CYIL vol. 12 (2021)

CYIL 12 (2021) PROVISIONAL APPLICATION OF TREATIES, PROTECTION OF THE ATMOSPHERE … a natural resource, with a limited assimilation capacity, essential for sustaining life on Earth, human health, and welfare, and that atmospheric pollution and atmospheric degradation are a common concern of humankind. Guideline 1 includes the definitions of atmosphere, atmospheric pollution, and atmospheric degradation. Guideline 2 involves both positive and negative delimitation of the scope of draft guidelines. Guideline 3 sets the general obligation “to protect the atmosphere by exercising due diligence in taking appropriate measures, in accordance with applicable rules of international law, to prevent, reduce or control atmospheric pollution and atmospheric degradation”. Guideline 4 provides for environmental impact assessments of proposed activities under the jurisdiction or control of states which are likely to cause significant adverse impacts on the atmosphere. According to guideline 5, utilization of the atmosphere should be undertaken in a sustainable manner. Guideline 6 requires that “the atmosphere should be utilized in an equitable and reasonable manner, taking fully into account the interests of present and future generations”. Guideline 7 concerns the controversial activities aimed at intentional large-scale modification of the atmosphere that should only be conducted with prudence and caution. The next set of draft guidelines address some general (transversal) issues, such as, (Guideline 8) the obligation to cooperate between states and with relevant international organizations, (Guideline 9) interrelationship among relevant rules of international law, and (Guideline 10) national implementation of international obligations relating to the protection of the atmosphere. As to the application of obligations relating to the protection of the environment on an international level, Guideline 11 (compliance) requires states to abide by their obligations in good faith, including through compliance with the rules and procedures in the relevant agreements to which they are parties. In this context, it provides examples of facilitative or enforcement procedures that may be used as appropriate. Lastly, Guideline 12 recalls that disputes between states relating to the protection of the atmosphere are to be settled by peaceful means (without any specification). The innovative aspect of the guideline is that “since such disputes may be of a fact-intensive and science- dependent character, due consideration should be given to the use of scientific and technical experts”. The ILC decided, in accordance with Article 23 of its Statute, to recommend that the General Assembly take note in a resolution of the annexed draft preamble and guidelines on the protection of the atmosphere and commend the guidelines with commentaries to the attention of states, international organizations, and all who may be called upon to deal with the subject. 4 2.2 Provisional application of treaties The second topic completed on second reading in 2021 is the Provisional application of treaties. With regard to this topic, the Commission had before it the sixth report of the Special Rapporteur Juan Manuel Gómez Robledo, 5 as well as comments and observations received from Governments and international organizations. 6 The Special Rapporteur addressed the

4 UN doc. A/CN.4/L.944, para. 9. 5 UN doc. A/CN.4/738. 6 UN doc. A/CN.4/737.

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