301 / 350
THE WORK OF THE INTERNATIONAL LAW COMMISSION IN 2013
The new Draft Article 16 deals with the duty to reduce the risk of disasters.
Paragraph 1 establishes the basic obligation to reduce the risk of disasters by taking
the necessary and appropriate measures to prevent, mitigate, and prepare for disasters.
Paragraph 2 provides an indicative list of such measures, namely the conduct of risk
assessments, the collection and dissemination of risk and past loss information, and
the installation and operation of early warning systems.
29
This rule draws inspiration,
inter alia
, from the 2005 Hyogo Framework for Action 2005-2015, as well as from
judgments of the European Court of Human Rights in
Öneryildiz v. Turkey
30
and
Budayeva v. Russia
.
31
As promised by the Special Rapporteur, the Commission should be able to
complete the first reading of the draft articles on the Protection of persons in the
event of disasters at its next session in 2014.
3.4 Formation and evidence of customary international law
In relation to the topic adopted on the agenda in 2012, the Commission
had before it the first report of the Special Rapporteur M. Wood.
32
It presented
an overview of the previous work of the ILC relevant to the topic, views expressed
by delegates made in the Sixth Committee of the General Assembly, the scope of
the topic, the range of materials to be consulted and issues related to custom as
a source of international law. The Commission also had a memorandum by the
Secretariat addressing elements in the previous work of the Commission that could
be particularly relevant to the topic.
33
The first report does not include any draft conclusions or guidelines. The debate
in the plenary addressed,
inter alia
, the scope and methodology of the topic, the
range of materials (
e.g.
State practice, case-law of international and national courts
and tribunals,
etc.
) and the future plan of work. One of the reasons for the topic is to
shed a light on the process of formation and identification of customary international
law which would serve State practice, in particular national courts, addressing, now
more frequently, customary law. It was also a subject of the conference of legal
advisors of the members of the Council of Europe (CAHDI) in November 2012.
34
The Special Rapporteur also held informal consultations on the title of the
topic, the consideration of
jus cogens
within the scope of the topic and the need
for additional information on State practice. The prevailing view was that
jus cogens
would not be specifically dealt with in this topic. The Commission also decided
to change the title of the topic to “Identification of customary international law”.
29
See doc. A/CN.4/L.821/Add.2, p. 3.
30
ECHR,
Öneryildiz v. Turkey
[GC], Judgment, 30 November 2004, Application No. 48939.
31
ECHR,
Budayeva and Others v. Russia
, Judgment, 20 March 2008, Applications No. 15339/02,
21166/02, 20058/02, 11673/02 and 15343/02.
32
See doc. A/CN.4/663 (2013).
33
See doc. A/CN.4/659 (2013).
34
cf.
The judge and international custom. Le juge et la coutume internationale, Strasbourg: Council of
Europe, 2013, 116 pp.; and the book review in this volume, p. 313.