CYIL vol. 9 (2018)

PAVEL ŠTURMA CYIL 9 ȍ2018Ȏ application of its constituent instrument may also contribute to the interpretation of that instrument when applying articles 31 and 32. 39 The final, and perhaps the most disputed conclusion, conclusion 13, concerns pronouncements of expert treaty bodies. For the purpose of the draft conclusions, such a body is defined as “a body consisting of experts serving in their personal capacity, which is established under a treaty and is not an organ of an international organization”. The relevance of a pronouncement of an expert treaty body for the interpretation of a treaty is subject to the applicable rules of the treaty. Such a pronouncement may give rise to, or refer to, a subsequent agreement or subsequent practice by parties. However, silence by a party shall not be presumed to constitute subsequent practice, accepting an interpretation of a treaty as expressed in the pronouncement. The most controversial debate took place, during both the first and second readings, with respect to the last paragraph (4). The issue was how, and if at all, the conclusion should address another role of such pronouncements in the interpretation of treaties. In the end, the ILC adopted the wording that “this draft conclusion is without prejudice to the contribution that pronouncements of expert treaty bodies make to the interpretation of the treaties under their mandates.” 40 To conclude, thanks to the intense work of the Commission and, in particular, its Special Rapporteur, the adopted draft conclusions present a very important contribution to the clarification of the law of treaties, namely articles 31 and 32 of the Vienna Convention. Both conclusions and commentaries are carefully elaborated and accompanied by numerous references to case law of international courts and writings, thus reflecting the best traditions of the Commission. On balance, however, the very long commentaries may discourage some practitioners from reading them in their entirety. 2.3 Protection of the atmosphere In relation to this topic, the ILC considered the fifth report of the Special Rapporteur Shinya Murase. 41 The report was devoted to questions concerning implementation, compliance, and dispute settlement. The Special Rapporteur proposed the three draft guidelines which were, following the debate, referred to the Drafting Committee. As a result of its consideration of the topic at the present session, the Committee adopted, on the first reading, a draft preamble and 12 draft guidelines, together with commentaries thereto. 42 Guideline 1 (Use of terms) defines atmosphere, atmosphere pollution, and atmosphere degradation. Guideline 2 explains (in para. 1) that the present draft guidelines concern the protection of the atmosphere from atmospheric pollution and atmospheric degradation. In turn, paragraphs 2 to 4 specify in negative terms that the draft guidelines do not deal with certain concepts and principles of international environmental law, with specific substances, and with the status or delimitation of airspace and outer space. Guideline 3 provides that “States have the 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 degradation.” 43

39 Ibid., p. 81. 40 Ibid., p. 95. 41 See doc. A/CN.4/711 (2018). 42 See doc. A/CN.4/L.919/Add.1 (2018). 43 Ibid., p. 18.

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