The Protection of the Atmosphere and the ‘Regressive’ Development of International Law

In a few weeks, the 2022 United Nations Climate Change Conference (COP-27) will be convening in Sharm El-Sheikh, Egypt. States will negotiate higher ambitions on mitigation, adaptation, and climate finance, in an attempt to curtail the apocalyptic consequences of climate change. In this context, the identification of relevant principles of international law is necessary and will provide timely guidance to negotiators. Last year, the UN International Law Commission (ILC) adopted guidelines on the ‘Protection of the atmosphere’ after eight years of work on the topic led by Special Rapporteur Mr. Shinya Murase.

The Guidelines address a significant topic. Yet, unfortunately, it is doubtful if they can play a significant role in the guidance of states. That is perhaps due, though not limited, to political reasons that date back to a ‘2013 Understanding’ when the ILC decided to proceed on the topic subject to substantial limitations that prevent it from addressing questions subject to negotiations. By default, the Commission does not reach political decisions, as its mandate is limited to the codification and progressive development of international law. The key challenge, in this case, is to respect these limitations, while preserving the role and relevance of the ILC and its outcomes in the international legal order.

I. The ‘2013 Understanding’

At its sixty-fifth session (2013), the Commission decided to include the topic of the ‘Protection of the atmosphere’ in its programme of work, subject to 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; [….] 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.’ (para. 168)

The Understanding sparked controversy at the ILC and Sixth Committee as it is the first time conditions on a special rapporteur were imposed. This especially, by using non-exhaustive terms and undetermined formulas as ‘not to interfere with relevant political negotiations’ and ‘… which are subject to negotiations among states’. Some members of the Sixth Committee and the Commission even noted that imposing such conditions was ‘a disgrace’ and ‘unethical’ for the Commission (A/CN.4/SR.3212, A/CN.4/SR.3358) and ‘humiliating’ for the Special Rapporteur (A/CN.4/SR.3413). Others viewed the Understanding as ‘a straightjacket’ (A/CN.4/SR.3212) and that the Commission ‘had chained the Special Rapporteur and asked him to run‘ (A/CN.4/SR.3410).

Ultimately, the Understanding is now referred to in the preamble of the Guidelines providing that ‘the present draft guidelines were elaborated on the understanding that they were not intended to interfere with relevant political negotiations or to impose on current treaty regimes rules or principles not already contained therein’. Also, Guideline (2) on the scope explicitly provides that ‘[t]he present draft guidelines do not deal with and are without prejudice to questions concerning the polluter-pays principle, the precautionary principle and the common but differentiated responsibilities principle.’ Nevertheless, neither of the guidelines explicitly excludes the ‘substances’ mentioned in the Understanding. Instead, in defining ‘atmospheric pollution’, Guideline (1) refers to any ‘substances’ without limitation. In addition, neither of the guidelines mentions, at least as a concept, the special consideration that shall be accorded to developing and least developed states and vulnerable persons and groups, except partly in a misplaced reference in Guideline (9) on the ‘interrelationship among relevant rules’. That might have been deliberate, perhaps based on an overly broad interpretation of the Understanding. Yet, that is not the only concern.

II. Obligation to protect the atmosphere

Guideline (3) is the cornerstone of the Guidelines as it addresses the ‘obligation to protect the atmosphere’. It provides that ‘[s]tates 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.’ Besides that crucial questions like the joint and individual nature of the obligation and activities of non-state actors were downgraded to the level of the commentaries, the guideline, most importantly, missed a unique opportunity to assess—even in the commentaries—the erga omnes character of the obligation to protect the atmosphere.

III. Environmental impact assessment

Then, Guideline (4) addresses ‘environmental impact assessment’ which is already a binding obligation under international law. The guideline provides that ‘[s]tates 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.’ Nevertheless, the guideline failed to provide any guidance on the procedure  to help states fulfil that obligation (cf. UNCLOS Articles 204-206, UNWC Articles 11-19), although the 2001 ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities lay down procedures for EIA (Articles 7-14) that could have been a source of inspiration. Consequently, it is unclear how Guideline (4) can be conceived as an addition in terms of progressive development or even codification.

IV. Systemic Integration

After, Guideline (9) comes to address the ‘interrelationship among relevant rules’. In its first paragraph, it provides that ‘[t]he 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 …’ It is questionable what this guideline adds to what is already provided by VCLT Article 31(3)(c). If Guideline 9(1) would provide an added value, instead of reiterating the concept of systemic integration in an abstract manner, it would have encouraged interpreting the other rules of international law (e.g. trade, investment, etc.) in a manner that does not conflict with the rules on the protection of the atmosphere.

V. Cooperation, Implementation, and Compliance

Guidelines (8), (10), and (11) address international cooperation, implementation, and compliance respectively. Yet, neither of the three guidelines explicitly emphasizes any special treatment to developing and least-developed states or vulnerable persons and groups (cf. Paris Agreement), an alarming approach that may dilute the special needs of these categories. That is why some states suggested adding a paragraph to Guideline (8) recognizing the special needs and specific circumstances of developing States (A/CN.4/736), but that suggestion was not taken on board.

Then, Guideline (10) provides that national implementation of obligations relating to the protection of the atmosphere ‘may take the form of legislative, administrative, judicial and other actions’ and ‘[s]tates should endeavour to give effect to the recommendations contained in the present draft guidelines’. However, it is questionable what added value this brings in terms of progressive development or even mere codification. The same question arises as to Guideline 11(1) which provides ‘[s]tates are required to abide by 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.’

VI. Dispute Settlement

Finally, Guideline (12) provides that ‘[d]isputes between States relating to the protection of the atmosphere from atmospheric pollution and atmospheric degradation are to be settled by peaceful means’ and ‘[s]ince such disputes may be of a fact-intensive and science-dependent character, due consideration should be given to the use of scientific and technical experts.’ Yet, such a provision is a regression from the provisions on pacific means of dispute settlement under the UN Charter. First, Guideline (12) uses the verb ‘are to be’ instead of the binding language ‘shall’ already used in the binding provisions of the UN Charter Articles 2(3) and 33(1) on pacific settlement of disputes. Besides, Guideline (12) is less detailed than the general provisions of the UN Charter which enumerate a variety of means of dispute settlement. At minimum, the guideline could have suggested a variety of specific means for settling atmospheric disputes.

Further, if to provide an added value, Guideline (12) after highlighting the scientific-dependent character of atmospheric disputes, could have emphasised the option for states to resort to specialized international organizations or bodies (e.g. WMO, UNEP) as one of the means for settling their disputes. In addition, in view of the fact-intensive character of atmospheric disputes, the guideline might have encouraged recourse to fact-finding procedures—comprising of necessary expertise—to facilitate the settlement of disputes (cf. UNWC Article 33, ILC 2001 Draft Articles on the Prevention of Transboundary Harm). Also, the guideline might have suggested conciliation procedures which are already provided in several environmental agreements (e.g. UNCLOS, Convention to Combat Desertification, Convention on Biological Diversity).

Conclusion

The fact that there are questions in which the law is intertwined with politics and science should not hinder the ILC to pronounce itself on the identification of international law. Otherwise, when it considers it cannot provide a meaningful addition, the ILC always retains the option to dismiss a topic. The ILC decided to work on the protection of the atmosphere, yet, it does not seem that it took its mandate to the maximum. That led some states to observe that ‘despite being categorized as “guidelines”, several draft provisions were missing an element of “guidance”’ (A/CN.4/736).

The Guidelines could have provided a better understanding of the obligations of States under general international law, which in turn could facilitate the convergence of views – or at least exclude untenable positions – on questions concerning the atmosphere of our planet. Indeed, the political constraints in the 2013 Understanding imposed considerable limits on the work of the Special Rapporteur, and it is to be seen if it is a precedent to be repeated. Yet, the report has also missed several opportunities for a contribution that by no means encroach upon the political decisions reserved for states. Hopefully, these opportunities would be seized before other fora including the International Court of Justice (ICJ) if the deliberations on requesting an advisory opinion concerning climate change moved forward.

 The views in this post are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated to.