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CYIL 4 ȍ2013Ȏ
However, the substance of the topic should include both formation and evidence of
customary international law.
3.5 Provisional application of treaties
In relation to this topic, also introduced in 2012, the Commission had before
it the first report of the Special Rapporteur J. M. Gómez-Robledo.
35
This report,
preliminary by nature, sought to establish, in general terms, the principal legal issues
that arose in the context of the provisional application of treaties by considering
doctrinal approaches to the topic and briefly reviewing the existing State practice.
The ILC also had before it a very useful memorandum by the Secretariat which traced
the negotiating history of the provision both in the Commission and at the Vienna
Conference on the Law of Treaties.
36
The rich debate revolved around the purpose
and nature of the provisional application of treaties, relations between international
and constitutional law approaches to it, as well as the elaboration of specific issues to
be considered in the future reports of the Special Rapporteur.
3.6 Protection of the environment in relation to armed conflict
During the 2013 session the Commission decided to include this new topic
in its programme of work. The Special Rapporteur Ms. Marie Jacobsson presented
the Commission with a series of informal working papers with a view to initiating
a dialogue with members of the Commission on a number of issues that could be
relevant for the topic. Issues addressed in the informal consultations included scope
and methodology, the possible outcome of the ILC’s work, as well as a number of
substantive issues. With respect to the questions of scope and methodology, the
Special Rapporteur proposed that the topic could be addressed through a temporal
perspective, rather than from the perspective of various areas of international law.
The temporal phases would address legal measures taken to protect the environment
before (Phase I), during (Phase II) and after an armed conflict (Phase III).
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3.7 The obligation to extradite or prosecute (
aut dedere aut judicare
)
In connection with the topic
Aut dedere aut judicare
, carried over from the previous
quinquennium, the Commission re-constituted the Working Group on the topic
under the chairmanship of Mr. K. Kittichaisaree. The Working Group continued
the evaluation of work on the topic, particularly in the light of the judgment of the
International Court of Justice in the
Belgium v. Senegal
case.
38
The WG adopted and
the Commission took note of the report, which will appear as Annex to the 2013
Report of the ILC.
39
This report summarizes the work of the Commission on the
35
See doc. A/CN.4/664 (2013).
36
See doc. A/CN.4/658 (2013).
37
See doc. A/CN.4/L.824, p. 2.
38
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July
2012
, ICJ Reports 2012.
39
See doc. A/CN.4/L.825, p. 2.