Project analysis of the guidelines on the protection of the atmosphere
Project analysis of the guidelines on the protection of the atmosphere
It was at its sixty-third session (2011) that the Commission decided to
include in its long-term program of work "Protection of the
Atmosphere" by annexing to its annual report the study plan for the
subject, already very instructive, written by Mr. Shinya Murase who will become
the first Special Rapporteur for this topic. The Commission acknowledges on
this occasion that this subject corresponds to "areas in which the Commission
has not yet sufficiently taken an interest".
In his first plan of study, Mr. Murase is even more severe, saying
that "the Commission has not dealt with any subject in this area of
environmental protection since the conclusion of the topic on international responsibility",
which seems to be a serious omission at a time when the world is undergoing a
critical degradation of the environment ". This work has a double
justification, scientific and legal, which could be summarized as follows:
given the need to adopt a "global" or global approach for the
protection of the environment, particularly in the case of the atmosphere, it
is necessary to synthesize existing unilateral, conventional and customary
instruments to propose a unified regime for the protection of the environment.
The urgency of this work is also based on the scientific consideration of
imminent threats to the environment. Such justifications are advanced as soon
as the first study plans are submitted in 2011, and are also included in the
comments on the draft guidelines and principles provisionally adopted on the
subject.
The Draft Guidelines on the Protection of the Atmosphere
After the Commission decided to include the subject of environmental protection in its long-term program of work in 2011, by communicating to States the first study plan developed by Mr. Murase, many States, notably the most polluting, will express virulent criticism of this decision, expressing their vehemence their fear of the development of a binding instrument by its form, or as a basis for the development of an instrument restrictive. If the Commission, aware of the importance of work in this area, finally decided to include the subject in its work program in 2013, the necessary consideration of the political oppositions expressed by the States, "creators and recipients of the rules thus produced "will lead to a fatal compromise as to the form and substance of the proposed Project.
A virulent state opposition, impassable obstacle? As soon as the subject is included in the Commission's long-term program of work in 2011, this decision is criticized by the States, particularly the most polluting, worried about the emergence of a binding instrument on the subject, and who - with great success - their strongest reluctance to work on the protection of the atmosphere.
Thus, in 2012, at the next session, China stated during the debates in the Sixth Committee that "the subject does not lend itself to codification or progressive development. Even if the International Law Commission succeeded in producing a set of draft articles, it is unlikely to have any directive value or practical utility for the international community. "
The atmosphere is useless because many long-standing instruments already provide sufficient general guidance to States. "At this session, Russia stands out particularly in the concert of criticisms expressed by the states, in that it attacks the methodology proposed by Mr. Murase in his first study plan by an argument that is difficult to refute. Thus, the Russian delegation believes that universal instruments such as the Rio Declaration of 1992 exist and set out "general non-legally binding principles". Therefore, "The non-binding nature of these principles provides some flexibility in this sensitive area and does not exclude future development. Making these principles legally binding would automatically limit future progress in international law in this area and complicate the search for consensus among States. The proposed approach of extracting certain general principles applicable to existing treaties is unrealistic. Each treaty reflects both the legal position of States and the fragile consensus reached in each case that would not have been acceptable in another case.
The subject lends itself more to a scientific study than to a legal analysis by the CDI"
The Draft Guidelines on the Protection of the Atmosphere As previously discussed, the work of the Commission on the Protection of the Atmosphere was strongly opposed by States, expressed in the Sixth Committee of the General Assembly as soon as the subject is included in the long-term work program in 2011.
This political problem necessarily entails a limited normative ambition on the part of the Commission in this area, the effects of which are manifested essentially in three ways in the choice of normative language decided in substance by the Commission. The first is the limits of the Commission's difficult exercise of "contortions" in its search for consensualism, which is particularly illustrated in the drafting of the provisionally adopted preamble. Above all, the conclusion of a depreciation of the normative statement of these new projects of "soft codification" must be made, and is illustrated by both an extremely limited obligatoriété and the choice of verbal forms, which ultimately reduce the elaborate project to an essentially incentive group.
Preamble of the project, illustration of the limits of the search for consensualism necessary for the codification operation
The drafting of the preamble alone reflects the Commission's difficult exercise in its search for consensualism, and the resulting contradictions, this further limits the possible scope of the work carried out, which it is doubtful that they could have in the current state of their drafting a real scope, even incentive. Paragraph 8 of the Preamble reflects these difficulties most acutely, in that it seeks to recall the conditions on which the subject was placed on the Commission's work program in 2013, and which was then agreed upon. That the wording and the place in the preamble would later be revised. Thus, while the preceding preambular paragraph states "that it is necessary to take fully into account the fact that it is in the interest of the generations to preserve the quality of the atmosphere for a long time", and that the second paragraph of the commentary of the draft guidelines states that the purpose of these guidelines is "to answer critical questions relating to the transboundary and global protection of the atmosphere", the eighth preambular paragraph states that "the present draft guidelines should not encroach on political negotiations, nor does it seek to "fill" the gaps in current treaty regimes or to supplement them with new rules or new legal principles ".
Similarly, in the fourth preambular paragraph, while some States proposed to establish that the atmosphere is part of the "common heritage of humanity", or at least that pollution and atmospheric degradation are a "concern". Commonwealth of Humanity, the Commission prefers the purely factual notion of" pressing concern by all the international community, "without normative scope.
The limited necessity of the elaborated project
A second consequence, undoubtedly the most remarkable, is an extremely limited obligation. Of the twelve "directives" currently included in the draft directives on the protection of the atmosphere, only three really and unambiguously express an obligation: for example, "States have an obligation" to protect the atmosphere (Directive 3), to carry out an environmental impact assessment of activities (Directive 4), and to cooperate to protect the atmosphere against pollution (Directive 8). On these rare obligations expressed in unequivocal terms, it appears that the members of the Commission are extremely divided as to the wording to be adopted and the scope to be given to the directives laid down.
Thus, the obligation to protect the atmosphere, laid down by Directive 3, constitutes the "heart of the present draft directives", the commentary of which illustrates both the difficulty of taking into account criticisms expressed by States, and insoluble disagreements among Commission members, which limit a priori the scope of the standard developed.
On several occasions, the commentary to this draft guideline 3 mentions that "opinions diverge" or that "the members were not all of the same opinion". Thus, the members of the Commission refuse to express themselves on the question of whether the obligation posed constitutes an erga omnes obligation or not, justifying it simply by the fact that "the legal consequences of such recognition are not ". Not yet very clear "» and recognize that the basis of the obligation "remains uncertain with respect to atmospheric degradation", so that the regime and the consequences of the obligation cannot be established.
A "codification" with an almost exclusively incentive purpose Beyond this limited obligatory, one observes moreover a generalized use of the conditional form - "the states should" - which is recourse for half of the twelve directives elaborated, which This is explained in particular by the strong and repeated criticisms of States in the Sixth Committee, which, although not unanimous, emanate from States with significant diplomatic power such as the United States or France. The cautious stance adopted by the Commission in response to these criticisms led it to develop simple "legally empty declarations of intent". The Commission also recognizes in the commentary to these draft guidelines that it intends to formulate them in general terms, in order to avoid any controversy and to ensure the future consideration and acceptance of this work by the Member States. .
About the content of the draft guidelines
Obligation on States to protect the atmosphere
Obligation to prevent transboundary air pollution "States have an obligation to protect the atmosphere", which is modeled on Article 192 of the United Nations Convention on the Law of the Sea, which states that States have an obligation to protect and preserve the marine environment. The text of the draft directive to which some members of the Commission have subscribed has been criticized by others as being "too unlimited and general". In response to this criticism, the Committee proposed to distinguish between two dimensions of the protection of the atmosphere,
one for transboundary air pollution and the other for global atmospheric degradation, in accordance with the definitions resulting from paragraphs 2 and 3 of draft guideline 1 provisionally adopted by the Commission.
The maxim sic utere tuo ut alienum non laedas (uses your own property in such a way as not to be prejudicial to the good of others) has imposed itself in relations between States as a principle that the sovereign right which belongs to any State to use its territory is circumscribed by its obligation not to cause damage to the territory or territory of any other State. This maxim is at the origin of the so-called "no harm rule", a prohibition against causing transboundary harm as a result of atmospheric pollution, particularly following the famous case of the Trail Foundry (1938-41). , on the occasion of which the arbitral tribunal will confirm the existence of this rule in international law, in the following terms: "according to the principles of international law no State has the right to use or allow to use its territory of such so that it is the source of smoke causing in the territory or the territory of another State or the property or persons who are there significant damage established in a clear and convincing
The Prevention: As a corollary to the sic utere tuo principle, the principle of prevention (the obligation of States to take preventive measures) is recognized as a rule of customary international law on transboundary air pollution. This principle is articulated in two distinct obligations: the first being the obligation to "prevent" any pollution or degradation, and the second to "eliminate" and "mitigate" the damage caused in case of pollution or degradation and to "compensate" the victims. For example, the statement "Duty not to cause significant harm"
Due diligence required: The principle of prevention in environmental law is based on the notion of due diligence. Significant adverse effects on the atmosphere have, to a large extent, originated from the activities of private individuals and businesses, which are not normally attributable to the state. In this regard, due diligence requires the State to ensure that such activities conducted within its jurisdiction or control do not result in such effects. This is not to say; however, that due diligence only applies to private activities, as State activities are also subject to this principle.
The required diligence is the obligation of any State under the control of which particular activities are carried out to bring all its activity to its prevention mission, within the limits of its means, so that, even if there were significant adverse effects that could not be automatically blamed for failing to fulfill the obligation of care.
Knowledge or predictability: The State cannot be deemed to have failed in the duty of due diligence unless it knew or ought to have known that the activities in question would cause significant damage to other States. As the International Court of Justice pointed out in the Corfu Channel case, every State has an obligation not to knowingly use its territory for acts contrary to the rights of other States. By using the adverb "knowingly", in this case, the Court sought to specify an essential subjective condition of due diligence. Later comparing the condition of knowledge with the notion of control, she will say the following: "It is true, as international practice shows, that a State, in whose territory an act contrary to international law, may be invited to explain it. But it cannot be inferred from the mere control exercised by a State on its land territory or territorial waters that that State necessarily knew or had known of any international wrongful act committed therein.
The degree of vigilance: Since the duty of care requires the State to "act" in a manner that does not cause significant transboundary harm, it is necessary to specify the degree of vigilance required of the State, that is to say, the criterion according to which the behavior of the State must be appraised in this or that given situation with regard to the obligation of diligence to him. If the condition of knowledge is a subjective element of due diligence, the degree of vigilance is an objective element, these conditions being cumulative.
The duty to carry out environmental impact studies: In protecting the atmosphere by preventing air pollution and minimizing the risk of atmospheric degradation, all States are required, among other important obligations, to conduct environmental impact study/assessment of any activity envisaged. The International Court of Justice stated in the recent Costa Rica Road Construction case along the San Juan River that "as a result of its obligation to exercise due diligence In order to prevent significant transboundary harm, a State must verify whether there is a significant risk of transboundary harm before undertaking an activity that may have an adverse environmental impact on another State.
If this is the case, it must carry out an environmental impact assessment. "The Court will conclude that the State in question had "failed to fulfill its obligation under general international law to carry out an environmental impact assessment before undertaking the construction of the road ". It should be noted that the existence of a study / assessment of the environmental impact is an important, even decisive, factor in assessing whether the State in question is exercising due diligence in the general international law of the country concerned the environment.
Obligations of sustainable and equitable use of the atmosphere
Sustainable use of the atmosphere
The notion of sustainability in international law: For a long time it was considered that the atmosphere was inexhaustible and non-exclusive, each one being able to enjoy it without depriving others of it.
The bottom line is that the atmosphere is an exhaustible resource with limited assimilative capacity. Even if we can exploit the atmosphere in the classic sense of the term (as we would exploit minerals, oil and gas), in reality, any polluter exploits the atmosphere by reducing the quality and the ability to absorb pollutants, hence the need for conservation to allow organisms to breathe and enjoy stable climatic conditions. As the atmosphere is a limited natural resource, its sustainable use must be provided. International law does not always clearly define the normative character of sustainable development; this is the easier thing to say than to do. Although widely accepted in theory, it seems that the notion of sustainable development does not give rise to any divergence of views as to its application in practice.
Equitable use of the atmosphere: States should use the atmosphere according to the principle of equity for the benefit of present and future generations of humankind.
Fairness and the imperative of special treatment of developing countries. Equity is not equality; in truth, usually with special differences special solution or special treatment, in the name of equity in facts.
While imagining the concept of common but differentiated responsibilities, it was undoubtedly intended to translate the idea, the equitable approach to promote substantive equality in international environmental law. It argues that, while pursuing a common goal, States assume different obligations, depending on their socio-economic situation and historical responsibility in the environmental problem under consideration.
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