CYIL 2012

THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING OF ITS NEW QUINQUENNIUM 4.4 Provisional application of treaties One of the topics put on the long-term programme of work, this topic was included by decision of the Commission in its current programme of work in May 2012. At the same time, the Commission appointed Mr. J. M. Gómez-Robledo as Special Rapporteur. During the second part of the session, the Special Rapporteur presented to the Commission an oral report on the informal consultations that he had chaired with a view to initiating an informal dialogue with members of the ILC on a number of issues that could be relevant for the consideration of this topic. Once it was incorporated in Article 25 of the Vienna Convention on the Law of Treaties, provisional application of treaties constitutes a topic that has received relatively scarce attention by the UN bodies and the academic community. 13 However, provisional application of treaties is important in treaty practice of many States in respect of a number of bilateral and multilateral treaties. Aspects addressed in the informal consultations included the scope of the topic, the methodology, the possible outcome of the ILC’s work and other issues relating to the topic, such as the legal nature of provisional application (does it create binding obligations?) and the legal consequences derived from it. The role of domestic law, in particular constitutional law, as well as procedural steps to be considered as preconditions for provisional application were also discussed. We have to wait for the first report of the Special Rapporteur in order to have a clear picture of his approach to this topic. Anyway, this newly included topic seems to have broad support among the members of the ILC and among States taking part in the Sixth Committee. 4.5 Formation and evidence of customary international law The Commission decided to include the topic (as the second new topic) in its current programme of work and appointed Sir Michael Wood as Special Rapporteur in May 2012. During the second part of the session, the ILC had already before it a Note by the Special Rapporteur, which aimed at stimulating an initial debate. 14 The debate revolved around the possible scope of the topic, terminological issues, questions of methodology and some specific points. Various members underlined the importance of the topic, as well as its practical and theoretical interest. The work of the ILC on this topic could be useful to provide guidance not only to international lawyers but also to domestic lawyers, including judges. The Special Rapporteur took the view that particular emphasis should be given to analyzing the case-law of international tribunals, and more specifically the International Court of Justice and its predecessor. However, the case-law of other international tribunals, including regional courts, needs to be considered. Several members expressed support for not 13 However cf. the study done recently for the Czech Ministry of Foreign Affairs, in: Šturma, P. et al., Vybrané problémy sjednávání a provádění mezinárodních smluv [Selected issues of negotiation and application of international treaties], Praha: PF UK, 2011. 14 See doc. A/CN.4/653 (2012).

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