CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CUSTOMARY INTERNATIONAL LAW, INTERPRETATION OF TREATIES … The next set of guidelines seems to specify the general obligation by setting the more specific obligations or recommendations: environmental impact assessment (Guideline 4), sustainable utilization of the atmosphere (Guideline 5), equitable and reasonable utilization of the atmosphere (Guideline 6), intentional large-scale modification of the atmosphere (Guideline 7), and international cooperation (Guideline 8). The next and final guidelines address the issues of the systemic relationship and implementation of obligations referred to in the present draft guidelines. In addition to guideline 9 (Interrelationship among relevant rules), which was commented on last year, 44 the ILC adopted the following three guidelines. Guideline 10 deals with various forms of national implementation. It sets forth that States should endeavour to give effect to the recommendations contained in the draft guidelines. Guideline 11 confirms that States are required to abide by their obligations under international law relating to the protection of the atmosphere in good faith, including through compliance with the rules and procedures in the relevant agreements to which they are parties. Finally, guideline 12, concerning dispute settlement, paragraph 1 simply recalls the general obligation of States to settle their disputes relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation by peaceful means. Paragraph 2 recognizes that such disputes may be “fact-intensive” and “science-dependent”; therefore, due consideration should be given to the use of technical and scientific experts. This formulation helped to avoid the originally proposed text aiming at extending the principle of jura novit curia from law to facts. 45 To conclude, the ILC decided to transmit the draft guidelines to Governments, international organizations, and others, for comments and observations. On the basis of such comments and observations the Commission should resume its work on this topic in 2020. 2.4 Provisional application of treaties With regard to the topic of Provisional application of treaties, the Special Rapporteur Mr. J. M. Gomez-Robledo submitted his fifth report, which included the analysis of the views expressed by Member States, provided additional information on the practice of international organizations, addressed the issues of termination or suspension of the provisional application of a treaty as a consequence of its breach, and formulation of reservations and amendments. 46 It also provided a selected bibliography on the topic. The Commission also had before it the memorandum by the Secretariat reviewing State practice in respect of treaties, deposited or registered in the last 20 years with the Secretary-General, that provide for provisional application. 47 Following the debate in the plenary, the Commission referred the draft guidelines and model clauses proposed by the Special Rapporteur, as well as the draft guidelines previously adopted by the Commission, to the Drafting Committee. It discussed and adopted all the draft guidelines but did not have time to discuss and adopt model clauses. During the second

44 Cf. ŠTURMA, P. The work of the International Law Commission at the beginning of the new term: Crimes against humanity and other topics, Czech Yearbook of Public & Private International Law , vol. 8 (2017), pp. 556-557.

45 Cf. doc. A/CN.4/L.919/Add.1, p. 44. 46 See doc. A/CN.4/718 (2018) and Add.1. 47 See doc. A/CN.4/707 (2017).

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