

Doc. A/CN.4/883, p. 5.

Ibid

., pp. 6-7.

See doc. A/CN.4/694 (2016).

See doc. A/CN.4/L.884, A/CN.4/L.884/Add.1 and Add. 2 (2016).