Abstract
‘Climate change law’ is considered by a number of legal scholars as an emergent novel discipline. The question, then, is whether the advent (and future prospect) of climate change has resulted in a coherent autonomous new body of law, be it a nascent one; or is it nothing more or less than the application of existing national and international environmental law to climatic problems? It is perhaps worth recalling that international environmental law itself only ascended to the rank of a recognized discipline of its own in the 1990s, over considerable academic scepticism at the time. Not un-similarly, the ongoing new project of the UN International Law Commission (ILC) for the drafting of guidelines on “protection of the atmosphere” has met with resistance from a few powerful States claiming that there is no need for further codification of international law in this field. Yet, considering our common interest in conserving the quality of the Earth’s atmosphere and climate, the ILC project may indeed encourage further development of a concept of inter-generational “planetary trusteeship”, owed by States as public trustees to present and future citizens as the beneficiaries.
Keywords
Introduction
In the burgeoning legal literature on how to cope with global warming, some authors have already boldly proclaimed ‘climate change law’ an emergent novel discipline, 1 only to be challenged by others who caution against introducing yet another futile ‘law of the horse’. 2 The question, then, is whether the advent (and future prospect) of climate change has resulted in a coherent autonomous new body of law, be it a nascent one (in statu nascendi); 3 or is it nothing more or less than the application of existing national and international environmental law to climatic problems? 4
Critics consider the topic ‘an issue of such scale and complexity that it defies resolution through the constrained channels of an international environmental treaty’. 5 It is perhaps worth recalling that international environmental law itself only ascended to the rank of a recognized discipline of its own in the 1990s. 6 It took place over protracted resistance by prominent scholars insisting that ‘the cold-eyed application of legal analysis may be just as fruitful as the invention of a new vehicle such as “international environmental law”’. 7
Lawyers concede that climate change is a ‘hot’, ‘wicked’ or even ‘super-wicked’ issue, 8 and a ‘legally disruptive’ one at that, which ultimately needs to be balanced with requirements for stability within legal systems 9 to avoid the pitfalls of regulatory fragmentation. 10 In turn, political scientists have observed that the problem ‘is likely neither to yield an integrated, comprehensive regime nor to be fully fragmented’, instead of leading to a ‘regime complex consisting of loosely coupled sets of specific regimes’. 11
Normative Scope of Global Climate Law
There are indeed several distinct sets of sectoral regimes that were expressly excluded from the normative scope of the centerpiece of current global climate law, the 1992 UN Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol: 12 (a) greenhouse gases ‘controlled by the Montreal Protocol’ on ozone-depleting substances (ODS); 13 and (b) atmospheric emissions from international aviation and ocean navigation, deferred to regulation by the International Civil Aviation Organization (ICAO) and the International Maritime Organization (IMO). 14 Moreover, there remains an implicit or tacit exclusion with regard to certain other substances released into the atmosphere, such as (c) so-called ‘black carbon’ emissions (aerosols measured as PM2.5), partly regulated on a regional basis within the framework of the UN Economic Commission for Europe (UNECE) 15 and in non-binding guidelines by the World Health Organization (WHO); 16 and generally with regard to the potential climate impacts of (d) military activities, partly addressed in a disarmament context by the Nuclear Test Ban and Environmental Modification (ENMOD) treaties. 17
Doctrinal ‘compartmentalization’ in this field can be traced back more than a hundred years, to the early 20th century debates in the Institut de Droit International, as to whether or not to include both air navigation and wireless telecommunications in a new ‘international air law’. 18 This semantic dispute eventually resolved in the negative; i.e., reserving the concept of ‘air law’ –to this day –to the ‘legal regulation of social relations generated by the aeronautical uses of air space’, 19 and thereby excluding any other human utilization (be it beneficial or detrimental) of the Earth’s atmosphere. Attempts at adapting the definition to new alternative and potentially competing uses arising in the mid-20th century (such as large-scale transboundary air pollution and weather modification) were invariably rejected and brushed off as extraneous to the field by the orthodox ‘air lawyer’ establishment. 20
The Perplexing “Understanding” of the International Law Commission
Nowhere are the power politics behind the fragmentation dilemma more visible than in the ongoing work of the UN International Law Commission (ILC) on draft guidelines for the ‘protection of the atmosphere’. 21 From the very beginning of discussions on the matter in the Sixth Committee of the UN General Assembly (UNGA) in 2011 and 2012, representatives of the ‘P5’ (permanent members of the Security Council) had objected to the inscription of the topic in the ILC work program, suggesting that ‘the current structure of law in that area was treaty-based, focused and relatively effective, and in light of the ongoing negotiations designed to address evolving and complex circumstances, it would be preferable not to attempt to codify rules in that area at present’. 22
Yet, in view of the predominantly supportive reactions by most other delegations, the ILC at its subsequent 65th session in 2013 decided to include the topic in its current program of work, appointing Professor Shinya Murase of Japan as Special Rapporteur for the purpose.
23
However, in view of the continuing skepticism also expressed in the Commission by members from the P5 countries, in particular, the chairman then convened a small closed negotiating group to restrict the Rapporteur’s assignment by way of a highly unusual ‘understanding’, reading as follows: “Work on this topic will proceed in a manner so as not to interfere with relevant political negotiations, including those 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 the 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. 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’ the gaps in the treaty regimes. Questions relating to outer space, including its delimitation, are not part of the topic. The outcome of the work on the topic will be a set of 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 this understanding.”
24
The ‘understanding’ –unprecedented in ILC practice –severely curtailed the mandate of the Rapporteur. Some Commission members who had not been part of the group that negotiated the deal did not hesitate to characterize it as ‘a disgrace’ to the Commission, 25 wondering whether it had been ‘purposely designed to bog down the work on the topic’, 26 and warning against the imposition of such constraints on any future codification projects. 27 External academic observers concluded that the ILC had effectively watered down the initial project, ‘offering a mandate to the Special Rapporteur that provides for very little room to produce a meaningful result’; 28 another one suggested that the deal was ‘a costly political compromise that excluded virtually any important issues from the scope of the topic’. 29
Nevertheless, and unimpressed by such critique, the Big Five defenders of their sacrosanct ‘understanding’ kept insisting on its rigid application ‘à la lettre’, reining in the Rapporteur whenever he dared to draw on legal concepts derived from the global climate regime. 30 At the 71st and 72nd sessions of the UNGA Sixth Committee in 2016 and 2017, the US delegation then called for the discontinuation or suspension of the ILC’s work on the topic altogether. 31 In their subsequent comments on the draft guidelines provisionally adopted by the ILC on first reading at its 70th session in 2018, the United Kingdom, while stressing its support for the need to protect the atmosphere and environment and to tackle climate change, expressed ‘reservations about whether the Commission is the best or most effective forum to seek to pursue these objectives’; and the United States stated its view ‘that the Commission’s time could more profitably be spent on other topics’. 32
It is true, of course, that any attempt at codifying and unifying legal norms for a field as vast as the Earth’s atmospheric environment is bound to be intellectually challenging and politically problematic. 33 Alternatively, legal scholars have argued that pluralism of regulatory regimes may well be an unavoidable and largely benign side effect of the growing specialization of modern international lawmaking. 34 Others caution, though, that fragmentation can lead specialized institutions to adopt narrowly-focused decisions that may well induce adverse side effects (‘countervailing risks’) in other domains. 35 Moreover, and more significantly perhaps, a ‘polycentric’ regulatory order also favours divide-and-conquer strategies working to the overall advantage of the most powerful States, whose consent is essential for the functioning of the system. 36 In that perspective, the sobering ILC experience is indeed instructive for the difficult process of lawmaking on the ‘complex’ of climate-related issues at large.
Academic criticism of the ILC’s 2018 version of the Draft Guidelines on Protection of the Atmosphere has focused primarily on the ‘conservative methodology’ underlying the draft, in deference to the restrictive 2013 understanding that ‘would haunt the conduct of the project for the years to follow’. 37 Not surprisingly perhaps, resistance against ILC coverage of climate-related legal obligations was ‘mainly that of States that bear the biggest share of responsibility in the origin of the climate crisis’, 38 partly out of fear that codification might ‘provide fodder for litigation against States’, 39 in view of the growing number of domestic lawsuits over proposed injunctions and alleged climate damages pending in some of the countries concerned. 40
Conclusion
Symptomatic for the defensive –and downright regressive –efforts of the P5 Hofmafia, 41 even a mere preambular reference to the atmosphere as ‘a common concern of humankind’, affirmed in the preamble to the 2015 Paris Agreement in the framework of the FCCC, 42 had to be deleted from the Rapporteur’s draft as potentially imposing new erga omnes obligations on States, 43 and was replaced by the seemingly more innocuous term ‘pressing concern of the international community as a whole’ (explained in the ILC commentary ‘as a matter of factual statement and not a normative statement’). 44 However, the editorial change so negotiated in the ILC Drafting Committee met with strong objections during discussion in the UNGA Sixth Committee in October 2018. 45 Subsequently, 14 Governments and the European Union specifically called for retention of the ‘common concern’ formula in their comments on the first reading of the ILC Draft Guidelines. 46 In the presentation of his sixth report in February 2020, the Special Rapporteur, therefore, proposed at least to revert to his original wording of the preambular paragraph; 47 and it is to be hoped that the Commission will follow his recommendation during the second reading now scheduled for 2021.
The episode touches on the core of international climate law and its future evolution. Expressly based on recognition of the inter-generationally and intra-generationally shared concern for conserving the quality of the Earth’s atmosphere, 48 the ILC project may indeed encourage further legal development of a concept of planetary trusteeship, 49 owed by States as public trustees to present and future citizens as the beneficiaries. The challenge remains to come up with legal and institutional mechanisms that will effectively monitor the performance of the trustees, so as to hold them accountable for meeting their fiduciary duties. 50
Footnotes
For instance, see Jacqueline Peel, ‘Climate Change Law: The Emergence of a New Discipline’, 32(3) Melbourne University Law Review 922 (2008); Dan Bondi Ogolla, ‘Foreword’, in The Oxford Handbook of International Climate Change Law, edited by Cinnamon P. Carlarne, Kevin R. Gray and Richard Tarasofsky (Oxford: Oxford University Press, 2016), at vii; Daniel A. Farber and Marjan Peeters (eds.), Climate Change Law (Cheltenham, Edward Elgar, 2016), at 687; Ronald B. Mitchell, ‘Climate Law: Accomplishments and Areas for Growth’, 8(3-4) Climate Law: Special Issue on Climate Law as a New Discipline 135 (2018).
John B. Ruhl and James E. Salzman, ‘Climate Change Meets the Law of the Horse’, 62(5) Duke Law Journal 975 (2013), at 985. The term (mockingly describing an unsystematic conglomerate of rules) is by former Chicago Law School dean Gerhard Casper, as quoted by Frank H. Easterbrook, ‘Cyberspace and the Law of the Horse’, (1996) (1) University of Chicago Legal Forum 207, and can be traced back to Karl N. Llewellyn’s ‘Across Sales on Horseback’, 52(5) Harvard Law Review 725 (1939), at 737.
Sabine Schlacke, ‘Klimaschutzrecht: ein Rechtsgebiet? Begriffliches, Systematik und Perspektiven’, in Umwelt- und Planungsrecht im Wandel, edited by Sabine Schlacke (Berlin: Die Verwaltung/Beiheft 11, 2010), at 121; but see also Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford: Oxford University Press, 2017), at 11: unlike a ‘discrete body of law’ or ‘self-contained regime’, it ‘sits squarely within the field of international environmental law and public international law more broadly’.
Michael Mehling, ‘The Comparative Law of Climate Change: A Research Agenda’, 24(2) Review of European, Comparative and International Environmental Law 341 (2015), at 349-350; Todd S. Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’, 95(2) Cornell Law Review 221 (2010), at 242.
Cinnamon P. Carlarne, ‘Delinking International Environmental Law and Climate Change’, 4(1) Michigan Journal of Environmental and Administrative Law 1 (2014), at 4; but see also John C. Nagle, ‘Climate Exceptionalism’, 40(1) Environmental Law 53 (2010).
Oscar Schachter, ‘The Emergence of International Environmental Law’, 44(2) Journal of International Affairs 457 (1991); and the editors of the Harvard Law Review, ‘Developments in the Law: International Environmental Law’, 104(7) Harvard Law Review 1484 (1991), at 1489 (editor-in-chief of the review at the time was a law student named Barack Obama).
Ian Brownlie, ‘Editor’s Preface’, in Brian D. Smith, State Responsibility and the Marine Environment: The Rules of Decision (Oxford: Clarendon, 1988), at 9.
Richard Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’, 94(5) Cornell Law Review 1153 (2009); and Chris Hilson, ‘Editorial Comment: It’s All About Climate Change, Stupid: Exploring the Relationship Between Environmental Law and Climate Law’, 25(3) Journal of Environmental Law 359 (2013).
Elizabeth Fisher, Eloise Scotford, and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’, 80(2) Modern Law Review 173 (2017), at 201.
Harro van Hasselt, The Fragmentation of Global Climate Governance: Consequences and Management of Regime Interactions (Cheltenham: Edward Elgar, 2014).
Robert O. Keohane and David G. Victor, ‘The Regime Complex for Climate Change’, 9(1) Perspectives on Politics 7 (2011), at 15.
1771 UNTS 107, Articles 4.l.a, 4.2.a-c, 4.6; and 2303 UNTS 148, Articles 2.1.a, 2.2, 5.1, 7.
1522 UNTS 3. See Daniel G. McCabe, ‘Resolving Conflicts between Multilateral Environmental Agreements: The Case of the Montreal and Kyoto Protocols’, 18(2) Fordham Environmental Law Review 433 (2007). On the 2016 Kigali amendment (55 ILM 193, in force as from 2019), see Mark W. Roberts, ‘Finishing the Job: The Montreal Protocol Moves to Phase Down Hydrofluorocarbons’, 26(3) Review of European, Comparative and International Environmental Law 220 (2017).
Kyoto Protocol Article 2.2. See Tanveer Ahmad, ‘Environmental Law: Emissions’, in Routledge Handbook of Public Aviation Law, edited by Paul S. Dempsey and Ram S. Jakhu (London: Routledge, 2017), 195; and Nathalie Clarenc Bicudo, ‘L’OMI et l’air impur du large: la vie juridique des règles relatives à la pollution atmosphérique des navires’, 121(2) Revue Générale de Droit International Public 361 (2017).
Pursuant to Article 11ter of the 2012 amendments (in force 7 October 2019) of the 1999 Gothenburg Protocol (2319 UNTS 81) to the 1979 UNECE Convention on Long-Range Transboundary Air Pollution (1302 UNTS 217); see Adam Byrne, ‘Trouble in the Air: Recent Developments under the 1979 Convention on Long-Range Transboundary Air Pollution’, 26(3) Review of European, Comparative and International Environmental Law 210 (2017).
WHO Air Quality Guidelines: Global Update 2005 (Copenhagen: WHO Regional Office for Europe, 2006). See Tami C. Bond et al., ‘Bounding the Role of Black Carbon in the Climate System: A Scientific Assessment’, 118 Journal of Geophysical Research: Atmospheres 5380 (2013); Sophie Bonnard and Nathan Borgford-Parnell (eds.), Time to Act to Reduce Short-Lived Climate Pollutants, 2nd edn. (Paris: UNEP, 2014).
1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (480 UNTS 43); 1996 Comprehensive Nuclear Test Ban Treaty (35 ILM 1443, not yet in force); and 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1108 UNTS 151).
Paul Fauchille, ‘Régime des aérostats et de la télégraphie sans fil’, 21 Annuaire de l’Institut de Droit International 293 (1906); see John C. Cooper, ‘Air Law: A Field for International Thinking’, 4(1) Transport and Communications Review 1 (1951), reprinted in Explorations in Aerospace Law: Selected Essays by John Cobb Cooper, 1946-1966, edited by Ivan A. Vlasic (Montreal: McGill University Press, 1968), 2, at 10-25.
Michael Milde, International Air Law and ICAO (Utrecht: Eleven International, 3rd edn. 2016), 1-3.
Peter H. Sand, ‘Internationaler Umweltschutz und neue Rechtsfragen der Atmosphärennutzung’ [International Environment Protection and New Legal Questions on the Utilization of the Atmosphere], 20(2) Zeitschrift für Luftrecht und Weltraumrechtsfragen / German Journal of Air and Space Law 109 (1971); and the indignant editorial rebuttal by Walter Schwenk, ‘Zum Begriff des Luftrechts’ [On the Concept of Air Law], 20(4) ibid. 260 (1971). See also Sergey V. Vinogradov, Mezhdunarodnoye pravo i okhrana atmosfery [International Law and Protection of the Atmosphere] (Moscow: Akademia Nauk SSSR, 1987), 25.
Jonathan B. Wiener and Peter H. Sand, ‘Towards a New International Law of the Atmosphere?’, 7(2) Goettingen Journal of International Law 195 (2016), at 211; Peter H. Sand, ‘The Discourse on “Protection of the Atmosphere” in the International Law Commission’, 26(3) Review of European, Comparative and International Environmental Law 201 (2017), at 205-207; id., ‘The International Law Commission’s Role in Developing International Law to Protect the Earth’s Atmosphere as it Relates to Climate Change’, Ch. 3 in Debating Climate Law, edited by Benoît Mayer and Alexander Zahar (Cambridge: Cambridge University Press, forthcoming 2021).
Comments by the United States, Summary Record of the 20th Meeting, UN Doc A/C.6/66/SR.20 (26 October 2011) 4; see also the hesitations expressed by the United Kingdom, Summary Record of the 19th Meeting, UN Doc A/C.6/66/SR.19 (25 October 2011) 3. At the 2012 session of the Sixth Committee, see the observations by China, Summary Record of the 19th Meeting, UN Doc A/C.6/67/SR.19 (2 November 2012) 9; the United Kingdom, ibid 11; France, ibid 15; the United States, ibid 19; and Russia, Summary Record of the 22nd Meeting, UN Doc A/C.6/67/SR.22 (6 November 2012) 17. On the interface between the UNGA Sixth Committee and the ILC see generally Franklin Berman, ‘The ILC within the UN’s Legal Framework: Its Relationship with the Sixth Committee’, 49 German Yearbook of International Law 107 (2006); and Michael Wood, ‘The General Assembly and the International Law Commission: What Happens to the Commission’s Work and Why’, in International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, edited by Isabelle Buffard, James Crawford and Alain Pellet (Leiden: Nijhoff 2008), 373.
See the six successive reports by the Special Rapporteur, UN Docs. A/CN.4/667 (2014), A/CN.4/681 (2015), A/CN.4/692 (2016), A/CN.4/705 & Corr.1 (2017), A/CN.4/711 (2018), A/CN.4/736 (2020); and the ensuing ILC reports to the UN General Assembly: UN Docs. A/68/10(XII), A/69/10(VIII), A/70/10(V), A/71/10(VIII), A/72/10(V), and A/73/10(V). –Professor Murase (Sophia University, Tokyo) had formerly served with the Codification Division of the UN Legal Office and has been teaching as visiting professor of international law in Beijing. From 2008 to 2014, he chaired the International Law Association’s Committee on Legal Principles Relating to Climate Change.
ILC, Report of the International Law Commission to the General Assembly on the Work of its 65th Session (6 May–7 June and 8 July–9 August 2013), UN Doc. A/68/10 (2013) 115, para. 168; see also Shinya Murase, ‘International Law Commission’, 25 Yearbook of International Environmental Law 542 (2014), at 563. According to former ILC member Maurice Kamto, the understanding was not an ‘accord’, but an ‘entente’; 67th Session of the ILC, Summary Record of the 3249th Meeting, UN Doc A/CN.4/SR.3249 (12 May 2015), at 5. The official French text of the ILC reports avoids the term and merely speaks of ‘conditions’.
Enrique J.A. Candioti (Argentina), 66th session of the ILC, Summary Record of the 3212th Meeting, UN Doc. A/CN.4/SR.3212 (30 June 2014), 7.
Chris Maina Peter (Tanzania), 67th session of the ILC, Summary Record of the 3247th Meeting, UN Doc. A/CN.4/SR.3247 (7 May 2015), 12; and 68th session of the ILC, Summary Record of the 3308th Meeting, UN Doc. A/CN.4/SR.3308 (1 June 2016), 13, seeing the understanding as “undermining the reputation of the Commission as a whole”, and the constraints so imposed as “unethical”; 69th session of the ILC, Summary Record of the 3358th Meeting, UN Doc. A/CN.4/SR.3358 (16 May 2017).
Maurice Kamto (Cameroon), 67th session of the ILC, Summary Record of the 3249th Meeting, UN Doc. A/CN.4/SR.3249 (12 May 2015), 9.
Benoît Mayer, ‘The Relevance of the No-Harm Principle to Climate Change Law and Politics’, 19 Asia Pacific Journal of Environmental Law 79 (2016), at 84; see also id., ‘Climate Change Reparations and the Law and Practice of State Responsibility’, 7(1) Asian Journal of International Law 185 (2017), at 192.
See, e.g., the US statement at the 69th session of the UNGA Sixth Committee in 2014, Summary Record of the 24th Meeting, UN Doc. A/C.6/69/SR.24 (31 October 2014), 13, echoing the French, Russian and UK delegations, Summary Records of the 21st, 22nd and 23rd Meetings (29-31 October 2014), UN Docs. A/C.6/69/SR.21, 22, A/C.6/69/SR.22, 8, and A/C.6/69/SR.23, 7; reiterated in the 67th, 68th and 69th Sessions of the ILC in 2014-2017 by Huikang Huang (China), Sean D. Murphy (USA) and Michael Wood (UK); Summary Records of the 3249th, 3307th, 3308th and 3355th Meetings, UN Docs. A/CN.4/SR.3249, 3, A/CN.4/SR.3307, 19, A/CN.4/SR.3308, 11-12, and A/CN.4/SR.3355, 9.
UN Docs. A/C.6/71/SR.26 (2016) and A/C.6/72/SR.24 (2017).
UN Doc. A/CN.4/735 (2020), at 9/45. See also Géraud de Lassus St-Geniès, ‘Why the ILC Should Not Seek to Codify Climate Law’, Chapter 4 in Debating Climate Law, edited by Benoît Mayer and Alexander Zahar (Cambridge: Cambridge University Press, forthcoming 2021).
See the comments by Sean D. Murphy (USA), Summary Record of the 3211th Meeting of the ILC at its 66th session, UN Doc. A/CN.4/SR.3211 (27 May 2014), at 4. For parallel drafting initiatives by scholars and practitioners see the Declaration of Climate Change Legal Principles adopted by the 2014 Conference of the International Law Association at Washington/DC (76 ILA Reports of Conferences 330); and the Oslo Principles on Global Climate Change Obligations presented by an international legal expert group at London in 2015 (The Hague: Eleven International, 2015).
Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15(3) Leiden Journal of International Law 553 (2002); and Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, 70(1) Modern Law Review 1 (2007), at 2. See also Marvin S. Soroos, The Endangered Atmosphere: Preserving a Global Commons (Columbia, SC: University of South Carolina Press, 1997), at 208 (‘The ad hoc, problem-specific approach to regulating pollution and protecting the atmosphere has proven to be quite flexible and adaptable’, and therefore pursuing a comprehensive treaty would be ‘an ill-advised use of limited diplomatic resources’).
Jonathan B. Wiener and John D. Graham, ‘Resolving Risk Tradeoffs’, in Risk vs. Risk: Tradeoffs in Protecting Health and the Environment, edited by John D. Graham and Jonathan B. Wiener (Cambridge/MA: Harvard University Press, 1995), 226.
Eyal Benvenisti and George W. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’, 60(2) Stanford Law Review 595 (2007), at 597, 608. See also Richard B. Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness’, 108(2) American Journal of International Law 211 (2014), at 230.
Benoît Mayer, ‘A Review of the International Law Commission’s Guidelines on the Protection of the Atmosphere’, 20(2) Melbourne Journal of International Law 3 (2019), at 13; Benoît Mayer, ‘The Critical Functions of Scholarship in Climate Law’, 8(3-4) Climate Law 151 (2018). At its 67th session in 2015, the Commission even moved the terms of the ‘understanding’ from the preamble to the operational part of Draft Guideline 2, turning it into a kind of ‘negative list’ so as to eliminate from the project all references to (a) the polluter-pays principle, the precautionary principle, common but differential responsibilities, the liability of States and their nationals, the transfer of funds and technologies to developing countries, including intellectual property rights; (b) specific substances such as black carbon, tropospheric ozone, other dual-impact substances which are the subject of negotiations among States; and (c) the international legal status of airspace and outer space, including its delimitation. See the Report of the ILC on its 67th Session, UN Doc. A/70/10 (2015), at 27.
De Lassus St-Geniès (n 32) at 5.
Sir Michael Wood, Summary Record of the 69th ILC Session, UN Doc. A/CN.4/SR.3355 (19 June 2017), at 9, sarcastically referring to ‘anodyne guidelines as part of a one-size-fits-all approach’; see also Sean Murphy, Summary Record of the 67th ILC Session, UN Doc. A/CN.4/SR.3246 (11 January 2016), at 5-6.
See the surveys by William G. Burns and Hari M. Osofsky (eds.), Adjudicating Climate Change: State, National and International Approaches (Cambridge: Cambridge University Press, 2009); Michael Burger and Justin Gundlach, The Status of Climate Change Litigation: A Global Review (Nairobi: United Nations Environment Programme / Columbia University Sabin Center for Climate Change Law, 2017); Joana Setzer and Lisa C. Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’, 10(3) WIRE’s Climate Change e580 (2019); Ivano Alogna and Eleanor Clifford (eds.), Climate Change Litigation: Comparative and International Perspectives (London: British Institute of International and Comparative Law, 2020). See also Jennifer Huang and Maria A. Tigre, ‘Trends in Climate Justice Litigation: The Dutch Case and Global Repercussions’, in Climate Justice: Case Studies in Global and Regional Governance Challenges, edited by Randell S. Abate (Washington/DC: Environmental Law Institute, 2016), 571; Pau de Vilchez Moragues,’Broadening the Scope: The Urgenda Case, the Oslo Principles and the Role of National Courts’, 20 Spanish Yearbook of International Law 71 (2016); and Cinnamon P. Carlarne, ‘The Role of Domestic Litigation’, Chapter 9 in Debating Climate Law (forthcoming 2021, n 32).
Epithet used by Philipp Allot, The Health of Nations: Society and Law Beyond the State (Cambridge: Cambridge University Press, 2002) 380, borrowing the term from Andrew Wheatcroft, The Habsburgs: Embodying Empire (London: Penguin, 1996) 248, to describe the hybrid of lawyer-diplomats who typically serve on the UN International Law Commission; see also Martti Koskenniemi, ‘International Law as Therapy: Reading The Health of Nations’, 16(2) European Journal of International Law 329 (2005), at 337 (“the diplomatic class, the international Hofmafia”). In 2013, 18 of the 34 elected ILC Commissioners were salaried members or former members of their national diplomatic services.
55 ILM 740; see Laura Horne, ‘Climate Change and the Future Role of the Concept of the Common Concern of Humankind’, 2(1) Australian Journal of Environmental Law 24 (2015).
See the commentary by Shinya Murase on draft guideline 3 in his first ILC Report, UN Doc. A/CN.4/667 (14 February 2014), at 57; and the objections by Sean Murphy, Summary Record of the 3211th ILC meeting on 27 May 2014 (n. 33) at 4, and by France in the UNGA Sixth Committee debates in October 2014, UN Doc. A/C.6/SR.22 (n. 30), at 8. The French and Chinese ILC Commissioners persistently opposed any reference to common concern in the Rapporteur’s draft; Summary Records of the 3211th ILC meeting (n. 33) at 9, and of the 3249th meeting on 12 May 2015 (n. 27) at 3. See also the review of the debate by Mayer (n. 37), at 23-25.
See the statement by the chairman of the ILC Drafting Committee (Mathias Forteau) on 21 December 2015, UN Doc. A/CN.4/SR.3260 (21 December 2015), at 6; and the Report of the ILC on the Work of its 67th session, UN Doc. A/70/10 (2015), at 26.
Summary Records, 73rd Session, UNGA Sixth Committee, UN Doc. A/C.6/73/SR.24-27 (October 2018).
Protection of the Atmosphere: Comments and Observations Received from Governments, International Organizations and Others, UN Doc. A/CN.4/735 (11 February 2020, n. 32), at 11-41. See also Nadia Sánchez Castillo-Winckels, ‘Why “Common Concern of Humankind” Should Return to the Work of the International Law Commission’, 29(1) Georgetown Environmental Law Review 131 (2016).
Shinya Murase, Sixth ILC Report on the Protection of the Atmosphere, UN Doc. A/CN.4/736 (11 February 2020, n. 23), at 12-16.
Ibid., Annex, final preambular paragraph: ‘Recognizing 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;’ and draft guideline 6: ‘The atmosphere should be utilized in an equitable and reasonable manner, taking into account the interests of present and future generations.’
First invoked (by the United States) in the 1893 Bering Sea Fur Seal Arbitration; see Cesare P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (The Hague: Kluwer Law International, 2000), at 133; re-emerged in the ‘common heritage’ discourse under article 136 of the UN Law of the Sea Convention, see Peter H. Sand, ‘Public Trusteeship for the Oceans’, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, edited by Tafsir Malick Ndiaye and Rüdiger Wolfrum (Leiden: Martinus Nijhoff, 2007) 521; and eventually ended up in the climate law debate, see Will Goldrick, ‘Fiduciary Duty and Climate Governance: Challenges for International Diplomacy and Law’, in Fiduciary Duty and the Atmospheric Trust, edited by Ken Coghill, Charles Sampford and Tim Smith (Farnham: Ashgate, 2012), 9, at 21. See generally Catherine Redgwell, Intergenerational Trusts and Environmental Protection (Manchester: Manchester University Press, 1999), 71; Peter H. Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’, 4 Global Environmental Politics 47 (2004); Klaus Bosselmann, Earth Governance: Trusteeship of the Global Commons (Cheltenham: Edward Elgar, 2015), 96; and Edith Brown Weiss, ‘The Future of the Planetary Trust in a Kaleidoscopic World’ (this EPL Special Issue); Fiduciary Duty and the Atmospheric Trust, edited by Ken Coghill, Charles Sampford and Tim Smith (Farnham: Ashgate, 2012).
Eyal Benvenisti, ‘The Paradoxes of Sovereigns as Trustees of Humanity: Concluding Remarks’, 16(2) Theoretical Inquiries in Law 535 (2015), at 548.