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446
PAVEL ŠTURMA
CYIL 7 ȍ2016Ȏ
Committee,
33
the ILC provisionally adopted the five redrafted guidelines and
a preambular paragraph, together with the commentaries.
Draft guideline 3 provides that States have the obligation to protect the
atmosphere by exercising due diligence in taking appropriate measures, in accordance
with applicable rules of international law, to prevent, reduce or control atmospheric
pollution and atmospheric degradation. Draft guideline 4 refers to the obligation of
States to ensure that an environmental impact assessment is undertaken of proposed
activities which are likely to cause significant adverse impact on the atmosphere.
The following guidelines reflect rather
lex
ferenda
, hence they are drafted with
“should”. Draft guideline 5 points out that “given that the atmosphere is a natural
resource with a limited assimilation capacity, its utilization should be undertaken in
a sustainable manner”.
34
Draft guideline 6 suggests that the atmosphere should be
utilized in an equitable and reasonable manner. The most controversial, according
to the debate in plenary and the Drafting Committee, seems to be draft guideline 7,
providing that “activities aimed at intentional large-scale modification of the
atmosphere should be conducted with prudence and caution, subject to any applicable
rules of international law”.
35
2.6 Jus cogens
With regard to the topic
“Jus cogens”
, the Commission considered the first report
of the Special Rapporteur Dire Tladi.
36
It addressed conceptual issues relating to
peremptory norms of general international law (
jus cogens
), including their nature
and definition. It also presented the historical evolution of peremptory norms and
a number of methodological issues, including a possibility of developing an illustrative
list of peremptory norms.
The Commission subsequently decided to refer the three draft conclusions,
contained in the report of the Special Rapporteur, to the Drafting Committee. The
ILC then received an interim oral report by the Chairman of the Drafting Committee
on draft conclusions 1 and 2, provisionally adopted by the Drafting Committee. This
was presented to the Commission for information only, as the draft conclusions stay
within the Drafting Committee.
37
The draft conclusion 1 is on Scope of conclusions, draft conclusion 2 (3) deals
with general nature of
jus
cogens
norms. The Drafting Committee was only able to
adopt paragraph 1 of draft conclusion 2, which takes over the definition of peremptory
norms from Article 53 of the Vienna Convention on the Law of Treaties. However,
because of the complicated debate and the lack of time, the Drafting Committee
33
See doc. A/CN.4/L.875 (2016).
34
See doc. A/CN.4/L.886 (2016), p. 6.
35
See doc. A/CN.4/L.886/Add.1, pp. 11-13.
36
See doc. A/CN.4/693 (2016).
37
See doc. A/CN.4/L.887 (2016), p. 2.