CYIL vol. 8 (2017)

PAVEL ŠTURMA CYIL 8 ȍ2017Ȏ competent international criminal tribunals and on federal State obligations. Following on the recommendation of the Special Rapporteur and the Drafting Committee, the Commission adopted only an article on inter-state dispute settlement and left for possible States parties to a possible future convention the issue of the monitoring mechanism, although this issue was addressed in chapter VII of the report. For similar reasons, the final clauses have also been left for negotiation by the future convention. On the basis of the report and the related debate in plenary on additional issues, such as amnesties, immunities and the non-relevance of official capacity, the Special Rapporteur prepared an additional paper. Following his proposal the Drafting Committee resumed its work in the beginning of the second part of the session and adopted a provision on the non-relevance of the official capacity of a perpetrator as a ground for excluding substantive criminal responsibility. The new provision was then adopted as paragraph 5 of draft article 6 (Criminalization under national law). 6 It should be recalled that draft articles 1 (Scope), 2 (General obligation), 3 (Definition of crimes against humanity), 4 (Obligation of prevention), 6 (Criminalization under national law), 7 (Establishment of national jurisdiction), 8 (Investigation), 9 (Preliminary measures when an alleged offender is present), 10 ( Aut dedere aut judicare ) and 11 (Fair treatment of the alleged offender) were already provisionally adopted in 2015 and 2016. On this basis, the Commission adopted the draft preamble, the entire set of 15 draft articles with commentaries and the draft annex on first reading. 7 The Commission expressed its deep appreciation for the outstanding contribution of Prof. Sean Murphy, the Special Rapporteur. The ILC also decided, as usual, to transmit the draft articles, through the Secretary-General, to Governments for comments and observations. The second reading should take place in 2019. 2.2 Protection of the atmosphere In relation to this topic, the ILC considered the fourth report of the Special Rapporteur Shinya Murase. 8 The Special Rapporteur proposed four guidelines on the interrelationship between the rules of international law relating to the protection of the atmosphere and other relevant rules of international law, including the rules of international trade and investment law, the law of the sea and international human rights law. As during past years, Prof. Murase organized an informal dialogue with atmospheric scientists. Following after a long and critical debate, the Commission decided to refer the four draft guidelines to the Drafting Committee. It decided to merge their content into one single guideline. Upon its consideration of the report of the Drafting Committee, 9 the ILC provisionally adopted draft guideline 9 and three preambular paragraphs, together with commentaries thereto. The draft guideline 9 is divided in three paragraphs. The first

6 “5. Each State shall take the necessary measures to ensure that, under its criminal law, the fact that an offence referred to in this draft article was committed by a person holding an official position is not a ground for excluding criminal responsibility.” 7 See doc. A/CN.4/L.900, pp. 2-3. 8 See doc. A/CN.4/705 and Corr.1 (2017). 9 See doc. A/CN.4/L.894 (2017).

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