CYIL 2014

PAVEL ŠTURMA

CYIL 5 ȍ2014Ȏ

2.5 Protection of the atmosphere In relation to this topic, the ILC considered the first report of the Special Rapporteur Shinya Murase. 23 The report addressed the general objective of the project, identifying the relevant basic concepts and offering approaches to be taken with respect to the subject. The Special Rapporteur also presented three draft guidelines concerning (1) the definition of the term “atmosphere”; (2) the scope of the draft guidelines; and (3) the legal status of the atmosphere, described as “a natural resource essential for sustaining life on earth, human health and welfare, and aquatic and terrestrial ecosystems”. Its protection was declared “a common concern of humankind”. However, as presently formulated the draft guideline was viewed by members of the Commission as broad and having far reaching implications. Following the extensive and rather critical debate in plenary, the referral of the draft guidelines to the Drafting Committee was deferred, at the request of the Special Rapporteur, until next year. 24 2.6 Immunity of State officials from foreign criminal jurisdiction As regards this topic, the Commission had before it the third report of the Special Rapporteur Ms. Concepción Escobar Hernández, in which draft Article 2(e), on the definition of State official, and draft Article 5, on the Beneficiaries of immunity ratione materiae , were presented. 25 Following the rich debate both in plenary and in the Drafting Committee, the Commission provisionally adopted draft Article 2(e), on the definition of State official, 26 and draft Article 5, on the Persons enjoying immunity ratione materiae . 27 It was also said, however, that the key issue of immunity ratione materiae will be the definition of an official act, which the Special Rapporteur intends to propose in 2015. 2.7 Identification of customary international law Concerning the topic “Identification of customary international law”, the Commission considered the second report of the Special Rapporteur, Sir Michael Wood. 28 It contained eleven draft conclusions based on the thorough analysis of the scope and outcome of the topic, the basic approach, and the two constituent elements of rules of customary international law, i.e. “a general practice” and “accepted as law” ( opinio juris ). Following the debate in Plenary, the ILC decided to refer all draft conclusions to the Drafting Committee, which provisionally adopted eight draft conclusions. As the debate took place only in July, it was not enough time to submit commentaries to the adopted conclusions. Therefore the Commission took note of 23 See doc. A/CN.4/667 (2014). 24 See doc. A/CN.4/L.841 (2014), p. 8-11, § 27, 39. 25 See doc. A/CN.4/673 (2014). 26 See doc. A/CN.4/L.842/Add.1, p. 2: „… (e) ‘State official’ means any individual who represents the State or who exercises State functions.” 27 Ibid., p. 9: “State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction.” 28 See A/CN.4/672 (2014).

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