A Review of the International Law Commission’s Guidelines on the Protection of the Atmosphere
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Benoit
Mayer1
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1 Assistant Professor, The Chinese University
of Hong Kong Faculty of Law, bmayer@cuhk.edu.hk.
I am grateful to Alexander Zahar and two anonymous peer-reviewers for useful
comments and suggestions. The research for this article was supported by a
direct grant project on customary international law and climate change
awarded by CUHK’s Faculty of Law.
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2 ‘Text of the draft guidelines, together with
preamble, and commentaries thereto’ reproduced in Report
of the International Law Commission at its Seventieth Session, UN Doc
A/73/10 (2018) 161 [78] (‘DGs adopted on first reading’).
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3 See in particular Rajendra K Pachauri et al
(eds), Climate Change 2014: Synthesis Report
(IPCC, 2014).
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4 See, eg, United
Nations Framework Convention on Climate Change, opened for signature 4
June 1992, 1771 UNTS 107 (entered into force 21 March 1994) Preamble [2]-[3],
art 2 (‘UNFCCC’); Paris Agreement, opened
for signature 22 April 2016, 55 ILM 740 (entered into force 4 November 2016)
art 2(1).
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5 Protection of
Global Climate for Present and Future generations of Humankind, GA Res
73/232, UN Doc A/RES/73/232 (11 January 2019, adopted 20 December 2018) [1].
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7 See Emission Gap Report 2018 (UNEP, 2018).
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8 Doha amendment to
the Kyoto Protocol, adopted 8 December 2012, UNTC XXVII.7c (not yet in
force). As of 28 August 2019, 131 Parties had deposited their instrument of
acceptance, out of 144 instruments of acceptance required for the entry into force
of the agreement.
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9 S Res 98, 105th Congress, 143 Congressional Record S8117 (daily ed, 25 July
1997).
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10 Communication by the United
Nations to the UN Secretary General, C.N.464.2017.TREATIES- XXVII.7.d (4 August 2017).
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11 Paris Agreement
(n 4) art 2(1)(a). See
Myles R Allen et al, ‘Summary for Policymakers’ in Valérie Masson-Delmotte et al (eds), Global
Warming of L5°C (IPCC,
2018) 3, 20 [D.1.1], noting that NDCs are ‘broadly consistent with cost-effective
pathways that result in a global warming of about 3°C by 2100, with warming
continuing afterwards.’
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12 See Benoit Mayer, ‘The Relevance of the
No-Harm Principle to Climate Change Law and Politics’ (2016) 19(1) Asia Pacific Journal of Environmental Law 79
(‘No-Harm principle’).
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13 See, eg, Urgenda
v the Netherlands, Court of Appeal of the
Hague (Netherlands), 200.178.245/01 (9 October 2018). See generally Stephen
Humphreys, ‘Introduction: Human Rights and Climate Change’ in Stephen
Humpreys (ed), Human Rights and Climate Change
(Cambridge University Press, 2010) 1.
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14 Convention on
Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79
(entered into force 29 December 1993) art 6 (‘CBD’).
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15 United Nations
Convention on the Law of the Sea, opened for signature 10 December
1982, 1833 UNTS 3 (entered into force 16 November 1994) art 192 (‘UNCLOS’).
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16 Convention
Concerning the Protection of the World Cultural and Natural Heritage,
opened for signature 16 November 1972, 11 ILM 1358 (entered into force 17
December 1975) art 4. See, eg, Greg Terrill, ‘Climate Change: how Should the
world Heritage Convention Respond?’ (2008) 14(5)
International
Journal of Heritage Studies 388.
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17 See, eg, Declarations of Kiribati, Fiji,
Nauru and Tuvalu upon signature of the UNFCCC (1992), 1771 UNTS 317-318. See
generally Christoph Schwarte and Will Frank, ‘Reply to Zahar’ (2014) 4(3- 4) Climate Law 234, 236; Benoit Mayer, ‘The
Applicability of the Principle of Prevention to Climate Change: A Response to
Zahar’ (2015) 5(1-2) Climate Law 1, 15-20;
Benoit Mayer, ‘The Place of Customary Norms in Climate Law: A Reply to Zahar’
(2018) 8(3-4) Climate Law 261, 268-275;
Leslie- Anne Duvic-Paoli, The Prevention Principle
in International Environmental Law (CUP, 2018) 78. See however
Alexander Zahar, ‘Mediated versus Cumulative Environmental Damage and the
International Law Association’s Legal Principles on Climate Change’ (2014)
4(3-4) Climate Law 217, 230; Alexander
Zahar, ‘The Contested Core of Climate Law’ (2018) 8(3-4) Climate Law 244, 255.
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Already, domestic courts have started to
explore how general norms can be applied to assess the obligation of States
to mitigate climate change. The District and Appeal Courts of the Hague in Urgenda v. the Netherlands interpreted
tort law and human rights law, respectively, as implying an obligation for
the national government of the Netherlands to pursue more stringent
mitigation action than required under negotiated instruments.20
Similarly, the Supreme Court of Colombia construed human rights obligations
as implying an obligation for the government to take measures to stop
deforestation.21 Many more cases are pending before national
courts throughout the world.22 While rules of international law
cannot always be enforced by domestic courts, they are often part of the
normative context that these courts take into consideration in interpreting
domestic law.23
A
better understanding of the rights and obligations of States in relation to
climate change is necessary for courts to address these cases in a fair and
consistent way. It is also needed in the not-so-far-fetched hypothesis of
international adjudication, either through contentious or, perhaps more
likely, advisory proceedings.24 Overall, a better understanding of
the obligations of States under general international law could promote a
common vision of a fair and equitable outcome of negotiations and, thus,
facilitate a convergence of views among negotiators - or at least narrow down
the argumentative field by excluding untenable positions.25
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18 See Benoit Mayer, ‘Construing International
Climate Change Law as a Compliance Regime’ (2018) 7(1) Transnational Environmental Law 115; Duvic-Paoli
(n 17) 78.
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19 See Benoit Mayer, ‘Interpreting States’
General Obligations on Climate Change Mitigation: A Methodological Review’ Review of European, Comparative & International
Environmental Law (advance) <https://doi.org/10.1111/reel.12285>
(‘Methodological Review’).
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20 See Urgenda v the
Netherlands, District Court of the Hague (Netherlands), case No
C/09/456689 (24 June 2015); Urgenda v the Netherlands, Court of Appeal (n 13). See generally
Benoit Mayer, ‘The State of the Netherlands v. Urgenda Foundation: Ruling of
the Court of Appeal of The Hague (9 October 2018)’ (2019) 8(1) Transnational Environmental Law 167.
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21 Future Generations
v Ministry of the Environment, Supreme
Court (Colombia), STC4360- 2018 (5 April 2018).
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22 See, eg, the memorandum of Klimaatzaak in Klimaatzaak v Belgium
(1 June 2015) <https://affaire-
climat.be/documents/affaire_climat_Citation_fr.pdf>; the memorandum of
Notre Affaire a Tous in Notre Affaire a Tous and
Others v. France (14 March 2019) <https://laffairedusiecle.net/wp-
content/uploads/2019/03/ADS-Brief-juridique-140319.pdf>; the
memorandum of the applicants in Carvalho v Parliament and Council (23 May 2018) <http://www.lse.ac.uk/GranthamInstitute/wp-
content/uploads/2018/05/20180524_Case-no.-T-18_application-1.pdf>; and
generally Mayer, ‘Methodological Review’ (n 19).
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24 See, eg, Phlippe Sands, ‘Climate Change and
the Rule of Law: Adjudicating the Future in International Law’ (2016) 28(1) Journal of Environmental Law 19; World
Conservation Congress of the International Union for the Conservation of
Nature (IUCN), ‘Request for an Advisory Opinion of the International Court of
Justice on the principle of sustainable development in view of the need of
future generations’, resolution WCC-2016-Res-079-EN (1-10 September 2016);
Daniel Bodansky, ‘The Role of the International Court of Justice in
Addressing Climate Change: Some Preliminary Reflections’ (2017) 49 (special issue)
Arizona State Law Journal 689.
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25 An example of such an untenable position
would be that a State has no obligation to regulate GHG emissions except for
negotiated, consent-based commitments.
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This article argues that, while the ILC’s
project is important, the DGs do not live up to the mission of the ILC to
promote the progressive development of international law and its
codification. The DGs’ interpretation of the general international law
applicable to global environmental concerns such as climate change is
incomplete and, at time, regressive. These shortcomings are largely the
consequence of the protracted opposition of some ILC Members and some States
to the codification of this field of law. The project was carried out on the
basis of an ‘Understanding’ which, on political grounds, excluded any
discussion of most relevant legal concepts.26 But the project also
suffered from a lack of expertise, as the analysis prepared by the Special
Rapporteur was at times misinformed or weakly argued. A more thorough
analysis should be carried during the second reading to avoid the risk of a
regressive codification of this field of law.
The article is organized as follows. Section
II provides a general overview of the ILC’s project by retracing its origin
and the process leading to the adoption of the DGs on first reading. Section
III analyses the approach followed by the ILC. It reviews the debate on the opportunity
of this project and considers its methodology. It then introduces key
concepts: ‘atmospheric pollution’ and ‘atmospheric degradation,’ which form
the backbone of the DGs; and ‘common concern of humankind,’ which, after long
discussions, the ILC did not include in the DGs. Section IV examines the
specific rights and obligations that the ILC identified as well as those that
it failed to identify. It argues that the DGs provide an incomplete analysis
of the obligations to protect the atmosphere and to cooperate, a misleading
provision on the regulation of geoengineering, and an incomplete treatment of
the consequences of non-compliance, in particular under the law of State
responsibility.
Recent years have witnessed several attempts at an
authoritative interpretation of general international law in relation to
climate change. The ‘Oslo Principles on Global Climate Change Obligations,’
developed by a dozen judges, advocates and scholars, follows a rather loose
methodology;27 it presents at best a theory about what the law should
be, rather than a doctrinal analysis of what it is.28 Shinya
Murase and Lavanya Rajamani led a more rigorous project under the aegis of
the International Law Association (ILA), resulting in the adoption of a
‘Declaration of Legal Principles Relating to Climate Change’ in 2014. The
Declaration largely reflected the content of the UNFCCC as interpreted by
subsequent practice, in particular subsequent COP decisions, but it also
highlighted the obligation of States to ‘exercise due diligence to avoid,
minimize and reduce environmental and other damage through climate change.’29
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26 See Report of the International
Law Commission at its sixty-fifth session, UN Doc A/68/10 (2013) 115 [168].
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27 Expert Group on Global Climate Obligations, Oslo Principles of Global Climate Change Obligations (1
March 2015) <https://globaljustice.yale.edu/oslo-principles-global-climate-change-obligations>.
See in particular Commentary, 14, explaining that the project is informed by
‘an amalgamation of sources’ from domestic, regional and international law.
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28 This theory assumes that everyone should be
entitled to an equal quantum of greenhouse gas emissions each year, thus
ignoring alternative grounds for differentiation based for instance on
States’ and individuals’ capacity to degrease greenhouse gas emissions.
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29 International Law Association, ‘Resolution
2/2014: Declaration of Legal Principles Relating to Climate Change’ (2014) 76
International Law Association Reports of
Conferences 21, draft art 7B. See also ILA Committee on the Legal
Principles Relating to Climate Change, ‘ILA Legal Principles Relating to
Climate Change’ (2014) 76 International Law
Association Reports of Conferences 330 (Commentaries); Christoph
Schwarte and Will Frank, ‘The International Law Association’s Legal
4
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The ILC’s project, introduced and carried out
by Shinya Murase, largely built on the preliminary study of the ILA. The
ILC’s broader focus on the protection of the atmosphere, which was
recommended by some ILA members,30 aimed presumably to distinguish
the codification process conducted by the ILC from political negotiations on
particular issues. The topic of the protection of the atmosphere includes
climate change, but also other global and transboundary impacts on the
atmosphere, such as the depletion of the ozone layer and transboundary air
pollution. This broad conceptual framework favoured cross-fertilization
between rather well-established norms on the prevention of transboundary
environmental harm and those, little understood, applicable to global environmental
harm.
While
the ILA is a private association, the ILC was established by the UN General
Assembly in 1947 with the aim of promoting ‘the progressive development of
international law and its eventual codification.’31 The ILC has
carried out authoritative studies of various fields of international law,
most notably on the law of State responsibility;32 its work has
led to the adoption of treaties, including on the law of treaties,33
diplomatic protection34 and the nonnavigational uses of international
watercourses.35 Several recent ILC projects have dealt with
environmental issues in a transboundary context,36 but global environmental concerns have
largely been left aside. For instance, the study of ‘international liability
for injurious consequences arising out of acts not prohibited by
international law’ did not deal with harm caused to the global commons on the
ground that this question ‘would require different treatment.’37
Likewise, Special Rapporteur Robert Rosenstock decided that the scope of the
work on ‘shared natural resources’ would focus on ‘natural resources within
the jurisdiction of
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Principles
on Climate Change and Climate Liability Under Public International Law’
(2014) 4(3-4)
Climate
Law 201.
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30 See in particular the summary record of a
working session held on 17 August 2010 at 2:30pm, in (2010) 74 International Law Association Reports of Conference
402, at 405, where Osamu Hoshida is reported suggesting that ‘the problems on
climate change should be addressed in the wider context of the protection of
the atmosphere.’
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31 See Establishment
of an International Law Commission, GA Res 174(II), UN Doc
A/RES/174(II) (adopted 21 November 1947), recital 3(a).
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32 ‘Draft Articles on the Responsibility of
States for Internationally Wrongful Acts’ in Report
of the International Law Commission on the Work of its Fifty-Third Session,
UN Doc A/56/10 (2001) 26-143 [76-77] (‘DARSIWA’).
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33 Vienna Convention
on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS
331 (entered into force 27 January 1980).
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34 Vienna Convention
on Diplomatic Protection, opened for signature 18 April 1961, 500 UNTS
95 (entered into force 24 April 1964).
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35 Convention on the Law of the
Non-navigational Uses of International Watercourses, opened for
signature 21 May 1997, 36 ILM 700 (entered into force 17 August 2014) (‘Watercourses
Convention’).
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36 This includes the work conducted on
‘international liability for injurious consequences arising out of acts not
prohibited by international law’ from 1974 to 1997, on ‘international
liability in case of loss from transboundary harm arising out of hazardous
activities’ from 2002 to 2006, and on ‘protection of persons in the event of
disasters’ from 2007 to 2016, as well as the on-going work on the protection
of the environment in relation to armed conflicts.
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37 Peemaraju Sreenivasa Rao, Special Rapporteur,
Third Report on International Liability for Injurious
Consequences Arising Out of Acts Not Prohibited by International Law, UN Doc A/CN.4/510
(9 June 2000) [14]. See also ibid [4], footnote 9.
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two or more States,’ to the exclusion of
‘global commons,’ on the ground that the latter ‘raise many of the same issues
but a host of others as well.’38
In 2011, following the completion of its
works on liability39 and on natural resources,40 the
ILC endorsed Shinya Murase’s proposal for the inclusion of the topic of the
‘protection of the atmosphere’ on the ILC’s long-term programme of work.41
Murase’s syllabus described the atmosphere as ‘the planet’s largest single
natural resource,’42 thus reflecting the continuity with the work
on shared natural resources. Noting the piecemeal approach to the topic in
existing treaty regimes, Murase envisaged the drafting of ‘a framework
convention by which the whole range of environmental problems of the
atmosphere could be covered in a comprehensive and systematic manner,’43
which would be comparable to Part XII of the UN Convention on the Law of the Sea (‘ UNCLOS') on protection and preservation
of the marine environment.44
Strong resistance against this project
emerged both among ILC Members and in the Sixth Committee of the UN General
Assembly, which reviews the ILC’s reports, largely due to concerns that the
work of the ILC on the protection of the atmosphere would unduly interfere
with ongoing political negotiations.45 Following informal
consultations,46 the ILC decided in 2013 to go ahead with the
project, but on the basis of an ‘Understanding’ which constrained both the
scope of the topic and the nature of its outcome.47 This
Understanding would haunt the conduct of the project for the years to follow.
The work of the ILC on the Protection of the Atmosphere was
conducted on the basis of five Reports presented by Special Rapporteur Murase
from 2014 to 2018. The First Report announced a ‘cautious approach’ based on
a clear distinction between lex lata (law as it is) and lex
ferenda (law as it ought to be).48 Overall, the
Report suggested that the protection of the atmosphere could be characterized
as ‘a common concern of humankind,’49 which could involve erga
omnes obligations (obligations owed to the international
community as a whole),50
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38 Robert Rosenstock, ‘Shared Natural Resources
of States’ in Report of the International Law
Commission at its Fifty-Second Session, UN Doc A/55/10 (2000) 141, 141
(syllabus on topic recommended for inclusion in the long-term programme of
work of the commission).
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39 ‘Draft principles on the allocation of loss
in the case of transboundary harm arising out of hazardous activities, with
commentaries’ in Report of the International Law
Commission at its Fifty-Eighth Session, UN Doc A/61/10 (2006) 106-182
[66]-[67].
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40 Report of the
International Law Commission at its Sixty-Second Session, UN Doc
A/65/10 (2010) 344 [384], discontinuing the project on shared natural
resources (oil and gas).
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41 Report of the International Law
Commission at its Sixty-Third Session, UN Doc A/66/10 (2011) 7 [32].
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42 Shinya Murase, ‘Protection of the Atmosphere’
in ibid 315, 315 [1] (‘ Syllabus').
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43 Ibid 317 [5]. See also ibid. 322 [26].
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45 The concerns leading to this controversy are
discussed below section III.A.
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46
See ILC, Summary Record of the 3150th
Meeting, 64th sess, 2nd pt, UN Doc A/CN.4/3150
(held 26 July 2012) 161 [67].
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47 Report of the International Law
Commission at its sixty-fifth session, UN Doc A/68/10 (2013) 115 [168].
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48 Sninya Murase, Special Rapporteur, First Report on the Protection of the Atmosphere,
UN Doc A/CN.4/667 (14 February 2014) [15].
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49 Ibid [90], draft guideline 3(a).
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50 Ibid [89].
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but these concepts attracted strong
criticisms from ILC Members51 and, then, the Sixth Committee.52
The Second Report discussed the obligation of
States to protect the atmosphere, which it related to the sic utere tuo ut alienum non laedas
principle (‘use your own property so as not to injure that of another’), a
corollary to the principle of territorial sovereignty and equality of States.53
It also identified the obligation of States to cooperate in good faith,
referring in particular to the UN Charter and to the practice of States in
addressing transboundary and global environmental concerns.54
Facing renewed criticisms by other ILC Members, Murase consented to removing
the reference to ‘common concern of humankind’ from the DGs.55 A
part of the Preamble was adopted along with DGs providing definitions of key
concepts, determining the scope of the project, and recognizing an obligation
of States to cooperate,56 but discussions on the obligation of
States to protect the atmosphere were deferred to the following year.
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51 See infra section III.C.2.
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52 See, eg, ILC, Provisional
Summary Record of the 3210th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3210 (held 23 May 2014) at 4
(Kittichaisaree).
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53 Sninya Murase, Special Rapporteur, Second Report on the Protection of the Atmosphere,
UN Doc A/CN.4/681 (2 March 2015) [41]-[59], in particular [51].
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54 Ibid [60]-[77].
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55
See ILC, Provisional Summary Record of the 3249th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3249 (held 12 May 2015) 10 (Murase); ILC, Provisional Summary Record of the 3260th Meeting,
67th sess, 1st pt, UN Doc A/CN.4/SR.3260 (held on 2
June 2015) 6 (Forteau, presenting the statement of the Chairman of the
Drafting Committee).
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56 Report of the International Law
Commission at its Sixty-Seventh Session, UN Doc A/70/10 (2015) 22-37 [53]-[54].
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57 Sninya Murase, Special Rapporteur, Third Report on the Protection of the Atmosphere,
UN Doc A/CN.4/692 (25 February 2016) 9 [17]-[19].
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58 Ibid 33-42 [62]-[78].
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59 Ibid 44-51 [84]-[91].
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60 Report of the International Law
Commission at its Sixty-Eighth Session, UN Doc A/71/10 (2016) 282-296 [95]-[96]
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61 Sninya Murase, Special Rapporteur, Fourth Report on the Protection of the Atmosphere,
UN Doc A/CN.4/705 (31 January 2017), in particular 8-11 [14]-[21].
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primary rules.’62 The Report
largely failed to build upon the ILC’s previous study on the fragmentation of
international law, 63 and most ILC Members doubted that ‘mutual
supportiveness’ constituted a legal principle. 64 The four DGs
proposed by Murase were eventually synthetized into a single DG on
‘interrelationship among relevant rules.’65 While this limited the
damage, it is not clear what this DG adds to the ILC’s far more comprehensive
study and general study on the fragmentation of international law.
Having completed the discussion on the five
Reports, the ILC concluded the first reading of the twelve DGs and decided to
transmit them to Governments and international organizations for comments and
observations.69 A second reading could start as soon as mid-2020,
at the 72nd Session of the ILC.70
This section analyses the ILC’s approach to
the topic. It first reviews the initial debate on whether the project should
be conducted at all. A second subsection analyses its methodology. A last
subsection examines the conceptual framework progressively established by the
ILC.
A.
A controversial project
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62 ILC, Provisional
Summary Record of the 3355th Meeting, 69th sess,
1st pt, UN Doc A/CN.4/SR.3355 (held 10 May 2017) 5.
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63 See ILC, ‘Conclusions of the Work of the
Study Group on the Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law’ (2006) Yearbook of the International Law Commission vol.
II, pt 2, 177; Martti Koskenniemi, Fragmentation
of International Law: Difficulties Arising From the Diversification and
Expansion of International Law: Report of the Study Group of the
International Law Commission, UN Doc A/CN.4/L.682 (13 April 2006).
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64 See, eg, ibid at 5-7 (Tladi), 10 (Wood) and
14 (Ki-Gab Park); ILC, Provisional Summary Record
of the 3356th Meeting, 69th sess, 1st
pt, UN Doc A/CN.4/SR.3356 (held 11 May 2017) 3 (Oral); ILC, Provisional Summary Record of the 3358th
Meeting, 69th sess, 1st pt, UN Doc
A/CN.4/SR.3358 (held 16 May 2017) 9 (Vazquez-Bermudez).
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65 Report of the International Law
Commission at its Sixty-Ninth Session, UN Doc A/72/10 (2017) 150 [56] (Guideline 9).
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66 Sninya Murase, Special Rapporteur, Fifth Report on the Protection of the Atmosphere,
UN Doc A/CN.4/711 (8 February 2018) 26-50 [47]-[102].
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67
See, eg, ILC, Provisional Summary Record of the
3409th Meeting, 70th sess, 1st pt, UN
Doc A/CN.4/SR.3409 (held 22 May 2018) 12 (Park).
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68 Report of the International Law
Commission at its Seventieth Session, UN Doc A/73/10 (2018) 158 [73].
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69 Ibid 158 [73]-[76].
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70 Ibid 158 [76].
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71 A review of the summary records of the 18 th
to 30th meetings of the Sixth Committee at the 66th Session
and its 18th to 25th meetings at the 67th
session of the UN General Assembly (2011 and 2012) shows that Japan, Austria,
Slovenia and Algeria supported the project; US, France, UK, Netherlands,
France and Russia opposed the project; China and Canada (which was supported
at first) suggested postponing to a next quinquennium.
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72
GA Sixth Committee, Summary Record of the 20th
Meeting, 66th session, UN Doc A/C.6/66/SR.20 (held 26
October 2011) [15] (Simonoff). See also GA Sixth Committee, Summary Record of the 19th Meeting, 67th
session, UN Doc A/C.6/67/SR.19 [118] (Buchwald, USA): ‘An overarching legal
framework for protection of the atmosphere was unnecessary, since various
long-standing instruments already provided sufficient general guidance to
States in their development, refinement and implementation of treaty regimes
at the global, regional and subregional levels.’
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73 ILC, Provisional
Summary Record of the 3249th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3249 (held 12 May 2015) 5 (Huang).
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74
See, eg, ILC, Provisional Summary Record of the
3247th Meeting, 67th sess, 1st pt, UN
Doc A/CN.4/SR.3247 (held 7 May 2015) 3 (Wood).
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75 GA Sixth Committee, Summary Record of the 21st Meeting, 69th
sess, UN Doc A/C.6/69/SR.21 (held 29 October 2014) [135] (Zabolotskaya,
Russia).
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76 See, eg, Presidents of COP 23 and COP 24, Talanoa Call for Action (2018) <
https://unfccc.int/topics/2018-talanoa-dialogue-platform>.
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77 See ILC, Provisional
Summary Record of the 3311th Meeting, 68th sess,
1st pt, UN Doc A/CN.4/SR.3311 (held 7 June 2016) 3 (Niehaus),
noting that ‘it was difficult to understand how a set of clear, objective,
non-binding legal guidelines could conflict with political initiatives in the
same area and having the same objectives. On the contrary, it might be
assumed that those guidelines would support such negotiations.’ See also
Peter H Sand and Jonathan B Wiener, ‘Towards a New International Law of the
Atmosphere’ (2016) 7(2) Goettingen Journal of International
Law 195, 211.
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78 ILC, Provisional
Summary Record of the 3249th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3249 (held 12 May 2015) 6 (Forteau). But
see ILC, Provisional Summary Record of the 3213th
Meeting, 66th sess, 1st pt, UN Doc A/CN.4/SR.3213
(held 30 May 2014) 10 (Nolte), conceding that ‘[t]he most important decisions
with regard to the protection of the atmosphere must be taken at the
political level; the Commission could neither prescribe specific decisions or
measures on the matter, nor compensate for the lack thereof.’
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79 ILC, Provisional
Summary Record of the 3213th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3213 (held 30 May 2014) 11 (Nolte).
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80 Statute of the ILC, art 1(1).
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81 See above note 71. ILC Members often took the same position
as their State of nationality, even though they are supposed to act in an
individual capacity.
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82 Donald McRae, ‘The work of the International
Law Commission, 2007-2011: Progress and Prospects’ (2012) 160(2) The American Journal of International Law 322,
337. See also Alain Pellet, ‘The ILC Adrift? Some Reflexions from Inside’, in
Miha Pogancnik (ed), Challenges of Contemporary
International Law and International Relations: Liber Amicorum in Honour of
Ernest Petrie (Nova Gorica 2011) 299, 309.
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83 The closest equivalent to the US political
question doctrine appears to the theories on the concept of sovereignty, such
as the theory of the domaine
réservé, which only apply in relation to internal
issues. See generally Katja S Ziegler, ‘Domaine
Réservé’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law
(Oxford University Press, 2013).
|
|
84 Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and
Admissibility)
[1984] ICJ Rep 392, 435 [96].
|
|
85 Aegean Sea Continental Shelf
(Greece v Turkey)
[1978] ICJ Rep 3, 12 [29].
|
|
86 See Statute of the ILC, art 2.1.
|
|
88 While the Statute of the ILC provide for a
‘special allowance,’ the General Assembly currently sets this allowance to
USD 1 per year. See Comprehensive study of the
question of honorariums payable to members of organs and subsidiary organs of
the United Nations, GA Res 56/272, UN Doc A/RES/56/272 (23 April 2002,
adopted 27 March 2002) [1].
|
|
90 GA Sixth Committee, Summary Record of the18th Meeting, 68th
session, UN Doc A/C.6/68/SR.18 (held 29 October 2013)
[102] (Yalek, Czech Republic Czech.
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|
its own authority.’91 But the
ILC’s legitimacy would also fare poorly, on the long-term, if it was to
remain entirely silent on the legal aspects of an era-defining issue such as
climate change.
Two years of informal negotiations followed
the inclusion of the topic on the ILC’s long-term programme of work in 2011.
Finally, at the last meeting of the 65th session in 2013, the ILC
allowed the project to start based on an ‘Understanding’ regarding its scope
and nature. According to this Understanding, the work would ‘not interfere
with relevant political negotiations, including on climate change, ozone
depletion and long-range transboundary air pollution.’ Moreover, it would
‘not deal with, but be without prejudice to, questions such as liability of
States and their nationals, the polluter-pays principle, the precautionary principle,
common but differentiated responsibilities and the transfer of funds and
technology to developing countries.’ Lastly, the project’s outcome would
consist in ‘draft guidelines that do not seek to impose on current treaty
regimes legal rules or legal principles not already contained therein.’92
Much of the ILC’s debates in the following
years orbited around the Understanding. Outspoken opponents to the project
denounced any allusions to climate change or to the UNFCCC in Murase’s
Reports as violations of the Understanding and potential interferences with
international negotiations,93 even though such a strict reading of
the Understanding would have let very few matters, if any, to be discussed.94
The frustration this created for the project’s proponents was reflected in
Enrique Candioti’s characterisation of the Understanding as ‘a disgrace,
signifying a departure by the Commission from its traditional working methods
and imposing a number of conditions that curbed the Special Rapporteur’s
freedom to investigate a subject before he had even started work on it.’95
Other ILC Members compared the Understanding with ‘a straightjacket’96
or suggested that the Commission ‘had chained the Special Rapporteur and
asked him to run.97
The
Understanding hindered the project considerably.98 Except for some
fleeting references smuggled into the Commentaries, the DGs adopted in first
reading contain no substantive discussion of the principle of common but
differentiated responsibilities and respective capabilities (CBDRRC), the
precautionary approach, sustainable development or questions of liability,
among other key principles of international environmental law. More
generally, long,
|
|
91 ILC, Provisional
Summary Record of the 3213th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3213 (held 30 May 2014) [10] (Nolte).
|
|
92 Report of the International Law
Commission at its sixty-fifth session, UN Doc A/68/10 (2013) 115 [168].
|
|
93 See, eg, ILC, Provisional
Summary Record of the 3244th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3244 (held 4 May 2015) 6 (Park); ILC, Provisional Summary Record of the 3246th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3246 (held 6 May 2016) 5 (Murphy).
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|
94
See ILC, Provisional Summary Record of the 3245th
Meeting, 67th sess, 1st pt, UN Doc A/CN.4/SR.3245
(held 5 May 2015) 10 (Tladi), highlighting the importance of respecting the
Understanding, yet immediately recommending discussions of the CBDRRC
principle, without realizing that this principle is also excluded from the
scope of the project.
|
|
95 ILC, Provisional
Summary Record of the 3212th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3212 (held 28 May 2014) 7 (Candioti).
|
|
96 Ibid 9 (Vazquez-Bermudez).
|
|
97 ILC, Provisional
Summary Record of the 3410th Meeting, 70th sess,
1st pt, UN Doc A/CN.4/SR.3410 (held 23 May 2018) 13 (Peter).
|
|
98 ILC, Provisional
Summary Record of the 3413th Meeting, 70th sess,
1st pt, UN Doc A/CN.4/SR.3413 (held 29 May 2018) 3 (Murase).
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|
recurring discussions on the interpretation
of the Understanding distracted considerable attention away from well-needed
substantive discussions on the content of Murase’s Reports.99
This only exacerbated the lack of thorough
preparatory research and analysis. It is unfortunate that large sections of
Murase’s Reports built heavily on drafts produced by students on only vaguely
related topics,100 but otherwise very sparingly on the secondary
literature and previous codifications of international environmental law.101
A Report presented an extensive review of Singapore’s Transboundary Haze
Pollution Act only because the State had provided detailed documentation.102
Several used rather abstruse concepts 103 or presented ideas that
were insufficiently documented;104 they were largely viewed as
providing an imbalanced treatment of the topic,105 containing long
discussions of matters unspecific to the topic of the protection of the
atmosphere, regarding for instance the fragmentation of international law106
or the treatment of scientific evidence.107 Questions arguably
more specific and central to the topic, such as the problematic application
of the law of State responsibility to global environmental harms, were left
entirely unaddressed.108
B.
A conservative methodology
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|
99 This applies within the ILC as well as
beyond, including in the secondary literature. See, eg, Plakokefalos Ilias,
‘International Law Commission and the Topic “Protection of the Atmosphere”:
Anything New on the Table?’ Shares: Research
Project on Shared Responsibility in International Law (Blog Post, 1
November 2013) <http://www.sharesproject.nl/international-law-commission-and-the-
topic-protection-of-the-atmosphere-anything-new-on-the-table/>; Sand
and Wiener (n 77).
|
|
100 See in particular Murase, Fifth Report on the Protection of the Atmosphere
(n 66) [47]-[100], drawing
on M Fukasaka, ‘The Adversary System of the International Court of Justice:
An Analytical Study’ (Doctoral Thesis, University College London, 2016).
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|
102 See Murase, Fifth
Report on the Protection of the Atmosphere (n 66) [22]-[29]. See also ILC, Provisional Summary Record of the 3405th
Meeting, 70th sess, 1st pt, UN Doc
A/CN.4/SR.3405 (held 17 May 2018) 9, where Murase recognizes assistance
provided by the Attorney General’s Chambers of Singapore; and discussion in
ILC, Provisional Summary Record of the 3410th
Meeting, 70th sess, 1st pt, UN Doc
A/CN.4/SR.3410 (held 23 May 2018) 10 (Murphy).
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|
103 See for instance Murase, Fifth Report on the Protection of the Atmosphere
(n 66) [14], referring to
a typology between ‘obligation of measures,’ ‘obligation of methods’ and
‘obligation of maintenance.’ See also ILC, Provisional
Summary Record of the 3409th Meeting, 70th sess,
1st pt, UN Doc A/CN.4/SR.3409 (held 22 May 2018) 12 (Park),
calling this typology ‘rather artificial’ and subject to diverging
interpretation; ILC, Provisional Summary Record of
the 3412th Meeting, 70th sess, 1st
pt, UN Doc A/CN.4/SR.3412 (held 25 May 2018) 10 (Wood).
|
|
104 See for instance ILC, Provisional Summary Record of the 3355th
Meeting, 69th sess, 1st pt, UN Doc
A/CN.4/SR.3355 (held 10 May 2017) 5 (Tladi), noting that ‘[t]he only
authority for that statement was the Special Rapporteur’s own book.’
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|
105
See, eg, ILC, Provisional Summary Record of the
3409th Meeting, 70th sess, 1st pt, UN
Doc A/CN.4/SR.3409 (held 22 May 2018) 6 (Oral), 10 (Peter); ILC, Provisional Summary Record of the 3409th
Meeting, 70th sess, 1st pt, UN Doc
A/CN.4/SR.3409 (held 22 May 2018) 13 (Park); ILC, Provisional
Summary Record of the 3410th Meeting, 70th sess,
1st pt, UN Doc A/CN.4/SR.3410 (held 23 May 2018) 9 (Murphy),
noting that ‘the analysis in the report was selective and lacking in balance,
and that it had ultimately resulted in draft guidelines that were dubious in
many, if not most, respects’; ILC, Provisional
Summary Record of the 3412th Meeting, 70th sess,
1st pt, UN Doc A/CN.4/SR.3412 (held 25 May 2018) 12 (Petrie), 13
(Sturma).
|
|
108 See below section IV.D.
|
|
The Statute of the ILC distinguishes works
aimed at the ‘progressive development’ and at the ‘codification’ of
international law,109 but, in practice, the distinction is rather
a matter of degree: any codification implies some ‘development’ through the
systematization of the rules derived from particular authorities. Murase’s
Second Report suggested that the DGs would reflect existing as well as
emerging norms of customary international law,110 thus suggesting
a progressive aspect which would promote the affirmation of international law
as a coherent legal system, in line with the ILC’s general practice. By
contrast, some ILC Members promoted a particularly cautious methodology
consisting essentially in an inventory of the rules whose existence is
already well-established, highlighting the provision of the Understanding
according to which the project would not ‘seek to “fill” the gaps in treaty
regimes.’111
Sean Murphy, in
particular, opposed the recognition of States’ general obligation to protect
the atmosphere on the ground that it ‘had no basis in any treaty practice,
nor in any State practice, nor in case law’ and ‘could not be supported with
reference to any of the standard sources of law.’112 Murphy’s view
was seemingly that no inference could be made from obligations to protect the
atmosphere from specific types of atmospheric harm (eg
climate change, depletion of the ozone layer, transboundary air pollution) as
to the existence of a general obligation to protect the
atmosphere.
Analysing
the debate taking place at the ILC, Georg Nolte justly identified two
opposing views of international law, either as essentially ‘a body of
established rules agreed by States in treaty,’ or ‘as a body of rules and
principles, which were all interlinked and supplemented by rules expressly
agreed by States, ensuring their coherence without holding back their
development.’116 The two visions diverge significantly in areas,
such as the protection of the 109 110 111 112 113 114 115 116
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|
109 Statute of the
ILC, arts 16 and 18.
|
|
111 Report of the International Law
Commission at its sixty-fifth session, UN Doc A/68/10 (2013) 115 [168].
|
|
112 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 5 (Murphy).
|
|
113 See, eg, authorities cited in Murase, Third Report on the Protection of the Atmosphere
(n 57) [35]- [38].
|
|
114 See, eg, Trail Smelter (United
States v Canada) (Award of 11 March 1941), 3 RIAA 1938, 1965; Legality of the
Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226,
241-242 [29] (‘Nuclear Weapons'); Iron Rhine Railway (Belgium v Netherlands)
(Award) (2005)
27 RIAA 35, 116 [222]; Pulp Mills on the River Uruguay
(Argentina v Uruguay)
(Judgment)
[2010] ICJ Rep 14, 5556 [101] (‘Pulp Mills'); South China Sea
(Philippines v
China) (Award) (Permanent Court of Arbitration, Case No. 2013-19,
12 July 2016) [944].
|
|
116 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 10.
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|
atmosphere, which have only partially been
addressed by treaties. If international law is to be approached as a coherent
normative system, rules applicable to the protection of the atmosphere could
not only be induced from the general practice of States accepted as law, but
also deduced from general principles. For instance, even if States’
obligation to protect the atmosphere could not be inferred from the
recognition of their obligation to prevent specific types of atmospheric
harm, as Murphy contends, it could be inferred from the principles of
territorial sovereignty and equality of States, as Murase suggested:117
a State that fails to take appropriate measures to protect the atmosphere is
potentially encroaching on the territory of other States.
There is nothing new in
this deductive approach.118 119 When identifying States’
obligation to prevent transboundary environmental harm, the ICJ in Pulp
Mills on the River Uruguay did not undertake a comprehensive
survey of State practice and opinio juris, nor did it immediately
mention its previous decision in Legality of the Threat or Use of Nuclear Weapons,119
as Murphy’s contention would suggest it should. Rather, the ICJ noted that
the principle ‘ha[d'] its origins in the due diligence
that is required of a State in its territory,’120 referring to a
State’s 'obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.’121 A similar reasoning
could be applied to deduce the existence of a due diligence obligation of
States to protect the atmosphere.122
The
principles of territorial sovereignty and equality of States are not the only
principles from which rules relevant to the project could be inferred. Any
degradation of the environment has far-reaching implications not just for
States and their territories, but also for the humans and societies that
inhabit them; it affects ecosystems as well as biological diversity, the
marine environment as well as the world cultural and natural heritage.
Commenting on a reference to the Convention
on Biological Diversity (‘CBD’) in one of Murase’s Reports,
Murphy stated that this treaty ‘had nothing to do with the atmosphere.’123
To the contrary, the Parties to the CBD
recognized climate change as ‘a major and growing driver of biodiversity
loss’124 based on scientific evidence of climate change’s enormous
impact on species.125 As climate change affects biological
diversity, the obligation to protect biological diversity certainly implies
an obligation to mitigate climate change. Just like the principles of
territorial sovereignty and equality of States, obligations under the CBD, UNCLOS and the World Heritage Convention,126
|
|
118 See Murase, Second
Report on the Protection of the Atmosphere (n 53) [34]. See also ‘Draft Conclusions on
Identification of Customary International Law’ in Report
of the International Law Commission at its Seventieth Session, UN Doc
A/73/10 (2018) 119-156 [65]-[66], 126, Commentary on Conclusion 2 [5]; Stefan
Talmon, ‘Determining Customary International Law: The ICJ’s Methodology
Between Induction, Deduction and Assertion’ (2015) 26(2) European Journal of International Law 417.
|
|
121 Ibid, citing Corfu Channel (United
Kingdom v Albania),
(Judgment on Merits) [1949] ICJ Rep 4, 22.
|
|
123 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 4 (Murphy).
|
|
124 Conference of the Parties (‘COP’) to the CBD,
Decision 14/5, Biodiversity and Climate Change,
UN Doc CBD/COP/DEC/14/5 (30 November 2018, adopted 17-29 November 2018).
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|
Overall, ILC Members have repeatedly
expressed concerns about the potential implications of the project or its
findings. Michael Wood opposed the project by fear that it could ‘provide
fodder for litigation against States.’129 Similar concerns were
instrumental to the opposition to a characterization of the protection of the
atmosphere as a ‘common concern of humankind,’ with potential implications
for the erga omnes nature of certain
obligations;130 they were also present in the ILC’s analysis of
the obligation of States to protect the atmosphere from global environmental
harm.131 Such reasoning represents an appeal to consequences (argumentum ad consequential), a logical
fallacy through which the truth-value of a statement is assessed based on a
normative judgment of its consequences. In logic, a factual statement (eg the
recognition of the existence a rule) is no less true because its consequences
are unclear, immense, or viewed (by some) as undesirable. When discussing
potential implications as part of the assessment of the law on the protection
of the atmosphere, ILC Members threaded in the policy sphere, improvising
themselves, without any legitimacy to do so, as decision-makers able to
determine what rule should or should not be recognized.
C.
Conceptual framework
The DGs suggests an unneeded new terminology
by introducing a distinction between ‘atmospheric pollution’ and ‘atmospheric
degradation,’ while the ILC rejected the well- accepted idea that the
protection of the atmosphere is a ‘common concern of humankind.’
1.
Atmospheric pollution and atmospheric degradation
The
DGs are based on a distinction between the protection of the atmosphere from
atmospheric pollution and its protection from atmospheric degradation.132
Atmospheric pollution
refers to classical transboundary issues, which affect a specific area
outside the state of origin.133 The affected area can be situated
within the territory of another State or beyond national jurisdiction, for
instance in the high seas. By contrast, atmospheric degradation relates to the ‘alteration
of the global atmospheric conditions,’134 for instance through the
emissions of substances that cause climate change or the depletion of the
ozone layer. The terminology, which is not
|
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127 See, eg, International
Covenant on Economic, Social and Cultural Rights, opened for signature
16 December 1966, 999 UNTS 3 (entered into force 3 January 1979) art 2(1)
(‘ICESCR’); International Covenant on Civil and
Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976) art 2(1). See also Human Rights Committee,
General Comment No 31, The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.13 (26 May 2004, adopted 29 March 2004) [6]-[8].
|
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129 ILC, Provisional
Summary Record of the 3355th Meeting, 69th sess,
1st pt, UN Doc A/CN.4/SR.3355 (held 10 May 2017) 9 (Wood).
|
|
134 See ibid [11].
|
|
reflective of the predominant usage,135
is needlessly confusing:136 terms such as ‘transboundary
pollution’ (or ‘transboundary air pollution’) and ‘global atmospheric
degradation,’ which are used in the Commentary,137 would convey
the same notions far more effectively.
By contrast, DG 1(c) defines ‘atmospheric
degradation’ in relation to ‘significant
deleterious effects of such a nature as to endanger human life and the
Earth’s natural environment.’142 The addition of the word
‘significant’ suggests the rather counter-intuitive conclusion that the
threshold of harm for atmospheric degradation (ie
global environmental harm) should be higher than the threshold applicable to
atmospheric pollution (ie
transboundary environmental harm). Presumably, if some ‘insignificant’ damage
must be explicitly excluded from the scope of the DGs, this should be in
relation to harm confined to a specific area rather than the harm affecting
the entire atmospheric system, which is more serious by nature. Rather
inconsistently, DG 4 recognizes the requirement for an EIA to be undertaken
for proposed activities ‘which are likely to cause significant adverse impact on the
atmosphere,’ whether through atmospheric pollution or degradation.143
The
distinction between atmospheric pollution and atmospheric degradation is
unnecessary because, surprisingly, the DGs make no
distinction between the rules applicable to atmospheric pollution and those
applicable to atmospheric degradation.144 It is highly unlikely
that the exact same rules apply in the exact same way to transboundary and
global environmental harm.145 The obligation to protect the
atmosphere, to conduct an EIA and to cooperate, to mention but
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135 See, eg, Massachusetts
v Environmental Protection Agency, 549 U.S. 497 (2007), qualifying GHG
emissions as ‘air pollutants.’ But see ‘DGs adopted on first reading’ (n 2) Commentary on DG 1
[7], referring to ‘existing treaty practice,’ of which no specific example is
provided. ‘Air pollution’ (rather than ‘atmospheric pollution’) is typically
used to refer to localized or transboundary concerns, but not specifically to
exclude global environmental harm.
|
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136 While ‘DGs adopted on first reading’ (n 2) DG 1(b) and 1(c)
define these two concepts, they do not explicitly distinguish between
territorial and global context in which they take place.
|
|
137 See, eg, ibid, Commentary on DG 2 [2].
|
|
138 Ibid DG 1(b).
|
|
139 See, eg, UNCLOS
(n 15) art 1(1)(4); Convention on Long-Range Transboundary Air Pollution, opened
for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March
1983) art 1(a).
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141 Energy, as a source of atmospheric pollution,
would most likely refer to light, noise or heat, which may seldom reach the
threshold of significant transboundary environmental harm. Radioactive
pollution is generally accompanied by the release of radioactive substances.
|
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143 Ibid, DG 4. See also ibid, Commentary on DG 4
[5] (emphasis added).
|
|
144 Except for their definition in DG 1, every
single mention of one concept comes along with that of the other. See ibid,
Preamble [4], DGs 2(1), 3, 4, 8(1), 8(2), 9(3), 10(1), 11(1), 12(1).
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|
The division of the protection of the
atmosphere between protection from atmospheric pollution and from atmospheric
degradation excludes consideration for environmental impacts taking place
exclusively within the country of origin. While Murase’s First Report may
have appeared somewhat ambivalent,148 several ILC Members were
anxious to ensure that the project would not tread into ‘purely local’
matters,149 and the Commentaries confirm that the DGs do not ‘deal
with domestic or local pollution.’ 150 This exclusion of domestic
environmental harm fails to reflect emerging trends in international
environmental law, for instance based on the progressive recognition of a
right to a healthy environment.151 Although the ILC may deem that
it is too early to recognize this trend, a no-prejudice clause would ensure
that the DGs at least do not hinder the progressive development of
international law.
2.
Common concern of
humankind
Murase’s
First Report characterized the protection of the atmosphere as a ‘common
concern of humankind’152 and suggested that this could imply the
existence of erga omnes
obligations.153 This characterization revealed extraordinarily
divisive within the ILC and the Sixth Committee. Under pressure of his peers,
Murase agreed to move the concept of ‘common concern of humankind’ to the
Preamble of the DGs, and then conceded to replace it by the notion of a
‘pressing concern of the international community as a whole.’154
While ‘common concern of humankind’ is a concept used in several treaties155
and largely acknowledged as a general principle or concept of international
environmental law, 156 ‘pressing concern of the international
community as a whole’ is merely a criterion used by the ILC to identify
topics of work.157
|
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146 With regard to the obligation to cooperate,
see for instance Pierre-Marie Dupuy and Jorge E Vinuales, International Environmental Law (Cambridge
University Press, 2nd ed., 2018) 74.
|
|
148 See DG 2 as proposed in Murase, First Report on the Protection of the Atmosphere
(n 48) 52 [78], but see
ibid 50 [76].
|
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149 ILC, Provisional
Summary Record of the 3212th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3212 (held 28 May 2014) 10 (Wood). See
also ILC, Provisional Summary Record of the 3211h
Meeting, 66th sess, 1st pt, UN Doc
A/CN.4/SR.3211 (held 27 May 2014) 9 (Forteau); ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) 4 (Wood); ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 6 (Murphy).
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151 See, eg, John H Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (Cambridge
University Press, 2018). See also, regarding the application of the
obligation to protect and preserve the marine environment to territorial
seas, South China Sea (n 114) [940].
|
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153 Ibid [89].
|
|
154 ILC, Provisional
Summary Record of the 3260th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3260 (held on 2 June 2015) 6 (Forteau,
presenting the statement of the Chairman of the Drafting Committee).
|
|
At first, ILC Members and State representatives firmly opposed
the reference to common concern of humankind by highlighting a lack of legal
basis,158 despite the inclusion of the concept in the UNFCCC
in relation to climate change and its adverse effects159 and in
the CBD in relation to the conservation of
biological diversity.160 By mid-2015, Sean Murphy suggested that
the term had enjoyed ‘very limited use in treaties’161 since the
adoption of these two treaties in 1992, concluding that ‘States no longer
wanted to use the phrase.’162 This position was in tension with
the reference to ‘global concern’ in the Minamata Convention, adopted in
2013, in relation to the long-range atmospheric transport of mercury.163
Murphy’s argument became entirely untenable by December 2015, when the Paris
Agreement acknowledged once again climate change as a ‘common concern of
humankind.’164 At the following session of the ILC, Donald M McRae
noted the ‘rather disturbing role reversal,’165 where the ILC,
supposed to promote the progressive development of international law, was
actually a step behind States.
The
mention of ‘common concern of humankind’ in the Paris Agreement did not lead
to the re-introduction of this concept in the DGs or their Preamble.
Unabated, Sean Murphy insisted that ‘there was no treaty, whether universal,
regional or bilateral, asserting that the degradation
of atmospheric conditions was a common concern of humankind,’
while no international court or tribunal ‘had ever asserted such a
proposition.’166 Murphy thus ignored, once again,167
the possibility of inferring a general rule from multiple consistent cases.
As Petrie recognized, the concept of common concern was certainly ‘well
established in international environmental law,’168 and in
particular in relation to climate change and the protection of biological
diversity: absent any contrary evidence, the ILC should have recognized the
applicability of this concept,
|
|
158
See, eg, ILC, Provisional Summary Record of the
3211th Meeting, 66th sess, 1st pt, UN
Doc A/CN.4/SR.3211 (held 27 May 2014) 6 (Tladi) 9 (Forteau); ILC, Provisional Summary Record of the 3212th
Meeting, 66th sess, 1st pt, UN Doc
A/CN.4/SR.3212 (held 28 May 2014) 6 (Sturma); ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) 6 (Hassouna). See also GA Sixth Committee, Summary Record of the 22th Meeting, 69th
session, UN Doc A/C.6/69/SR.22 (held 29 October 2014) [35] (Alabrune,
France).
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159 UNFCCC (n 4) Preamble [2]. See
also International Law Association (n 29) 22 (Draft Article 2); ILA Committee on
the Legal Principles Relating to Climate Change (n 29) 334 (Commentary on Draft Article 2 [4]),
characterizing the application of this concept to climate change as
‘universally accepted. ’
|
|
161 Sean D Murphy, ‘Identification of Customary
International Law and Other Topics: The Sixty- Seventh Session of the
International Law Commission’ (2015) 109(4) American
Journal of International Law 822, 833.
|
|
162 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 4 (Murphy). Murphy
mentioned the absence of any mention of the concept in the Kyoto Protocol and
its Doha Amendment, but the very short preamble to the Kyoto Protocol
‘recall[ed] the provisions of the Convention,’ while the Doha Amendment does
not have a Preamble. See Kyoto Protocol (n 6) Preamble [4].
|
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163 Minamata
Convention on Mercury, opened for signature 10 October 2013, (2016) 55
ILM 582 (entered into force 16 August 2017) Preamble [2].
|
|
165 ILC, Provisional
Summary Record of the 3311th Meeting, 68th sess,
1st pt, UN Doc A/CN.4/SR.3311 (held 7 June 2016) 7 (McRae).
|
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166 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 3 (Murphy)
(emphasis added).
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168 ILC, Provisional
Summary Record of the 3211th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3211 (held 27 May 2014) 8 (Petrie).
18
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if not to the protection of the atmosphere as
a whole, at least in the context of atmospheric degradation.169
Eventually, the instrumental ground for the exclusion of ‘common
concern of humankind’ from the DGs and their Preamble is one which should
never have been considered in an expert body in charge of the codification of
international law: the possible implications of the concept. At the Sixth
Committee, France expressed concern that interpreting the concept could lead
to the recognition of the protection of the environment as ‘an obligation
erga omnes, incumbent on all States, and could thus serve as a basis for
international contentious proceedings, which would be unacceptable.’170
Similar concerns were repeatedly voiced by some ILC Members.171 The
Commentary of the DGs acknowledges that concerns regarding ‘the legal
consequences of the concept’ being ‘unclear’ were the ground on which the ILC
decided not to include the concept in the DGs.172 This reasoning
is a clear example of argumentum ad consequentiam, as
described above.173 When codifying the law, the ILC should
recognize existing rules and concepts notwithstanding whether its members -
or the Sixth Committee - like or dislike their implications. When deciding
to reject the concept of common concern of humankind because of its possible
implications, the ILC made a political assessment that it has no legitimacy
to make.
The
second reading of the DGs will give another chance for the ILC to recognize
the protection of the atmosphere as a common concern of humankind.174
In doing so, the ILC could play a role in interpreting the implications of
this concept.175 This concept certainly implies, as Murase
indicated in his Second Report, an obligation of ‘cooperation of all States
on matters of a similar importance to all nations’176 (an
obligation that the ILC has identified),177 but also, as Murase’s
First Report suggested,178 the existence of erga omnes obligations.179
This does not
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169 But see ibid 8 (Petrie), 9 (Forteau). It is
unclear whether the concept applies to transboundary
issues (atmospheric pollution), absent clear authorities and given the lesser
gravity of environmental harm confined to a particular area. See ILC, Provisional Summary Record of the 3308th
Meeting, 68th sess, 1st pt, UN Doc
A/CN.4/SR.3308 (held 1 June 2016) 12 (Wood).
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170
GA Sixth Committee, Summary Record of the 22nd
Meeting, 69th session, UN Doc A/C.6/69/SR.22 (held 29
October 2014) [35] (Alabrune, France).
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171
See, eg, ILC, Provisional Summary Record of the
3247th Meeting, 67th sess, 1st pt, UN
Doc A/CN.4/SR.3247 (held 7 May 2015) 4-5 (Wood); ILC, Provisional Summary Record of the 3212th Meeting,
66th sess, 1st pt, UN Doc A/CN.4/SR.3212 (held 28 May
2014) 5 (Hmoud). But see also ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 9 (Nolte); ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) 6 (Hassouna), 9 (Sturma), 11 (Petrie).
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173 See above section III.B.
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174 Nadia Sanchez Castillo-Winckels, ‘Why “Common
Concern of Humankind” Should Return to the Work of the International Law
Commission on the Atmosphere?’ (2016) 29(1) The
Georgetown Environmental Law Review 131.
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175 ILC, Provisional
Summary Record of the 3212th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3212 (held 28 May 2014) 9
(Vazquez-Bermudez).
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179 See discussion below, section IV.D.
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180 A suggestion that the right to invoke an erga omnes obligation could be limited to States
with a special interest could be found for instance in I.C.J. Pleadings, Nuclear Tests case (New Zealand v. France), vol.
II, 266 (Dr. Finlay, for New Zealand).
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181
See, eg, ILC, Provisional Summary Record of the
3247th Meeting, 67th sess, 1st pt, UN
Doc A/CN.4/SR.3247 (held 7 May 2015) 11 (Petrie).
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182 See in particular Declaration
of the United Nations Conference on the Human Environment, UN Doc
A/Conf.48/14/Rev.1 (adopted 16 June 1972) principle 21 (‘Stockholm Declaration’); Rio Declaration on Environment and Development,
UN Doc A/CONF.151/26 (vol. I) (adopted 14 June 1992) principle 2 (‘Rio Declaration’).
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184 Philippe Sands and Jacqueline Peel, Principles of International Environmental Law
(Cambridge University Press, 3rd ed, 2012) 191.
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186 ILC, Provisional
Summary Record of the 3247th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3247 (held 7 May 2015) 9 (Sturma).
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187
See ILC, Provisional Summary Record of the 3246th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3246 (held 6 May 2015) 5-6 (Murphy).
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More relevantly, ILC
Members also expressed doubts regarding the legal basis of an obligation to
prevent atmospheric degradation. Murase’s Second Report suggested that this
obligation stems from the sic utere tuo ut alienum non laedas
principle (‘use your own property in such a manner as not to injure that of
another’).189 Yet, this principle assumes a bilateral relation
between two States and most authorities which recognize its existence relate
to a transboundary context.190 On this ground, the Commentary to
DG 3 noted that the existence of the obligation to protect the atmosphere ‘is
still somewhat unsettled for global atmospheric degradation.’191
The ILC could have gone
considerably further in determining the existence of an obligation to prevent
atmospheric degradation, arguably the most important aspect of the entire
project. It could, for instance, have identified the elements constitutive of
a customary norm, namely opinio juris and State practice.192
Both elements are arguably evidenced, among others, by States’ universal or
quasi-universal participation in multiple treaties through which they commit
to make expensive efforts to address the main global environmental concerns.193
By contrast, Sean Murphy provided no evidence in support of his contention
that States and international courts and tribunals had deliberately
confined the recognition of the prevention principle to a transboundary
context.194 To the contrary, mention of the prevention principle
in the preamble to the Vienna Convention on the Protection of the Ozone Layer
and of the UNFCCC suggested that States had agreed to the relevance of the
principle to climate change.195 In Urgenda v The Netherlands,
both parties to the dispute agreed that the prevention principle was
applicable to climate change.196
Furthermore,
support to the identification of the obligation of States to prevent
atmospheric degradation could also be found from a deductive method.197
Like in a transboundary context, the obligation of States to prevent
environmental harm in a global context could be inferred from the premises of
general international law. Even beyond the sic
utere principle, which applies more obviously in a
transboundary context, this obligation stems from the principle of
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190 See discussion in ILC, Provisional Summary Record of the 3307th
Meeting, 68th sess, 1st pt, UN Doc
A/CN.4/SR.3307 (held 31 May 2016) 13 (Hmoud); ILC, Provisional Summary Record of the 3308th Meeting,
68th sess, 1st pt, UN Doc A/CN.4/SR.3308 (held 1 June
2016) 4 (Park), 6-7 (Forteau); ILC, Provisional
Summary Record of the 3212th Meeting, 66th sess,
1st pt, UN Doc A/CN.4/SR.3212 (held 28 May 2014) 8 (Caflisch);
ILC, Topical summary of the discussion held in the
Sixth Committee of the General Assembly during its seventy-first session,
UN Doc A/CN.4/703 (22 February 2017) 6 [18]. See also supra note 183.
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192 See ICJ Statute, art 38(1)(b); ‘Draft
Conclusions on Identification of Customary International Law’ (n 118) Conclusion 2.
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193 See, eg, UNFCCC
(n 4); Vienna Convention for the Protection of the Ozone Layer,
opened for signature 22 March 1985,1513 UNTS 293 (entered into force 22
September 1988; UNCLOS (n 15); CBD (n 14); Stockholm
Convention on Persistent Organic Pollutants, opened for signature 22
May 2001, 2256 UNTS 119 (entered into force 17 May 2004); Minamata Convention on Mercury (n 163).
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194 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 6 (Murphy).
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territorial sovereignty and equality of
States.198 These principles require States to try to avoid harm
that would significantly affect the territory or the livelihood of other
States and their populations. The fact that atmospheric degradation affects
all States, threatening the very existence of some,199 suggests
that the obligation to prevent atmospheric degradation is a corollary of
premises of the international legal order.
2. Nature of the obligation
Thus,
Murase’s Third Report highlighted the importance of taking into account the
capabilities of the State201 as well as the nature of the harm
likely to result from particular activities.202 Building by
analogy on the obligation of States to protect the marine environment under
UNCLOS203 (whose adoption predates the recognition of the CBDRRC
principle and the precautionary approach), Murase suggested that States are
required to ‘use the best practicable means at their disposal and in
accordance with their capabilities.’204 This language had to be
watered down significantly for a relative consensus to be reached among ILC
Members. As a result, DG 3 refers, in the most evasive way possible, to
‘appropriate measures,’ while its Commentary suggests, only slightly more
precisely, that the requirement extends to ‘all appropriate
measures.’205 Taking stock of the judgment of the ICJ in Pulp Mills on the River Uruguay, the
Commentary adds that this obligation involves ‘not only the adoption of
appropriate rules and measures, but also a certain level of vigilance in
their enforcement and exercise of administrative control applicable to public
and private operators.’206
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199 See, eg, Derek Wong, ‘Sovereignty Sunk? The
Position of “Sinking States” at International Law’ (2013) 14(1) Melbourne Journal of International Law 346.
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200 See ‘DGs adopted on first reading’ (n 2) Commentary on DG 3
[5]. See also ILC, Provisional Summary Record of
the 3246th Meeting, 67th sess, 1st
pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 9 (Nolte); ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) at 6-7 (Kittichaisaree). See generally
Benoit Mayer, ‘Obligations of Conduct in the International Law on Climate
Change: A Defence’ (2018) 27(2) Review of
European, Comparative & International Environmental Law 130, 133
(‘Obligation of Conduct’); Duvic-Paoli (n 17) 94.
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202 Ibid [19].
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DG 4 identifies a particular implication of
this due diligence obligation: the obligation of States to ensure that an EIA
is undertaken for proposed activities that could impact the atmosphere.207
This reflects a norm of customary international law whose existence was
suggested in 1992 by the Rio
Declaration on Environment and Development208 and
was identified by the ICJ’s 2010 judgment in Pulp Mills.209 Borrowing
from the language of the Rio
Declaration, the ILC suggests that an EIA is required for activities
that ‘are likely
to cause a significant adverse impact on the atmosphere.’210 This
phrasing is problematic for two reasons. Firstly, it is not always possible
to determine the likelihood or the significance of an impact prior to the
conduct of an EIA (this determination is one of the aims of conducting an
EIA). Secondly, even highly ‘unlikely’ impacts should be of great concern,
and should therefore be the object of an EIA, if they would be catastrophic
and irreversible in nature. Therefore, the ICJ in Pulp Mills recognized the requirement
of an EIA as applicable whenever ‘there is a risk of’ of a significant
adverse impact, notwithstanding the likelihood of this risk.211
The ILC should reflect the phrasing used by the ICJ rather than the wording of
the Rio
Declaration.
On the other hand, international courts and
tribunals so far have only approached EIA in relation to impacts affecting
specific areas, whether these areas are within a State’s territory212 or
beyond.213 In this context, DG 4’s progressive contribution,
highlighted in its Commentary, lies in its recognition of ‘a similar
requirement for projects that are likely to have significant adverse effects
on the global atmosphere.’214 The Commentary suggests that this
requirement should apply for instance to ‘those activities involving
intentional large-scale modification of the atmosphere,’ a reference to
geoengineering activities.215
However,
neither DG 4, nor its Commentary provide a clear explanation of the legal
basis for this extension of the EIA requirement to a global context. The
Commentary suggests that the requirement applies ‘ a fortiori’ to activities that could
cause atmospheric degradation on the ground that such activities ‘may carry a
more extensive risk of severe damage.’216 However, the validity of
this argument rests on the assumption that EIA is as relevant and effective a
tool in addressing global environmental harm as it is in relation to
transboundary environmental 207 208 209 210 211 212 213 214 215 216
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209 Pulp Mills (n 114) 82-83 [204]. See
also Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along
the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665,
706-707 [104] (‘Certain Activities’); Responsibilities
and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Advisory Opinion) (Seabed Dispute Chamber of the International
Tribunal for the Law of the Sea, Case No 17, 1 February 2011) [147] (‘Activities
in the Area’).
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210 ‘DGs adopted on first reading’ (n 2) DG 4. See also Convention on Environmental Impact Assessment in a
Transboundary Context, opened for signature 25 February 1991, 1989
UNTS 309 (entered into force 10 September 1997) art 2(2) (‘Espoo Convention’).
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215 Ibid.
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216 Ibid.
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harm217 - a
question that the ILC left unaddressed. Instead, the Commentary relies on the
“Kiev"
Protocol on Strategic Environmental Assessment to the Convention on
Environmental Impact Assessment in a Transboundary Context as
an authority which, in the ILC’s view, ‘encourages’ the assessment of
projects likely to cause global atmospheric degradation.218 Poorly
ratified, the Kiev Protocol could only provide limited evidence of a norm of
customary international law.219 It relates to strategic
environmental assessment (SEA), a procedure which, unlike EIA, is not
generally considered as a requirement under customary international law.220
Overall, it is not all that clear that the Kiev Protocol
requires any assessment of global environmental impacts, if only because its
very title refers to a ‘transboundary context.’221 On the other
hand, the Commentary conveniently omits to mention that the Espoo
Convention on Environmental Impact Assessment, the only treaty
that defines a detailed and general requirement for the conduct of an EIA,222
explicitly excludes its applicability to impacts ‘exclusively of a global
nature.’223
While the ILC’s reasoning is unconvincing, its conclusions
may nevertheless be right, and even understated. Most States have treaty
obligations to conduct an EIA for some geoengineering activities likely to
have far-reaching impacts on planetary systems, as such activities would
result in pollution of the marine environment,224 threats to
biological diversity,225 or even possibly impacts on the Antarctic
environment.226 A recent survey of State practice and opinio
juris suggested the existence of at least an emerging customary
norm requiring the conduct of an EIA as a tool for the mitigation of climate
change.227 This obligation is certainly not limited to
geoengineering activities: in many countries, EIAs are conducted when a
project is likely to result in substantial amounts of GHG emissions.228
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217 Some elements of an EIA procedure, such as
notification and consultations, cannot directly be transposed from a
transboundary to a global context.
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218 Ibid.
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219 Kiev Protocol on
Strategic Environmental Assessment in a Transboundary Context, opened
for signature 21 May 2003, 2685 UNTS 140 (entered into force 11 July 2010).
As of June 2019, the Kiev Protocol had been ratified by 33 States, none of
which is among the largest contributors to atmospheric degradation.
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220 While EIA applies to projects, SEA relates to
policies, plans and programmes. See generally Neil Craik, The International Law of Environmental Impact
Assessment: Process, Substance and Integration (Cambridge University
Press, 2010) 155-159.
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221 See discussion in Benoit Mayer,
‘Environmental Assessments in the Context of Climate Change: The Role ofthe
UN Economic Commission for Europe’ (2019) 28(1) Review
of European, Comparative & International Environmental Law 82, 88-90.
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226 Protocol on
Environmental Protection to the Antarctic Treaty, opened for signature
4 October 1991, 30 ILM 1461 (entered into force 14 January 1998) Annex I.
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227 See Benoit Mayer, ‘Climate Assessment as an
Emerging Obligation under Customary International Law’ (2019) 68(2) International & Comparative Law Quarterly
271.
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228 Ibid. See, eg, Parliament and
Council Directive 2014/52, 2014 OJ L124/1, Annex IV [4] (EU); Impact
Assessment Act
(Canada, passed on 21 June 2019) s22(1)(i); Center for
Biological Diversity v National Highway Traffic Safety Administration, 538 F.3d 1172 (9th
Cir 2008); Gray v Minister for Planning and Others [2006] NSWLEC 720
(NSW).
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Likewise, DG 4 and its Commentary provided
few details as to the scope and content of the EIA. The Commentary only noted
that ‘notification and consultations are key’ to EIA,229 while
‘transparency and publication are important.’230 This does not
entirely reflect the decisions of international courts and tribunals. While
the ICJ in Pulp Mills
recognized that customary international law does not ‘specify the scope and
content’ of the EIA, it immediately noted that an EIA must, by nature, ‘be
conducted prior to the implementation of a project’ and that, where
necessary, ‘continuous monitoring of [the] effects [of the project] on the
environment shall be undertaken.’231 Moreover, the ICJ in Certain Activities presented
notification and consultations not just as ‘key,’ but more precisely as legal
requirements ‘where that is necessary to determine the appropriate measures
to prevent or mitigate that risk.’232 These requirements may not
apply in the same way in relation to global environmental harm, where no
specific State can be consulted. Treaty practice relating to EIA conducted in
relation to impacts that could affect areas beyond national jurisdiction
suggests that notification could take place in a multilateral setting233
and could be channelled by international institutions.234 The
arbitral tribunal in South China Sea
insisted that the EIA report should, at the very least, be communicated to
other States.229 230 231 232 233 234 235 236 237 238 239 240 241
4. Sustainable, equitable and reasonable utilization
DG 5 presents the atmosphere as ‘a natural resource with
limited assimilation capacity’236 and calls for its ‘sustainable
utilization,’ highlighting ‘the need to reconcile economic development with
protection of the atmosphere. ’237 The concept of ‘ sustainable
utilization’ is borrowed from the Watercourses Convention238 -
a treaty based on a previous ILC project239 - and from the concept
of ‘sustainable exploitation’ of fisheries.240 However, the
concept appears far less relevant in relation to the protection of the
atmosphere than it is in relation to non-navigational uses of international
watercourses. There is no obvious analytical value added by framing atmospheric
pollution and degradation as ‘utilization’ of the atmosphere rather than
merely as harm (or pollution and degradation). To the contrary, reference to
an ‘assimilation capacity’ implies that the atmosphere can be legitimately
utilized within some sort of safe carrying capacity, whereas climate
scientists are adamant that any amount of atmospheric pollution or
degradation causes adverse effects for societies and ecosystems.241
The concept of ‘sustainable utilization’ serves seemingly no purpose other than
to highlight the need to reconcile economic
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230 Ibid [7].
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237 Ibid DG 5(2).
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239 See ‘Draft articles on the law of the
non-navigational uses of international watercourses and commentaries thereto’
reproduced in Report of the International Law
Commission on the Work of its Forty-Sixth Session, UN Doc A/49/10
(1994) 88-135 [210]-[222].
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241 See, eg, Reto Knutti et al, ‘A Scientific
Critique of the Two-Degree Climate Change Target’ (2015) 9 Nature Geoscience 13, 14.
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development with protection of the
atmosphere without a direct reference to ‘sustainable development,’ a concept
that the Understanding excluded from the scope of the project.242
DG 6 recommends that the atmosphere ‘should
be utilized in an equitable and reasonable manner, taking into account the
interests of present and future generations.’243 Even more than DG
5, it is, as the Commentary acknowledges, ‘formulated at a broad level of
abstraction.’244 The Understanding precluded more thorough
consideration by excluding the CBDRRC principle from the scope of the
project.
B.
The obligation to cooperate
To be effective, a State’s efforts to
protect the atmosphere must often be coordinated with those of other States. Consistently,
DG 8 identifies the other key component of the law on the protection of the
atmosphere: the obligation of States ‘to cooperate, as appropriate, with each
other and with relevant international organizations for the protection of the
atmosphere from atmospheric pollution and atmospheric degradation.’ 245
In support, the Commentary cites cases, 246 declarations247
and treaties relating to particular aspects of the protection of the
atmosphere248 or other shared natural resources.249
This
obligation was generally the object of a broad consensus among ILC Members,
including those least enthusiastic about the project. Early on in the
process, Sean Murphy suggested that the Special Rapporteur could highlight
that ‘States were cooperating in important ways to address issues relating to
atmospheric degradation ... and encourag[e] them to pursue such cooperation.’250
Likewise, Ernest Petrie recognized that ‘the obligation to cooperate was well
established in international law de lege lata.’251 States also
supported the reference to this obligation, which Spain described as
‘obvious.’252 At the Sixth Committee of the UN General Assembly in
its seventieth session, at least 20 States expressed support to the inclusion
of the
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242 See ‘DGs adopted on first reading’ (n 2) Commentary on DG 5
[5], citing Gabcikovo-Nagymaros Project (Hungary
v Slovakia) (Judgment) [1997] ICJ Rep 7, 78
[140].
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244 Ibid, Commentary on DG 6 [1].
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245 Ibid, DG 8(1).
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250 ILC, Provisional
Summary Record of the 3246th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3246 (held 6 May 2015) 7 (Murphy).
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251 ILC, Provisional
Summary Record of the 3247th Meeting, 67th sess,
1st pt, UN Doc A/CN.4/SR.3247 (held 7 May 2015) 11 (Petrie).
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252
GA Sixth Committee, Summary Record of the 24th
Meeting, 69th session, UN Doc A/C.6/69/SR.24 (held 31
October 2014) [24] (Martín y Perez de Nanclares, Spain). See also, eg, GA
Sixth Committee, Summary Record of the 17th
Meeting, 70th session, UN Doc A/C.6/70/SR.17 (held 2
November 2015) [47] (Pang, Singapore), [103] (Galea, Romania).
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principle of cooperation in the DGs (although
they had various views about its content),253 while only one, the
United States, opposed it.254
This relatively broad agreement could only be
reached because the obligation was phrased in a vague and undemanding
language. As noted in the Commentary, ‘“as appropriate” denotes a certain
flexibility for States in carrying out the obligation to cooperate depending
on the nature and subject matter required for cooperation.’255
This lukewarm phrasing contrasts with the far more pressing language found in
relevant authorities. The UNFCCC,
for instance, calls for ‘the widest possible cooperation by all countries and
their participation in an effective and appropriate international response.’256
A provision of UNCLOS on
pollution from and through the atmosphere requires that States ‘endeavour to
establish global and regional rules, standards and recommended practices and
procedures to prevent, reduce and control such pollution,’ in particular by
‘acting through competent international organizations or diplomatic conference.’257
The International Covenant on Economic, Social and
Cultural Rights calls for each State Party to cooperate ‘to the
maximum of its available resources’ towards the full realization of the
rights it recognizes.258 Soft-law documents also highlighted the
duty of States to cooperate in order to promote their common interests.259
In light of these instruments, the language of DG 8 appears particularly
undemanding. It certainly does not reflect the urgency of cooperation against
climate change, which States have repeatedly emphasized.260
The
second paragraph of DG 8 recommends more specifically that States cooperate
in ‘enhancing scientific knowledge’ relating to the protection of the
atmosphere, for instance through ‘exchange of information and joint monitoring.’261
This aspect of cooperation also finds strong support in relevant treaties262
and State practice.263 Yet, its characterization as a
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253 Finland, Singapore, Italy, Slovenia, Romania
and Nicaragua (17th meeting); Israel, Micronesia, Japan, Iran, Sri
Lanka, El Salvador, Sudan, Poland, South Africa, Vietnam and South Korea (18th
meeting); Russia, Malaysia and Algeria (19th meeting). See
generally ILC, Topical summary of the discussion
held in the Sixth Committee of the General Assembly during its Sixty-Eighth
Session, UN Doc A/CN.4/689 (28 January 2016) [12].
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254 GA Sixth Committee, Summary Record of the 19th Meeting, 70th
session, UN Doc A/C.6/70/SR.19 (held 4 November 2015) [19].
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256 UNFCCC (n 4) Preamble [7]. See
also UNFCCC COP Decision 1/CP.1, The Berlin
Mandate, UN Doc FCCC/CP/1995/7/Add.1 (6 June 1995, adopted 7 April
1995) 4, 5 [1(e)]; UNFCCC COP Decision 1/CP.17, Establishment
of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, UN
Doc FCCC/CP/2011/9/Add.1 (15 March 2012, adopted 11 December 2011) 2,
Preamble [2]; UNFCCC COP Decision 2/CP.18, Advancing
the Durban Platform, UN Doc FCCC/CP/2012/8/Add.1 (28 February 2013,
adopted 8 December 2012) 19, Preamble [3].
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259 See, eg, Declaration on
Principles of International Law Friendly Relations and Co-Operation Among
States in Accordance with the Charter of the United Nations, GA Res 2625(XXV),
UN Doc A/RES/2625(XXV) (adopted 24 October 1970).
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260 See, eg, UNFCCC COP Decision 1/CP.21, Adoption of the Paris Agreement, UN Doc
FCCC/CP/2015/10/Add.1 (29 January 2016, adopted 12 December 2015) Preamble
[7].
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263 The Intergovernmental Panel on Climate Change
(IPCC) is a prime example of international cooperation on enhancing and
circulating knowledge about climate change.
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Besides measures to enhance scientific
knowledge, DG 8 gives no further indication as to the content of the
obligation of States to cooperate. This is regrettable given the importance
of the question at a time when some States are reluctant to participate in
multilateral negotiations,267 or, if they participate, are
reluctant to commit to sufficient efforts.268 During the second
reading, the ILC should consider implications of the obligation of States to
cooperate. In particular, a relevant area of inquiry would question the right
of a State not to participate in, or to withdraw from, quasi-universal treaty
regimes aimed at addressing major sources of atmospheric degradation.
Although treaty participation is based on State’s consent,269
there is a strong argument that a State must not - or, at the very least, should not - free-ride on the efforts
made by others to address a common concern.270
Likewise,
the exclusion of the CBDRRC principle from the scope of the project should
not prevent the ILC from discussing benchmarks which could help to assess a
State’s compliance with its obligation to cooperate. For instance, the
obligation to negotiate in good faith and the concept of estoppel suggest
that a State could be held to account once it has communicated to others what
constitutes, in its view, its fair and realistic contribution to global
efforts, even if that State was then to withdraw from relevant treaties.271
Another potential touchstone is the concept of non-discrimination, which
requires a State to give no less attention to environmental impacts taking
place outside of its territory than to those taking place within its
territory.272
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264
See ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) 6 (Hassouna), 11 (Petrie).
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265 See ‘DGs adopted on first reading’ (n 2) Commentary on DG 8
[8]-[ 11], citing Vienna Convention for the
Protection of the Ozone Layer (n 193) art 4(1); UNFCCC
(n 4) art 4(1); Watercourses Convention (n 35) art 9; Convention
on Long-Range Transboundary Air Pollution (n 139) arts 4, 7, 8. See also ‘DGs adopted on
first reading’ (n 2)
Commentary on DG 8 [12], citing the ‘Draft articles on the law of the non-navigational
uses of international watercourses and commentaries thereto’ (n 239) art 8.
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267 The United States is the most obvious
example. See Communication by the United Nations
to the UN Secretary General (n 10).
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270 See Evan J Criddle and Evan Fox-Decent, ‘Mandatory
Multilateralism’ (2019) 113(2) American Journal of
International Law 272; Eric A Posner & David Weisbach, Climate Change Justice (Princeton University
Press, 2010) 178.
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271 See, eg, Future
Generations v Ministry of the Environment
(n 21); Indigenous Environmental Network v US Department of
State, 647 F.Supp.3d 561 (D. Mont. 2018). See generally Mayer,
‘Methodological Review’ (n 19)
section 4.1; Benoit Mayer, ‘International Law Obligations Arising in relation
to Nationally Determined Contributions’ (2018) 7(2) Transnational Environmental Law 251, 265.
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272 See, eg, Convention
on Third Party Liability in the Field of Nuclear Energy, opened for signature
29 July 1960, 1041 UNTS 358 (entered into force 1 April 1968) art 14; Watercourses Convention (n 35) art 32; OECD Council, Recommendation on Principles Concerning Transfrontier
Pollution, C(74)224 (14 November 1974) Annex on ‘Some Principles
Concerning Transfrontier Pollution’ [5]; Convention
on the Protection of the Environment, opened for signature 19 February
1974, 1092 UNTS
28
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Accordingly, a State’s efforts to mitigate
local air pollution, for instance, could provide an indication of the level
of efforts that it could be expected to invest in preventing transboundary
atmospheric pollution and global atmospheric degradation.
On the other hand, the ILC should better
define the limits of the obligation to cooperate. The Commentary of DG 8
refers to the Preamble to the UNFCCC which ‘reaffirm[s] the principle of
sovereignty of States in international cooperation to address climate
change.’273 The most likely way to reconcile the obligation to
cooperate with the principle of State sovereignty is based on the
understanding that, while cooperation is indispensable in addressing
transboundary or global environmental problems, it must be promoted in ways
that do not unnecessarily restrict States’ sovereignty, for instance in
determining means of implementation.
C.
The regulation of geoengineering
The ILC’s project deals separately with
‘activities aimed at intentional large-scale modification of the atmosphere,’
274 more commonly referred to as geoengineering activities.275
These include activities of different natures, which raise distinct legal
questions. At the more benign end of the spectrum, Negative Emissions
Technologies (‘NETs’) seek to remove carbon dioxide from the atmosphere in
order to mitigate climate change. NETs include afforestation as well as
techniques to capture carbon dioxide and store it underground. At the other
end of the spectrum lie far more dangerous techniques that seek to ‘manage’
the Earth’s intake of solar radiation, for instance through the injection of
particles in the stratosphere or by placing large shades in space, in order
to limit global warming. Solar Radiation Management (SRM) could regulate the
Earth’s average temperature, but it would
likely cause catastrophic global side- effects, for instance by upsetting
regional and seasonal climate systems.276
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279
(entered into force 5 October 1976) art 3;
‘Draft articles on Prevention of Transboundary Harm from Hazardous Activities’
in Report of the International Law Commission on
the Work of its Fifty- Third Session, UN Doc A/56/10 (2001) 144-170
[78]-[98], 148, art 15. See generally Alan Boyle, ‘Human Right and the
Environment: Where Next?’ (2012) 23(3) European
Journal of International Law 613, 635; Eyal Benvenisti, ‘Sovereigns as
Trustees of Humanity: On the Accountability of States to Foreign
Stakeholders’ (2013) 107(2) American Journal of
International Law 295, 310; Mayer, ‘Methodological Review’ (n 19) section 4.3.
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275 See ibid, Commentary on DG 7 [2].
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276 See, eg, Naomi E Vaughan, ‘A Review of
Climate Geoengineering Proposals’ (2011) 109(3-4) Climatic
Change 745. See also ‘DGs adopted on first reading’ (n 2) Commentary on DG 7
[4].
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278 See Southern
Bluefm Tuna (New Zealand v Japan; Australia
v Japan) (Order on Provisional Measures of
27 August 1999) [1999] ITLOS Rep 280, 296 [77]; MOX
Plant (Ireland v United Kingdom) (Order
on Provisional Measures of 3 December 2001) [2001] ITLOS Rep 95, 110 [84]; Land Reclamation in and around the Straits of Johor
(Malaysia v Singapore), (Order on
Provisional Measures of 8 October 2003) [2003] ITLOS Rep 10, 26 [99].
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international large-scale
modification of the atmosphere appears to have been yet another an
attempt of the Special Rapporteur to go around the terms of the
Understanding, which exclude discussions of the ‘precautionary principle.’ If
so, however, it is unclear why the DG recommend ‘prudence and caution’ only
in relation to intentional large-scale modification of the atmosphere, rather
than in relation to any activity that has the potential to impact the atmosphere.
Further analysis in the Commentary of DG 7
is hindered by the great diversity of the activities that it seeks to
address. In particular, the Commentary suggests that these activities have ‘a
significant potential for preventing, diverting, moderating or ameliorating’
the impacts of atmospheric degradation,280 but there is no
scientific consensus that SRM has such potential or that the potential of
NETs is ‘significant,’ given land-use and freshwater constraints.281 Likewise,
the Commentary suggests that these techniques ‘may have long-range and
unexpected effects on existing climatic patterns that are not confined by
national boundaries,’282 which is far more likely concerning SRM
than concerning afforestation. Putting all these activities in the same
basket and suggesting that they require similar levels of ‘prudence and
caution’ contributes to delegitimizing well-accepted efforts to promote
afforestation283 while also seemingly legitimizing more drastic
activities.284
Beyond
this evasive call for ‘prudence and caution,’ the ILC could conduct a more
systematic analysis of the obligations of States applicable to such
activities, including their obligation to protect the atmosphere and to
cooperate for the protection of the atmosphere.285 One hypothesis
worth considering is that the unilateral implementation of SRM activities may
be entirely prohibited under general international law, given the
consequences it would inevitably have on other States. While the Commentary
recognizes the existence of related ‘activities that are prohibited by
international law,’ 286 it only mentions ‘military activities’
banned under the Convention on the Prohibition
of Military or any Hostile Use of Environmental Modification Techniques
and the First Additional Protocol to the Geneva Conventions of 1949.287
It thus ignores a number of more recent developments which suggest a
prohibition of certain activities aimed at intentional large-scale
modification of the atmosphere. For instance, the Parties to the CBD decided to place a moratorium on
‘climate-related geo-engineering activities ... that may affect biodiversity
... until there is an adequate scientific basis on which to justify such
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281 See, eg, David P Keller, Ellias Y Feng and
Andreas Oschlies, ‘Potential Climate Engineering Effectiveness and Side
Effects During a high Carbon Dioxide-Emission Scenario’ (2014) 5 Nature Communications 3304:1-11.
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284 ILC, Provisional
Summary Record of the 3315th Meeting, 68th sess,
1st pt, UN Doc A/CN.4/SR.3315 (held 5 July 2016) 13 (Forteau).
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285 The Commentary only notes the applicability
of the obligation to conduct an EIA. See ‘DGs adopted on first reading’ (n 2) Commentary on DG 7
[4]; Commentary on DG 4 [6].
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287 Ibid, citing Convention on the
prohibition of military or any other hostile use of environmental
modification techniques, opened for signature 10 December 1976, 1108 UNTS
151 (entered into force 5 October 1978) art 1; Protocol Additional
to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3
(entered into force 7 December 1979) arts 35(3), 55.
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activities.’288 States have also
endorsed the prohibition289 of techniques aimed at ‘fertilizing’
the oceans in order to exploit their capacity to remove carbon dioxide from
the atmosphere, or otherwise called for ‘utmost caution,’290 due
to concerns for impacts of such techniques on the marine environment. On the
other hand, the Commentary also ignores developments through which States
have endorsed particular techniques, for instance the decision of the Parties
to the Kyoto Protocol to recognize mitigation outcomes from carbon capture
and storage projects.291
D.
Consequences of non-compliance
The DGs discuss non-specific issues of
implementation, compliance and dispute settlement, but ignore the unique
questions that the protection of the atmosphere raise in relation to the law
of State responsibility and, in particular, the right of a State to claim the
performance of an obligation.
1. Non-specific observations on implementation, compliance
and dispute settlement
Three
DGs address questions of implementation,292 compliance293
and dispute settlement.294 As these three themes are not specific
to the protection of the environment, it is perhaps unsurprising that these
DGs do little more than restating the obvious. Thus, DG 10 acknowledges that
national implementation of international law obligations ‘may take the form
of legislative, administrative, judicial and other actions.’295
Likewise, DG 11 notes that ‘States are required to abide with their
obligations ... in good faith’296 and recognizes that, ‘ [t]o
achieve compliance, facilitative and enforcement procedures may be used ...
in accordance with the relevant agreements.’297 Lastly, DG 12
observes that disputes ‘are to be settled by peaceful
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288 CBD COP Decision X/33, Biodiversity and climate change, UN Doc
UNEP/CBD/COP/DEC/X/33 (29 October 2010, adopted 18-29 October 2010) [8(w)].
See generally Benoit Mayer, The International Law
on Climate Change (Cambridge University Press, 2018) 155-159.
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289 Resolution LP.4(8) adopted by the Parties to
the London Protocol of1996 to the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
of1972 regarding the adoption of an amendment to regulate the placement
of matter for ocean fertilization and other marine geoengineering activities,
UN Doc LC 35/15 (21 October 2013, adopted 18 October 2013) Annex 4, page 3.
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290 The Future We
Want, GA Res 66/288, UN Doc A/RES/66/288 (11 September 2012, adopted
27 July 2012) [167].
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291 UNFCCC COP Decision 7/CMP.6, Carbon dioxide capture and storage in geological
formation as clean development mechanism project activities, UN Doc
FCCC/KP/CMP/2011/10/Add.2 (15 March 2012, adopted 9 December 2011) [1];
UNFCCC COP Decision 10/CMP.7, Modalities and
procedures for carbon dioxide capture and storage in geological formations as
Clean Development Mechanism project activities, UN Doc
FCCC/KP/CMP/2011/10/Add.2 (15 March 2012, adopted 9 December 2011). See
generally Meinhard Doelle and Emily Lukawesi, ‘Carbon capture and storage in
the CDM: Finding its place among climate mitigation options?’ (2012) 3(1) Climate Law 49.
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293 Ibid DG 11
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294 Ibid DG 12.
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295 Ibid DG 10(1).
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296 Ibid DG 11(1).
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297 Ibid DG 11(2). This DG suggest a dichotomy
between ‘facilitative procedures’ and ‘enforcement procedures,’ but treaty
practice is arguably more complex. See, eg, Alexander Zahar, ‘A Bottom-Up
Compliance Mechanism for the Paris Agreement’ (2017) 1(1) Chinese Journal of Environmental Law 69.
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means,’ 298 highlighting the need
to give ‘due consideration ... to the use of technical and scientific
experts’ when such disputes are ‘fact-intensive and science-dependent.’299
It is unclear how the ILC could usefully
contribute to the codification or the progressive development of
international law regarding these three themes in a project on the protection
of the atmosphere. Institutions and processes to promote compliance are
treaty-specific: they do not constitute norms of general international law.
On the other hand, the topic of the protection of the atmosphere does not
seem to raise any clearly distinct legal issue related to implementation or
dispute settlement.
2. Unique aspects of the law of State responsibility
By contrast, the DGs include no mention the
responsibility of States for internationally wrongful acts. Unlike other
omissions, this is not due to the Understanding,300 but rather to
priorities decided by the Special Rapporteur. In the syllabus of the topic,
Murase had identified responsibility as ‘critical’ in the original syllabus
of the topic301 and some States had expressed interest in the
question.302 Yet, whereas Murase’s Fifth Report devotes twelve
paragraphs to compliance and 60 to dispute settlement, it only had three
paragraphs on State responsibility.303 This Report suggested that
the priority should be ‘to establish a cooperative framework for atmospheric
protection, instead of seeking to mould “shame and blame” matrices under a
regime of State responsibility in international law.’304 A mention
of State responsibility in a DG on implementation which Murase had introduced
in his Fifth Report was removed during the deliberations of the ILC.305
Murase’s
Fifth Report notes that ‘it is difficult, if not impossible, to identify, in
the context of global atmospheric degradation, such as climate change, which
States are responsible for the causes of the alleged damage.’306
This remark does not apply to atmospheric pollution, where responsibility is
more straightforward.307 In relation to global environmental
impacts, it would have been desirable for the ILC to take stock at least of
those rules which it has identified in its prior work on State
responsibility, in particular in relation to the plurality of responsible
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299 Ibid DG 12(2).
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300 The Understanding excluded State liability
and the CBDRRC principle, but not State responsibility.
See Report
of the International Law Commission at its sixty-fifth session, UN Doc A/68/10
(2013) 115 [168].
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302 See, eg, GA Sixth Committee, Summary Record of the 20th Meeting, 69th
session, UN Doc A/C.6/69/SR.20 (held 28 October 2014) [7] (Tupouniua, Tonga);
GA Sixth Committee, Summary Record of the 22th
Meeting, 69th session, UN Doc A/C.6/69/SR.22 (held 29
October 2014) [20] (Tichy, Austria).
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304 Ibid 10 [18].
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307 See, by analogy, Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
(Judgment on Compensation) (International Court of Justice, General List No
150, 2 February 2018).
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States,308 the plurality of
injured States,309 and the invocation of responsibility by a State
other than an injured State.310 The ILC could further have
discussed how the unique difficulties of implementing the law of State
responsibility in relation to situations as complex as climate change could
be approached.311 This could have been an opportunity for the ILC
to address inconsistencies in its treatment of the obligation to prevent
environmental harm both as a primary obligation whose breach leads to an
obligation to make reparation under the law of State responsibility, and as a
question of liability for injurious consequences arising out of acts not
prohibited by international law.312
Murase’s
Fifth Report further states that, in relation to a breach of the due
diligence obligation of States to protect the atmosphere, ‘[t]he question of
responsibility could not arise in the absence of proven damage or risk.’313
The only authority cited in support of this proposition is a description of
an argument submitted by France in the 1995 Nuclear
Tests case.314 This proposition finds no support
under the law of State responsibility: the existence of an injury is not
generally considered as a condition for a State’s responsibility.315
One could think that the occurrence of a ‘harm’ is essential to constitute
the breach of the principle of prevention (sometimes referred to as the
‘no-harm principle’), but this reasoning is inconsistent with the ILC’s own
characterisation of the obligation to protect the atmosphere as an obligation
of conduct (due diligence obligation) rather than an obligation of result.316
A State would breach its obligation of conduct by failing to take requisite
action even if, by luck or due to intervening factors (eg voluntary action by non-State
actors),317 no harm unfolds. This analysis is supported
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309 Ibid art 46.
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310 Ibid art 48.
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311 See, eg, Roda Verheyen, Climate Change Damage and International Law: Prevention
Duties and State Responsibility (Martinus Nijhoff, 2005); Christina
Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77(2) Nordic Journal of International Law 1; Benoit
Mayer, ‘State Responsibility and Climate Change Governance: A Light through
the Storm’ (2014) 13(3) Chinese Journal of
International Law 539; Florentina Simlinger and Benoit Mayer, ‘Legal
Responses to Climate Change Induced Loss and Damage’ in Reinhard Mechler et
al (eds), Loss and Damage from Climate Change:
Concepts, Methods and Policy Options (Springer, 2019) 179.
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312 For instance, the ILC has construed the case
of Trail Smelter (n 114) as both a matter of State
responsibility and State liability. See DARSIWA (n 32) Commentary on Art 14 [14], Commentary on
Art 30 [13], Commentary on Art 31 [10] (fn 460), Commentary on Art 36 [15]
(fn 539); ‘Draft principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, with commentaries’ (n 39) Commentary on
Principle 2 [1], Commentary on Principle 3 [3], Commentary on Principle 4
[6]-[7].
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314 See ibid, fn 46, citing Phoebe Okowa,
‘Responsibility for environmental damage’ in Malgosia Fitzmaurice et al
(eds), Research Handbook on International
Environmental Law (Edward Elgar 2010), 303, 312, who describes
France’s argument without expressing support to it. See discussion in ILC, Provisional Summary Record of the 3410th
Meeting, 70th sess, 1st pt, UN Doc
A/CN.4/SR.3410 (held 23 May 2018) 6 (Aurescu).
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315 DARSIWA (n 32) art 1. By contrast, the existence of an
injury is a condition for the obligation to make reparation under ibid. art
31.
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317 The situation of the United States under the
Trump administration with regard to the Paris Agreement may be a point in
line. While the Federal government has rolled back all efforts to comply with
its obligations under its NDC (even before its withdrawal from the treaty is
effective), non-State actors and subnational authorities decided to make
their best efforts to ensure compliance. As the voluntary contribution of
non-State actors is extraneous to the State, it does not bring the State to
compliance with its obligation of conduct. The contribution of State and
local governments, which is not endorsed by
33
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by the ICJ in Certain
Activities, which found Costa Rica in breach of its obligation
to conduct an EIA, presented as an element of its due diligence obligation,
even though the project had not resulted in any significant transboundary
environmental impact.318 Thus, questions of responsibility could
arise when a State fails to take appropriate measures to protect the
atmosphere, even if this does not result in any significant impact.
3.
The right of a State to claim the _ performance of an
obligation
A related question is about the right of
States to claim the performance of an obligation. Introducing the concept of
‘common concern of humankind,’ Murase’s First Report noted that it would
‘certainly lead to the creation of substantive legal obligations on the part
of all States to protect the global atmosphere as enforceable erga omnes.’319 Murase cited
the 1970 judgment of the ICJ in Barcelona
Traction, which distinguishes between ‘the obligations of a
State towards the international community as a whole’ (erga omnes) and those obligations that
a State incurs ‘vis-à-vis another State.’320 The
ICJ observed that obligations erga
omnes could relate for example to the prohibition of aggression
and genocide and the protection of fundamental rights.321 The
consequence of this distinction is that, while only the State concerned by
invoke the performance of an obligation owed to it, any State has an interest
in the performance of an obligation erga
omnes322 Consistently, the ILC recognized in its
Draft Articles on State Responsibility that a State other than an injured
State could invoke the responsibility of another State in relation to an erga omnes obligation.323
Against
Murase’s suggestion, several ILC Members contended that there was no legal
basis for the recognition of an obligation erga
omnes in relation to the protection of the atmosphere,
highlighting the absence of any judicial precedent.324 This
suggested (once again) an extraordinarily conservative approach to the
function of the ILC as simply recording rules that had been identified by
international courts and tribunals.325 Other ILC Members suggested
that the protection of the atmosphere was not comparable to the cases in
which obligations erga 318 319 320 321 322
323 324 325
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the
Federal government, should likewise be considered as extraneous or, in any
case, unable to constitute a requisite level of effort.
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318 Certain Activities
(n 209) 723 [162], 737
[217]. See also (relating to a different obligation of conduct) Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights (Advisory Opinion)
[1999] ICJ Rep 62, 86 [58]. See discussion in Mayer, ‘Obligations of Conduct’
(n 200) 137-138.
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319 Murase, First
Report on the Protection of the Atmosphere (n 48) 57 [89]. Confusingly, the following
sentence suggests that this may not create a legal interest of all states in
the enforcement of the legal obligation, even though this is precisely the
legal consequence of characterizing an obligation as ‘erga omnes.’
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320 Ibid (fn 198), citing Barcelona
Traction, Light and Power Company, Limited (Belgium v Spain)
(Second Phase)
[1970] ICJ Rep 3, 32 [33] (‘Barcelona Traction’).
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321 Ibid [34].
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322 Ibid [33].
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324
See, eg, ILC, Provisional Summary Record of the
3247th Meeting, 67th sess, 1st pt, UN
Doc A/CN.4/SR.3247 (held 7 May 2015) 7 (Kittichaisaree); ILC, Provisional Summary Record of the 3213th Meeting,
66th sess, 1st pt, UN Doc A/CN.4/SR.3213 (held 30 May
2014) 13 (Hernandez); ILC, Provisional Summary
Record of the 3247th Meeting, 67th sess, 1st
pt, UN Doc A/CN.4/SR.3247 (held 7 May 2015) 10 (Hmoud); ILC, Provisional Summary Record of the 3246th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3246 (held 6 May 2015) 5 (Murphy), 9 (Nolte).
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omnes
had been identified,326 but the distinction they hinted at is all
but clear. As environmental harms hinder the enjoyment of fundamental rights
(including the right to life), the international community interest in
protecting the latter extends arguably to the prevention of the former. A
2005 resolution of the Institut de Droit International recognized ‘a
wide consensus ... to the effect that ... obligations relating to the
environment of common spaces’ as examples of obligations erga omnes321 Nevertheless,
the ILC’s Commentary reflected a lack of agreement among ILC members as to a
characterization of States’ obligations relating to the protection of the
atmosphere as an obligation erga
omnes.328
This aspect of the DGs fails to acknowledge
the current state of international law. Since Barcelona Traction, the ICJ recognized
as erga
omnes the obligations contained in the Genocide Convention,329
the obligation to respect right of peoples to self-determination330
and international humanitarian law obligations,331 while also
recognizing obligations under the Convention against Torture as erga omnepartes (owed to every Party to
the treaty).332 Overall, the 2011 Advisory Opinion of the Seabed
Dispute Chamber of the International Tribunal for the Law of the Sea on Activities in the Area interpreted
provisions of UNCLOS on the protection and preservation of the marine
environment as entailing obligations erga omnes.333 As such, when
the ILC initiated its project on the protection of the atmosphere, no doubt
should have remained about the existence of obligations erga omnes in relation to environmental
protection. Unfortunately, this Advisory Opinion was not mentioned in the
ILC’s deliberations until Murase’s Third Report, in 2015, after an Iranian
representative had brought it to the Special Rapporteur’s attention.334
By that time, the concept of obligation erga omnes (and that of common concern
of humankind) had already been excluded from the text of the DGs.335
Having
recognized the existence of an obligation of States to prevent global
environmental harm, the ILC failed to draw the obvious conclusion: this
obligation is not incurred vis-à-vis another State
(the avoidance of global environmental harm does not benefit to any
individual State in particular), but inevitably towards the international
community as a whole.336 Prevention of global environmental harm
is certainly, as the ICJ in Barcelona
Traction put it, ‘the concern of all States.’331
Likewise, prevention of atmospheric pollution affecting areas 326 327
328 329 330 331 332 333 334 335 336 337
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326
See ILC, Provisional Summary Record of the 3211th
Meeting, 66th sess, 1st pt, UN Doc
A/CN.4/SR.3211 (held 27 May 2014) 4 (Murphy), 10 (Forteau).
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327 Institut de Droit International, Resolution, Obligations Erga Omnes in International Law (27 August 2005) Preamble
[3].
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329 See Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595,
615 [31].
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330 See East Timor (Portugal v Australia) (Judgment) [1995]
ICJ Rep 90, 102 [29]; Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136,
199 [156] (‘Construction of a Wall’); Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory
Opinion)
(International Court of Justice, General List No 169, 25 February 2019)
[180].
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332 Questions relating to the
Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422,
449-450 [68]-[59].
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337 Barcelona Traction
(n 330) 32 [33]. See also
ILC, Provisional Summary Record of the 3247th
Meeting, 67th sess, 1st pt, UN Doc
A/CN.4/SR.3247 (held 7 May 2015) 13 (Peter)
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beyond national jurisdiction is an
obligation erga omnes.338
By contrast, the obligation of a State to prevent atmospheric pollution that
would be confined to the territory of another State could be interpreted as
an obligation incurred vis-à-vis the State affected, unless the
environmental harm in question is such as to, for instance, significantly
affect the fundamental rights of the population or the right of the State
affected to self-determination, whose protection is arguably an obligation erga omnes.
The topic of the protection of the
atmosphere present important challenges for the ILC. Inasmuch as it concerns
global environmental harm, it is a complex topic, largely unexplored in
judicial decisions and academic research. To conduct an authoritative
analysis of this topic, the ILC should seek to interpret the law as a
consistent normative system, independently from any political debates and
blind to any national interests. Thorough research and careful analysis are
needed.
The outcomes of the project so far have been
rather disappointing. The DGs adopted on first reading are at time an evasive
summary of the law, for instance regarding the obligation of States ‘to
cooperate, as appropriate,’339 and to exercise ‘prudence and
caution’ with regard to geoengineering.340 At other times, ILC
Members displayed an extraordinary reluctance to recognize what States and
courts had largely agreed upon, such as the description of atmospheric
degradation as a common concern of humankind and the characterisation of the
obligation to protect areas beyond national jurisdiction from environmental
harm as an obligation erga omnes.
At yet other times, the ILC threaded into the political arena by deciding to
turn a blind eye to legal arguments on the ground of their expected political
consequences.341 All in all, the DGs unfortunately do not, at the
moment, contribute to the ‘progressive development of international law.’342
The
topic remains nevertheless more relevant than ever. As climate cases are
filed throughout the world, guidance is urgently needed as to the applicable
rules of general international law. The ILC has a contribution to make, based
on its expertise and its independence, in developing a rigorous and
authoritative interpretation of the obligations of States under general
international law in relation, in particular, to the major civilizational
crisis that climate change represents. The project’s second reading should be
an opportunity for technical deliberations, conducted without consideration
of political interests, whose focus would not be on compliance with a
restrictive ‘Understanding’ about the scope of the project, but solely on the
rigour of the analysis of the topic.
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340 Ibid DG 7.
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342 Statute of the ILC, art 1(1).
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