CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING … one addresses the interrelationship from the perspective of identification, interpretation and application of existing rules. 10 Under para. 2, States should, to the extent possible, when developing new rules of international law relating to the protection of the atmosphere and other rules of international law, endeavor to do so in a harmonious manner. Finally, the provision of para. 3 recalls that special consideration should be given to persons and groups particularly vulnerable to atmospheric pollution and atmospheric degradation. Such groups may include indigenous people, people of the least developed countries and people of small-island and low-lying States affected by sea-level rise. 11 2.3 Provisional application of treaties With regard to the topic Provisional application of treaties, the Special Rapporteur Mr. J. M. Gomez-Robledo did not submit any new report. However, the Commission referred draft guidelines 1 to 4 and 6 to 9, provisionally adopted by the Drafting Committee in 2016, back to the Drafting Committee, with a view to having a consolidated set of draft guidelines prepared. The Commission then provisionally adopted draft guidelines 1 to 12, as presented by the Drafting Committee, 12 with commentaries thereto. The draft guidelines provisionally adopted so far include guidelines 1 (Scope), 2 (Purpose), 3 (General rule), which reflects, following to Article 25 of the Vienna Convention on the Law of Treaties (1969), that “a treaty or a part of a treaty may be provisionally applied, pending its entry into force between the States or international organizations concerned, if the treaty itself so provides, or if in some other manner it has been so agreed.” 13 Guideline 4 (Form of agreement) has been a result of a long and complicated debate, as the Special Rapporteur also wanted to propose a separate guideline on unilateral declarations as a basis for the provisional application of treaties. This idea did not find support in the Commission because the very concept of the provisional application refers to treaties and implies bilateral relations (rights and obligations) rather than unilateral obligations. The outcome reached in guideline 4 is that, in addition to the case where the treaty so provides, the provisional application of a treaty may be agreed through “(a) a separate treaty, or (b) any other means or arrangements, including a resolution adopted by an international organization or at an intergovernmental conference, or a declaration by a State or international organization that is accepted by the other State or international organization”. 10 “1. The rules of international law relating to the protection of the atmospehere and other relevant rules of international law, including inter alia the rules of international trade and investment law, of the law of the sea, and of international human rights law, should, to the extent possible, be identified, interpretd and applied in order to give rise to a single set of compatible obligations, in line with the principles of harmonization and systemic intergration, and with a view to avoiding conflicts. This should be done in accordance with the relevant rules set forth in the Vienna Convention on the Law of Treaties of 1969, including articles 30 and 31 (3) (c), and the principles and rules of customary international law.” 11 A/CN.4/L.894, p. 1. 12 See doc. A/CN.4/L.895/Rev.1 (2017). 13 Ibid. , p. 1.

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