CYIL 2015

PAVEL ŠTURMA CYIL 6 ȍ2015Ȏ the liability of States and their nationals, and the transfer of funds and technologies to developing countries, including intellectual property rights”. 6 Draft guideline 5 is a key provision on cooperation. According to this guideline, States have the obligation to cooperate, as appropriate, with each other and with relevant international organizations for the protection of the atmosphere from atmospheric pollution and atmospheric degradation. Cooperation could include exchange of information and joint monitoring. 7 2.2 Identification of customary international law Concerning the topic “Identification of customary international law”, the Commission considered the third report of the Special Rapporteur, Sir Michael Wood. 8 It contained additional paragraphs to three draft conclusions proposed in the second report 9 and five new draft conclusions relating to the relationship between the two constituent elements of customary international law, the role of inaction, the role of treaties and resolutions, judicial decisions and writings, the relevance of international organizations, as well as particular custom and the persistent objector. Following the debate in Plenary, the ILC decided to refer all draft conclusions to the Drafting Committee, which provisionally adopted additional paragraphs for two of the draft conclusions and six new draft conclusions. The new draft conclusions 11 to 16 deal with the role of treaties, resolutions of international organizations and intergovernmental conferences, decisions of courts and tribunals (both international and national), teachings of the most highly qualified publicists (i.e. doctrine), the persistent objector and particular customary international law (regional, local or other). 10 As there was not enough time to submit commentaries to the newly adopted draft conclusions, the Commission only took note of the report of the Drafting Committee. The draft conclusions with commentaries will be adopted by the Plenary during the next session. In his concluding remarks, the Special Rapporteur noted that many colleagues have suggested that there should be a separate conclusion on the role of the International Law Commission among the subsidiary means for the determination of rules of customary international law, in addition to general role of teachings. 11 However, some members of the ILC also suggested that the next report should also address the role of decisions and general comments of quasi-judicial human rights bodies. 12

6 Ibid ., p. 10. 7 Ibid ., pp. 12-13.

8 See A/CN.4/682 (2015). 9 See A/CN.4/672 (2014). 10 See A/CN.4/L.869 (2015), pp. 3-4. 11 See doc. A/CN.4/L.859 (2015), p. 11, § 47.

12 This view was also expressed during the Seminar on Customary International Law and Human Rights, organized by the University of Oslo (Faculty of Law) and the Université de Genève (Faculty of Law)

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