Protection of the atmosphere - Mr Shinya Murase
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Chapter VI
67.
At its sixty-fifth session (2013), the
Commission decided to include the topic “Protection of the atmosphere” in its
programme of work, subject to an understanding, and appointed Mr. Shinya Murase
as Special Rapporteur.801
68.
The Commission received and considered the
first report of the Special Rapporteur at its sixty-sixth session (2014); the
second report at its sixty-seventh session (2015); the third report at its
sixty-eighth session (2016); and the fourth report at its sixty-ninth session
(2017).802 On the basis of the draft guidelines proposed by the
Special Rapporteur in the second, third, and fourth reports, the Commission
provisionally adopted nine draft guidelines and eight preambular paragraphs,
together with commentaries thereto.803
69.
At the present session, the Commission had
before it the fifth report of the Special Rapporteur (A/CN.4/711), in which the Special
Rapporteur, first, addressed the question of implementation of the draft
guidelines at the national level. In that regard, he underlined the various
modes of such implementation depending on the nature of the obligations
concerned, and extraterritorial application of national law in certain
situations. Second, he examined the situations in which there was a failure
to implement the obligations concerned. Turning to the question of compliance
at the international level, the Special Rapporteur explained that he favoured
cooperative compliance mechanisms, meant to give assistance to a noncompliant
party, over punitive or enforcement mechanisms, which were based on the
responsibility of States and intended to place penalties on the non-compliant
party. Third, the Special Rapporteur considered the question of dispute
settlement. In that connection, he emphasized both the need for the peaceful
settlement of disputes and the need to take into account the
science-dependent and fact-intensive character of environmental disputes,
which led to a requirement to assess scientific evidence and ensure that
adequate rules of procedure applied to such disputes.
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801 At its 3197th meeting, on 9 August
2013 (Official Records of the General Assembly, Sixty-eighth
Session, Supplement No. 10 (A/68/10)), para. 168. The Commission
included the topic in its programme of work on the understanding that: “(a)
Work on the topic will proceed in a manner so as not to interfere with
relevant political negotiations, including on climate change, ozone
depletion, and long-range transboundary air pollution. The topic will not
deal with, but is also 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, including intellectual property
rights; (b) The topic will also not deal with specific substances, such as
black carbon, tropospheric ozone, and other dual-impact substances, which are
the subject of negotiations among States. The project will not seek to ‘fill’
gaps in the treaty regimes; (c) Questions relating to outer space, including
its delimitation, are not part of the topic; (d) The outcome of the work on
the topic will be draft guidelines that do not seek to impose on current
treaty regimes legal rules or legal principles not already contained therein.
The Special Rapporteur’s reports would be based on such understanding.” The
General Assembly, in paragraph 6 of its resolution 68/112 of 16 December
2013, took note of the decision of the Commission to include the topic in its
programme of work. The topic had been included in the long-term programme of
work of the Commission during its sixty-third session (2011), on the basis of
the proposal contained in annex B to the report of the Commission (Official Records of the General Assembly,
Sixty-sixth Session, Supplement No. 10 (A/66/10), para. 365).
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802 A/CN.4/667, A/CN.4/681 and Corr. 1 (Chinese
only), A/CN.4/692, and A/CN.4/705 and Corr. 1, respectively.
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70.
Based on his analysis, the Special Rapporteur
proposed three additional draft guidelines concerning implementation (draft
guideline 10), compliance (draft guideline 11) and dispute settlement (draft
guideline 12). Furthermore, the Special Rapporteur expressed the hope to
conclude the first reading of the draft guidelines at the current session.
71.
The Commission considered the fifth report of
the Special Rapporteur at its 3405th and 3409th to 3413th meetings, on 17, 22
to 25 and 29 May 2018, respectively.
72.
Following its debate on the report, the
Commission, at its 3413th meeting, on 29 May 2018, decided to refer draft
guidelines 10 to 12, as contained in the Special Rapporteur’s fifth report,
to the Drafting Committee, taking into account the debate in the Commission.
73.
At its 3417th meeting, on 2 July 2018, the
Commission received and considered the report of the Drafting Committee (A/CN.4/L.909), and
provisionally adopted the draft guidelines on the protection of the
atmosphere on first reading (see section C.1, below).
74.
At its 3448th to 3450th meetings, on 8 and 9
August 2018, the Commission adopted the commentaries to the draft guidelines
(see section C.2, below).
75.
At its 3450th meeting, on 9 August 2018, the
Commission expressed its deep appreciation for the outstanding contribution
of the Special Rapporteur, Mr. Shinya Murase, which had enabled the
Commission to bring to a successful conclusion its first reading of the draft
guidelines on the protection of the atmosphere.
76.
At its 3450th meeting, on 9 August 2018, the
Commission decided, in accordance with articles 16 to 21 of its statute, to
transmit the draft guidelines on the protection of the atmosphere (see
section C below), through the Secretary-General, to Governments and
international organizations for comments and observations, with the request
that such comments and observations be submitted to the Secretary-General by
15 December 2019.
77.
The text of the draft guidelines on the
protection of the atmosphere, together with preamble, adopted by the
Commission on first reading is reproduced below.
Acknowledging that the atmosphere is essential for
sustaining life on Earth, human health and welfare, and aquatic and
terrestrial ecosystems,
Bearing in mind that the transport and dispersion of
polluting and degrading substances occur within the atmosphere,
Noting the
close interaction between the atmosphere and the oceans,
Recognizing therefore that the protection of the
atmosphere from atmospheric pollution and atmospheric degradation is a
pressing concern of the international community as a whole,
Aware of
the special situation and needs of developing countries,
Aware also, in particular, of the
special situation of low-lying coastal areas and small island developing
States due to sea-level rise,
Noting that
the interests of future generations of humankind in the long-term
conservation of the quality of the atmosphere should be fully taken into
account,
Recalling that
the present draft guidelines are not to interfere with relevant political
negotiations, including those on climate change, ozone depletion, and long-
range transboundary air pollution, and that they also neither seek to “fill”
gaps in treaty regimes nor impose on current treaty regimes legal rules or
legal principles not already contained therein,
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For
the purposes of the present draft guidelines,
(a)
“Atmosphere” means the envelope of gases
surrounding the Earth;
(b)
“Atmospheric pollution” means the introduction
or release by humans, directly or indirectly, into the atmosphere of
substances contributing to deleterious effects extending beyond the State of
origin of such a nature as to endanger human life and health and the Earth’s
natural environment;
(c)
“Atmospheric degradation” means the alteration
by humans, directly or indirectly, of atmospheric conditions having
significant deleterious effects of such a nature as to endanger human life
and health and the Earth’ s natural environment.
Scope of the
guidelines
1.
The present draft guidelines concern the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation.
2.
The present draft guidelines do not deal with,
but are without prejudice to, questions concerning the polluter-pays
principle, the precautionary principle, common but differentiated
responsibilities, the liability of States and their nationals, and the
transfer of funds and technology to developing countries, including
intellectual property rights.
3.
The present draft guidelines do not deal with
specific substances, such as black carbon, tropospheric ozone and other
dual-impact substances, which are the subject of negotiations among States.
4.
Nothing in the present draft guidelines
affects the status of airspace under international law nor questions related
to outer space, including its delimitation.
Guideline 3
Obligation to
protect the atmosphere
States have the obligation to protect the
atmosphere by exercising due diligence in taking appropriate measures, in
accordance with applicable rules of international law, to prevent, reduce or
control atmospheric pollution and atmospheric degradation.
Environmental
impact assessment
States have the obligation to ensure that an
environmental impact assessment is undertaken of proposed activities under
their jurisdiction or control which are likely to cause significant adverse
impact on the atmosphere in terms of atmospheric pollution or atmospheric
degradation.
Sustainable
utilization of the atmosphere
1.
Given that the atmosphere is a natural
resource with a limited assimilation capacity, its utilization should be
undertaken in a sustainable manner.
2.
Sustainable utilization of the atmosphere
includes the need to reconcile economic development with protection of the
atmosphere.
Equitable and
reasonable utilization of the atmosphere
The
atmosphere should be utilized in an equitable and reasonable manner, taking
into account the interests of present and future generations.
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Intentional
large-scale modification of the atmosphere
Activities aimed at intentional large-scale modification
of the atmosphere should be conducted with prudence and caution, subject to
any applicable rules of international law.
International
cooperation
1.
States have the
obligation to cooperate, as appropriate, with each other and with relevant
international organizations for the protection of the atmosphere from
atmospheric pollution and atmospheric degradation.
2.
States should
cooperate in further enhancing scientific knowledge relating to the causes
and impacts of atmospheric pollution and atmospheric degradation. Cooperation
could include exchange of information and joint monitoring.
Interrelationship
among relevant rules
1.
The rules of
international law relating to the protection of the atmosphere and other
relevant rules of international law, including, inter alia, the rules of international trade and investment law, of
the law of the sea and of international human rights law, should, to the
extent possible, be identified, interpreted and applied in order to give rise
to a single set of compatible obligations, in line with the principles of
harmonization and systemic integration, and with a view to avoiding
conflicts. This should be done in accordance with the relevant rules set
forth in the Vienna Convention on the Law of Treaties of 1969, including
articles 30 and 31, paragraph 3 (c), and the principles and rules of
customary international law.
2.
States should, to
the extent possible, when developing new rules of international law relating
to the protection of the atmosphere and other relevant rules of international
law, endeavour to do so in a harmonious manner.
3.
When applying
paragraphs 1 and 2, special consideration should be given to persons and
groups particularly vulnerable to atmospheric pollution and atmospheric
degradation. Such groups may include, inter alia,
indigenous peoples, people of the least developed countries and people of
low-lying coastal areas and small island developing States affected by
sea-level rise.
Guideline 10 Implementation
1.
National
implementation of obligations under international law relating to the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation, including those referred to in the present draft guidelines, may
take the form of legislative, administrative, judicial and other actions.
2.
States should
endeavour to give effect to the recommendations contained in the present
draft guidelines.
Guideline 11 Compliance
1.
States are required
to abide with their obligations under international law relating to the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation in good faith, including through compliance with the rules and
procedures in the relevant agreements to which they are parties.
2.
To achieve
compliance, facilitative or enforcement procedures may be used, as
appropriate, in accordance with the relevant agreements:
(a) facilitative procedures may include providing
assistance to States, in cases of non-compliance, in a transparent,
non-adversarial and non-punitive manner to ensure that the States concerned
comply with their obligations under international law, taking into account
their capabilities and special conditions;
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(b) enforcement procedures may include
issuing a caution of noncompliance, termination of rights and privileges
under the relevant agreements, and other forms of enforcement measures.
1.
Disputes between States relating to the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation are to be settled by peaceful means.
2.
Given that such disputes may be of a fact-intensive
and science-dependent character, due consideration should be given to the use
of technical and scientific experts.
78.
The text of the draft guidelines, together with
preamble, and commentaries thereto, adopted by the Commission on first
reading at its seventieth session is reproduced below.
(1)
As is always the case with the Commission’s
output, the draft guidelines are to be read together with the commentaries.
(2)
The Commission recognizes the importance of
being fully engaged with the international community’s present-day needs. It
is acknowledged that both the human and natural environments can be adversely
affected by certain changes in the condition of the atmosphere mainly caused
by the introduction of harmful substances, causing transboundary air
pollution, ozone depletion, as well as changes in the atmospheric conditions
leading to climate change. The Commission seeks, through the progressive
development of international law and its codification, to provide guidelines
that may assist the international community as it addresses critical
questions relating to transboundary and global protection of the atmosphere.
In doing so, the Commission does not desire to interfere with relevant
political negotiations, including those on long-range transboundary air
pollution, ozone depletion and climate change, seek to “fill” gaps in treaty
regimes nor to impose on current treaty regimes legal rules or legal
principles not already contained therein.
Acknowledging that the atmosphere is essential for
sustaining life on Earth, human health and welfare, and aquatic and
terrestrial ecosystems,
Bearing in mind that the transport and dispersion of
polluting and degrading substances occur within the atmosphere,
Noting the
close interaction between the atmosphere and the oceans,
Recognizing therefore that the protection of the
atmosphere from atmospheric pollution and atmospheric degradation is a
pressing concern of the international community as a whole,
Aware of
the special situation and needs of developing countries,
Aware also, in particular, of the
special situation of low-lying coastal areas and small island developing
States due to sea-level rise,
Noting that
the interests of future generations of humankind in the long-term
conservation of the quality of the atmosphere should be fully taken into
account,
Recalling that
the present draft guidelines are not to interfere with relevant political
negotiations, including those on climate change, ozone depletion, and long-
range transboundary air pollution, and that they also neither seek to “fill”
gaps in treaty regimes nor impose on current treaty regimes legal rules or
legal principles not already contained therein,
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804
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805
806
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807
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808
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809
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(1)
On previous occasions, preambles have been
prepared once the Commission has concluded work on a particular topic.804
In the present case, however, due to the way in which the guidelines have
evolved, a draft preamble has been elaborated during the drafting process.
The Commission, for example, referred draft guideline 3 (on the common
concern of humankind), as contained in the Special Rapporteur’s second
report,805 to the Drafting Committee, for consideration in the
context of a possible preamble.
(3)
The second preambular paragraph addresses the
functional aspect of the atmosphere as a medium through which transport and
dispersion of polluting and degrading substances
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In the past, the Commission has generally
presented to the General Assembly an outcome of its work without a draft
preamble, leaving its elaboration to States. However, there have also been
precedents during which the Commission has prepared such preambles. This was
the case, for instance, with respect to the two draft conventions on the
elimination of future statelessness (1954), Yearbook
... 1954, vol. II, para. 25, and on the
reduction of the future statelessness (1954), Yearbook
... 1954, vol. II, para. 25; the model rules on arbitral
procedures (1958), Yearbook ... 1958,
vol. II, para. 22 (the preamble reflected fundamental rules for an
undertaking to arbitrate); the draft articles on the nationality of natural
persons in relation to the succession of States (1999), Yearbook ... 1999, vol. II (Part Two),
para. 47 (reproduced in General Assembly resolution 55/153, annex, of 12
December 2000); the draft articles on prevention of transboundary harm from
hazardous activities (2001), Yearbook
... 2001, vol. II (Part Two) and corrigendum, para. 97
(reproduced in General Assembly resolution 62/68, annex, of 6 December 2007);
the Guiding Principles applicable to unilateral declarations of States
capable of creating legal obligations (2006), Yearbook
... 2006, vol. II (Part Two), para. 176; the draft principles
on the allocation of loss in the case of transboundary harm arising out of
hazardous activities (2006), Yearbook
... 2006, vol. II (Part Two), para. 66 (reproduced in General
Assembly resolution 61/36, annex, of 4 December 2006); and the articles on
the law of transboundary aquifers (2008), Yearbook
... 2008, vol. II (Part Two), paras. 53-54.
A/CN.4/681
and Corr.1, para. 3.
The inclusion of “atmospheric resources”
among “other natural resources” by the former Committee on Natural Resources
was first mentioned in the Committee’s report on its first session, Official Records of the Economic and Social Council,
Fiftieth Session, Supplement No. 6 (E/4969-E/C.7/13), section 4 (“other
natural resources”), para. 94 (d). The work of the Committee (later the
Committee on Energy and Natural Resources for Development) was subsequently
transferred to the Commission on Sustainable Development.
“The natural resources of the earth
including the air ... must be safeguarded for the benefit of present and
future generations through careful planning or management, as appropriate”
(adopted at Stockholm on 16 June 1972, see Report
of the United Nations Conference on the Human Environment, Stockholm, 5-16
June 1972 (United Nations publication, Sales No. E.73.II.A.14 (A/CONF.48/14/Rev.1 and Corr.1), part
one, chap. I, principle 2).
“[A]tmospheric resources that are utilized
by man, shall be managed to achieve and maintain optimum sustainable
productivity” (World Charter for Nature, General Assembly resolution 37/7 of
28 October 1982, annex, general principles, para. 4).
The World Trade Organization (WTO) Panel and
Appellate Body recognized in the Gasoline
case of 1996 that clean air was an “exhaustible natural resource” that could
be “depleted”. Report of the Appellate Body, United
States-Standards for Reformulated and Conventional Gasoline
(1996), WT/DS2/AB/R.
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810
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811
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812
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813
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occur. The Commission considered it
appropriate to refer to this functional aspect in the preamble. This decision
reflects a concern that the inclusion of the functional aspect as part of the
definition, as originally proposed, may suggest that this transport and
dispersion is desirable, which is not the intention of the Commission.
Long-range transboundary movement of polluting and degrading substances is
recognized as one of the major problems of the present-day atmospheric
environment,810 with the Arctic region being identified as one of
the areas most seriously affected by the worldwide spread of deleterious
pollutants.811
(4)
The third preambular paragraph acknowledges
the “close interaction” that arises from, as a factual matter, the physical
relationship between the atmosphere and the oceans. A significant proportion
of the pollution of the marine environment from or through the atmosphere
originates from land-based sources, including from anthropogenic activities
on land.812 Scientific research shows that human activities are
also responsible for global warming, which causes a rise in temperature of
the oceans and in turn results in extreme atmospheric conditions of flood and
drought.813 In its resolution 71/257 of 23 December 2016,
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See the 2001 Stockholm Convention on
Persistent Organic Pollutants, United Nations, Treaty
Series, vol. 2256, No. 40214, p. 119 (noting in the preamble
that “persistent organic pollutants, ... are transported, through air ...
across international boundaries and deposited far from their place of
release, where they accumulate in terrestrial and aquatic ecosystems”). The
2012 amendment to the Gothenburg Protocol to the 1979 Convention on
Long-range Transboundary Air Pollution to Abate Acidification, Eutrophication
and Ground-level Ozone (Gothenburg, 30 November 1999, United Nations, Treaty Series, vol. 2319, p. 81)
indicates in the third preambular paragraph: “Concerned ... that emitted
[chemical substances] are transported in the atmosphere over long distance
and may have adverse transboundary effects”. The 2013 Minamata Convention on
Mercury (Kumamoto (Japan), 10 October 2013, text available at
https://treaties.un.org/doc/Treaties/2013/10/20131010%2011-
16%20AM/CTC-XXVII-17.pdf)
recognizes mercury as “a chemical of global concern owing to its long-range
atmospheric transport” (first preambular para.); See, J.S. Fuglesvedt et al., “Transport impacts on
atmosphere and climate: metrics”, Atmospheric
Environment, vol. 44 (2010), pp. 46484677; D.J. Wuebbles, H.
Lei and J.-T Lin, “Inter-continental transport of aerosols and photochemical
oxidants from Asia and its consequences”, Environmental
Pollution, vol. 150 (2007), pp. 65-84; J.-T Lin, X.-Z Liang and
D.J. Wuebbles, “Effects of inter-continental transport on surface ozone over
the United States: Present and future assessment with a global model”, Geophysical Research Letters, vol. 35
(2008).
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Several of these pollution threats to the
Arctic environment have been identified, such as persistent organic
pollutants and mercury, which originate mainly from sources outside the
region. These pollutants end up in the Arctic from southern industrial
regions of Europe and other continents via prevailing
northerly winds and ocean circulation. See T. Koivurova, P. Kankaanpaa and A.
Stepien, “Innovative environmental protection: lessons from the Arctic,” Journal of Environmental Law, vol. 27
(2015), pp. 285-311, at p. 297.
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R.A. Duce et al.,
“The atmospheric input of trace species to the world ocean”, Global Biogeochemical Cycles, vol. 5
(1991), pp. 193-259; T. Jickells and C.M. Moore, “The importance of
atmospheric deposition for ocean productivity”, Annual
Review of Ecology, Evolution, and Systematics, vol. 46 (2015),
pp. 481-501.
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According to the Intergovernmental Panel on
Climate Change, “Climate change 2014 synthesis report: summary for
policymakers”, p. 4: “Ocean warming dominates the increase in energy stored
in the climate system, accounting for more than 90% of the energy accumulated
between 1971 and 2010 (high confidence),
with only about 1% stored in the atmosphere. On a global scale, the ocean
warming is largest near the surface, and the upper 75 m warmed by 0.11 [0.09
to 0.13] °C per decade over the period 1971 to 2010. It is virtually certain that the upper ocean
(0-700 m) warmed from 1971 to 2010, and it likely
warmed between the 1870s and 1971”. Because of the rise in ocean
temperatures, many scientific analyses suggest risk of severe and widespread
drought in the twenty- first century over many land areas. See S.K. Min et al., “Human contribution to
more-intense precipitation extremes”, Nature,
vol. 470 (2011), pp. 378-381; A. Dai, “Increasing drought under global
warming in observations and models”, Nature
Climate Change, vol. 3 (2013), pp. 52-58; and J. Sheffield,
E.F. Wood, and M.L. Roderick, “Little change in global drought over the past
60 years”, Nature, vol.
491 (2012), pp. 435-438. See also 0. Hov, “Overview: oceans and the
atmosphere” and T. Jickells, “Linkages between the oceans and the
atmosphere”, in “Summary of the informal meeting of the International Law
Commission: dialogue with atmospheric scientists (third session), 4 May
2017”, paras. 4-12 and 21-30, respectively. Available from
http://legal.un.org/docs/?path=../ilc/ sessions/69/pdfs/english/informal_
dialogue_4may2017.pdf&lang=E.
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814
815
816
817
818
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819
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820
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the General Assembly confirmed the effect of
climate change on oceans and stressed the importance of increasing the
scientific understanding of the oceans-atmosphere interface.814
(5)
In 2015, the First Global Integrated Marine
Assessment (first World Ocean Assessment) was completed as a comprehensive,
in-depth study on the state of the marine environment including a chapter
addressing in part the substances polluting the oceans from land-based
sources through the atmosphere.815 The summary of the report was
approved by the General Assembly at its seventieth session.816
(6)
Among the various human activities that have
an impact on the oceans, greenhouse gas emissions from ships contribute to
global warming and climate change. The 2009 study by the International
Maritime Organization (IMO) on greenhouse gas emissions classified such
emissions from ships into four categories, namely: emissions of exhaust
gases, cargo emissions, emissions of refrigerants and other emissions.817
Research indicates that excessive greenhouse gas emissions from ships change
the composition of the atmosphere and climate, and cause a negative impact on
the marine environment and human health.818
(7)
The General Assembly has continued to
emphasize the urgency of addressing the effects of atmospheric degradation,
such as increases in global temperatures, sea-level rise, ocean acidification
and the impact of other climate changes that are seriously affecting coastal
areas and low-lying coastal countries, including many least developed
countries and small island developing States, and threatening the survival of
many societies.819
(8)
The third preambular paragraph is also linked
to paragraph 1 of draft guideline 9 in the sense that the physical linkage
that exists between the atmosphere and the oceans forms the physical basis of
the interrelationship between the rules on the protection of the atmosphere
and the rules of the law of the sea.820
(9)
The fourth preambular paragraph pronounces,
bearing in mind the importance of the problems relating to the atmosphere, as
aforementioned, that the protection of the atmosphere from atmospheric
pollution and atmospheric degradation is a “pressing concern of the
international community as a whole”. While a number of treaties and
literature demonstrate
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General Assembly resolution 71/257 of 23
December 2016 on oceans and the law of the sea, paras. 185-196 and 279.
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United Nations Division for Ocean Affairs
and the Law of the Sea, “First Global Integrated Marine Assessment (first
World Ocean Assessment)”. Available from
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www.un.org/depts/los/global_reporting/WOA_RegProcess.htm
(accessed 7 July 2017) (see, in particular, chap. 20 on “Coastal,
riverine and atmospheric inputs from land”).
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General Assembly resolution 70/235 of 23
December 2015.
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0. Buhaug et
al., Second IMO GHG Study 2009 (London, IMO,
2009), p. 23. See also T.W.P. Smith et
al., Third IMO GHG Study (London, IMO,
2014), executive summary, table 1. M. Righi, J. Hendricks and R. Sausen, “The
global impact of the transport sectors on atmospheric aerosol in 2030 — Part
1: land transport and shipping”, Atmospheric
Chemistry and Physics,
vol. 15 (2015), pp. 633651.
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Most of the greenhouse gas emissions from
ships are emitted in or transported to the marine boundary layer where they
affect atmospheric composition. See, e.g., V. Eyring et al.,
“Transport impacts on atmosphere and climate: shipping”, Atmospheric Environment, vol. 44 (2010), pp. 4735, 4744-4745
and 4752-4753. D.E.J. Currie and K. Wowk, “Climate change and CO2
in the oceans and global oceans governance”, Carbon
and Climate Law Review,
vol. 3 (2009), pp. 387 and 389; C. Schofield, “Shifting limits? Sea level rise
and options to secure maritime jurisdictional claims”, Carbon and Climate Law Review, vol. 3 (2009), p. 12; and S.R. Cooley
and J.T. Mathis, “Addressing ocean acidification as part of sustainable ocean
development”, Ocean Yearbook, vol. 27 (2013), pp. 29-47. General
Assembly resolution 70/1 of 25 September 2015, Transforming our world: the
2030 Agenda for Sustainable Development, para. 14 (“Climate change is one of
the greatest challenges of our time and its adverse impacts undermine the
ability of all countries to achieve sustainable development. Increases in
global temperature, sea level rise, ocean acidification and other climate
change impacts are seriously affecting coastal areas and low-lying coastal
countries, including many least developed countries and small island
developing States. The survival of many societies, and of the biological
support systems of the planet, is at risk.”). See also “Oceans and the law of
the sea: report of the Secretary-General” (A/71/74/Add.1), chap. VIII
(“Oceans and climate change and ocean acidification”), paras. 115-122.
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See para. (6) of the commentary to draft
guideline 9 below.
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821
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822
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823
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(10)
The fifth preambular paragraph, having regard
to considerations of equity, concerns the special situation and needs of
developing countries. One of the first attempts to incorporate such a
principle was the Washington Conference of the International Labour
Organization in 1919, at which delegations from Asia and Africa succeeded in
ensuring the adoption of differential labour standards.823 Another
example is the Generalized System of Preferences elaborated under the United
Nations Conference on Trade and Development in
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Paragraph 1 of the preamble to the 1992
United Nations Framework Convention on Climate Change (New York, 9 May 1992,
United Nations, Treaty Series,
vol. 1771, No. 30822, p. 107) acknowledges that “change in the Earth’s
climate and its adverse effects are a common concern of humankind”. Likewise,
the preamble to the 1992 Convention on Biological Diversity (ibid., vol. 1760, No. 30619, p. 79)
shows parties to be “[c]onscious ... of the importance of biological diversity
for evolution and for maintaining life sustaining systems of the biosphere,”
(para. 2) and affirms that “the conservation of biological diversity is a
common concern of humankind” (para. 3). The 1994 Convention to Combat
Desertification in Those Countries Experiencing Drought and/or
Desertification, Particularly in Africa (opened for signature, Paris, 14
October 1994, ibid., vol.
1954, No. 33480, p. 3) adopted phrases similar to common concern in its
preamble, including “the centre of concerns”, “the urgent concern of the
international community” and “problems of global dimension” for combatting
desertification and drought. Other instruments such as the Minamata
Convention on Mercury, the Stockholm Convention on Persistent Organic
Pollutants and the Gothenburg Protocol to the 1979 Convention on Long-Range
Transboundary Air Pollution employ similar concepts to the common concern.
See, A.E. Boyle, “International law and the protection of the global
atmosphere: concepts, categories and principles”, in International Law and Global Climate Change,
R. Churchill and D. Freestone, eds. (Leiden, Kluwer Academic, 1991), pp.
11-12; D. French, “Common concern, common heritage and other global(-ising)
concepts: rhetorical devices, legal principles or a fundamental challenge?”
in Research Handbook on Biodiversity and Law,
M. Bowman, P. Davies and E. Goodwin, eds. (Cheltenham/Northampton, Edward
Elgar, 2016), pp. 334-360, p. 347; A. Kiss, “The common concern of mankind”, Environmental Policy and Law, vol. 27
(1997), p. 246; A.A. Canjado-Trindade and D.J. Attard, “The implication of
the “common concern of mankind” concept on global environmental issues”, in Policies and Laws on Global Warming: International
and Comparative Analysis, T. Iwama, ed. (Tokyo, Environmental Research
Centre, 1991), pp. 7-13; J. Brunnee, “Common areas, common heritage, and
common concern”, in The Oxford Handbook of
International Environmental Law, D. Bodansky, J. Brunnee and H.
Hey, eds. (Oxford, Oxford University Press, 2007), pp. 565-566. See also C.
Kreuter-Kirchhoff, “Atmosphere, international protection”, in Max Planck Encyclopedia of Public International Law,
vol. I, R. Wolfrum, ed. (Oxford, Oxford University Press, 2012), pp. 737-744
(the atmosphere as a “common concern of mankind”).
|
|
Yearbook
... 1997, vol. II (Part Two), para. 238; Yearbook ... 1998, vol. II (Part Two), para. 553.
See also Official Records of the General Assembly, Sixty-ninth
Session, Supplement No. 10 (A/69/10), para. 269. The Commission
has agreed that it should not restrict itself to traditional topics, but
could also consider those that reflect new developments in international law
and pressing concerns of the international community as a whole.
|
|
On the basis of art. 405, para. 3, of the
1919 Treaty of Versailles (Treaty of Peace between the Allied and Associated
Powers and Germany, 28 June 1919), which became art. 19, para. 3, of the
International Labour Organization Constitution (9 October 1946, United
Nations, Treaty Series, vol. 15, No. 229, p. 35)
(labour conventions “shall have due regard” to the special circumstances of
countries where local industrial conditions are “substantially different”).
The same principle also appeared in some of the conventions approved by the
Organization in 1919 and in several conventions adopted afterwards. See I.F.
Ayusawa, International Labor Legislation (New
York, Columbia University, 1920), chap. VI, pp. 149 et seq.
|
|
824
|
|
825
826
827
828
829
830
831
832
833
|
|
the 1970s, as reflected in draft article 23
of the Commission’s 1978 draft articles on mostfavoured-nation clauses.824
(12)
The formulation of the fifth preambular
paragraph is based on the seventh paragraph of the preamble of the 1997
Convention on the Law of the Non-navigational Uses of International
Watercourses.831
(13)
The sixth preambular paragraph addresses one
of the most profound impacts of atmospheric degradation for all States, that
is the sea-level rise caused by global warming. It draws particular attention
to the special situation of low-lying coastal areas and small island
developing States due to sea-level rise. The Fifth Assessment Report of the
Intergovernmental Panel on Climate Change estimates that the global mean
sea-level rise is likely to be between 26 cm and 98 cm by the year 2100.832
While exact figures and rates of change still remain uncertain, the report
states that it is “virtually certain” that sea levels will continue to rise
during the twenty-first century, and for centuries beyond — even if the
concentrations of greenhouse gas emissions are stabilized. Moreover,
sea-level rise is likely to exhibit “a strong regional pattern, with some
places experiencing significant deviations of local and regional sea level
change from the global mean change”.833 That degree of change in
sea levels may pose a potentially serious, maybe even disastrous, threat to
many coastal
|
|
See art. 23 (The most-favoured-nation clause
in relation to treatment under a generalized system of preferences) and art.
30 (New rules of international law in favour of developing countries) of the
draft articles on the most-favoured-nation clauses adopted by the Commission
at its thirtieth session in 1978, Yearbook
... 1978, vol. II (Part Two), paras. 74,
see also paras. 47-72. S. Murase, Economic
Basis of International Law (Tokyo, Yuhikaku, 2001), pp. 109-179
(in Japanese). And see the earlier exceptions for developing countries
specified in art. XVIII of the 1947 General Agreement on Tariffs and Trade
(Geneva, 30 October 1947), United Nations, Treaty
Series, vol. 55, No. 814, p. 194.
|
|
See L.B. Sohn, “The Stockholm Declaration on
the Human Environment”, Harvard International
Law Journal, vol. 14 (1973), pp. 423-515, at pp. 485-493.
|
|
Adopted at Rio de Janeiro on 14 June 1992,
see Report of the United Nations Conference on
Environment and Development, Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26/Rev.1 (vol.
I) and Corr. 1), resolution I, p. 3.
|
|
Report
of the World Summit on Sustainable Development, Johannesburg, South Africa,
26 August-4 September 2002 (A/CONF.199/20; United Nations
publication, Sales No. E.03.II.A.1 and corrigendum), chap. I, resolution 1,
annex.
|
|
Johannesburg Declaration, para. 24. See also
outcome document of the United Nations Conference on Sustainable Development,
“The future we want”, contained in General Assembly resolution 66/288 of 27
July 2012, annex.
|
|
United Nations, Treaty
Series, vol. 1771, No. 30822, p. 107.
|
|
Paris Agreement under the United Nations
Framework Convention on Climate Change (Paris, 12 December 2015) https://treaties.un.org/doc/Treaties/2016/02/20160215%2006-
03%20PM/Ch_XXVII-7-d.pdf.
|
|
Adopted by the General Assembly in
resolution 51/229 (annex) on 21 May 1997. The Convention entered into force
on 17 August 2014.
|
|
Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis. Working
Group I Contribution to the Fifth Assessment Report of the Intergovernmental
Panel on Climate Change (Cambridge, United Kingdom, Cambridge University
Press, 2013), p. 1180.
|
|
Ibid.,
p. 1140.
|
|
834
|
|
835
836
837
838
839
840
841
842
843
|
|
areas, especially those with large, heavily
populated and low-lying coastal areas, as well as to small island developing
States.834
(14)
The sixth preambular paragraph is linked to
the interrelationship between the rules of international law relating to the
protection of the atmosphere and the rules of the law of the sea addressed in
paragraph 1 of draft guideline 9.835 This preambular paragraph is
also linked to the special consideration to be given to persons and groups in
vulnerable situations, which are referred to in paragraph 3 of draft
guideline 9.836 The words “in particular” are intended to
acknowledge specific areas without necessarily limiting the list of
potentially affected areas.
(15)
The seventh preambular paragraph emphasizes the
interests of future generations, including with a view to human rights
protection. The goal is to ensure that the planet remains habitable for
future generations. In taking measures to protect the atmosphere today, it is
important to take into account the long-term conservation of the quality of
the atmosphere. The 2015 Paris Agreement, in its preamble, after
acknowledging that climate change is a common concern of humankind, provides
that parties should, when taking action to address climate change, respect,
promote and consider, among other things, their respective obligations on
human rights, as well as intergenerational equity. The importance of
“intergenerational” considerations was already expressed in principle 1 of
the 1972 Stockholm Declaration.837 It also underpins the concept
of sustainable development, as formulated in the 1987 Brundtland Report, Our Common Future,838 and
informs the 2030 Agenda for Sustainable Development.839 It is also
reflected in the preamble of the Convention on Biological Diversity of 1992,840
and in other treaties.841 Article 3, paragraph 1, of the United
Nations Framework Convention on Climate Change of 1992 provides that:
“Parties should protect the climate system for the benefit of present and
future generations of humankind”. The International Court of Justice has
noted, in its 1996 Advisory Opinion in the Nuclear
Weapons case with respect to such weapons, the imperative to
take into account “in particular their ... ability to cause damage to
generations to come”.842
(16)
The Commission opted for the term “interests”
rather than “benefit” under the seventh preambular paragraph. A similar
formulation is used in draft guideline 6 which refers to the interests of
future generations in the context of “equitable and reasonable utilization of
the atmosphere”.843
|
|
See A.H.A. Soons, “The effects of a rising
sea level on maritime limits and boundaries”, Netherlands
International Law Review, vol. 37 (1990), pp. 207-232; M.
Hayashi, “Sea-level rise and the law of the sea: future options”, in The World Ocean in Globalisation: Climate Change,
Sustainable Fisheries, Biodiversity, Shipping, Regional Issues,
D. Vidas and P.J. Schei, eds. (Leiden, Brill/Martinus Nijhoff, 2011), pp. 187
et seq. See also, International Law
Association, Report of the Seventy-fifth
Conference held in Sofia, August 2012 (London, 2012), pp.
385-428, and International Law Association, Johannesburg
Conference (2016): International Law and Sea Level Rise
(interim report), pp. 13-18.
|
|
See para. (6) of the commentary to draft
guideline 9 below.
|
|
See para. (16) of the commentary to draft
guideline 9 below.
|
|
Principle 1 of the Declaration refers to the
“solemn responsibility to protect and improve the
|
|
environment for present and future
generations”.
|
|
Report
of the World Commission on Environment and Development, Our Common Future (Oxford, Oxford
University Press, 1987). It emphasized the importance of “development that
meets the needs of the present without compromising the ability of future
generations” (p. 43).
|
|
General Assembly resolution 70/1 of 25
September 2015, which emphasizes the need to protect the planet from
degradation so that it can “support the needs of present and future
generations”.
|
|
The preamble of the Convention provides for
the “benefit of present and future generations” in conservation and
sustainable use of biological diversity.
|
|
Art. 4 (vi) of the Joint Convention on the
Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management (Vienna, 5 September 1997, United Nations, Treaty Series, vol. 2153, No. 37605, p.
303) provides that parties shall “strive to avoid actions that impose
reasonably predictable impacts on future generations greater than those
permitted for the current generation”. Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, p. 226, at p. 244, para. 36.
|
|
Though there are as yet no decisions by
international tribunals concerning customary intergenerational rights, there
have been many national court decisions, which may constitute practice
|
|
844
|
|
(17)
The eighth preambular paragraph reproduces the
2013 understanding of the Commission on the inclusion of the topic in its
programme of work at its sixty-fifth session in 2013.844
For
the purposes of the present draft guidelines,
(a)
“Atmosphere” means the envelope of gases
surrounding the Earth;
(b)
“Atmospheric pollution” means the introduction
or release by humans, directly or indirectly, into the atmosphere of
substances contributing to deleterious effects extending beyond the State of
origin of such a nature as to endanger human life and health and the Earth’s
natural environment;
(c)
“Atmospheric degradation” means the alteration
by humans, directly or indirectly, of atmospheric conditions having
significant deleterious effects of such a nature as to endanger human life
and health and the Earth’s natural environment.
(1)
The Commission has considered it desirable, as
a matter of practical necessity, to provide a draft guideline on the “Use of
terms” in order to have a common understanding of what is covered by the
present draft guidelines. The terms used are provided only “for the
|
|
for the purposes of customary international
law, recognizing intergenerational equity, see C.
Redgwell, “Intra- and inter-generational
equity”, in The Oxford Handbook of
International Climate Change Law, C.P. Carlarne, K.R. Gray and
R.G. Tarasofsky, eds. (Oxford, Oxford University Press, 2016), pp. 185-201,
at p. 198. See also Australia, Gray
v. Minister for Planning, [2006] NSWLEC 720; India, Vellore Citizens ’ Welfare Forum and State of Tamil
Nadu (joining) v. Union of India and others, original public
interest writ petition, 1996 5 SCR 241, ILDC 443 (IN 1996); Kenya, Waweru, Mwangi (joining) and others (joining) v.
Kenya, miscellaneous civil application, Case No. 118 of 2004,
Application No. 118/04, ILDC 880 (KE 2006); South Africa, Fuel Retailers Association of South Africa v.
Director-General, Environmental Management, Department of Agriculture,
Conservation and Environment, Mpumalanga Province, and others,
[2007] ZACC 13, 10 BCLR 1059; Pakistan, Rabab
Ali v. Federation of Pakistan, petition filed 6 April 2016
(summary available at www.ourchildrenstrust.org/pakistan).
For commentary, see E. Brown Weiss, In
Fairness to Future Generations: International Law, Common Patrimony, and
Intergenerational Equity (Tokyo, United Nations University
Press, 1989), p. 96; M. Bruce, “Institutional aspects of a charter of the
rights of future generations”, in Our
Responsibilities Towards Future Generations, S. Busuttil et al., eds. (Valetta, UNESCO and
Foundation for International Studies, University of Malta, 1990), pp. 127131;
T. Allen, “The Philippine children’s case: recognizing legal standing for
future generations”, Georgetown International
Environmental Law Review, vol. 6 (1994), pp. 713-741 (referring
to the judgment of the Philippine Supreme Court in Minors Oposa et al. v. Factoran (30
July 1993), International Legal
Materials, vol. 33 (1994), p. 168). Standing to sue in some
proceedings was granted on the basis of the “public trust doctrine”, which
holds governments accountable as trustees for the management of common
environmental resources. See M.C. Wood and C.W. Woodward IV, “Atmospheric
trust litigation and the constitutional right to a healthy climate system:
judicial recognition at last”, Washington
Journal of Environmental Law and Policy, vol. 6 (2016), pp. 634684;
C. Redgwell, Intergenerational Trusts and Environmental
Protection (Manchester, Manchester University Press, 1999); K.
Coghill, C. Sampford and T. Smith, eds., Fiduciary
Duty and the Atmospheric Trust (London, Routledge, 2012); M.C.
Blumm and M.C. Wood, The Public Trust Doctrine in
Environmental and Natural Resources Law, 2nd ed. (Durham, North
Carolina, Carolina Academic Press, 2015); and K. Bosselmann, Earth Governance: Trusteeship of the Global Commons (Cheltenham,
Edward Elgar Publishing, 2015). In a judgment on 13 December 1996, the Indian
Supreme Court declared the public trust doctrine “the law of the land”; M.C. Mehta v. Kamal Nath and Others,
(1997) 1 Supreme Court Cases 388, reprinted in C.O. Okidi, ed., Compendium of Judicial Decisions in Matters Related
to the Environment: National Decisions, vol. I (Nairobi, United
Nations Environment Programme/United Nations Development Programme, 1998), p.
259. See J. Razzaque, “Application of public trust doctrine in Indian
environmental cases”, Journal of Environmental Law,
vol. 13 (2001), pp. 221-234.
It was agreed that the terminology and
location of this paragraph would be revisited at a later stage in the
Commission’s work on this topic. See also Official
Records of the General Assembly, Sixty-eighth Session, Supplement No. 10
(A/68/10), para. 168.
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|
845
|
|
846
|
|
847
|
|
848
849
|
|
850
|
|
purposes of the present draft guidelines”,
and are not intended in any way to affect any existing or future definitions
of any such terms in international law.
(2)
No definition has been given to the term
“atmosphere” in the relevant international instruments. The Commission,
however, considered it necessary to provide a working definition for the
present draft guidelines, and the definition given in paragraph (a) is
inspired by the definition given by a working group of the Intergovernmental
Panel on Climate
Change.845
(3)
The Commission considered it necessary that
its legal definition be consistent with the approach of scientists. According
to scientists, the atmosphere exists in what is called the atmospheric shell.846
Physically, it extends upwards from the Earth’s surface, which is the bottom
boundary of the dry atmosphere. The average composition of the atmosphere up
to an altitude of 25 km is as follows: nitrogen (78.08%), oxygen (20.95%),
together with trace gases, such as argon (0.93%), helium and radiatively
active greenhouse gases, such as carbon dioxide (0.035%) and ozone, as well
as greenhouse water vapour in highly variable amounts.847 The
atmosphere also contains clouds and aerosols.848 The atmosphere is
divided vertically into five spheres on the basis of temperature
characteristics. From the lower to upper layers, these spheres are:
troposphere, stratosphere, mesosphere, thermosphere, and the exosphere.
Approximately 80 per cent of air mass exists in the troposphere and 20 per
cent in the stratosphere. The thin, white, hazy belt (with a thickness of
less than 1 per cent of the radius of the globe) that one sees when looking
at the earth from a distance is the atmosphere. Scientifically these spheres
are grouped together as the “lower atmosphere”, which extends to an
average altitude of 50 km, and can be distinguished from the “upper
atmosphere” .849 The temperature of the atmosphere
changes with altitude. In the troposphere (up to the tropopause, at a height
of about 12 km), the temperature decreases as altitude increases because of
the absorption and radiation of solar energy by the surface of the planet. 850
In contrast, in the stratosphere (up to the stratopause, at a height of
nearly 50 km), temperature gradually increases with height851
because of the absorption of ultraviolet radiation by ozone. In the
mesosphere (up to the mesopause, at a height of above 80 km), temperatures
again decrease with altitude. In the thermosphere, temperatures once more
rise rapidly because of
|
|
Fifth Assessment Report, Working Group III,
annex I. Intergovernmental Panel on Climate Change, Climate Change 2014: Mitigation of Climate Change,
O. Edenhofer et al., eds.
(Cambridge University Press, 2014), p. 1252, available at www.ipcc.ch/report/ar5/wg3/.
The American Meteorology Society defines
the “atmospheric shell” (also called atmospheric layer or atmospheric region)
as “any one of a number of strata or ‘layers’ of the earth’s atmosphere”
(available at http://glossary.ametsoc.org/wiki/Atmospheric_shell).
Physically, water vapour, which accounts
for roughly 0.25 per cent of the mass of the atmosphere, is a highly variable
constituent. In atmospheric science, “because of the large variability of
water vapor concentrations in air, it is customary to list the percentages of
the various constituents in relation to dry air”. Ozone concentrations are
also highly variable. Over 0.1 ppmv (parts per million by volume) of ozone
concentration in the atmosphere is considered hazardous to human beings. See
J.M. Wallace and P.V. Hobbs, Atmospheric
Science: An Introductory Survey, 2nd ed. (Boston, Elsevier
Academic Press, 2006), p. 8.
Ibid.
The American Meteorological Society defines
the “lower atmosphere” as “generally and quite loosely, that part of the
atmosphere in which most weather phenomena occur (i.e., the troposphere and
lower stratosphere); hence used in contrast to the common meaning for the upper
atmosphere” (available at http://glossary.ametsoc.org/wiki/Lower_atmosphere).
The “upper atmosphere” is defined as residual, that is “the general term
applied to the atmosphere above the troposphere” (available at http://glossary.ametsoc.org/wiki/Upper_atmosphere).
The thickness of the troposphere is not the
same everywhere; it depends on the latitude and the season. The top of the
troposphere lies at an altitude of about 17 km at the equator, although it is
lower at the poles. On average, the height of the outer boundary of the
troposphere is about 12 km.
See E.J. Tarbuck, F.K. Lutgens and D. Tasa,
Earth Science, 13th ed. (New Jersey,
Pearson, 2011), p. 466.
Strictly, the temperature of the
stratosphere remains constant to a height of about 20-35 km and then begins a
gradual increase.
|
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852
853
854
|
|
855
|
|
X-ray
and ultraviolet radiation from the sun. The atmosphere “has no well-defined
upper limit”.852
(4)
The definition, in paragraph (a), of the
“atmosphere” as the envelope of gases surrounding the Earth represents a
“physical” description of the atmosphere. There is also a “functional” aspect,
which involves the large-scale movement of air. The atmospheric movement has
a dynamic and fluctuating feature. The air moves and circulates around the
Earth in a complicated formation called “atmospheric circulation”. The
Commission has decided, as noted earlier in the commentary to the preamble,
to refer to this functional aspect of the atmosphere in the second paragraph
of the preamble.853
(5)
It is particularly important to recognize the
function of the atmosphere as a medium within which there is constant
movement as it is within that context that the “transport and dispersion” of
polluting and degrading substances occurs. Indeed, the long-range
transboundary movement of polluting substances is one of the major problems
for the atmospheric environment. In addition to transboundary pollution,
other concerns relate to the depletion of the ozone layer and to climate
change.
(6)
Paragraph (b) defines “atmospheric pollution”
and addresses transboundary air pollution, whereas paragraph (c) defines
“atmospheric degradation” and refers to global atmospheric problems. By
stating “by humans”, both paragraphs (b) and (c) make it clear that the draft
guidelines concern “anthropogenic” atmospheric pollution and atmospheric
degradation. The Commission is aware that the focus on human activity,
whether direct or indirect, is a deliberate one, as the present guidelines
seek to provide guidance to States and the international community.
(7)
The term “atmospheric pollution” (or, air
pollution) is sometimes used broadly to include global deterioration of
atmospheric conditions such as ozone depletion and climate change,854
but the term is used in the present draft guidelines in a narrow sense, in
line with existing treaty practice. It thus excludes the global issues from
the definition of atmospheric pollution.
“[a]ir pollution” means “the introduction by
man, directly or indirectly, of substances or energy into the air resulting
in deleterious effects of such a nature as to endanger human health, harm
living resources and ecosystems and material property and impair
|
|
See para. (3) of the commentary to the
preamble, above.
|
|
For instance, art. 1, para. 1, of the Cairo
resolution (1987) of the Institute of International Law (Institut de droit international) on
“Transboundary Air Pollution” provides that: “[f]or the purpose of this
Resolution, ‘pollution’ means any physical, chemical or biological alteration in the composition or
quality of the atmosphere which results directly or indirectly from human
action or omission and produces injurious or deleterious effects in the
environment of other States or of areas beyond the limits of national
jurisdiction.” (emphasis added). Available from www.idi-iil.org, Resolutions. Convention on Long-Range
Transboundary Air Pollution (Geneva, 13 November 1979), United Nations, Treaty Series, vol. 1302, No. 21623, p.
217. The formulation of art. 1 (a) of the Convention on Long-Range
Transboundary Air Pollution goes back to the definition of pollution by the
Council of the Organization for Economic Cooperation and Development (OECD)
in its Recommendation C(74)224 on “Principles concerning Transfrontier
Pollution”, of 14 November
|
|
1974 (International
Legal Materials, vol. 14 (1975), p. 243), which reads as
follows: “For the purpose of these principles, pollution means the
introduction by man, directly or indirectly, of substances or energy into the
environment resulting in deleterious effects of such a nature as to endanger
human health, harm living resources and ecosystems, and impair or interfere
with amenities and other legitimate uses of the environment”. See H. van
Edig, ed., Legal Aspects of
Transfrontier Pollution (Paris, OECD, 1977), p. 13; see also P.
Birnie, A. Boyle and C. Redgwell, International
Law and the Environment, 3rd ed. (Oxford, Oxford University
Press, 2009), pp. 188-189; A. Kiss and D. Shelton, International Environmental Law
(London, Graham & Trotman, 1991), p. 117 (definition of pollution: “also
forms of energy such as noise, vibrations, heat, radiation are included”).
|
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856
857
858
|
|
or interfere with amenities and other
legitimate uses of the environment, and ‘air pollutants’ shall be construed
accordingly.”
It may also be noted that article 1,
paragraph 1 (4), of the United Nations Convention on the Law of the Sea856
defines the term “pollution” for the purposes of the marine environment as
meaning “the introduction by man, directly or indirectly, of substances or
energy into the marine environment, including estuaries, which results or is
likely to result in such deleterious effects as harm to living resources and
marine life, hazards to human health”.857 The deleterious effects
arising from an introduction or release have to be of such a nature as to
endanger human life and health and the Earth’s natural environment, including
by contributing to endangering them.
(9)
While article 1 (a) of the Convention on
Long-Range Transboundary Air Pollution and article 1, paragraph 1 (4), of the
United Nations Convention on the Law of the Sea provide for “introduction of
energy” (as well as substances) as part of the “pollution”, the Commission
has decided not to make an explicit reference to the term “energy” in the
text of paragraph (b) of the draft guideline. It is the understanding of the
Commission that, for the purposes of the draft guidelines, the word
“substances” includes “energy”. “Energy” is understood to include heat,
light, noise and radioactivity introduced and released into the atmosphere
through human activities.858
(10)
The expression “effects extending beyond the
State of origin” in paragraph (b) clarifies that the draft guidelines address
the transboundary effects in the sense provided in article 1 (b) of the 1979
Convention on Long-Range Transboundary Air Pollution that:
“[l]ong-range transboundary air pollution”
means air pollution whose physical origin is situated wholly or in part
within the area under the national jurisdiction of one State and which has
adverse effects in the area under the jurisdiction of another State at
|
|
United Nations Convention on the Law of the
Sea (Montego Bay, 10 December 1982), United Nations, Treaty Series, vol. 1833, No. 31363, p.
3.
|
|
Art. 212 of the United Nations Convention on
the Law of the Sea provides for an obligation to prevent airborne pollution
of the sea, and to that extent, the definition of “pollution” in this
Convention is relevant to atmospheric pollution.
|
|
With regard to heat, see World
Meteorological Organization/International Global Atmospheric Chemistry,
Project Report, “Impacts of megacities on air pollution and climate”, Global
Atmosphere Watch Report No. 205 (Geneva, World Meteorological Organization,
2012); D. Simon and H. Leck, “Urban adaptation to climate/environmental
change: governance, policy and planning”, Special Issue, Urban Climate, vol. 7 (2014) pp. 1-134;
J.A. Arnfield, “Two decades of urban climate research: a review of
turbulence, exchanges of energy and water, and the urban heat island”, International Journal of Climatology,
vol. 23 (2003), pp. 1-26; L. Gartland, Heat
Islands: Understanding and Mitigating Heat in Urban Areas
(London, Earthscan, 2008); see, in general, B. Stone Jr., The City and the Coming Climate: Climate Change in
the Places We Live (Cambridge, Massachusetts, Cambridge
University Press, 2012). Regarding light pollution, see C. Rich and T.
Longcore, eds., Ecological Consequences of
Artificial Night Lighting, (Washington, D.C., Island Press,
2006); P. Cinzano and F. Falchi, “The propagation of light pollution in the
atmosphere”, Monthly Notices of the Royal
Astronomic Society, vol. 427 (2012), pp. 3337-3357; F. Bashiri
and C. Rosmani Che Hassan, “Light pollution and its effects on the environment”,
International Journal of Fundamental Physical
Sciences, vol. 4 (2014), pp. 8-12. Regarding acoustic/noise
pollution, see e.g. annex 16 of the 1944 Convention on International Civil
Aviation (Chicago, 7 December 1944, United Nations, Treaty Series, vol. 15, No. 295 p.
295), vol. I: Aircraft Noise,
5th ed. 2008; see P. Davies and J. Goh, “Air transport and the environment:
regulating aircraft noise”, Air
and Space Law, vol. 18 (1993), pp. 123135. Concerning
radioactive emissions, see D. Rauschning, “Legal problems of continuous and
instantaneous long-distance air pollution: interim report”, Report of the Sixty-Second Conference of the
International Law Association (Seoul, 1986), pp. 198-223, at p.
219; and International Atomic Energy Agency, Environmental
Consequences of the Chernobyl Accident and their Remediation: Twenty Years of
Experience — Report of the Chernobyl
Forum Expert Group ‘Environment’, Radiological Assessment
Report Series (2006), STI/PUB/1239. See also United Nations Scientific Committee
on the Effects of Atomic Radiation, 2013 Report to the General Assembly, Scientific Annex A: Levels and effects of radiation
exposure due to the nuclear accident after the 2011 great east-Japan
earthquake and tsunami (United Nations publication, Sales No.
E.14.IX.1), available at www.unscear.org/docs/reports/2013/13-85418_Report_2013_Annex_A.pdf.
This is without prejudice to the peaceful uses of nuclear energy in relation
to climate change in particular (see International Atomic Energy Agency, Climate Change and Nuclear Power 2014
(Vienna, 2014), p. 7).
|
|
859
860
|
|
861
862
|
|
such a distance that it is not generally
possible to distinguish the contribution of individual emission sources or
groups of sources.
(11)
Since “atmospheric pollution” is defined
narrowly in paragraph (b), it is necessary, for the purposes of the draft
guidelines, to address issues other than atmospheric pollution by means of a
different definition. For this purpose, paragraph (c) provides the definition
of “atmospheric degradation”. This definition is intended to include problems
of ozone depletion and climate change. It covers the alteration of the global
atmospheric conditions caused by humans, whether directly or indirectly.
These may be changes to the physical environment or biota or alterations to
the composition of the global atmosphere. The 1985 Vienna Convention for the
Protection of the Ozone Layer859 provides the definition of
“adverse effects” in article 1, paragraph 2, as meaning “changes in the
physical environment or biota, including changes in climate, which have
significant deleterious effects on human health or on the composition,
resilience and productivity of natural and managed ecosystems, or on
materials useful to mankind.” Article 1, paragraph 2, of the United Nations
Framework Convention on Climate defines “climate change” as “a change of
climate which is attributed directly or indirectly to human activity that
alters the composition of the global atmosphere and which is in addition to
natural climate variability observed over comparable time periods”.
(12)
The term “significant deleterious effects” is
intended to qualify the range of human activities to be covered by the draft
guidelines. The Commission has frequently employed the term “significant” in
its previous work.860 The Commission has stated that “significant is something more than ‘detectable ’ but
need not be at the level of ‘serious ’ or ‘substantial ’. The
harm must lead to real detrimental effects [and]... such detrimental effects
must be able to be measured by factual and objective standards”.861
Moreover, the term “significant”, while determined by factual and objective
criteria, also involves a value determination that depends on the
circumstances of a particular case and the period in which such determination
is made. For instance, a particular deprivation at a particular time might
not be considered “significant” because at that time scientific knowledge or
human appreciation did not assign much value to the resource. The question of
what constitutes “significant” is more of a factual assessment.862
(13)
While with respect to “atmospheric pollution”
the introduction or release of substances has to contribute only to
“deleterious” effects, in the case of “atmospheric degradation” the
alteration of atmospheric conditions must have “significant deleterious
effects”. As is evident from draft guideline 2, on the scope of the guidelines,
the present guidelines are concerned with the protection of the atmosphere
from both atmospheric pollution and atmospheric degradation. As noted in
paragraph (11) above, “adverse effects” in the Vienna Convention for the
Protection of Ozone Layer (art. 1, para. 2) refers to changes, which have
significant deleterious effects. The word “deleterious” refers to something
harmful, often in a subtle or unexpected way.
|
|
Vienna Convention for the Protection of
Ozone Layer (Vienna, 22 March 1985), United Nations, Treaty Series, vol. 1513, No. 26164, p.
293.
|
|
See for example article 7 of the Convention
on the Law of the Non-navigational Uses of International Watercourses (1997)
(General Assembly resolution 51/229 of 21 May 1997, annex); art. 1 of the
draft articles on prevention of transboundary harm from hazardous activities
(2001) (General Assembly resolution 62/68, annex); principle 2 of the draft
principles on the allocation of loss in the case of transboundary harm
arising out of hazardous activities (2006) (General Assembly resolution
61/36, annex); art. 6 of the articles on the law of transboundary aquifers
(2008) (General Assembly resolution 63/124, annex).
Para. (4) of the commentary to draft article
2 of the draft articles on prevention of transboundary harm from hazardous
activities, 2001, Yearbook ... 2001, Vol. II (Part Two) and
corrigendum, p. 152, at para. 98.
|
|
See, for example, the commentary to the
draft articles on prevention of transboundary harm from hazardous activities
(paras. (4) and (7) of the commentary to draft article 2), ibid. See also the commentary to the
draft principles on the allocation of loss in the case of transboundary harm
arising out of hazardous activities (paras. (1) to (3) of the commentary to
draft principle 2), Yearbook ...
|
|
2006,
vol. II (Part Two), para. 67.
|
|
863
|
|
864
865
866
|
|
Scope of the
guidelines
1.
The present draft guidelines concern the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation.
2.
The present draft guidelines do not deal with,
but are without prejudice to, questions concerning the polluter-pays
principle, the precautionary principle, common but differentiated
responsibilities, the liability of States and their nationals, and the transfer
of funds and technology to developing countries, including intellectual
property rights.
3.
The present draft guidelines do not deal with
specific substances, such as black carbon, tropospheric ozone and other
dual-impact substances, which are the subject of negotiations among States.
4.
Nothing in the present draft guidelines
affects the status of airspace under international law nor questions related
to outer space, including its delimitation.
(1)
Draft guideline 2 sets out the scope of the
draft guidelines in relation to the protection of the atmosphere. Paragraph 1
describes the scope in a positive manner, indicating what the guidelines are
concerned with, namely the protection of the atmosphere from atmospheric
pollution and atmospheric degradation, while paragraphs 2 and 3 are
formulated in a negative way, specifying what is not covered by the present
draft guidelines. Paragraph 4 contains a saving clause on airspace and outer
space.
(2)
Paragraph 1 deals with questions of the
protection of the atmosphere in two areas, atmospheric pollution and
atmospheric degradation. The draft guidelines are concerned only with
anthropogenic causes and not with those of natural origins such as volcanic
eruptions and meteorite collisions. The focus on transboundary pollution and
global atmospheric degradation caused by human activity reflects the current
realities, which are supported by the science.863 According to the
Intergovernmental Panel on Climate Change, the science indicates with 95 per
cent certainty that human activity is the dominant cause of observed warming
since the mid-twentieth century. The Panel has noted that human influence on
the climate system is clear. Such influence has been detected in warming of
the atmosphere and the ocean, in changes in the global water cycle, in
reductions in snow and ice, in global mean sea-level rise, and in changes in
some climate extremes.864 The Panel has further noted that it is
extremely likely that more than half of the observed increase in global
average surface temperature from 1951 to 2010 was caused by the anthropogenic
increase in greenhouse gas concentrations and other anthropogenic “forcings”
together.865
(3)
The guidelines will also not deal with
domestic or local pollution. It may be noted however that whatever happens
locally may sometimes have a bearing on the transboundary and global context
in so far as the protection of the atmosphere is concerned. Ameliorative
human action, taken individually or collectively, may need to take into
account the totality of the atmosphere, hydrosphere, biosphere and geosphere
and their interactions.
(4)
Sulphur dioxide and nitrogen oxides are the
main sources of transboundary atmospheric pollution,866 while
climate change and depletion of the ozone layer are the two
|
|
See generally, Intergovernmental Panel on
Climate Change, Climate Change 2013: The
Physical Science Basis ”, Summary for Policy makers, available
at
www.ipcc.ch/pdf/assessment- report/ar5/wg
1 /W G1AR5_SPM_FINAL .pdf.
|
|
Ibid.
|
|
Ibid.
|
|
867
|
|
868
869
870
|
|
871
872
873
874
|
|
principal concerns leading to atmospheric
degradation.867 Certain ozone depleting substances also contribute
to global warming.868
(5)
Paragraphs 2 and 3, as well as the fourth
preambular paragraph, reflect the 2013 understanding of the Commission
reached when the topic was included in the programme of work of the Commission
at its sixty-fifth session in 2013.869 It should be emphasized
that the decision of the Commission not to address the questions in paragraph
2 in no way indicates a view as to the legal status of these questions.
Moreover, the view was expressed that the Commission ought to have addressed
these questions.
(6)
Paragraph 4 is a saving clause that the draft
guidelines do not affect the status of airspace under international law. The
atmosphere and airspace are two entirely different concepts, which should be
distinguished. Airspace is a static and spatial-based institution over which
the State, within its territory, has “complete and exclusive sovereignty”.
For instance, article 1 of the Convention on International Civil Aviation,
provides that “every State has complete and exclusive sovereignty over the
‘airspace’ above its territory”.870 In turn, article 2 of the same
Convention deems the territory of a State to be the land areas and
territorial waters adjacent thereto under the sovereignty, suzerainty,
protection or mandate of such State. The airspace beyond the boundaries of
territorial waters is regarded as being outside the sovereignty of any State
and is open for use by all States, like the high seas. On the other hand, the
atmosphere, as an envelope of gases surrounding the Earth, is dynamic and
fluctuating, with gases that constantly move without regard to territorial
boundaries.871 The atmosphere is invisible, intangible and
non-separable.
(7)
Moreover, while the atmosphere is spatially
divided into spheres on the basis of temperature characteristics, there is no
sharp scientific boundary between the atmosphere and outer space. Beyond 100
km, traces of the atmosphere gradually merge with the emptiness of space.872
The Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies, is silent on the definition of “outer space”.873 The
matter has been under discussion within the context of the Legal
Sub-Committee of the Committee on the Peaceful Uses of Outer Space since
1959, which has looked at both spatial and function approaches to the
questions of delimitation.874
(8)
Accordingly, the Commission elected, in
paragraph 4, to indicate that the draft guidelines do not affect the legal
status of airspace nor address questions related to outer space. Moreover,
the reference to outer space reflects of the 2013 understanding of the
Commission.
Obligation to protect the atmosphere
States have the obligation to protect the atmosphere
by exercising due
diligence
in taking appropriate measures, in accordance with applicable rules of
|
|
Ibid.,
p. 336. The linkages between climate change and ozone depletion are addressed
in the preamble
|
|
as well as in article 4 of the United
Nations Framework Convention on Climate Change. The linkage between
transboundary atmospheric pollution and climate change is addressed in the
preamble and article 2, paragraph 1, of the 2012 amendment of the Gothenburg
Protocol.
|
|
Ibid.
|
|
Official
Records of the General Assembly, Sixty-eighth Session, Supplement 10
(A/68/10), para. 168. Convention
on International Civil Aviation (Chicago, 7 December 1944), United Nations, Treaty Series, vol. 15, No. 102, p.
295. See also art. 2, para. 2, of the United Nations Convention on the Law of
the Sea, which provides that “sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil”.
|
|
See generally Birnie, Boyle and Redgwell, International Law and the Environment
(footnote 855
above), chap. 6.
|
|
Moscow, London and Washington, D.C., 27
January 1967, United Nations, Treaty
Series, vol. 610, No. 8843, p. 205.
|
|
See, generally, B. Jasani, ed., Peaceful and Non-Peaceful uses of Space: Problems of
Definition for the Prevention of an Arms Race, United Nations
Institute for Disarmament Research (New York, Taylor and Francis, 1991),
especially chaps. 2-3.
|
|
875
|
|
876
|
|
877
|
|
international law, to prevent, reduce or
control atmospheric pollution and atmospheric degradation.
(1)
Draft guideline 3 is central to the present
draft guidelines. In particular, draft guidelines 4, 5 and 6, below, flow
from this guideline; these three draft guidelines seek to apply various
principles of international environmental law to the specific situation of
the protection of the atmosphere.
(2)
The draft guideline refers to both the
transboundary and global contexts. It will be recalled that draft guideline 1
contains a “transboundary” element in defining “atmospheric pollution” (as
the introduction or release by humans, directly or indirectly, into the
atmosphere of substances contributing to deleterious effects “extending
beyond the State of origin”, of such a nature as to endanger human life and
health and the Earth’s natural environment), and a “global” dimension in
defining “atmospheric degradation” (as the alteration by humans, directly or
indirectly, of atmospheric conditions having significant deleterious effects
of such a nature as to endanger human life and health and the Earth’s natural
environment). Draft guideline 3 delimits the obligation to protect the
atmosphere to preventing, reducing and controlling atmospheric pollution and
atmospheric degradation, thus differentiating the kinds of obligations
pertaining to each. The formulation of the present draft guideline finds its
genesis in principle 21 of the Stockholm Declaration, which reflected the
finding in the Trail Smelter
arbitration.875 This is further reflected in principle 2 of the
1992 Rio Declaration.
(3)
The reference to “States” for the purposes of
the draft guideline denotes both the possibility of States acting
“individually” and “jointly”, as appropriate.
(4)
As presently formulated, the draft guideline
is without prejudice to whether or not the obligation to protect the
atmosphere is an erga omnes
obligation in the sense of article 48 of the articles on responsibility of
States for internationally wrongful acts,876 a matter on which
there are different views. While there is support for recognizing that the
obligations pertaining to the protection of the atmosphere from transboundary
atmospheric pollution of global significance and global atmospheric
degradation are obligations erga
omnes, there is also support for the view that the legal
consequences of such a recognition are not yet fully clear in the context of
the present topic.
|
|
See UNRIAA, vol. III (Sales No. 1949.V.2),
pp. 1905-1982 (Award of 11 March 1941), at p. 1965 et seq.; and the first report of the
Special Rapporteur (A/CN.4/667),
para. 43. See also A.K. Kuhn, “The Trail Smelter Arbitration, United States
and Canada”, American Journal of
International Law, vol. 32 (1938), pp. 785-788, and ibid., vol. 35 (1941), pp. 665-666; and
J.E. Read, “The Trail Smelter Dispute”, Canadian
Yearbook of International Law, vol. 1 (1963), pp. 213-229.
|
|
Article 48 (Invocation of responsibility by
a State other than an injured State) provides that: “1. Any State other than
an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if ... (b) the obligation breached is owed to the
international community as a whole” (General Assembly resolution 56/83 of 12
December 2001. For the articles adopted by the Commission and the
commentaries thereto, see Yearbook
... 2001, vol. II (Part Two) and
corrigendum, chap. IV, sect. E).
|
|
Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, I. C.J. Reports 2010, p. 14, at pp. 55 and 179, paras. 101 and 197; Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 665, at pp. 706,
720, 724 and 740, paras. 104, 153, 168 and 228; International Tribunal for
the Law of the Sea, Responsibilities
and Obligations of States with Respect to Activities in the Area (Request for
Advisory Opinion submitted to the Seabed Dispute Chamber), Advisory Opinion, 1
February 2011, ITLOS Reports 2011, p. 10, at para.
131; draft articles on prevention of transboundary harm from hazardous
activities, Yearbook ... 2001, vol. II (Part Two)
and corrigendum, para. 97 (reproduced in General Assembly resolution
|
|
878
879
880
|
|
881
|
|
rules and measures, but also a certain level
of vigilance in their enforcement and the exercise of administrative control
applicable to public and private operators, such as the monitoring of
activities undertaken by such operators, to safeguard the rights of the other
party. It also requires taking into account the context and evolving
standards of both regulation and technology. Therefore, even where
significant adverse effects materialize, that does not automatically
constitute a failure of due diligence. Such failure is limited to the State’s
negligence to meet its obligation to take all appropriate measures to
prevent, reduce or control human activities where these activities have or
are likely to have significant adverse effects. The States’ obligation “to
ensure” does not require the achievement of a certain result (obligation of
result) but only requires the best available efforts so as not to cause
significant adverse effects (obligation of conduct).
(6)
The reference to “prevent, reduce or control”
denotes a variety of measures to be taken by States, whether individually or
jointly, in accordance with applicable rules as may be relevant to
atmospheric pollution on the one hand and atmospheric degradation on the
other. The phrase “prevent, reduce or control” draws upon formulations
contained in the United Nations Convention on the Law of the Sea878
and the United Nations Framework Convention on Climate Change.879
|
|
62/68, annex, of 6 December 2007), paras.
7-18; first and second reports of the International Law Association Study Group
on due diligence in international law, 7 March 2014 and July 2016,
respectively; J. Kulesza, Due Diligence in
International Law (Leiden, Brill, 2016).
|
|
Art. 194.
|
|
Article 3, paragraph 3, has a similar
provision that “[t]he Parties should take precautionary measures to
anticipate, prevent or minimize the causes of climate change and mitigate its
adverse effect”. Yearbook ... 2001, vol. II (Part Two) and
corrigendum, chap. V, sect. E, art. 3 (Prevention): “The State of origin
shall take all appropriate measures to prevent significant transboundary harm
or at any event to minimize the risk thereof’. The Commission has also dealt
with the obligation of prevention in its articles on responsibility of States
for internationally wrongful acts. Article 14, paragraph 3, provides that
“The breach of an international obligation requiring a State to prevent a
given event occurs when the event occurs and extends over the entire period
during which the event continues” (ibid.,
chap. IV, sect. E). According to the commentary: “Obligations of prevention
are usually construed as best efforts obligations, requiring States to take
all reasonable or necessary measures to prevent a given event from occurring,
but without warranting that the event will not occur” (ibid., para. (14) of
the commentary to art. 14, para. 3) The commentary illustrated “the
obligation to prevent transboundary damage by air pollution, dealt with in
the Trail Smelter arbitration” as one of
the examples of the obligation of prevention (ibid.).
|
|
The International Court of Justice has
emphasized prevention as well. In the Gabcikovo-Nagymaros
Project case, the Court stated that it “is mindful that, in the
field of environmental protection, vigilance and prevention are required on
account of the often irreversible character of damage to the environment and
of the limitations inherent in the very mechanism of reparation of this type
of damage” (Gabcikovo-Nagynaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p.
78, para. 140). In the Iron Rhine Railway
case, the Arbitral Tribunal also stated that “[t]oday, in international
environmental law, a growing emphasis is being put on the duty of prevention”
(Award in the Arbitration regarding the Iron Rhine
("Ijzeren Rijn ") Railway between the Kingdom of Belgium and the
Kingdom of the Netherlands, decision of 24 May 2005, UNRIAA,
vol. XXVII, pp. 35-125, at p. 116, para. 222).
|
|
882
883
884
885
|
|
886
887
888
889
890
|
|
national control is now part of the corpus
of international law”,882 and has attached great significance to
respect for the environment “not only for States but also for the whole of
mankind”.883 The Tribunal in the Iron
Rhine Railway case
stated that the “duty to prevent, or at least mitigate [significant harm to
the environment] ... has now become a principle of general international
law”.884 At the same time, the views of members diverged as to
whether these pronouncements may be deemed as fully supporting the
recognition that the obligation to prevent, reduce, or control global
atmospheric degradation exists under customary international law.
Nonetheless, such an obligation is found in relevant conventions.885
In this context, it should be noted that the Paris Agreement, “acknowledging”
in the preamble that “climate change is a common concern of humankind”,
states “the importance of ensuring the integrity of all ecosystems, including
oceans, and the protection of biodiversity”.886
Environmental impact assessment
States have the obligation to ensure that an
environmental impact assessment is undertaken of proposed activities under
their jurisdiction or control which are likely to cause significant adverse
impact on the atmosphere in terms of atmospheric pollution or atmospheric
degradation.
(1)
Draft guideline 4 deals with environmental
impact assessment. This is the first of three draft guidelines that flow from
the overarching draft guideline 3. In the Construction of a Road in Costa Rica along the San
Juan River case, the International Court of
Justice affirmed that “a State’s obligation to exercise due diligence in
preventing significant transboundary harm requires that State to ascertain
whether there is a risk of significant transboundary harm prior to
undertaking an activity having the potential adversely to affect the
environment of another State. If that is the case, the State concerned must
conduct an environmental impact assessment”.887 In the
above-mentioned case, the Court concluded that the State in question “ha[d]
not complied with its obligation under general international law to perform
an environmental impact assessment prior to the construction of the road”.888
In a separate opinion, Judge Owada noted that “an environmental impact
assessment plays an important and even crucial role in ensuring that the
State in question is acting with due diligence under general international
environmental law”.889 In 2010, in the Pulp
Mills case, the Court stated that “the
obligation to protect and preserve, under Article 41 (a) of the Statute, has
to be interpreted in accordance with a practice which in recent years has
gained so much acceptance among States that it may now be considered a
requirement under general international law to undertake an environmental
impact assessment”.890 Moreover,
in 2011, the Seabed Disputes Chamber of the International Tribunal for the
Law of the Sea in its Advisory Opinion on the Responsibilities and
obligations of States regarding activities in the Area held
that the duty to conduct an environmental impact assessment arises not only
under the Law of the Sea Convention, but is also a “general obligation under
customary
|
|
Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at pp.
241-242, para. 29.
|
|
See, for example, United Nations Convention
on the Law of the Sea; Vienna Convention for the Protection of the Ozone
Layer (Vienna, 22 March 1985), ibid.,
vol. 1513, No. 26164, p. 293; United Nations Framework Convention on Climate
Change; Convention on Biological Diversity; United Nations Convention to
Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (opened for signature, Paris, 14
October 1994), ibid., vol.
1954, No. 33480, p. 3; Stockholm Convention on Persistent Organic Pollutants
(Stockholm, 22 May 2001), ibid.,
vol. 2256, No. 40214, p. 119; and Minamata Convention on Mercury.
|
|
Art. 2, para. 1.
|
|
Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 665, para. 153.
|
|
Ibid.,
para. 168.
|
|
Ibid.,
Separate Opinion of Judge Owada, para. 18.
|
|
891
|
|
892
893
894
895
|
|
896
|
|
international
law”.891 Similarly, the International Court of Justice in the Gabcikovo- Nagymaros Project case
alluded to the importance of environmental impact assessment.892
(2)
The draft guideline is formulated in the
passive tense — “States have the obligation to ensure that an environmental
impact assessment is undertaken” as opposed to “States have an obligation to
undertake an appropriate environmental impact assessment” — in order to
signal that this is an obligation of conduct and given the broad nature of
economic actors the obligation does not necessarily attach to the State
itself to perform the assessment. What is required is that the State put in
place the necessary legislative, regulatory and other measures for an
environmental impact assessment to be conducted with respect to proposed
activities. Notification and consultations are key to such an assessment.
(3)
The phrase “of proposed activities under their
jurisdiction or control” is intended to indicate that the obligation of
States to ensure that an environment impact assessment is undertaken is in
respect of activities under their jurisdiction or control. Since
environmental threats have no respect for borders, it is not precluded that
States, as part of their global environmental responsibility, take decisions
jointly regarding environmental impact assessments.
(4)
A threshold was considered necessary for
triggering the environmental impact assessment. The phrase “which are likely
to cause significant adverse impact” has accordingly been inserted. It is
drawn from the language of principle 17 of the Rio Declaration. Moreover,
there are other instruments, such as the Espoo Convention on Environmental
Impact Assessment in a Transboundary Context, 893 that use a
similar threshold. In the Pulp Mills
case, the Court indicated that an environmental impact assessment had to be
undertaken where there was a risk that the proposed industrial activity may
have a “significant adverse impact in a transboundary context, in particular,
on a shared
resource”.894
(5)
By having a threshold of “likely to cause
significant adverse impact”, the draft guideline excludes an environmental
impact assessment for an activity whose impact is likely to be minor. The
impact of the potential harm must be “significant” for both “atmospheric
pollution” and “atmospheric degradation”. What constitutes “significant”
requires a factual not a legal determination.895
(6)
The phrase “in terms of atmospheric pollution
or atmospheric degradation” was considered important as it relates the draft
guideline to the two main issues of concern to the present draft guidelines
as regards protection of the atmosphere, namely transboundary atmospheric
pollution and atmospheric degradation. While the relevant precedents for the
requirement of an environmental impact assessment primarily address
transboundary contexts, it is considered that there is a similar requirement
for projects that are likely to have significant adverse effects on the
global atmosphere, such as those activities involving intentional large-scale
modification of the atmosphere.896 As regards the protection of
the atmosphere, such activities may carry a more extensive risk of severe
damage than even those causing transboundary harm, and therefore the same
considerations should be applied a
|
|
International Tribunal for the Law of the Sea, Responsibilities and Obligations of States with Respect
to Activities in the Area (Request for Advisory Opinion submitted to the
Seabed Dispute Chamber), Advisory Opinion, 1
February 2011, ITLOSReports 2011, p.
10, at para. 145.
Convention on Environmental Impact
Assessment in a Transboundary Context (Espoo, 25 February 1991), United
Nations, Treaty Series, vol. 1989, No. 34028, p.
309.
The Commission has frequently employed the
term “significant” in its work, including in the articles on the prevention
of transboundary harm from hazardous activities (2001). In that case, the
Commission chose not to define the term, recognizing that the question of
“significance” requires a factual determination rather than a legal one (see
the general commentary, para. (4), Yearbook
... 2001, vol. II (Part Two) and corrigendum, chap. V, sect.
E). See, for example, paras. (4) and (7) of the commentary to art. 2 of the
articles on the prevention of transboundary harm from hazardous activities (ibid.). See also the commentary to the
draft principles on the allocation of loss in the case of transboundary harm
arising out of hazardous activities (commentary to draft principle 2, paras.
(1)- (3), Yearbook ... 2006, vol. II (Part Two), chap. V,
sect. E).
See draft guideline 7.
|
|
897
|
|
898
|
|
899
900
|
|
fortiori
to those activities potentially causing global atmospheric degradation. Thus,
the Kiev Protocol on Strategic Environmental Assessment to the Convention on
the Environmental Impact in the Transboundary Context encourages “strategic
environmental assessment” of the likely environmental, including health,
effects, which means any effect on the environment, including human health,
flora, fauna, biodiversity, soil, climate, air, water, landscape, natural
sites, material assets, cultural heritage and the interaction among these
factors.897
(7)
While it is acknowledged that transparency and
public participation are important components in ensuring access to
information and representation, it was considered that the parts dealing with
procedural aspects of an environmental impact assessment should not be dealt
with in the draft guideline itself. Principle 10 of the 1992 Rio Declaration
provides that environmental issues are best handled with the participation of
all concerned citizens, at the relevant level. This includes access to
information, the opportunity to participate in decisionmaking processes, and
effective access to judicial and administrative proceedings. The Convention
on Access to Information, Public Participation in Decision-making and Access
to Justice in Environmental Matters898 also addresses these
issues. The Kiev Protocol on Strategic Environmental Assessment encourages
the carrying out of public participation and consultations, and the taking
into account of the results of the public participation and consultations in
a plan or programme.899
Sustainable
utilization of the atmosphere
1.
Given that the atmosphere is a natural
resource with a limited assimilation
capacity,
its utilization should be undertaken in a sustainable manner.
2.
Sustainable utilization of the atmosphere
includes the need to reconcile
economic
development with protection of the atmosphere.
(1)
The atmosphere is a natural resource with
limited assimilation capacity.900 It is often not conceived of as
exploitable in the same sense as, for example, mineral or oil and gas
resources are explored and exploited. In truth, however, the atmosphere, in
its physical and functional components, is exploitable and exploited. The
polluter exploits the atmosphere by reducing its quality and its capacity to
assimilate pollutants. The draft guideline draws analogies from the concept
of “shared resource”, while also recognizing that the unity of the global
atmosphere requires recognition of the commonality of interests. Accordingly,
this draft guideline proceeds on the premise that the atmosphere is a
resource with limited assimilation capacity, the ability of which to sustain
life on Earth is impacted by anthropogenic activities. In order to secure its
protection, it is important to see it as a resource that is subject to
exploitation, thereby subjecting the atmosphere to the principles of
conservation and sustainable use. Some members expressed doubts whether the
atmosphere could be treated analogously as transboundary watercourses or aquifers.
(2)
It is acknowledged in paragraph 1 that the
atmosphere is a “natural resource with a limited assimilation capacity”. The
second part of paragraph 1 seeks to integrate conservation and development so
as to ensure that modifications to the planet continue to enable the survival
and wellbeing of organisms on Earth. It does so by reference to the
proposition that the utilization of the atmosphere should be undertaken in a
sustainable manner. This is inspired by the Commission’s formulations as
reflected in the Convention on the Law of the
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Protocol on Strategic Environmental
Assessment to the Convention on the Environmental Impact in the Transboundary
Context (Kiev, 21 May 2003), ECE/MP.EIA/2003/2 (available from:
www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/protocolenglish),
art. 2, paras. 6-7. Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental Matters (Aarhus, 28
June 1998), United Nations, Treaty
Series, vol. 2161, No. 37770, p. 447.
Art. 2, paras. 6-7.
See para. (2) of the commentary to the
preamble, above.
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901
902
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903
904
905
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Non-navigational Uses of International
Watercourses,901 and the articles on the law of transboundary
aquifers.902
(3)
The term “utilization” is used broadly and in
general terms evoking notions beyond actual exploitation. The atmosphere has
been utilized in several ways. Likely, most of these activities that have
been carried out so far are those conducted without a clear or concrete
intention to affect atmospheric conditions. However, there have been certain activities
the very purpose of which is to alter atmospheric conditions, such as weather
modification. Some of the proposed technologies for intentional, large-scale
modification of the atmosphere903 are examples of the utilization
of the atmosphere.
(4)
The formulation “its utilization should be
undertaken in a sustainable manner” in the present draft guideline is simple
and not overly legalistic, which well reflects a paradigmatic shift towards
viewing the atmosphere as a natural resource that ought to be utilized in a
sustainable manner. It is presented more as a statement of international
policy and regulation than an operational code to determine rights and
obligations among States.
(5)
Paragraph 2 builds upon the language of the
International Court of Justice in its judgment in the Gabcikovo-Nagymaros Project case, in
which it referred to the “need to reconcile environmental protection and
economic development”.904 There are other relevant precedents.905
The reference to “protection of the atmosphere” as opposed to “environmental
protection” seeks to focus the paragraph on the subject matter of the present
topic, which is the protection of the atmosphere.
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Arts. 5 and 6. For the draft articles and
commentaries thereto adopted by the Commission, see Yearbook ... 1994, vol. II (Part Two), chap. III,
sect. E.
General Assembly resolution 63/124 of 11
December 2008, annex, arts. 4-5. For the draft articles and commentaries
thereto adopted by the Commission, see Yearbook
... 2008, vol. II (Part Two), chap. IV, sect. E.
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See draft guideline 7 below.
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In the 2006 order of the Pulp Mills case, the International
Court of Justice highlighted “the importance of the need to ensure
environmental protection of shared natural resources while allowing for
sustainable economic development” (PulpMills
on the River Uruguay (Argentina v. Uruguay), Provisional
Measures, Order of 13 July 2006, I.C.J.
Reports 2006, p. 113, at p. 133, para. 80); the 1998 WTO
Appellate Body decision on United States
— Import Prohibition of Certain Shrimp and Shrimp
Products stated that, “recalling the explicit recognition by
WTO Members of the objective of sustainable development in the preamble of
the WTO Agreement, we believe it is too
late in the day to suppose that article XX(g) of the [General Agreement on
Tariffs and Trade] may be read as referring only to the conservation of
exhaustible mineral or other non-living resources” (Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R, adopted 6 November 1998, para. 131, see
also paras. 129 and 153); in the 2005 arbitral case of the Iron Rhine Railway, the Tribunal held
as follows: “[t]here is considerable debate as to what, within the field of
environmental law, constitutes ‘rules’ or ‘principles’: what is ‘soft’ law;
and which environmental treaty law or principles have contributed to the
development of customary international law. ... The emerging principles,
whatever their current status, make reference to ... sustainable development.
... Importantly, these emerging principles now integrate environmental
protection into the development process. Environmental law and the law on
development stand not as alternatives but as mutually reinforcing, integral
concepts, which require that where development may cause signify harm to the
environment there is a duty to prevent, or at least mitigate such harm. .
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This duty, in the opinion of the Tribunal,
has now become a principle of general international law”, Iron Rhine Railway (see footnote 881 above), paras.
58-59; the 2013 Partial Award of the Indus
Waters Kishenganga Arbitration (Pakistan v. India) states:
“[t]here is no doubt that States are required under contemporary customary
international law to take environmental protection into consideration when
planning and developing projects that may cause injury to a bordering State.
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Since the time of Trail Smelter, a series of
international ... arbitral decisions have addressed the need to manage
natural resources in a sustainable manner. In particular, the International
Court of Justice expounded upon the principle of ‘sustainable development’ in
Gabcikovo-Nagymaros (see footnote 881 above), referring to
the ‘need to reconcile economic development with protection of the environment”
(Permanent Court of Arbitration Award Series, Indus
Waters Kishenganga Arbitration (Pakistan v. India): Record of Proceedings
2010-2013, Partial Award of 18 February 2013, para. 449. This
was confirmed by the F inal Award of 20 December 2013, para. 111.
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906
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907
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908
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Equitable and reasonable utilization of the atmosphere
The atmosphere should be utilized in an
equitable and reasonable manner, taking into account the interests of present
and future generations.
(1)
Although equitable and reasonable utilization
of the atmosphere is an important element of sustainability, as reflected in
draft guideline 5, it is considered important to state it as an autonomous
principle. Like draft guideline 5, the present guideline is formulated at a
broad level of abstraction and generality.
(2)
The draft guideline is formulated in general
terms so as to apply the principle of equity906 to the protection
of the atmosphere as a natural resource that is to be shared by all. The
first part of the sentence deals with “equitable and reasonable” utilization.
The formulation that the “atmosphere should be utilized in an equitable and
reasonable manner” draws, in part, upon article 5 of the Convention on the Law
of the Non-navigational Uses of International Watercourses, and article 4 of
articles on the law of transboundary aquifers. It requires a balancing of
interests and consideration of all relevant factors that may be unique to
either atmospheric pollution or atmospheric degradation.
(3)
The second part of the formulation addresses
questions of intra- and intergenerational equity.907 In order to
draw out the link between the two aspects of equity, the Commission elected
to use the phrase “taking into account the interests of future” instead of
“and for the benefit of present and future generations of humankind”. The
words “the interests of”, and not “the benefit of”, have been used to signal
the integrated nature of the atmosphere, the “exploitation” of which needs to
take into account a balancing of interests to ensure sustenance for the
Earth’s living organisms.
Intentional large-scale modification of the atmosphere
Activities aimed at intentional large-scale
modification of the atmosphere should be conducted with prudence and caution,
subject to any applicable rules of international law.
(1)
Draft guideline 7 deals with activities the
very purpose of which is to alter atmospheric conditions. As the title of the
draft guideline signals, it addresses only intentional modification on a
large scale.
(2)
The term “activities aimed at intentional
large-scale modification of the atmosphere” is taken in part from the
definition of “environmental modification techniques” that appears in the
Convention on the Prohibition of Military or any Hostile Use of Environmental
Modification Techniques, 908 which refers to techniques for changing
— through the
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See, for example, J. Kokott, “Equity in
international law”, in Fair Weather? Equity
Concerns in Climate Change, F.L. Toth, ed. (Abingdon and New
York, Routledge, 2014), pp. 173-192; Frontier Dispute (Burkina Faso v. Mali), Judgment,
I.C.JReports 1986, p. 554; See, in general, P. Weil, “L’équité dans la jurisprudence de la Cour internationale de
Justice: Un mystère en voie de dissipation?”, in Fifty Years of the International Court ofJustice:
Essays in Honour of Sir Robert Jennings, V. Lowe and M.
Fitzmaurice, eds. (Cambridge, United Kingdom, Cambridge University Press,
1996), pp. 121-144; F. Francioni, “Equity in international law,” in Max Plank Encyclopedia of Public International Law,
vol. III, R. Wolfrum, ed. (Oxford, Oxford University Press, 2013),
pp. 632642.
C. Redgwell, “Principles and emerging norms
in international law: intra- and inter-generational equity”, in The Oxford Handbook on International Climate Change
Law, C.P. Carlarne et al., eds. (Oxford, Oxford University Press, 2016), pp. 185-201.; D.
Shelton, “Equity” in Oxford Handbook of
International Environmental Law, Bodansky et al., eds. (footnote 821 above), pp.
639-662. Convention on the Prohibition of Military or any Hostile Use of
Environmental Modification Techniques (New York, 10 December 1976), United
Nations, Treaty Series, vol. 1108, No. 17119, p.
151.
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909
910
911
912
913
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deliberate manipulation of natural processes
— the dynamics, composition or structure of the Earth, including its biota,
lithosphere, hydrosphere and atmosphere, or of outer space.
(3)
These activities include what is commonly
understood as “geo-engineering”, the methods and technologies of which
encompass carbon dioxide removal and solar radiation management. Activities
related to the former involve the ocean, land and technical systems and seek
to remove carbon dioxide from the atmosphere through natural sinks or through
chemical engineering. Proposed techniques for carbon dioxide removal include:
soil carbon sequestration; carbon capture and sequestration; ambient air
capture; ocean fertilization; ocean alkalinity enhancement; and enhanced
weathering. Indeed, afforestation has traditionally been employed to reduce
carbon dioxide.
(4)
According to scientific experts, solar
radiation management is designed to mitigate the negative impacts of climate
change by intentionally lowering the surface temperatures of the Earth.
Proposed activities here include: “albedo enhancement”, a method that
involves increasing the reflectiveness of clouds or the surface of the Earth,
so that more of the heat of the sun is reflected back into space;
stratospheric aerosols, a technique that involves the introduction of small,
reflective particles into the upper atmosphere to reflect sunlight before it
reaches the surface of the Earth; and space reflectors, which entail blocking
a small proportion of sunlight before it reaches the Earth.
(5)
As noted above, the term “activities” is broadly
understood. However, there are certain other activities that are prohibited
by international law, which are not covered by the present draft guideline,
such as those prohibited by the Convention on the Prohibition of Military or
any Hostile Use of Environmental Modification Techniques909 and
Protocol I to the Geneva Conventions of 1949.910 Accordingly, the
present draft guideline applies only to “non-military” activities. Military
activities involving deliberate modifications of the atmosphere are outside
the scope of the present guideline.
(6)
Likewise, other activities will continue to be
governed by various regimes. For example, afforestation has been incorporated
in the Kyoto Protocol to the United Nations Framework Convention on Climate
Change911 regime and in the Paris Agreement (art. 5, para. 2).
Under some international legal instruments, measures have been adopted for
regulating carbon capture and storage. The 1996 Protocol (London Protocol)912
to the 1972 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter913 now includes an amended provision and
annex, as well as new guidelines for controlling the dumping of wastes and
other matter. To the extent that “ocean iron fertilization” and “ocean
alkalinity enhancement” relate to questions of ocean dumping, the 1972
Convention and the London Protocol thereto are relevant.
(7)
Activities aimed at intentional large-scale
modification of the atmosphere have a significant potential for preventing,
diverting, moderating or ameliorating the adverse effects of disasters and
hazards, including drought, hurricanes, tornadoes, and enhancing crop
production and the availability of water. At the same time, it is also
recognized that they may have long-range and unexpected effects on existing
climatic patterns that are not confined by national boundaries. As noted by
the World Meteorological Organization with respect to weather modification:
“The complexity of the atmospheric processes is such that a change in
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See art. 1.
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Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 1977, United Nations, Treaty Series, vol. 1125, No. 17512, p.
3, arts. 35, para. 3 and 55; see also Rome Statute of the International
Criminal Court (Rome, 17 July 1998), United Nations, Treaty Series, vol. 2187, No. 38544, p.
3, art. 8, para. 2 (b) (iv).
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Kyoto Protocol to the United Nations
Framework Convention on Climate Change (Kyoto, 11 December 1997), United
Nations, Treaty Series, vol. 2303, No. 30822, p.
162.
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1996
Protocol to the 1972 Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter (London, 7 November 1996), International Legal Materials, vol. 36
(1997), p. 7.
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Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter (London, Mexico City, Moscow
and Washington, D.C., 29 December 1972), United Nations, Treaty Series, vol. 1046, No. 15749, p.
138.
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914
|
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915
|
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916
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917
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the weather induced artificially in one part
of the world will necessarily have repercussions elsewhere ... . Before
undertaking an experiment on large-scale weather modification, the possible
and desirable consequences must be carefully evaluated, and satisfactory
international arrangements must be reached.”914
(8)
It is also not the intention of the present
draft guideline to stifle innovation and scientific advancement. Principles 7
and 9 of the Rio Declaration acknowledge the importance of new and innovative
technologies and cooperation in these areas. At the same time, this does not
mean that those activities always have positive effects.
(9)
Accordingly, the draft guideline does not seek
either to authorize or to prohibit such activities unless there is agreement
among States to take such a course of action. It simply sets out the
principle that such activities, if undertaken, should be conducted with
prudence and caution. The reference to “prudence and caution” is inspired by
the language of the International Tribunal for the Law of the Sea in the
cases of Southern Blue Fin Tuna,915
the Case of Mox Plant,916 and
the Case concerning Land Reclamation .917 The Tribunal stated in
the last case: “Considering that, given the possible implications
of land reclamation on the marine environment, prudence and caution require
that Malaysia and Singapore establish mechanisms for exchanging information
and assessing the risks or effects of land reclamation works and devising
ways to deal with them in the areas concerned.” The draft guideline is cast
in hortatory language, aimed at encouraging the development of rules to
govern such activities, within the regimes competent in the various fields
relevant to atmospheric pollution and atmospheric degradation.
(10)
The last part of the guideline refers to
“subject to any applicable rules of international law”. It is understood that
international law would continue to operate in the field of application of
the draft guideline.
(11)
It is widely acknowledged that such an
activity should be conducted in a fully disclosed and transparent manner, and
that an environmental impact assessment provided for in draft guideline 4 may
be required for such an activity. It is considered that a project involving
intentional large-scale modification of the atmosphere may well carry an
extensive risk of severe damage, and therefore that a fortiori an
assessment is necessary for such an activity.
(12)
A number of members remained unpersuaded that
there was a need for a draft guideline on this matter, which essentially
remains controversial, and the discussion on it was evolving, and is based on
scant practice. Other members were of the view that the draft guideline could
be enhanced during second reading.
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See Second
Report on the Advancement of Atmospheric Science and Their Application in the
Light of the Developments in Outer Space (Geneva, World
Meteorological Organization, 1963); see also Decision 8/7 (Earthwatch:
assessment of outer limits) of the Governing Council of the United Nations
Environment Programme, Part A (Provisions for co-operation between States in
weather modification) of 29 April 1980.
Southern
Blue Fin Tuna Cases (New Zealand v. Japan; Australia v. Japan),
Provisional Measures, Order of 27 August 1999, ITLOS
Reports 1999, p. 280, at para. 77. The Tribunal stated that “[c]onsidering that, in the view of the
Tribunal, the parties should in the circumstances act with prudence and
caution to ensure that effective conservation measures are taken to prevent
serious harm to the stock of southern bluefin tuna”.
Mox
Plant (Ireland v. United Kingdom), Provisional Measures, Order
of 3 December 2001, ITLOS Reports 2001,
p. 95, at para. 84 (“[c]onsidering
that, in the view of the Tribunal, prudence and caution require that Ireland
and the United Kingdom cooperate in exchanging information concerning risks
or effects of the operation of the Mox plant and in devising ways to deal
with them, as appropriate”).
Case concerning Land Reclamation by Singapore in and
around the Strait of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS
Reports 2003, p. 10, at para. 99.
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918
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919
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920
921
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International
cooperation
1.
States have the obligation to cooperate, as
appropriate, with each other and with relevant international organizations
for the protection of the atmosphere from atmospheric pollution and
atmospheric degradation.
2.
States should cooperate in further enhancing
scientific knowledge relating to the causes and impacts of atmospheric
pollution and atmospheric degradation. Cooperation could include exchange of
information and joint monitoring.
(1)
International cooperation is at the core of
the whole set of the present draft guidelines. The concept of international
cooperation has undergone a significant change in international law,918
and today is to a large extent built on the notion of common interests of the
international community as a whole.919 The fourth paragraph of the
preamble to the present draft guidelines recognizes this in stating that the
protection of the atmosphere from atmospheric pollution and degradation is “a
pressing concern of the international community as a whole”.
(2)
In this context, paragraph 1 of the present
draft guideline, provides the obligation of States to cooperate, as
appropriate. In concrete terms, such cooperation is with other States and
with relevant international organizations. The phrase “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. The forms in which such cooperation may occur may also vary
depending on the situation and allows for the exercise of a certain margin of
appreciation of States. It may be at the bilateral, regional or multilateral
levels. States may also individually take appropriate action.
(3)
In the Pulp
Mills case, the International Court of Justice emphasized
linkages attendant to the obligation to inform, cooperation between the
parties and the obligation of prevention. The Court noted that, “it is by
cooperating that the States concerned can jointly manage the risks of damage
to the environment ... so as to prevent the damage in question”.920
(4)
International cooperation is found in several
multilateral instruments relevant to the protection of the environment. Both
the Stockholm Declaration and the Rio Declaration, in principle 24 and
principle 27, respectively, stress the importance of cooperation, entailing
good faith and a spirit of partnership.921 In addition, among some
of the existing treaties, the
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W. Friedmann, The
Changing Structure of International Law (London, Stevens &
Sons, 1964), pp. 60-71; C. Leben, “The changing
structure of international law revisited by way of introduction”, European Journal of International Law,
vol. 3 (1997), pp. 399-408. See also, J. Delbrück, “The
international obligation to cooperate — an empty shell or a hard law
principle of international law? — a critical look at a much debated paradigm
of modern international law”, H.P. Hestermeyer et al.,
eds., Coexistence, Cooperation and Solidarity
(Liber Amicorum Rüdiger Wolfrum), vol. 1 (Leiden, Martinus
Njihoff, 2012), pp. 3-16.
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B. Simma, “From bilateralism to community
interests in international law”, Collected
Courses of The Hague Academy of International Law, 1994-VI,
vol. 250, pp. 217-384; N. Okuwaki, “On compliance with the obligation to
cooperate: new developments of ‘international law for cooperation’”, in Aspects of International Law Studies
(Festschrift for Shinya Murase), J. Eto, ed. (Tokyo, Shinzansha, 2015), pp.
5-46, at pp. 16-17 (in Japanese).
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Principle 24 of the Stockholm Declaration
states:
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“International matters concerning the
protection and improvement of the environment should be handled in a
cooperative spirit by all countries, big or small, on an equal footing. Cooperation
through multilateral or bilateral arrangements or other appropriate means is
essential to effectively control, prevent, reduce and eliminate adverse
environmental effects resulting from activities conducted in all spheres, in
such a way that due account is taken of the sovereignty and interests of all
States.”
Report of the United Nations Conference on the Human
Environment, Stockholm, 5-16 June 1972 (see footnote 807 above).
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922
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923
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Vienna Convention for the Protection of the
Ozone Layer (1985) provides, in its preamble, that the Parties to this
Convention are “[a]ware that
measures to protect the ozone layer from modifications due to human
activities require international co-operation and action”. Furthermore, the
preamble of the United Nations Framework Convention on Climate Change (1992)
acknowledges that “the global nature of climate change calls for the widest
possible cooperation by all countries and their participation in an effective
and appropriate international response ...”, while reaffirming “the principle
of sovereignty of States in international cooperation to address climate
change”.922
(5)
Paragraph 1 of article 8 of the Convention on
the Law of the Non-navigational Uses of International Watercourses, on the
general obligation to cooperate, provides that:
[W]atercourse States shall cooperate on the
basis of sovereign equality, territorial integrity and mutual benefit in
order to attain optimal utilization and adequate protection of an
international watercourse.
(6)
In its work, the Commission has also
recognized the importance of the obligation to cooperate. The draft articles
on prevention of transboundary harm from hazardous activities (2001) provide
in draft article 4, on cooperation, that:
States
concerned shall cooperate in good faith and, as necessary, seek the
assistance of one or more competent international organizations in preventing
significant transboundary harm or at any event in minimizing the risk
thereof.
Further, the draft articles on the law of
transboundary aquifers provide in draft article 7, General obligation to
cooperate, that:
1.
Aquifer States shall cooperate on the basis of
sovereign equality, territorial integrity, sustainable development, mutual
benefit and good faith in order to attain equitable and reasonable
utilization and appropriate protection of their transboundary aquifers or
aquifer systems.
2.
For the purpose of paragraph 1, aquifer States
should establish joint mechanisms of cooperation.
(7)
Finally, the articles on the protection of
persons in the event of disasters (2016) provide, in draft article 7, a duty
to cooperate.923
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Principle
274 of the Rio Declaration states:
“States and people shall cooperate in good
faith and in a spirit of partnership in the fulfilment of the principles
embodied in this Declaration and in the further development of international
law in the field of sustainable development.”
Report of the United Nations Conference on the Human
Environment, Rio de Janeiro, 3-14 June 1992, vol. I: Resolutions adopted by the Conference (United Nations
publication, Sales No. E.93.I.8 and corrigenda), resolution 1, annex I, chap.
I.
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See also section 2 of Part XII of the United
Nations Convention on the Law of the Sea, which provides for “Global and
Regional Cooperation”, setting out “Cooperation on global or regional basis”
(art. 197), “Notification of imminent or actual damage” (art. 198),
“Contingency plans against pollution” (art. 199), “Studies, research
programmes and exchange of information and data” (art. 200) and “Scientific
criteria for regulations” (art. 201). Section 2 of Part XIII on Marine
Scientific Research of the United Nations Convention on the Law of the Sea
provides for “International Cooperation”, setting out “Promotion of
international cooperation” (art. 242), “Creation of favourable conditions”
(art. 243) and “Publication and dissemination of information and knowledge”
(art. 244). Draft article 7 provides that:
“In
the application of the present draft articles, States shall, as appropriate,
cooperate among themselves, with the United Nations, with the components of
the Red Cross and Red Crescent Movement, and with other assisting actors.”
The
draft articles were adopted on second reading by the Commission at its
sixty-eighth session, in 2016, and submitted to the General Assembly as a
part of the Commission’s report covering the work of that session (A/71/10), para. 48. In its
resolution 71/141 of 13 December 2016, the General Assembly took note of the
draft articles, and invited Governments to submit comments concerning the
recommendation by the Commission to elaborate a convention on the basis of
the articles.
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924
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925
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(8)
Cooperation could take a variety of forms.
Paragraph (b) of the draft guidelines stresses, in particular, the importance
of cooperation in enhancing scientific knowledge relating to the causes and
impacts of atmospheric pollution and atmospheric degradation. Paragraph (b)
also highlights the exchange of information and joint monitoring.
(9)
The Vienna Convention for the Protection of
the Ozone Layer provides, in its preamble, that international cooperation and
action should be “based on relevant scientific and technical considerations”,
and in article 4, paragraph (1), on cooperation in the legal, scientific and
technical fields, there is provision that:
The Parties shall facilitate and encourage
the exchange of scientific, technical, socioeconomic, commercial and legal
information relevant to this Convention as further elaborated in annex II.
Such information shall be supplied to bodies agreed upon by the Parties.
Annex II to the Convention gives a detailed
set of items for information exchange. Article 4, paragraph 2, provides for
cooperation in the technical fields, taking into account the needs of
developing countries.
(10)
Article 4, paragraph 1, of the United Nations
Framework Convention on Climate Change, regarding commitments, provides that:
All Parties ... shall (e) Cooperate in
preparing for adaptation to the impacts of climate change; ... (g) Promote
and cooperate in scientific, technological, technical, socioeconomic and
other research, systematic observation and development of data archives
related to the climate system and intended to further the understanding and
to reduce or eliminate the remaining uncertainties regarding the causes,
effects, magnitude and timing of climate change and the economic and social
consequences of various response strategies; (h) Promote and cooperate in the
full, open and prompt exchange of relevant scientific, technological,
technical, socio-economic and legal information related to the climate system
and climate change, and to the economic and social consequences of various
response strategies; (i) Promote and cooperate in education, training and
public awareness related to climate change and encourage the widest
participation in this process, including that of non-governmental
organizations.
(11)
The obligation to cooperate also includes, inter alia, the exchange of
information. In this respect, it may also be noted that article 9 of the
Convention on the Law of the Nonnavigational Uses of International
Watercourses has a detailed set of provisions on exchange of data and
information. Moreover, the Convention on Long-Range Transboundary Air
Pollution provides in article 4 that the Contracting Parties “shall exchange
information on and review their policies, scientific activities and technical
measures aimed at combating, as far as possible, the discharge of air
pollutants which may have adverse effects, thereby contributing to the
reduction of air pollution including long-range transboundary air pollution”.
The Convention also has detailed provisions on cooperation in the fields of
research and development (art. 7); exchange of information (art. 8); and
implementation and further development of the cooperative programme for the
monitoring and evaluation of the long-range transmission of air pollutants in
Europe (art. 9). Similarly, the Eastern Africa Regional Framework Agreement
on Air Pollution (Nairobi Agreement, 2008)924 and the West and
Central Africa Regional Framework Agreement on Air Pollution (Abidjan
Agreement, 2009)925 have identical provisions on international
cooperation. The parties agree to:
1.2 Consider the synergies and co-benefits
of taking joint measures against the emission of air pollutants and
greenhouse gases; 1.4 Promote the exchange of educational and research
information on air quality management; 1.5 Promote regional cooperation to
strengthen the regulatory institutions.
|
|
Available
at
Available
at
|
|
926
|
|
927
|
|
(12)
The second sentence of draft article 17,
paragraph 4, of the draft articles on the law of transboundary aquifers
provides that: “Cooperation may include coordination of international
emergency actions and communications, making available emergency response
personnel, emergency response equipment and supplies, scientific and
technical expertise and humanitarian assistance”. In turn, the draft articles
on the protection of persons in the event of disaster, provides in draft
article 9, that “[f]or the purposes of the present draft articles,
cooperation includes humanitarian assistance, coordination of international
relief actions and communications, and making available relief personnel,
equipment and goods, and scientific, medical and technical resources”.
Further, draft article 10 (Cooperation for risk reduction) provides that
“[c]ooperation shall extend to the taking of measures intended to reduce the
risk of disasters”.
(13)
In the context of protecting the atmosphere,
enhancing scientific knowledge relating to the causes and impacts of
atmospheric pollution and atmospheric degradation is considered key by the
Commission.
Interrelationship
among relevant rules
1.
The rules of international law relating to the
protection of the atmosphere and other relevant rules of international law,
including, inter alia, the
rules of international trade and investment law, of the law of the sea and of
international human rights law, should, to the extent possible, be identified,
interpreted and applied in order to give rise to a single set of compatible
obligations, in line with the principles of harmonization and systemic
integration, and with a view to avoiding conflicts. This should be done in
accordance with the relevant rules set forth in the Vienna Convention on the
Law of Treaties of 1969, including articles 30 and 31, paragraph 3 (c), and
the principles and rules of customary international law.
2.
States should, to the extent possible, when
developing new rules of international law relating to the protection of the
atmosphere and other relevant rules of international law, endeavour to do so
in a harmonious manner.
3.
When applying paragraphs 1 and 2, special
consideration should be given to persons and groups particularly vulnerable
to atmospheric pollution and atmospheric degradation. Such groups may
include, inter alia,
indigenous peoples, people of the least developed countries and people of
low-lying coastal areas and small island developing States affected by
sea-level rise.
|
|
See
draft article 10 (on interrelationship) of resolution 2/2014 on the
declaration of legal principles relating to climate change of the
International Law Association, Report
of the Seventy-sixth Conference held in Washington D.C., August 2014
(London, 2014), p. 26.
|
|
Yearbook ... 2006, vol. II (Part Two), para. 251.
See conclusion (2) on “relationships of interpretation” and “relationships of
conflict”. See, for the analytical study, “Fragmentation of
|
|
928
929
|
|
930
|
|
931
932
|
|
(2)
Paragraph 1 addresses three kinds of legal
processes, namely the identification of the relevant rules, their
interpretation and their application. The phrase “and with a view to avoiding
conflicts” at the end of the first sentence of the paragraph signals that
“avoiding conflicts” is among one of the principal purposes of the paragraph.
It is, however, not the exclusive purpose of the draft guideline. The
paragraph is formulated in the passive form, in recognition of the fact that
the process of identification, interpretation and application involves not
only States but also international organizations, as appropriate.
(3)
The phrase “should, to the extent possible, be
identified, interpreted and applied in order to give rise to a single set of
compatible obligations” draws upon the Commission’s Study Group conclusions
on fragmentation. The term “identified” is particularly relevant in relation
to rules arising from treaty obligations and other sources of international
law. In coordinating norms, certain preliminary steps need to be taken that
pertain to identification, for example, a determination of whether two norms
address “the same subject matter”, and which norm should be considered lex generalis or
lex specialis and
lex anterior or
lex posterior, and whether the pacta tertiis rule
applies. Moreover, when resorting to rules of customary international law for
the purposes of interpretation, caution is required in identifying customary
international law.
(4)
The first sentence also makes specific
reference to the principles of “harmonization and systemic integration”,
which were accorded particular attention in the conclusions of the work of
the Study Group. As noted in conclusion (4) on harmonization, when several
norms bear on a single issue they should, to the extent possible, be
interpreted so as give rise to “a single set of compatible obligations”.
Moreover, under conclusion (17), systemic integration denotes that “whatever
their subject matter, treaties are a creation of the international legal
system”. They should thus be interpreted against the background of other
international rules and principles.
(5)
The second sentence of paragraph 1 seeks to
locate the paragraph within the relevant rules set forth in the Vienna
Convention on the Law of Treaties of 1969,928 including articles
30 and 31, paragraph 3 (c), and the principles and rules of customary
international law. Article 31, paragraph 3 (c), is intended to guarantee a
“systemic interpretation”, requiring “any relevant rules of international law
applicable in the relations between the parties” to be taken into account.929
In other words, article 31, paragraph 3 (c), of the 1969 Vienna Convention
emphasizes both the “unity of international law” and “the sense in which
rules should not be considered in isolation of general international law”.930
Article 30 of the 1969 Vienna Convention provides rules to resolve a
conflict, if the above principle of systemic integration does not work
effectively in a given circumstance. Article 30 provides for conflict rules
of lex specialis (para.
2), of lex posterior (para.
3) and of pacta tertiis (para. 4).931 The phrase
“principles and rules of customary international law” in the second sentence
of paragraph 1 covers such principles and rules of customary international
law as are relevant to the identification, interpretation and application of
relevant rules.932
|
|
international
law: difficulties arising from the diversification and expansion of
international law”, report of the Study Group of the International Law
Commission finalized by Martti Koskenniemi (A/CN.4/L.682 and Corr.1 and Add.1).
United Nations, Treaty
Series, vol. 1155, No. 18232, p. 331.
See, e.g., WTO, Appellate Body report, United States — Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R, 6 November 1998, para. 158. See also Al-Adsani v. the United Kingdom,
Application No. 35763/97, ECHR 2001-XI, para. 55.
P. Sands, “Treaty, custom and the
cross-fertilization of international law”, Yale
Human Rights and Development Law Journal, vol. 1 (1998), p. 95,
para. 25; C. McLachlan, “The principle of systemic integration and article 31
(3) (c) of the Vienna Convention”, International
and Comparative Law Quarterly, vol. 54 (2005), p. 279; O.
Corten and P. Klein, eds., The
Vienna Conventions on the Law of Treaties: A Commentary, vol. 1
(Oxford, Oxford University Press, 2011), pp. 828-829.
Ibid.,
pp. 791-798.
It may be noted that the WTO Understanding
on Rules and Procedures Governing the Settlement of Disputes (Marrakesh
Agreement establishing the World Trade Organization, United Nations, Treaty Series, vol. 1869, No. 31874, p.
3, annex 2, p. 401) provides in article 3, paragraph 2, that “[t]he dispute
settlement system of the WTO ... serves ... to clarify the existing
provisions of those
|
|
933
|
|
934
935
936
937
938
|
|
939
|
|
940
|
|
(6)
The reference to “including inter alia the
rules of international trade and investment law, of the law of the sea and of
international human rights law” highlights the practical importance of these
three areas in their relation to the protection of the atmosphere. The
specified areas have close connection with the rules of international law
relating to the protection of the atmosphere in terms of treaty practice,
jurisprudence and doctrine.933 Other fields of law, which might be
equally relevant, have not been overlooked and the list of relevant fields of
law is not intended to be exhaustive. Furthermore, nothing in draft guideline
9 should be interpreted as subordinating rules of international law in the
listed fields to rules relating to the protection of the atmosphere and vice
versa.
(7)
With respect to international trade law, the
concept of mutual supportiveness has emerged to help reconcile that law and
international environmental law, which relates in part to protection of the
atmosphere. The Marrakesh Agreement establishing the World Trade Organization934
of 1994 provides, in its preamble, that its aim is to reconcile trade and
development goals with environmental needs “in accordance with the objective
of sustainable development”.935 The WTO Committee on Trade and
Environment began pursuing its activities “with the aim of making
international trade and environmental policies mutually supportive”,936
and in its 1996 report to the Singapore Ministerial Conference, the Committee
reiterated its position that the WTO system and environmental protection are
“two areas of policy-making [that] are both important and ... should be
mutually supportive in order to promote sustainable development”.937
As the concept of “mutual supportiveness” has become gradually regarded as “a
legal standard internal to the WTO”,938
the 2001 Doha Ministerial Declaration expresses the conviction of States that
“acting for the protection of the environment and the promotion of
sustainable development can and must be mutually supportive”.939
Mutual supportiveness is considered in international trade law as part of the
principle of harmonization in interpreting conflicting rules of different
treaties. Among a number of relevant WTO dispute settlement cases, the United
States — Standards for Reformulated
and Conventional Gasoline case in 1996 is most notable in that
the Appellate Body refused to separate the rules of the General Agreement on
Tariffs and Trade from other rules of interpretation in public international
law, by stating that “the General Agreement is
not to be read in clinical isolation from public international law”
(emphasis added), 940 strongly supporting the interpretative
principle of harmonization and systemic integration.
|
|
[covered] agreements in accordance with customary rules of interpretation of
public international law” (emphasis added).
|
|
See International Law Association, Report of the Seventy-sixth Conference held in
Washington ... (footnote 926 above); and A. Boyle, “Relationship
between international environmental law and other branches of international
law”, in The Oxford Handbook of International Environmental
Law, Bodansky et al.
(footnote 821 above),
pp. 125-146.
|
|
United Nations, Treaty
Series, vols. 1867-1869, No. 31874.
|
|
Ibid,
vol. 1867, No. 31874, p. 154.
|
|
Trade Negotiations Committee, decision of
14 April 1994, MTN.TNC/45(MIN), annex II, p. 17. WTO, Committee on Trade and
Environment, Report (1996), WT/CTE/1 (12 November 1996), para.
|
|
167.
|
|
J. Pauwelyn, Conflict
of Norms in Public International Law: How WTO Law Relates to Other Rules of
International Law (Cambridge, United Kingdom, Cambridge University
Press, 2003); R. Pavoni, “Mutual supportiveness as a principle of
interpretation and law-making: a watershed for the ‘WTO- and-competing
regimes’ debate?”, European Journal of
International Law, vol. 21 (2010), pp. 651652. See also S.
Murase, “Perspectives from international economic law on transnational
environmental issues”, Collected Courses of
The Hague Academy of International Law, vol. 253 (Leiden,
Martinus Nijhoff, 1996), pp. 283-431, reproduced in S. Murase, International Law: An Integrative Perspective on
Transboundary Issues (Tokyo, Sophia University Press, 2011),
pp. 1-127; and S. Murase, “Conflict of international regimes: trade and the
environment”, ibid., pp.
130-166. Adopted on 14 November 2001 at the fourth session of the WTO Ministerial
Conference in Doha, WT/MIN(01)/DEC/1, para. 6. The Hong Kong Ministerial
Declaration of 2005 reaffirmed that “the mandate in paragraph 31 of the Doha
Ministerial Declaration aimed at enhancing the mutual supportiveness of trade
and environment” (adopted on 18 December 2005 at the sixth session of the
Ministerial Conference in Hong Kong, China, WT/MIN(05)/DEC, para. 31).
|
|
WTO, Appellate Body report, Standards for Reformulated and Conventional Gasoline,
WT/DS2/AB/R, 29 April 1996, p. 17. See also S. Murase, “Unilateral measures
and the WTO dispute settlement” (discussing the Gasoline
case), in Asian Dragons and Green Trade: Environment,
|
|
941
942
|
|
943
944
945
946
|
|
(8)
Similar trends and approaches appear in international
investment law. Free trade agreements, which contain a number of investment
clauses, such as the North American Free Trade Agreement,941 and
numerous bilateral investment treaties942 also contain standards
relating to the environment, which have been confirmed by the jurisprudence
of the relevant dispute settlement bodies. Some investment tribunals have
emphasized that investment treaties “cannot be read and interpreted in
isolation from public international law”.943
(9)
The same is the case with the law of the sea.
The protection of the atmosphere is intrinsically linked to the oceans and
the law of the sea owing to the close physical interaction between the
atmosphere and the oceans. The Paris Agreement notes in its preamble “the
importance of ensuring the integrity of all ecosystems, including oceans”.
This link is also borne out by the United Nations Convention on the Law of
the Sea of 1982,944 which defines the “pollution of the marine
environment”, in article 1, paragraph 1 (4), in such a way as to include all
airborne sources of marine pollution, including atmospheric pollution from
land- based sources and vessels.945 It offers detailed provisions
on the protection and preservation of the marine environment through Part
XII, in particular articles 192, 194, 207, 211 and 212. There are a number of
regional conventions regulating marine pollution from land-based sources.946
IMO has sought to regulate vessel-source pollution in its efforts to
supplement the
|
|
Economics
and International Law, S.C. Tay and D.C. Esty, eds. (Singapore,
Times Academic Press, 1996), pp. 137-144.
North American Free Trade Agreement Between
the Government of Canada, the Government of the United Mexican States, and
the Government of the United States of America (Washington D.C., United
States Government Printing Office, 1993). Note, in particular, arts. 104,
para. 1, and 1114. There are various model bilateral investment treaties
(BITs), such as: Canada Model BIT of2004, available at www.italaw.com/documents/Canadian2004-FIPA-model-en.pdf;
Colombia Model BIT of 2007, available at www.italaw.com/documents/inv_model_bit_colombia.pdf;
United States Model BIT of 2012, available at www.italaw.com/sites/default/files/archive/ita1028.pdf;
Model International Agreement on Investment for Sustainable Development
of the International Institute for Sustainable Development (IISD) of 2005, in
H. Mann et al., IISD
Model International Agreement on Investment for Sustainable Development,
2nd ed. (Winnipeg, 2005), art. 34, available from www.iisd.org/pdf/2005/investment_model_int_agreement.pdf.
See also United Nations Conference on Trade and Development, Investment Policy Framework for Sustainable
Development (2015), pp. 91-121, available at http://unctad.org/en/PublicationsLibrary/diaepcb2015d5_en.pdf;
P. Muchlinski, “Negotiating new generation international investment
agreements: new sustainable development- oriented initiatives”, in Shifting Paradigms in International Investment Law:
More Balanced, Less Isolated, Increasingly Diversified, S.
Hindelang and M. Krajewski, eds. (Oxford, Oxford University Press, 2016), pp.
41-64.
Phoenix
Action Ltd. v. the Czech Republic, ICSID Case No. ARB/06/5,
award, 15 April 2009, para.
|
|
78.
Prior to the Convention, the only
international instrument of significance was the 1963 Treaty Banning Nuclear
Weapon Tests in the Atmosphere, in Outer Space and Under Water (Moscow, 5
August 1963, United Nations, Treaty
Series, vol. 480, No. 6964, p. 43).
|
|
M.H.
Nordquist et al., eds., United Nations Convention on the Law of the Sea 1982:
A Commentary, vol. II (Dordrecht, Martinus Nijhoff, 1991), pp.
41-42.
|
|
For example, the Convention for the
Protection of the Marine Environment of the North-East Atlantic (United
Nations, Treaty Series, No. 42279, p. 67, at p.
71, art. 1 (e)); the Convention on the Protection of the Marine Environment
of the Baltic Sea Area (Helsinki, 9 April 1992, ibid.,
vol. 1507, No.
|
|
25986, p. 166, at p. 169, art. 2, para. 2);
the Protocol for the Protection of the Mediterranean Sea against Pollution
from Land-based Sources (ibid., vol. 1328, No. 22281, p. 105, at p. 121, art.
4, para.
|
|
1 (b)); the Protocol for the Protection of
the South-East Pacific against Pollution from Land-based Sources (Quito, 22
July 1983, ibid., vol.
1648, No. 28327, p. 73, at p. 90, art. II (c)); and the Protocol for the
Protection of the Marine Environment against Pollution from Land-based
Sources to the Kuwait Regional Convention for Co-operation on the Protection
of the Marine Environment from Pollution (Kuwait, 21 February 1990, ibid., vol. 2399, No. 17898, p. 3, at
p. 40, art. III).
|
|
947
|
|
948
|
|
949
950
951
952
953
954
|
|
provisions of the Convention 947
and to combat climate change. 948 The effective implementation of
the applicable rules of the law of the sea could help to protect the
atmosphere. Similarly, the effective implementation of the rules on the
protection of the environment could protect the oceans.
(10)
As for international human rights law,
environmental degradation, including air pollution, climate change and ozone
layer depletion, “has the potential to affect the realization of human
rights”.949 The link between human rights and the environment,
including the atmosphere, is acknowledged in the practice. The Stockholm
Declaration recognizes, in its principle 1, that everyone “has the
fundamental right to freedom, equality and adequate conditions of life in an
environment of a quality that permits a life of dignity and well-being”.950
The Rio Declaration of 1992 outlines, in its principle 1, that “[h]uman
beings are at the centre of concerns for sustainable development”, and that
“[t]hey are entitled to a healthy and productive life in harmony with
nature”.951 In the context of atmospheric pollution, the
Convention on Long-range Transboundary Air Pollution recognizes that air
pollution has “deleterious effects of such a nature as to endanger human health”
and provides that the parties are determined “to protect man and his
environment against air pollution” of a certain magnitude.952
Likewise, for atmospheric degradation, the Vienna Convention for the
Protection of the Ozone Layer contains a provision whereby the parties are
required to take appropriate measures “to protect human health” in accordance
with the Convention and Protocols to which they are a party.953
Similarly, the United Nations Framework Convention on Climate Change deals
with the adverse effects of climate change, including significant deleterious
effects “on human health and welfare”.954
|
|
For example, at the fifty-eighth session of
the Marine Environment Protection Committee in 2008, IMO adopted annex VI, as
amended, to the International Convention for the Prevention of Pollution from
Ships (ibid., vol. 1340, No. 22484, p. 61),
which regulates, inter alia,
emissions of SOx and NOx. The Convention now has six annexes,
namely, annex I on regulations for the prevention of pollution by oil (entry
into force on 2 October 1983); annex II on regulations for the control of
pollution by noxious liquid substances in bulk (entry into force on 6 April
1987); annex III on regulations for the prevention of pollution by harmful
substances carried by sea in packaged form (entry into force on 1 July 1992);
annex IV on regulations for the prevention of pollution by sewage from ships
(entry into force on 27 September 2003); annex V on regulations for the
prevention of pollution by garbage from ships (entry into force on 31
December 1988); and annex VI on regulations for the prevention of air
pollution from ships (entry into force on 19 May 2005).
|
|
S. Karim, Prevention
of Pollution of the Marine Environment from Vessels: The Potential and Limits
of the International Maritime Organization (Dordrecht,
Springer, 2015), pp. 107-126; S. Karim and S. Alam, “Climate change and
reduction of emissions of greenhouse gases from ships: an appraisal”, Asian Journal of International Law,
vol. 1 (2011), pp. 131-148; Y. Shi, “Are greenhouse gas emissions from
international shipping a type of marine pollution?” Marine Pollution Bulletin, vol.
|
|
113 (2016), pp. 187-192; J. Harrison,
“Recent developments and continuing challenges in the regulation of
greenhouse gas emissions from international shipping” (2012), Edinburgh
School of Law Research Paper No. 2012/12, p. 20. Available from https://ssrn.com/abstradF2037038 (accessed
7 July 2017).
Analytical study on the relationship between
human rights and the environment: report of the United Nations High
Commissioner for Human Rights (A/HRC/19/34),
para. 15. See also Human Rights Council resolution 19/10 of 19 April 2012 on
human rights and the environment.
|
|
See L.B. Sohn, “The Stockholm Declaration
on the Human Environment” (footnote 825 above), at pp. 451-455.
|
|
F. Francioni, “Principle 1: human beings and
the environment”, in The Rio Declaration on
Environment and Development: A Commentary, J.E. Vinuales, ed.
(Oxford, Oxford University Press, 2015), pp. 93-106, at pp. 97-98.
|
|
United Nations, Treaty
Series, vol. 1302, No. 21623, p. 217, at p. 219, arts. 1 and 2.
|
|
Ibid,
vol. 1513, No. 26164, p. 293, at p. 326, art. 2.
|
|
Art. 1.
|
|
955
|
|
956
957
958
959
960
961
|
|
Art. 6 of the International Covenant on
Civil and Political Rights of 1966 (New York, 16 December 1966, United
Nations, Treaty Series, vol. 999, No. 14668, p.
171); art. 6 of the Convention on the Rights of the Child of 1989 (New York,
20 December 1989, ibid, vol.
1577, No. 27531, p. 3); art. 10 of the Convention on the Rights of Persons
with Disabilities of 2006 (New York, 20 December 2006, ibid., vol. 2515, No. 44910, p. 3);
art. 2 of the Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950 (Rome, 4 November 1950, ibid.,
vol. 213, No. 2889, p. 221, hereinafter, “European Convention on Human
Rights”); art. 4 of the American Convention on Human Rights of 1969 (San José, 22 November 1969, ibid.,
vol. 1144, No. 14668, p. 171); and art. 4 of the African Charter on Human and
Peoples’ Rights of 1981 (Nairobi, 27 June 1981, ibid.,
vol. 1520, No. 26363, p. 217).
|
|
Art. 17 of the International Covenant on
Civil and Political Rights; art. 8 of the European Convention on Human
Rights; and art. 11, para. 2, of the American Convention on Human Rights.
|
|
Art. 1 of Protocol No. 1 to the European
Convention on Human Rights (ibid., vol. 213, No. 2889, p. 221); art. 21 of
the American Convention on Human Rights; and art. 14 of the African Charter
on Human and Peoples’ Rights. See D. Shelton, “Human rights and the
environment: substantive rights” in Research
Handbook on International Environmental Law, M. Fitzmaurice,
D.M. Ong and P. Merkouris, eds. (Cheltenham, Edward Elgar, 2010), pp.
267-283, at pp. 267, 269-278.
|
|
P.-M. Dupuy and J.E. Vinuales, International Environmental Law
(Cambridge, United Kingdom, Cambridge University Press, 2015), pp. 320-329.
|
|
Ibid.,
pp. 308-309.
|
|
Art. 2 of the International Covenant on
Civil and Political Rights; art. 1 of the European Convention on Human
Rights; and art. 1 of the American Convention on Human Rights. See A. Boyle,
“Human rights and the environment: where next?”, European
Journal of International Law, vol. 23 (2012), pp. 613-642, at
pp. 633-641.
|
|
Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at p. 179,
para. 109.
|
|
962
963
|
|
964
965
|
|
that the non-discrimination principle
requires the responsible State to treat transboundary atmospheric pollution
or global atmospheric degradation no differently from domestic pollution.962
Furthermore, if and insofar as the relevant human rights norms are today
recognized as either established or emergent rules of customary international
law,963 they may be considered as overlapping with environmental
norms for the protection of the atmosphere, such as due diligence (draft
guideline 3), environmental impact assessment (draft guideline 4),
sustainable utilization (draft guideline 5), equitable and reasonable
utilization (draft guideline 6) and international cooperation (draft
guideline 8), among others, which would enable interpretation and application
of both norms in a harmonious manner.
(14)
In contrast to paragraph 1, which addresses
identification, interpretation and application, paragraph 2 deals with the
situation in which States wish to develop new rules. The paragraph signals a
general desire to encourage States, when engaged in negotiations involving
the creation of new rules, to take into account the systemic relationships
that exist between rules of international law relating to the atmosphere and
rules in other legal fields.
(15)
Paragraph 3 highlights the plight of those in
vulnerable situations because of atmospheric pollution and atmospheric
degradation. It has been formulated to make a direct reference to atmospheric
pollution and atmospheric degradation. The reference to paragraphs 1 and 2
captures both the aspects of “identification, interpretation and
application”, on the one hand, and “development”, on the other hand. The
phrase “special consideration should be given to persons and groups
particularly vulnerable to atmospheric pollution and atmospheric degradation”
underlines the broad scope of the consideration to be given to the situation
of vulnerable groups, covering both aspects of the present topic, namely
“atmospheric pollution” and “atmospheric degradation”. It was not considered
useful to refer in the text to “human rights”, or even to “rights” or
“legally protected interest”.
(17)
The phrase in the second sentence of paragraph
3 “may include, inter alia”
denotes that the given examples are not necessarily exhaustive. Indigenous
peoples are, as was declared in the Report of the Indigenous Peoples’ Global
Summit on Climate Change, “the most vulnerable to the impacts of climate
change because they live in the areas most affected
|
|
Boyle, “Human rights and the environment”
(see footnote 960 above),
pp. 639-640.
B. Simma and P. Alston, “Sources of human
rights law: custom, jus cogens and
general principles”, Australian Year Book of
International Law, vol. 12 (1988), pp. 82-108; V. Dimitrijevic,
“Customary law as an instrument for the protection of human rights”, Working
Paper, No. 7 (Milan, Istituto Per Gli Studi Di Politica Internazionale
(ISPI), 2006), pp. 3-30; B. Simma, “Human rights in the International Court
of Justice: are we witnessing a sea change?”, in Unity
and Diversity of International Law: Essays in Honour of Professor
Pierre-Marie Dupuy, D. Alland et al.,
eds.
|
|
(Leiden, Martinus Nijhoff, 2014), pp.
711-737; and H. Thirlway, “International law and practice: human rights in
customary law: an attempt to define some of the issues,” Leiden Journal of International Law,
vol. 28 (2015), pp. 495-506.
|
|
World Health
Organization, Protecting Health from
Climate Change: Connecting Science, Policy and People (Geneva, 2009), p.
2.
|
|
See B. Lode, P. Schonberger and P.
Toussaint, “Clean air for all by 2030? Air quality in the 2030 Agenda and in
international law”, Review of European,
Comparative and International Environmental Law, vol. 25
(2016), pp. 27-38. See also the indicators for these targets specified in
2016 (3.9.1: mortality rate attributed to household and ambient air
pollution; and 11.6.2: annual mean levels of fine particulate matter in
cities).
|
|
966
|
|
967
|
|
968
|
|
969
|
|
1.
National implementation of obligations under
international law relating to the protection of the atmosphere from atmospheric
pollution and atmospheric degradation, including those referred to in the
present draft guidelines, may take the form of legislative, administrative,
judicial and other actions.
2.
States should endeavour to give effect to the
recommendations contained in the present draft guidelines.
(1)
Draft guideline 10 deals with national
implementation of obligations under international law relating to the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation. Compliance at the international level is the subject of draft
guideline 11. The term “implementation” is used in the present draft
guideline to refer to measures that States may take to make treaty provisions
effective at the national level, including implementation in their national
laws.969
|
|
“Report of the Indigenous Peoples’ Global
Summit on Climate Change, 20-24 April 2009,
Anchorage, Alaska”, p. 12, available from
www.un.org/ga/president/63/letters/ globalsummitoncc.pdf#search=%27
(accessed 7 July 2017). See R.L. Barsh, “Indigenous peoples”, in The Oxford Handbook of International Environmental Law,
Bodansky et al. (footnote 821 above), pp. 829-852; B. Kingsbury,
“Indigenous peoples”, in The Max Planck
Encyclopedia of Public International Law, R. Wolfrum, ed.
(Oxford, Oxford University Press, 2012), vol. V, pp. 116-133; and H.A.
Strydom, “Environment and indigenous peoples”, in The
Max Planck Encyclopedia of Public International Law, R.
Wolfrum, ed. (Oxford, Oxford University Press, 2012), vol. III, pp. 455461.
World Bank Group Climate Change Action Plan,
7 April 2016, para. 104, available from http://pubdocs.worldbank.org/en/677331460056382875/WBG-Climate-Change-Action-Plan-public-
version.pdf
(accessed 7 July 2017).
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The Committee on the Elimination of
Discrimination against Women has an agenda on “gender- related dimensions of
disaster risk reduction and climate change”; see
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http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/ClimateChange.aspx
(accessed 7 July 2017). Along with women and children, the elderly and
persons with disabilities are usually mentioned as vulnerable people. See
World Health Organization, Protecting Health from
Climate Change ... (footnote 964 above) and the World Bank Group Climate
Change Action Plan (footnote 967 above).
The Inter-American Convention on Protecting the Human Rights of Older Persons
of 2015 (General Assembly of the Organization of American
States, Forty-fifth Regular Session, Proceedings, vol. I
(OEA/Ser.P/XLV-O.2), pp. 11-38) provides, in article 25 (right to a healthy
environment), that: “Older persons have the right to live in a healthy
environment with access to basic public services. To that end, States Parties
shall adopt appropriate measures to safeguard and promote the exercise of
this right, inter alia: a. To foster the development of older persons to
their full potential in harmony with nature; b. To ensure access for older
persons, on an equal with others, to basic public drinking water and
sanitation services, among others. ”
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See generally, P. Sands and J. Peel, Principles of International Environmental Law,
3rd ed. (Cambridge: Cambridge University Press, 2012), pp. 135-183; E. Brown
Weiss and H.K. Jacobson, eds., Engaging
Countries: Strengthening Compliance with International Environmental Accords,
(Cambridge, Massachusetts: MIT Press, 1998), see “A framework
for analysis”, pp. 1-18, at p. 4.
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970
971
972
973
974
975
976
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(2)
Draft guideline 10 consists of two paragraphs,
which address, on one hand, existing obligations under international law, and
on the other hand, recommendations contained in the draft guidelines.
(3)
The draft guidelines refer to relevant
obligations of States under international law relating to the protection of
the atmosphere from atmospheric pollution and atmospheric degradation,
namely, the obligation to protect the atmosphere (draft guideline 3), the
obligation to ensure that an environmental impact assessment is carried out
(draft guideline 4) and the obligation to cooperate (draft guideline 8).970
Given that States have these obligations, it is clear that they need to be
faithfully implemented.
(4)
The term “[n]ational implementation” denotes
the measures that parties may take to make international agreements operative
at the national level, pursuant to the national constitution and legal system
of each State.971 National implementation may take many forms,
including “legislative, administrative, judicial and other actions”. The word
“may” reflects the discretionary nature of the provision. The reference to
“administrative” actions is used, rather than “executive” actions, as it is
more encompassing. It covers possible implementation at lower levels of
governmental administration. The term “other actions” is a residual category
covering all other forms of national implementation. The term “national implementation”
also applies to obligations of regional organizations such as the European
Union.972
(5)
The use of the term “obligations” in paragraph
1 does not refer to new obligations for States, but rather refers to existing
obligations that States already have under international law. Thus, the
phrase “including those [obligations] referred to in the present draft
guidelines” was chosen, and the expression “referred to” highlights the fact
that the draft guidelines do not as such create new obligations and are not
dealing comprehensively with the various issues related to the topic.
(6)
The reference to “the recommendations
contained in the present draft guidelines” in paragraph 2 is intended to
distinguish such recommendations from “obligations” as referred to in
paragraph 1. The expression “recommendations”, was considered appropriate as
it would be consistent with the draft guidelines, which use the term
“should”.973 This is without prejudice to any normative content
that the draft guidelines have under international law. Paragraph 2 provides
that States should endeavour to give effect to the recommendations contained
in the draft guidelines.
(7)
The Commission decided not to include a draft
guideline on the responsibility of States for internationally wrongful acts as
originally proposed by the Special Rapporteur.974 In the main, it
was considered that the secondary rules of responsibility were a subject that
the Commission had already dealt with, adopting in 2001 the articles on
responsibility of States for internationally wrongful acts.975
Those articles are equally applicable in relation to environmental
obligations, including protection of the atmosphere from atmospheric
pollution and atmospheric degradation.
(8)
Moreover, even though States sometimes resort
to extraterritorial application of national law to the extent permissible
under international law,976 the Commission did not
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Even the obligation to cooperate sometimes
requires national implementation. According to draft guideline 8, paragraph
2, “[c]ooperation could include exchange of information and joint
monitoring”, which normally require national implementing legislation.
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C. Redgwell, “National implementation”, in The Oxford Handbook of International Environmental
Law, Bodansky et al.
(footnote 821 above),
p. 925.
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See L. Kramer, “Regional economic
integration organizations: the European Union as an example”, in The Oxford Handbook of International Environmental
Law, Bodansky et al.
(footnote 821 above),
pp. 853-876 (on implementation, pp. 868-870).
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See, for example, draft guidelines 5, 6, 7,
9, and 12, para. 2.
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See the fifth report of the Special
Rapporteur (A/CN.4/711), para.
31.
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For
the articles adopted by the Commission and the commentaries thereto, see Yearbook ... 2001, vol. II (Part Two) and
corrigendum, paras. 76-77.
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The relevant precedents of extraterritorial
application of national law include: (a) Tuna-Dolphin
cases under the General Agreement on Tariffs and Trade (The
“extra-jurisdictional application” of the United States Marine Mammal
Protection Act not being consistent with article XX of the General
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977
978
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consider
it necessary to address the matter for the purposes of the present draft
guidelines.977 The Commission considered that the matter of
extraterritorial application of national law by a State raised a host of
complex questions with far-reaching implications for other States and for
their relations with each other.
1.
States are required to abide with their
obligations under international law relating to the protection of the
atmosphere from atmospheric pollution and atmospheric degradation in good
faith, including through compliance with the rules and procedures in the
relevant agreements to which they are parties.
2.
To achieve compliance, facilitative or
enforcement procedures may be used, as appropriate, in accordance with the
relevant agreements:
(a)
facilitative procedures may include providing
assistance to States, in cases of non-compliance, in a transparent,
non-adversarial and non-punitive manner to ensure that the States concerned
comply with their obligations under international law, taking into account
their capabilities and special conditions;
(b)
enforcement procedures may include issuing a
caution of non-compliance, termination of rights and privileges under the
relevant agreements, and other forms of enforcement measures.
(1)
Draft guideline 11, which complements draft
guideline 10 on national implementation, refers to compliance at the level of
international law. The use of the term “compliance” is not necessarily
uniform in agreements, or in literature. The term “compliance” is used in the
present draft guideline to refer to mechanisms or procedures at the level of international law that
verify whether States in fact adhere to the obligations of an agreement or
other rules of international law. Paragraph 1 reflects, in particular, the
principle pacta sunt servanda.
The purpose of the formulation “obligations under international law” relating
to the protection of the atmosphere is to harmonize the language used, in
paragraph 1, with the language used throughout the draft guidelines. The
broad nature of the formulation “obligations under international law” was
considered to also better account for the fact that treaty rules constituting
obligations may, in some cases, be binding only on the parties to the
relevant agreements, while others may reflect or lead to the crystallization
of rules of customary international law with consequent legal effects for
non-parties. The phrase “relevant agreements” to which the States are parties
has been used to avoid narrowing the scope of the provision only to
multilateral environmental agreements, when such obligations can exist in
other agreements.978 The general character of paragraph 1 also
appropriately serves as an introduction to paragraph 2.
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Agreement, Panel report, United States — Restrictions on Imports of Tuna,
DS21/R-39S/155, 3 September 1991
(Tuna-Dolphin-I, not adopted), paras. 5.27-5.29; General Agreement on Tariffs
and Trade, Panel report, United States
— Restrictions on Imports of Tuna, DS29/R,
16 June 1994 (TunaDolphin II, not adopted), para. 5.32.);
(b) WTO Gasoline case (On the extraterritorial
application of the United States Clean Air Act, WTO, Appellate Body report, United States — Standards of Reformulated and Conventional Gasoline,
WT/DS2/AB/R, 22 April 1996; (c) European Court of Justice judgment, Air Transport Association of America and Others v.
Secretary of State for Energy and Climate, 21 December 2011 (On
the extraterritorial application of the European Union Aviation Directive
2008/101/EC); and (d) Singapore Transboundary Haze Pollution Act of 2014,
providing for extraterritorial jurisdiction based on the “objective
territorial principle” (Parliament of Singapore, Official
Reports, No. 12, Session 2, 4 August 2014, paras. 5-6). See
Murase, “Perspectives from international economic law on transnational
environmental issues” (footnote 938 above),
at pp. 349372.
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See the Special Rapporteur’s fifth report (A/CN.4/711 ), para. 31.
This reflection of State practice would
include multilateral or regional or other trade agreements, for example, that
may also contemplate environmental protection provisions including exceptions
such as those under article XX of the General Agreement on Tariffs and Trade
or even so-called
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979
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980
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981
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(3)
Besides the chapeau, paragraph 2 comprises two
subparagraphs, (a) and (b). In both subparagraphs, the word “may” has been
used before “include” to provide States and the competent organ established
under the agreement concerned with flexibility to use existing facilitative
or enforcement procedures.
(4)
Subparagraph (a) employs the phrase “in cases
of non-compliance”980 and refers to “the States concerned”,
avoiding the expression “non-complying States”. Facilitative procedures may
include providing “assistance” to States, since some States may be willing to
comply but unable to do so for lack of capacity. Thus, facilitative measures
are provided in a transparent, non-adversarial and non-punitive manner to
ensure that the States concerned are assisted to comply with their
obligations under international law.981 The last part of that
sentence, which references “taking into account their capabilities and
special conditions”, was considered necessary, in recognition of the specific
challenges that developing and least developed countries often face in the
discharge of obligations relating to environmental protection. This is due
to, most notably, a general lack of capacity, which can sometimes be
mitigated through the receipt of external support enabling capacity-building
to facilitate compliance with their obligations under international law.
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environmental “side agreements”, such as
the North American Agreement on Environmental Cooperation.
Non-compliance procedures have been widely
adopted in multilateral environmental agreements relating to the protection
of the atmosphere, including the following: (a) Convention on Long-range
Transboundary Air Pollution and its subsequent Protocols (United Nations, Treaty Series, vol. 1302, No. 21623, p.
217): see E. Milano, “Procedures and mechanisms for review of compliance
under the 1979 Long-Range Transboundary Air Pollution Convention and its
Protocols”, in Non-Compliance Procedures and
Mechanisms and the Effectiveness of International Environmental Agreements,
T. Treves et al., eds. (The
Hague, T.M.C. Asser Press, 2009), pp. 169-180; (b) the Montreal Protocol on
the Substances that Deplete the Ozone Layer (United Nations, Treaty Series, vol. 1522, No. 26369, p.
3, and UNEP/OzL.Pro.4/15); F. Lesniewska, “Filling the holes: the Montreal
Protocol’s noncompliance mechanisms”, in Research
Handbook on International Environmental Law, Fitzmaurice, Ong
and Merkouris, eds. (footnote 957 above),
pp. 471-489; (c) Convention on Environmental Impact Assessment in a
Transboundary Context; (d) Kyoto Protocol to the United Nations Framework
Convention on Climate Change, and decision 24/CP.7 (FCCC/CP/2001/13/Add.3);
J. Brunnée, “Climate change and compliance and
enforcement processes”, in R. Rayfuse and S.V. Scott, eds., International Law in the Era of Climate Change
(Cheltenham: Edward Elgar, 2012), pp. 290320; (e) the Paris Agreement under
the United Nations Framework Convention on Climate Change (FCCC/CP/2015/10/Add.1,
annex); D. Bodansky, “The Paris Climate Change Agreement: a new hope?”, American Journal of International Law,
vol. 110 (2016), pp. 288-319).
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This
is based on the Montreal Protocol on Substances that Deplete the Ozone Layer,
which in art. 8 uses the phrase “Parties found to be in non-compliance”
(United Nations, Treaty Series,
vol. 1522, No. 26369, p. 40).
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M. Koskenniemi, “Breach of treaty or non-compliance?
Reflections on the enforcement of the Montreal Protocol”, Yearbook of International Environmental Law,
vol. 3 (1992), pp. 123-162; D.G. Victor, “The operation and effectiveness of
the Montreal Protocol’s non-compliance procedure”, in Victor, K. Raustiala
and E.B. Skolnikoff, eds., The Implementation and
Effectiveness of International Environmental Commitments: Theory and Practice
(Cambridge, Massachusetts, MIT Press, 1998), pp. 137-176; O. Yoshida, The International Legal Régime for
the Protection of the Stratospheric Ozone Layer (The Hague, Kluwer Law International, 2001), pp. 178-179; Dupuy and Vinuales, International Environmental Law
(footnote 958 above),
p. 285 et seq.
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982
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983
984
985
986
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(5)
Subparagraph (b) speaks of enforcement
procedures, which may include issuing a caution of non-compliance,
termination of rights and privileges under the relevant agreements, and other
forms of enforcement measures.982 Enforcement procedures, in
contrast to facilitative procedures, aim to achieve compliance by imposing a
penalty on the State concerned in case of non-compliance. At the end of the
sentence, the term “enforcement measures” was employed rather than the term
“sanctions” in order to avoid any confusion with the possibly negative
connotation associated with the term “sanctions”. The enforcement procedures
referred to in subparagraph (b) should be distinguished from any invocation
of international responsibility of States, hence these procedures should be
adopted only for the purpose of leading the States concerned to return to
compliance in accordance with the relevant agreements to which they are party
as referred to in the chapeau.983
1.
Disputes between States relating to the
protection of the atmosphere from atmospheric pollution and atmospheric
degradation are to be settled by peaceful means.
2.
Given that such disputes may be of a
fact-intensive and science-dependent character, due consideration should be
given to the use of technical and scientific experts.
(1)
Draft guideline 12 concerns dispute
settlement. Paragraph 1 describes the general obligation of States to settle
their disputes by peaceful means. The expression “between States” clarifies
that the disputes being referred to in the paragraph are inter-State in
nature. The paragraph does not refer to Article 33, paragraph 1, of the
Charter of the United Nations, but the intent is not to downplay the significance
of the various pacific means of settlement mentioned in that provision, such
as negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to other peaceful means that may be preferred by the
States concerned, nor the principle of choice of means.984
Paragraph 1 is not intended to interfere with or displace existing dispute
settlement provisions in treaty regimes, which will continue to operate in
their own terms. The main purpose of the present paragraph is to reaffirm the
principle of peaceful settlement of disputes985 and to serve as a
basis for paragraph 2.
(2)
The first part of the sentence of paragraph 2
recognizes that disputes relating to the protection of the atmosphere from
atmospheric pollution and atmospheric degradation would be “fact-intensive”
and “science-dependent”. As scientific input has been emphasized in the
process of progressive development of international law relating to the
protection of the atmosphere,986 likewise, more complicated
scientific and technical issues have been raised in
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G. Ulfstein and J. Werksman, “The Kyoto
compliance system: towards hard enforcement”, in O. Schram Stokke, J. Hovi
and G. Ulfstein, eds., Implementing the
Climate Change Regime: International Compliance (London,
Earthscan, 2005), pp. 39-62; S. Urbinati, “Procedures and mechanisms relating
to compliance under the 1997 Kyoto Protocol to the 1992 United Nations
Framework Convention on Climate Change”, in Non-Compliance
Procedures and Mechanisms and the Effectiveness of International
Environmental Agreements, Treves et al.
(footnote 979 above),
pp. 63-84; S. Murase, “International lawmaking for the future framework on
climate change: a WTO/GATT Model”, in International
Law: An Integrative Perspective on Transboundary Issues, Murase
(footnote 938 above),
pp. 173-174.
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G. Loibl, “Compliance procedures and
mechanisms”, in Research Handbook on
International Environmental Law, Fitzmaurice, Ong and
Merkouris, eds. (see footnote 957 above),
pp. 426-449, at pp. 437-439.
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C. Tomuschat, “Article 33”, in The Charter of the United Nations: A Commentary,
2nd ed., vol. 1, B. Simma, ed. (Munich, Verlag C.H. Beck, 2002), pp. 583-594.
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N.
Klein, “Settlement of international environmental law disputes”, in Research Handbook of International Environmental Law,
Fitzmaurice, Ong and Merkouris, eds. (footnote 957 above), pp. 379-400; C.P.R. Romano,
“International dispute settlement”, in The
Oxford Handbook of International Environmental Law, Bodansky et al. (footnote 821 above), at pp. 1039-1042.
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See S. Murase, “Scientific knowledge and
the progressive development of international law: with reference to the ILC
topic on the protection of the atmosphere”, in The
International Legal Order:
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987
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988
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989
|
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990
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the process of international dispute
settlement in recent years. Thus, the cases brought before international
courts and tribunals have increasingly focused on highly technical and
scientific evidence.987 Thus, those elements, evident from the
experience with inter-State environment disputes, typically require
specialized expertise to contextualize or fully grasp the issues in dispute.
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Current Needs and Possible Responses: Essays in Honour of
Djamchid Momtaz, J. Crawford et al., eds. (Leiden, Brill
Nijhoff, 2017), pp. 41-52.
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See the speech of the President of the
International Court of Justice, Ronny Abraham, before the Sixth Committee on
28 October 2016 (on international environmental law cases before the
International Court of Justice) (available at www.icj-cij.org/files/press-releases/0/19280.pdf);
and President Peter Tomka, “The ICJ in the service of peace and justice —
words of welcome by President Tomka”, 27 September 2013 (available at www.icj-cij.org/files/press-releases/8/17538.pdf).
See also E. Valencia- Ospina, “Evidence before the International Court of
Justice”, International Law Forum du droit international,
vol. 1 (1999), pp. 202-207; A. Riddell, “Scientific evidence in the
International Court of Justice — problems and possibilities”, Finnish Yearbook of International Law,
vol. 20 (2009), pp. 229-258; B. Simma, “The International Court of Justice
and scientific expertise”, American Society of
International Law Proceedings, vol. 106 (2012), pp. 230-233; A.
Riddell and B. Plant, Evidence Before the
International Court of Justice (London, British Institute of
International and Comparative Law, 2009), chap. 9.
In the 1997 Gabcikovo-Nagymaros
(see footnote 881 above)
and the 2010 Pulp Mills (see
footnote 877 above)
cases, the parties followed the traditional method of presenting the
evidence, that is, by expert-counsel, though they were scientists and not
lawyers. Their scientific findings were treated as the parties’ assertions,
but this met some criticisms by the Bench, as well as by commentators. Thus,
in the Aerial Herbicide Spraying (withdrawn in
2013) (Aerial Herbicide Spraying (Ecuador v. Colombia),
Order of 13 September 2013, I.C.J. Reports 2013, p. 278), the
2014 Whaling in the Antarctica (Whaling in the Antarctica
(Australia v. Japan: New Zealand intervening), Judgment,
I.C.J.
Reports 2014, p. 226) and the 2015 Construction
of a Road (see footnote 887 above) cases, the parties appointed
independent experts, who were, in the latter two cases, cross-examined and
were treated with more weight than the statements of expert-counsel. In all
of these cases, the Court did not appoint its own experts in accordance with
Article 50 of its Statute, but it did so finally in the Maritime Delimitation case, although
the latter was not per se an
environmental law dispute (Maritime Delimitation
in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Judgment (Merits), 2 February 2018, available at
www.icj-cij.org/files/case-related/157/157- 20180202-JUD-01
-00-EN.pdf).
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See, D. Peat, “The use of court-appointed
experts by the International Court of Justice”, British
Yearbook of International Law, vol. 84 (2014), pp. 271-303;
J.G. Devaney, Fact-finding before the
International Court of Justice (Cambridge, Cambridge University
Press, 2016); C.E. Foster, Science and the
Precautionary Principle in International Courts and Tribunals: Expert
Evidence, Burden of Proof and Finality (Cambridge, Cambridge
University Press, 2011), pp. 77-135; Special edition on courts and tribunals
and the treatment of scientific issues, Journal
of International Dispute Settlement, vol. 3 (2012); C. Tams,
“Article 50” and “Article 51”, in The
Statute of the International Court of Justice: A Commentary, A.
Zimmermann et al., eds.
(Oxford, Oxford University Press, 2012), pp. 1287-1311; C.E. Foster, “New
clothes for the emperor? Consultation of experts by the International Court
of Justice”, Journal of International
Dispute Settlement, vol. 5 (2014), pp. 139-173; J.E. Vinuales,
“Legal techniques for dealing with scientific uncertainty in environmental
law”, Vanderbilt Journal of Transnational Law,
vol. 43 (2010), pp. 437-504, at pp. 476-480; G. Gaja, “Assessing expert
evidence in the ICJ”, The Law and Practice of International
Courts and Tribunals, vol. 15 (2016), pp. 409-418.
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It should be recalled that there are close
interactions between non-judicial and judicial means of settling disputes. In
the context of disputes relating to the environment and to the protection of
the atmosphere, in particular, even at the stage of initial negotiations,
States are often required to be well equipped with scientific evidence on
which their claims are based, and accordingly the distance between
negotiation and judicial settlement may not be very distant.
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991
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(4)
In the context of judicial or arbitral
processes of settling disputes relating to the protection of the atmosphere,
the principles of jura novit curia
(the court knows the law) and non
ultra petita (not beyond the parties’ request) may be relevant,
since the relationship between law and fact is a pertinent issue relating to
scientific evidence.991 The Commission however decided to maintain
a simple formulation, and not to address these issues in the draft guideline.
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The line between “fact” and “law” is often
obscured (M. Kazazi, Burden of Proof and Related
Issues: A Study on Evidence before International Tribunals (The
Hague, Kluwer Law International, 1996), pp. 42-49). Scientific issues are
described by commentators as “mixed questions of fact and law” (e.g., C.F.
Amerasinghe, Evidence in International
Litigation, (Leiden, Martinus Nijhoff Publishers, 2005), p.
58), which cannot be easily categorized into either a matter of law or fact.
Judge A. Yusuf stated in his declaration in the Pulp
Mills case that the experts’ role was to elucidate facts and to
clarify the scientific validity of the methods used to establish facts or to
collect data; whereas it is for the Court to weigh the probative value of the
facts (Pulp Mills (see footnote 877 above), Declaration
of Judge Yusuf, para. 10). See also Foster, Science
and the Precautionary Principle in International Courts and Tribunals: Expert
Evidence, Burden of Proof and Finality (see footnote 989 above), pp.
145-147). Based on jura novit curia,
the Court can in principle apply any law to any fact, and in theory can
evaluate evidence and draw conclusions as it sees appropriate (as long as the
Court complies with the non ultra petita
rule); these are all legal matters. Given its judicial function and under jura novit curia, the Court needs to
sufficiently understand the meaning of each related technical fact in the
case at hand. See the Special Rapporteur’s fifth report (A/CN.4/711), para. 104.
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