CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CUSTOMARY INTERNATIONAL LAW, INTERPRETATION OF TREATIES … The last three guidelines concern the relation to the internal law of States and rules of international organizations. Guideline 10, following closely the formulation of Article 27 of the Vienna Conventions, provides that a State (international organization) that has agreed to the provisional application “may not invoke the provisions of its internal law as justification for its failure to perform an obligation arising under such provisional application”. 55 In turn, guideline 11 deals with provisions of internal law regarding the competence to agree on the provisional application of treaties, following closely the formulation of article 46 of both Vienna Conventions. Finally, the most interesting and practically important question of limitation clauses referring to internal law was addressed in guideline 12, but only as a without prejudice clause. 56 It is envisaged that, in 2020, on the basis of the next report reflecting the comments and observations from the Governments, the Commission will be able to conclude the topic on second reading. 2.5 Peremptory norms of general international law ( jus cogens ) In relation to the topic of Jus cogens, the Commission had before it the third report of the Special Rapporteur Mr. Dire Tladi. 57 The report discussed the consequences of peremptory norms of general international law ( jus cogens ) in general, for treaty law and other sources (unilateral acts or resolutions of international organizations), and for the law of State responsibility, as well as other effects of peremptory norms, including for duty to exercise jurisdiction over crimes prohibited by jus cogens, or irrelevance of official position and non-applicability of immunity ratione materiae . The Commission decided to refer draft conclusions 10 to 23 contained in the report to the Drafting Committee. The Commission subsequently took note of the interim report of the Chairperson of the Drafting Committee on draft conclusions 8 and 9, as well as 10 to 14, provisionally adopted by the Committee, which was submitted to the Commission for information. 2.6 Protection of the environment in relation to armed conflicts Concerning the topic “Protection of the environment in relation to armed conflicts”, the new Special Rapporteur, Ms. Marja Lehto, presented the first report which addressed the protection of the environment in situations of occupation. 58 The report offered a general introduction to the protection of the environment under the law of occupation, international human rights law, and international environmental law. It also contained three draft principles, concerning the obligation of the occupying State to take into account environmental considerations (principle 19), sustainable use of natural resources in an occupied territory (principle 20), and obligation of the occupying State not to cause significant damage to the environment (principle 21). Following the debate in plenary and in the Drafting Committee, the Commission received the report of the Drafting Committee and took note of draft principles 19 to 21. The Commission also provisionally adopted draft principles 4, 6 to 8, and 14 to 18, which had been provisionally adopted by the Drafting Committee in 2016, together with commentaries thereto.

55 Ibid., p. 17. 56 Ibid., p. 19.

57 See doc. A/CN.4/714 (2018) and Corr.1. 58 See doc. A/CN.4/720 (2018) and Corr.1.

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