Annex II
PROTECTION OF THE ATMOSPHERE
(Shinya Murase)
I. Introduction
1. The atmosphere (air mass), mostly existing in the
troposphere and stratosphere, is the planet’s largest single
natural resource, and it is indispensable for the survival
ohumankind. Degradation oatmospheric conditions
has long been a matter oserious concern to the international
community.
II. Rationale for the proposed topic
3. There is abundant State practice and literature on
the subject. Therequently cited award otheTrail
Smelter arbitration
4
1
While there have been a number
(United States, Canada, 1938,
1941) has been the leading case on transboundary air
pollution. In the 1950s, atmospheric nuclear testing
maniested itselas one otherst environmental
of relevant conventions concluded for the protection of
issues confronted by the international community.
5
The
the transboundary and global atmosphere, these have
nonetheless let substantial gaps in terms ogeographical
coverage, regulated activities, controlled substances and,
most importantly, the applicable principles and rules.
This piecemeal approach has had particular limitations
for the atmosphere, which by its very nature warrants
holistic treatment. There is no convention at present that
covers the whole range oenvironmental problems othe
atmosphere in a comprehensive and systematic manner.
It is therefore believed that the Commission can make a
signicant contribution by codiying and progressively
developing the relevant legal principles and rules on the
basis oState practice and jurisprudence.
Nuclear Tests cases (Australia v. France; New Zealand
v. France, 1973, 1974) before the International Court
oJustice sparked heated discussions relating to possible
atmospheric pollution.
6
The Court also referred,
in its advisory opinion on the Legality of the Threat or
Use of Nuclear Weaponsin 1996, to the obligation o
States to rerainrom causing signicant environmental
damagerom their transboundary pollution, including
atmospheric pollution.
7
Accidents at nuclear facilities
can have direct impacts on the environment of the
atmosphere, as has been demonstrated by the accidents
at Three Mile Island in 1979 and Chernobyl in 1986,
as well as the damage to the Fukushima nuclear power
plants caused by the huge earthquake and tsunami on
11 March 2011, which is currently a major concernor
the international community. In the recent judgment
of the Pulp Mills on the River Uruguay (Argentina v.
Uruguay) case rendered on 20 April 2010, the Court
2. It is important to ensure that the International Law
Commission beully engaged with the international
community’s present-day needs. While the Commission’s
draft articles on international watercourses and on
transboundary aquifers
2
contain some relevant provisions
regarding the protection othe environment, the
Commission has not dealt with any topic in theeld o
international environmental law since the conclusion
of the topic on liability (in other words, the prevention
4
of transboundary harm and allocation of loss),
3
Trail Smelter, UNRIAA, vol. III (Sales No. 1949.V.2), pp. 1905
et seq. An oten-quoted passage othe 1941 award reads asollows:
“Under the principles ointernational law … no State has the right to
use or permit the use oterritory in such a manner as to cause injury
by fumes in or to the territory of another or the properties or persons
therein, when the case is oserious consequence and the injury is
which
appears to be a signicant omission at a time when the
world is undergoing critical environmental degradation.
It is therefore proposed that the Commission consider for
itsuture work the topic “Protection othe atmosphere”.
established by clear and convincing evidence” (ibid., p. 1965).
5
1
See, for example, the Daigo FukuryūMaru(Lucky Dragon
No. 5) incident (Japan, United States) in 1954; S. Oda, “The hydrogen
bomb tests and international law”,Die Friedens-Warte, vol. 53, No. 2
(1956), pp. 126–135; and L. F. E. Goldie, “A general view ointernational
environmental law: a survey ocapabilities, trends and limits”,
in A.-C. Kiss (ed.), The Protection othe Environment and International
Law,
Workshop 1973, The Hague Academy oInternational Law,
Leiden, Sijtho, 1975, pp. 25–143, at pp. 72−73.
See, for example, A.-C. Kiss and D. Shelton, International Environmental
Law,
3rd
ed.,
Ardsley
(New
York),
Transnational
Publishers,
2004,
pp. 555–592. See also Sands, Principles of International Environmental
Law(ootnote 483 above), pp. 317–390; Birnie, Boyle
and Redgwell,International Law and the Environment (footnote 483
above), pp. 335–378; D. Hunter, J. Salzman and D. Zaelke,Interna-
6
Nuclear Tests (Australia v. France), Interim Protection, Order
of 22 June 1973, I.C.J. Reports 1973, p. 99;Judgment, I.C.J. Reports
1974, p. 253;(New Zealand v. France), Interim Protection, Order
of 22 June 1973, I.C.J. Reports 1973, p. 135; andJudgment, I.C.J. Reports
1974, p. 457.
tional Environmental Law and Policy, 3rd ed., New York, Foundation
Press, 2007, pp. 538–733; and X. Hanqin,Transboundary Damage in
7
International Law, Cambridge University Press, 2003, pp. 200–203.
Legality of the Threat or Use of Nuclear Weapons (see footnote 425
above), p. 241. The International Court of Justice stated thus in its
opinion: “The existence othe general obligation oStates to ensure
2
Yearbook … 1994, vol. II (Part Two), para. 222; andYearbook …
2008, vol. II (Part Two), paras. 53–54.
that activities within their jurisdiction and control respect the envir-
onment oother States or oareas beyond national jurisdiction is now
3
Yearbook … 2001, vol. II (Part Two) and corrigendum,
paras. 97–98; andYearbook … 2006, vol. II (Part Two), paras. 66–67.
part othe corpus ointernational law relating to the environment”
(pp. 241–242, para. 29).
189
190
Report of the International Law Commission on the work of its sixty-third session
reerred in part to the issue oalleged air pollution (to
the extent relevant to the river’s aquatic environment).
• Council Directive on the limitation of emissions
8
ocertain pollutants into the airrom large combustion
plants (1988/2001);
Furthermore, the Aerial Herbicide Spraying (Ecuador
v. Colombia)case currently pending beore the International
Court of Justice may also address the subject.
The WTO case on theUnited States—Standards
or Reormulated and Conventional Gasoline (1996)
posed an important question of the compatibility of a
country’s domestic law (in this case, the United States
Clean Air Act of 1990) with the trade provisions of the
WTO/GATT.
11
• Agreement on air quality between Canada and the
United States (1991);
12
• United Nations Framework Convention on Climate
Change (1992);
9
Finally, relevant decisions of domestic
courts may also be instructive.
10
• The Kyoto Protocol to the United Nations
Framework Convention on Climate Change (1997);
4. The relevant treaty and non-treaty practice includes
theollowing:
• The ASEAN Agreement on Transboundary Haze
Pollution (2002);
13
• Convention on long-range transboundary air
pollution (1979, entered intoorce 1983); Protocol to
the 1979 Convention on long-range transboundary air
pollution on long-termnancing othe co-operative
• Stockholm Declaration on the Human Environment
(1972);
14
programmeor monitoring and evaluation othe long-
• Institute of International Law resolution on
range transmission oair pollutants in Europe (EMEP)
(1984); Protocol to the 1979 Convention on long-range
transboundary air pollution on the reduction of sulphur
emissions or their transboundary fuxes by at least
30 per cent (1985); Protocol to the 1979 Convention
on long-range transboundary air pollution concerning
the control oemissions onitrogen oxides
or their transboundary fuxes (1988); Protocol to
the 1979 Convention on long-range transboundary
air pollution concerning the control oemissions o
volatile organic compounds or their transboundary
fuxes (1991); Protocol to the 1979 Convention on
Long-Range Transboundary Air Pollution on Further
Reduction oSulphur Emissions (1994); Protocol to
the 1979 Convention on Long-Range Transboundary
Air Pollution on Persistent Organic Pollutants (1998);
Protocol to the 1979 Convention on Long-Range
Transboundary Air Pollution on Heavy Metals (1998);
and Protocol to the 1979 Convention on Long-Range
Transboundary Air Pollution to Abate Acidication,
Eutrophication and Ground-level Ozone (1999);
transboundary air pollution (1987);
15
• Rio Declaration on Environment and Development
(1992);
16
• Draft articles on prevention of transboundary harm
rom hazardous activities (2001);
17
• Draft principles on the allocation of loss in the case
otransboundary harm arising out ohazardous activities
(2006).
18
11
Council Directive of 24 November 1988 on the limitation of
emissions ocertain pollutants into the airrom large combustion
plants, Ocial Journal othe European Communities, No. L 336,
p. 1; and Directive 2001/80/EC othe European Parliament and othe
Council of 23 October 2001 on the limitation of emissions of certain
pollutants into the airrom large combustion plants,Ocial Journal o
the European Communities, No. L 309, p. 1.
12
United Nations, Treaty Series, vol. 1852, No. 31532, p. 79.
13
Entered into force on 25 November 2003.
14
Declaration of the United Nations Conference on the Human En-
• Vienna Conventionor the Protection othe Ozone
Layer (1985);
vironment (Stockholm Declaration) (1972) (Report of the United Nations
Conerence on the Human Environment, Stockholm, 5–16 June
1972 (United Nations publication, Sales No. E.73.II.A.14), Part One,
chap. I). Principle 21 of the Stockholm Declaration provides as follows:
• Montreal Protocol on Substances that Deplete the
Ozone Layer (1987);
“States have, in accordance with the Charter of the United Nations and
the principles of international law … the responsibility to ensure that
activities within their jurisdiction and control do not cause damage to
the environment of other States or of areas beyond the limits of national
jurisdiction”; see also L. B. Sohn, “The Stockholm Declaration on the
Human Environment”,Harvard International Law Journal, vol. 14
(1973), p. 423.
8
Pulp Mills on the River Uruguay (Argentinav. Uruguay), Judg-
15
Article 2 provides as follows: “In the exercise of their sover-
ment, I.C.J. Reports 2010, p. 14, at pp. 100–101, paras. 263–264. The
issue was raised during the oral proceedings (8 June 2006, CR 2006/47,
paras. 22, 28 and 34; availablerom www.icj-cij.org).
9
WTO, report of the Appellate Body, United States—Standards for
eign right to exploit their resources pursuant to their own environmental
policies,
States
shall
be
under
a
duty
to
take
all
appropriate
and
effective
measures
to
ensure
that
their
activities
or
those
conducted
within
their jurisdiction or under their control cause no transboundary
air pollution” (Institute oInternational Law,Yearbook, vol. 62,
Part II, Session oCairo (1987), p. 299; availablerom www.idi-iil.
org, “Resolutions”).
Reormulated and Conventional Gasoline, WT/DS2/AB/R, 29 April
1996, pp. 16–17; and S. Murase, “Unilateral measures and the WTO
Dispute Settlement”, in S. S. C. Tay and D. C. Esty (eds.),Asian
Dragons and Green Trade: Environment, Economics and International
16
Report othe United Nations Conerence on Environment and De-
Law, Singapore, Times Academic Press, 1996, pp. 137–144.
velopment, Rio de Janeiro, 3–14 June 1992 (United Nations publication,
Sales No. E.93.I.8 and corrigendum), vol. I:Resolutions adopted by the
10
See, for example, Massachusetts et al. v.Environmental Protec-
tion Agency et al., Decision of 2 April 2007, United States Supreme
Court (549 U.S. 497; 127 S. Ct. 1438; 2007 U.S. LEXIS 3785), which
Conference, resolution 1, annex I.
17
Yearbook … 2001, vol. II (Part Two) and corrigendum,
was in part concerned with certain obligations othe Environmental
paras. 97–98.
Protection Agency to regulate emissions ogreenhouse gases.
18
Yearbook … 2006, vol. II (Part Two), paras. 66–67.
Protection of the atmosphere
191
5. The rationaleor the proposed projector codication
and progressive development ointernational
law is manifold: First and foremost, it is necessary
toll the gaps in the existing conventions relating to
the atmosphere. The number of relevant conventions
notwithstanding, they have remained a mere patchwork
oinstruments which cover only specic geographical
areas and a limited range oregulated activities and
controlled substances.
where the activities in question may be conducted in
the airspace above.
21
In such a context, it will be appro-
priateor the drat articles to rearm a State’s sovereignty
over national airspace. It should be noted that
the present project shall in no way be intended to aect
the legal status oairspace as currently established in
international law.
19
The incremental approach
8. The present proposal does not duplicate the previous
work
of
the
Commission.
The
Commission
adopted
draft
articles
on
prevention
of
transboundary
harm
from
hazardous
activities in 2001
has its particular limitations for the protection of the
atmosphere, which by its very nature warrants holistic
treatment in the form of a framework convention by
which the whole range oenvironmental problems othe
atmosphere could be covered in a comprehensive and
systematic manner. Thus, the present proposal envisages
an instrument similar to Part XII of the United Nations
Convention on the Law of the Sea on protection and
preservation of the marine environment.
22
and draft principles on
the allocation of loss in the case of transboundary harm
arising out ohazardous activities in 2006.
23
Both drafts
6. Second, the Commission will be expected to
provide appropriate guidelinesor harmonization and
coordination with other treaty regimes outside interna-
tional environmental law, which may come in confict
with the proposed convention during the compliance and
implementation phases.
20
Third, it is also important that
contain important provisions potentially applicable to
atmospheric damage. However, the scope oapplication
of these drafts is, on the one hand, too broad (as they are
intended to cover all types of environmental harm) and,
on the other hand, too limited (as they focus on the questions
related
to
prevention
and
allocation
of
loss
caused
by
transboundary
harm and hazardous activities). Since they
do not adequately address the protection of atmospheric
conditions as such, it is proposed that the Commission
tackle the problem in a comprehensive and systematic
manner, but, at the same time, with a specicocus on the
atmosphere.
the proposed draft articles help provide the framework
or harmonization onational laws and regulations
with international rules, standards and recommended
practices and procedures relating to the protection o
the atmosphere. Fourth, it is hoped that the proposed
project will establish guidelines on the mechanisms and
proceduresor cooperation among States in order to
acilitate capacity-building in theeld otransboundary
and global protection othe atmosphere.
III. Physical characteristics of the atmosphere
9. In order to determine the denition, scope and
objective othe exerciseor codication and progressive
development of international law on the protection
othe atmosphere, as well as to characterize the
legal status othe atmosphere, it isrst necessary to
understand the physical structure and characteristics of
the atmosphere.
7. It is important to clearly distinguish between the
notion of atmosphere and the notion of airspace. Article
1 of the 1944 Convention on International Civil
Aviation rearms the rule ocustomary international
law that “every State has complete and exclusive sovereignty
over the airspace above its territory”. Although
the legal principles, rules and regulations envisaged in
the proposed draft articles are perhaps most applicable
to certain activities conducted on the ground within a
State’s territorial jurisdiction, there may be situations
10. The “atmosphere” is “the envelope ogases
surrounding the earth”.
24
The main components (and
proportion) ogases in the atmosphere are nitrogen
(78.08 per cent), oxygen (20.95 per cent), argon (0.93 per
cent) and carbon dioxide (0.03 per cent), with additional
trace gases in tiny concentrations (0.01 per cent). The
atmosphere exists in what is called the atmospheric cell. It
19
In recent years, there has been growing scientic evidence
is divided vertically into four atmospheric spheres (from
the lower to upper layers: troposphere, stratosphere,
mesosphere and thermosphere) on the basis of the
temperature characteristics (seeg. 1).
that so-called “tropospheric ozone” and “black carbon” are the two
substances in the atmosphere directly threatening both the air quality
and climate change. It is said that,or climate change, the so-called
“greenhouse gases” identied in the United Nations Framework Convention
on Climate Change are responsibleor only 60 per cent, while
these substances are responsible for some 40 per cent. This clearly
demonstrates the linkage between the transboundary air pollution and
climate change, and also thegapexisting in the current treaty regime
which needs to belled by a comprehensive multilateral convention
on the atmosphere. See the study by the United Nations Environment
Programme (UNEP) and WMO on “Measures to limit near-term
climate change and improve air quality: the UNEP/WMO integrated
21
Annex 16 to the 1944 Convention on International Civil Avi-
assessment otropospheric ozone and black carbon” o2011. It may
also be noted that,or instance, Europe now struggles to meet standards
or air quality as a result othe pollutants carriedrom other regions o
the world. This is indicative otheact that even regional air pollution
ation is entitled “Environmental protection” (see ICAO, “Environmental
protection: Annex 16 to the Convention on International
Civil Aviation”, vols. I (5th ed.) and II (3rd ed.) (2008)). The ICAO
has established rules on the “Aircrat Engine Emissions Standards
and Recommended Practices” since 1980, with a view to achieving
“maximum compatibility between the safe and orderly development
ocivil aviation and the quality othe human environment” (ICAO
Assembly resolution A18-11, para. (2) (Doc 8958 - A18-RES)).
These Emissions Standards establish rules, inter alia, for vented fuel
(Part II) and emissions certication (Part III), including emissions
limits for smoke and certain chemical particles.
problems cannot be solved without considering their causes and eects
in the globalramework.
22
See footnote 17 of the present annex above.
20
See S. Murase, “Perspectives from international economic law on
23
See footnote 18 of the present annex above.
transnational environmental issues”,Collected Courses of The Hague
24
Concise Oxford English Dictionary, 12th ed., Oxford University
Academy oInternational Law, 1995, vol. 253 (1995), pp. 283–431.
Press, 2011.
nq,opamezo
--~ liJ
•.
~G. lànes 11t aî, CoJlim ~,,,,, o/~ ~
~~
J;lalpet:.~~ Pub~ I9!ilC>,;p, 4JJ,
~l.(~ . ..t ~
o/dw&wtc.w,-t; lrcl J,. Ne\V,Yoik
~Press,.1989.p. 34.
.
Figure 2. Tluulilm,Jt,mon o.ftlœ amwsplun
Protection of the atmosphere
193
12. Both human and natural environments can be
adversely aected by certain changes in the condition o
the atmosphere. There are three particularly important
causesor the degradation othe atmosphere.
27
First, the
introduction of harmful substances into the troposphere and
lower stratosphere causes changes in atmospheric conditions
(in other words, air pollution). The major contributing
causes of air pollution are acids, nitrous oxides (NOx),
sulphur oxides (SOx) and hydrocarbon emissions such as
carbon dioxide (CO2). Strong horizontal winds,or example
jet streams,
28
can quickly transport and spread these
15. (Denition) Embarking on theormulation o
relevant principles and rules on the protection of the
atmosphere, the Commission willrst need to dene the
atmosphere. The atmosphere—or air mass—is a mixture
ogases that surrounds the earth, most oit existing in the
troposphere and stratosphere. It may also be necessary to
address not only the physical make-up of the atmosphere,
but also its role as a mediumor transporting pollutants.
This denition will also clearly distinguish the notion o
airspace and its distinct relevancerom the denition o
atmosphere.
trace gases horizontally all over the globe,arrom their
original sources (although vertical transport is very slow).
Second, chlorofuorocarbons (CFCs) and halons emitted
into the upper troposphere and stratosphere cause ozone
depletion. The ozone layer, as its name implies, contains
signicant amounts oozone (O3), aorm ooxygen. The
main concentrations oozone are at altitudes o15 to 40 km
(maximum concentrations are between 20 and 25 km).
The ozone layerlters out ultraviolet radiationrom the
sun, which may cause skin cancer and other injuries to lie.
16. (Scope) In clariying the scope othe project, it
should be made clearrst that the proposed drat articles
are addressed only to damage caused by human activities,
and accordingly, their scope would not extend,or
instance, to the damages caused by volcanic eruption and
desert sand (unless these are exacerbated by human activity).
Second, the draft articles should make clear the
objects to be protected, natural and human environments,
and the intrinsic relationship between the two. Third, it
Third, changes in the composition othe troposphere and
should be necessary to refer to the different modalities
lower stratosphere cause climate change. The main cause
ohuman-induced climate change is additional trace gases,
such as carbon dioxide (CO2), nitrous oxide (N2O), methane
(CH4), CFCs and tropospheric ozone (O3). These are called
“greenhouse gases”.
othe environmental damage in the atmosphere; one
is the introduction of (deleterious) substances into the
atmosphere and another, the alteration in the balance of
composition of the atmosphere.
29
Conditions within the troposphere
heavily aect the weather on the earth’s surace, including
cloudormation, haziness and precipitation. Most gases and
aerosols are expunged by a natural “cleansing process” in
the troposphere, but when emissions overwhelm this process,
climate change begins to occur.
13. These three main international issues concerning the
atmosphere—air pollution, ozone depletion and climate
change—relate to thetroposphere and the stratosphere,
30
17. (Objective) Because oits dynamic and fuctuating
character, the atmosphere needs to be treated as a single
global unit for the purpose of environmental protection.
While recognizing the dierence omodalitiesin legal
responses between transboundary air pollution and global
atmospheric problems, both should be treated within the
same legalramework based on theunctional notion o
the atmosphereor the purpose ocodication and progressive
development ointernational law on the subject.
In other words, the atmosphere should be treated
comprehensively for the purpose of its environmental
protection.
although major contributingactors may be dierent
in each case. The upper atmosphere—the mesosphere
and thermosphere—which comprises approximately
0.0002 per cent of the atmosphere’s total mass, is of little
concern regarding the environmental problems under consideration,
not to mention the vast regions oouter space
where there is no air.
IV. Legal issues to be considered
18. (Legal status of the atmosphere) There are at
leastve concepts that may be considered relevant to
the legal status othe atmosphere: airspace; shared or
common natural resources; common property; common
heritage; and common concern (common interest).
31
Each
of these concepts should here be carefully considered as
14. Thenal outcome othis project is envisaged as a
comprehensive set of draft articles for a framework convention
on
the
protection
of
the
atmosphere.
Part
XII
of
the
United Nations Convention on the Law of the Sea,
on the protection and preservation of the marine environment,
may
provide
an
example
of
the
form
that
these
drat
articles could take. The legal issues to be considered,
among others, will be asollows.
to whether and to what extent it is applicable to the protection
of
the
atmosphere.
For
example,
States
may
well
wish
to rearm their sovereignty over the atmosphere
that exists within their airspace for the reasons stated
above in paragraph 7.
27
See R. Dolzer, “Atmosphere, protection”, in R. Bernhardt (ed.),
19. (Basic principles for the protection of the
atmosphere) Applicability of the well-known principles
including theollowing will have to be considered: general
obligations oStates to protect the atmosphere;
obligations oStatesvis-à-vis other States not to cause
Encyclopedia of Public International Law, vol. 1, Amsterdam, NorthHolland, 1992, p.
289.
28
Jet streams are westerly winds (fowingrom west to east) moving
around the upper stratum othe troposphere. They move at a high speed
of 240 to 720 km per hour.
31
See A. E. Boyle, “International law and the protection of the
29
In recent years, however, scientists arending that black carbon
global atmosphere: concepts, categories and principles”, in R. Churchill
and D. Freestone (eds.), International Law and Global Climate
and troposphere ozone are also responsibleor climate change. See
footnote 19 of the present annex above.
30
Kiss and Shelton, International Environmental Law (footnote 1
Change, London, Graham and Trotman, 1991, pp. 7−19; see also
J. Brunnée, “Common areas, common heritage, and common concern”,
in D. Bodansky, J. Brunnée and E. Hey (eds.),The Oxford Handbook
of the present annex above), pp. 556–562 (chap. 12, “Atmosphere,
oInternational Environmental Law, Oxford University Press, 2007,
stratosphere and climate”).
pp. 550–573.
194
Report of the International Law Commission on the work of its sixty-third session
signicant harm to the atmosphere; the principle osic
utere tuo ut alienum non laedas to be applicable to the activities
under the jurisdiction or control oa State; general
obligations oStates to cooperate; the principle oequity;
the principle osustainable development; and common
but dierentiated obligations.
V. Basic approaches
20. (Measures of prevention and precaution to protect
the atmosphere) One othe outstanding issues in this
project will be the dierentiation and relationship between
the traditional “preventive” principle and the relatively new
“precautionary” principle. Preventive measures should be
taken where the probable damage isoreseeable with clear
causal links and proofs, whereas, in contrast, precautionary
measures ought to be taken even where the damage is
scientically uncertain. Environmental impact assessments
will be crucial for certain situations.
26. The Commission, charged with the work ocodication
and progressive development ointernational
law, will not directly engage political issues. While the
topic on climate change,or instance, oten inspires
impassioned political and policy debate, the Commission,
composed as it is olegal experts, will deal only
with the legalprinciples and rules pertaining to the protection
of
the
atmosphere
rather
than
the
development
of
policy
proposals. In so doing, the Commission’s product
will take the uncoordinated legalrameworks that have
heretofore been set up to handle only discrete and specic
atmospheric problems and rationalize them into a
single, fexible code. This synthesis will hopeully lay the
groundworkor auture convention covering substantive
issues, and in the meantime help States, international
organizations and civil society at large in clariying the
legal implications otheir activities in thiseld.
21. (Implementation of obligation) Implementation of
the prescribed obligations should be carried out through
the domestic law of each State. Unilateral domestic
measures and the effect of extraterritorial application
have been sensitive issues in international environmental
law. The role orelevant international organizations and
the Conferences of the Parties should not be overlooked.
Confict and coordination with trade law will also be particularly
important.
22. (Mechanisms for cooperation) Desirable procedures
for cooperation, technical and other forms of cooperation,
and pertinent measuresor capacity-building
should all be explored.
27. It is important that the legal principles and rules on
the subject be considered by the Commission within the
framework of general international law. This implies that
the work of the Commission should resist the tendency
towards “ragmentation” caused by dominant “singleissue”
approaches to international environmental law.
In other words, the legal principles and rules on the
atmosphere should, as far as possible, be considered in
relation to doctrines and jurisprudence ogeneral international
law.
It
also
implies
that
the
work
of
the
Commission
should
extend to applying the principles and rules ogeneral
international law to various aspects of the problem
pertaining to the protection othe atmosphere.
23. (Procedural rules for compliance) Notication,
exchange oinormation, consultation, reporting systems,
pledge and review, and promotional and enorcement
procedures, among others, shall be considered.
VI. Cooperation with other bodies
24. (Responsibility and liability) Attribution of responsibility,
due diligence, liabilityor high-risk activities
and civil liability are no doubt critical issues to be considered
in connection with the State’s obligations under
paragraphs 19 to 23 above.
28. Cooperation with other bodies is conceivable in
various waysor conducting a study and elaborating drat
articles on the protection of the atmosphere. The International
Law Association, among others, has conducted
a number ostudies relating to the present subject. The
author conducted preliminary informal consultations with
the legal experts oUNEP in Nairobi in January 2011.
He also held preliminary consultations in July 2011 at
the International Environment House in Geneva with
the experts of Geneva-based international environmental
25. (Dispute settlement) While recognizing the specic
nature oeach dispute settlement body, questions ogeneral
nature such as jurisdiction, admissibility and standing, and
proooscientic evidence should be considered.
organizations and several secretariats omultilateral environmental
agreements.
Protection of the atmosphere
195
Select bibliography
A. Judicial decisions
rajamanI, L., Dierential Treatment in International Environmental
Law, Oxford University Press, 2006.
Trail Smelter, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1905 (award
of 1941).
rOwlands, I. H., “Atmosphere and outer space”, in D.b Odansky,
J. brunnée and E. hey (eds.), The Oxford Handbook of International
Environmental Law, Oxford University Press, 2007, pp. 315–336.
Nuclear Tests (Australia v. France), Interim Protection, Order of
22 June 1973, I.C.J. Reports 1973, p. 99;Judgment, I.C.J. Reports
1974, p. 253;(New Zealand v. France), Interim Protection, Order
of 22 June 1973, I.C.J. Reports 1973, p. 135; andJudgment, I.C.J.
Reports 1974, p. 457.
sands, P., Principles oInternational Environmental Law, 2nd ed.,
Cambridge University Press, 2003, pp. 317–390.
sOrOOs, M. S., The Endangered Atmosphere: Preserving a Global
Commons, Columbia (South Carolina), University of South
Carolina Press, 1997.
United States—Standardsor Reormulated and Conventional
Gasoline, report of the WTO Appellate Body, WT/DS2/AB/R,
adopted on 20 May 1996.
xue, H., Transboundary Damage in International Law, Cambridge
University Press, 2003, pp. 200–203.
Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion,
I.C.J. Reports 1996, p. 226, at pp. 241–242.
Massachusetts et al. v.Environmental Protection Agency et al.,
Decision of 2 April 2007, United States Supreme Court (549 U.S.
497; 127 S. Ct. 1438; 2007 U.S. LEXIS 3785).
(b) Articles
bIermann, F., “‘Common concern ohumankind’: the emergence o
a new concept ointernational environmental law”,Archiv des
Völkerrechts, vol. 34 (1996), pp. 426–481.
Pulp Mills on the River Uruguay (Argentinav. Uruguay), Judgment,
I.C.J. Reports 2010, p. 14.
Aerial Herbicide Spraying (Ecuador v. Colombia), pending beore the
International Court of Justice.
bOyle, A. E., “International law and the protection othe global
atmosphere: concepts, categories and principles”, in R.c hurchIll
and D. f reestOne (eds.), International Law and Global Climate
Change, London, Graham and Trotman, 1991, pp. 7−19.
B. Documents of international organizations/
conferences relating to the law of the atmosphere
brOwnlIe, I., “Legal status onatural resources in international law
(some aspects)”,Collected Courses of The Hague Academy of
International Law, 1979-I, vol. 162, pp. 245–318.
“International Conerence on the Changing Atmosphere:
Implications for Global Security, Conference Statement, Toronto,
27–30 June 1988”,Environmental Policy and Law, vol. 18, No. 5
(1988), pp. 155 and 187–189.
bruce, J., “Law othe air: a conceptual outline”,Environmental Policy
and Law, vol. 18, No. 1/2 (1988), p. 5.
“Protection othe Atmosphere: Statement othe Meeting oLegal
and Policy Experts, Ottawa, Ontario, Canada, February 22, 1989”,
American University Journal oInternational Law and Policy,
vol. 5, No. 2 (1990), pp. 529–542.
dOlzer, R., “Atmosphere, protection”, in R.b ernhardt (ed.),
Encyclopedia of Public International Law, vol. 1, Amsterdam,
North-Holland, 1992, p. 289.
“Protection othe atmosphere”, report othe Secretary-General o
2 March 2001 (E/CN.17/2001/PC/12).
gOldIe, L. F. E., “A general view ointernational environmental
law: a survey ocapabilities, trends and limits”, in A.-C.k Iss
(ed.), The Protection othe Environment and International Law,
Workshop 1973, The Hague Academy oInternational Law, Leiden,
Sijtho, 1975, pp. 25–143, at pp. 72−73.
“One Atmosphere: Final Declaration of the XVth World Clean
Air Congress, Vancouver, September 2010” (availablerom
www.iuappa.com/newsletters/VancouverDeclaration.pdf).
C. Literature
handl, G., “International eorts to protect the global atmosphere: a
case otoo little, too late?”,European Journal of International Law,
vol. 1 (1990), pp. 250–257.
1. law Of the atmOsphere
—“International law and protection othe atmosphere”,Proceedings
of the 83rd Annual Meeting of the American Society of International
(a) Books
Law, Chicago, Illinois, April 5–8, 1989, Washington, D.C.,
American Society of International Law, 1990, pp. 62–66.
bIermann, F., Saving the Atmosphere: International Law, Developing
Countries and Air Pollution, Frankurt am Main, Peter Lang, 1995.
hOgan, J. C., “Legal terminologyor the upper regions othe
atmosphere andor the space beyond the atmosphere”, AJIL,
vol. 51, No. 2 (1957), pp. 362–375.
bIrnIe, P. W., A. E. bOyle and C. redgwell, International Law and the
Environment, 3rd ed., Oxford University Press, 2009, pp. 335–378.
elsOm, D. M., Atmospheric Pollution: a Global Problem, 2nd ed.,
Oxford, Blackwell, 1992.
kIss, A.-C., “La protection de l’atmosphère: un exemple de la mondialisation
des problèmes”, AFDI, vol. 34 (1988), pp. 701–708.
gIllespIe, A., Climate Change, Ozone Depletion and Air Pollution:
Legal Commentaries within the Context of Science and Policy,
Leiden, Martinus Nijho, 2006.
lehmann, J., “A comparative analysis othe long-range transboundary
air pollution, ozone layer protection and climate change regimes”, in
M. bOthe and E. rehbInder (eds.), Climate Change Policy, Utrecht,
the Netherlands, Eleven International Publishing, 2005, pp. 73–102.
hunter, D., J. salzman and D. zaelke, International Environmental
Law and Policy, 3rd ed., New York, Foundation Press, 2007,
pp. 538–733.
murase, S., “Perspectives from international economic law on
transnational environmental issues”,Collected Courses of The
Hague Academy oInternational Law, 1995, vol. 253, pp. 283–431.
kIss, A.-C., and D. sheltOn, International Environmental Law, 3rd ed.,
Ardsley (New York), Transnational Publishers, 2004, pp. 555–592.
—“Protection othe atmosphere and international lawmaking”, in
M. Pogačnik (ed.), Challenges of Contemporary International Law
murase, S., International Law: an Integrative Perspective on
and International Relations: Liber Amicorum in Honour of Ernest
Transboundary Issues, Tokyo, Sophia University Press, 2011.
Petrič, Nova Gorica, Slovenia, The European Faculty of Law, 2011.
196
Report of the International Law Commission on the work of its sixty-third session
rOwland, F. S., “Atmospheric changes caused by human activities:
rom science to regulation”,Ecology Law Quarterly, vol. 27 (2001),
pp. 1261–1293.
mercure, P. F., “Principes de droit international applicables au
phénomène des pluies acides”,Revue de droit de l’Université de
Sherbrooke, vol. 21 (1991), pp. 374–418.
sand, P. H., “UNCED and the development of international environmental
law”,Yearbook oInternational Environmental Law, vol. 3
(1992), pp. 3−17.
OkOwa, P. N., “The legacy oTrail Smelterin theeld otransboundary
air pollution”, in R. M.b ratspIes and R. A. m Iller (eds.),
Transboundary Harm in International Law: Lessons from the
Trail Smelter Arbitration, Cambridge University Press, 2006,
pp. 195–208.
sOhn, L. B., “The Stockholm Declaration on the Human Environment”,
Harvard International Law Journal, vol. 14 (1973), pp. 423–515.
pallemaerts, M., “International legal aspects olong-range
transboundary air pollution”,Hague Yearbook of International Law,
vol. 1 (1988), pp. 189–224.
sOrOOs, M. S., “The thin blue line: preserving the atmosphere as a
global commons”,Environment, vol. 40, No. 2 (1998), pp. 6−13
and 32−35.
rOsencranz, A., “The ECE Convention o1979 on Long Range
Transboundary Air Pollution”, AJIL, vol. 75 (1981), pp. 975–982.
2. transbOundary aIr pOllutIOn
(a) Books
brunnée, J., Acid Rain and Ozone Layer Depletion: International Law
and Regulation, Dobbs Ferry (New York), Transnational Publishers,
1988.
carrOll, J. E., Trans-boundary Air Quality Relations (Canadian–
American Public Policy), Orono (Maine), University of Maine
sands, P., “The treaty regime on long-range transboundary air pollution”,
in f rance, mInIstère de l’enVIrOnnement ande nVIrOnnement
sans frOntIère (eds.), L’application renorcée du droit international
de l’environnement. Harmonisation et développement
des procédures internationales de contrôle, de sanction et de
règlement des diérends/Towards Strengthening Application o
International Environmental Law. International Procedures o
Control, Enorcement and Confict Settlement: Harmonization and
Advancement, Paris, Frison-Roche, 1999, pp. 74−78.
Press, 1990.
flInterman, C., B. k wIatkOwska and J. G. l ammers (eds.),
Transboundary Air Pollution: International Legal Aspects of the
Co-operation of States, Dordrecht, Martinus Nijho, 1986.
tan, A. K.-J., “Forestres oIndonesia: State responsibility and international
liability”,International and Comparative Law Quarterly,
vol. 48, No. 4 (1999), pp. 826–855.
lIer, I. H. Van, Acid Rain and International Law, Toronto, Bunsel
Environmental Consultants, 1981.
wetstOne, G., and A. rOsencranz, “Transboundary air pollution: the
searchor an international response”,Harvard Environmental Law
Review, vol. 8, No. 1 (1984), pp. 89–138.
OkOwa, P. N., State Responsibility for Transboundary Air Pollution in
International Law, Oxford University Press, 2000.
wettestad, J., “Science, politics and institutional design: some initial
notes on the long range transboundary air pollution regime”,The
Journal oEnvironment and Development, vol. 4, No. 2 (1995),
pp. 165–183.
—“The legalrameworkor the protection othe environment against
transboundary air pollution: a refection on customary and treaty
law”, in H.p Ost (ed.), The Protection of Ambient Air in International
and European Law, Utrecht, the Netherlands, Eleven International
Publishing, 2009, pp. 53–71.
—“Acid lessons? Assessing and explaining LRTAP implementation
and eectiveness”, IIASA Working Paper (WP-96-18), 1996.
sands, P. (ed.), Chernobyl: Law and Communication: Transboundary
Nuclear Air Pollution - the Legal Materials, Cambridge, Grotius,
1988.
3. OzOne layer
(a) Books
benedIck, R. E., Ozone Diplomacy: New Directions in Safeguarding the
Planet, 2nd ed., Cambridge (Massachusetts), Harvard University
Press, 1998.
wetstOne, G. S., A. rOsencranz and S. fOster, Acid Rain in Europe
and North America: National Responses to an International
Problem, Washington, D.C., Environmental Law Institute, 1983.
(b) Articles
brack, D., International Trade and the Montreal Protocol, London,
The Royal Institute of International Affairs, 1996.
bankes, N. D., and J. O. Saunders, “Acid rain: multilateral and
bilateral approaches to transboundary pollution under international
brunnée, J., Acid Rain and Ozone Layer Depletion: International Law
and Regulation, Dobbs Ferry (New York), Transnational Publishers,
1988.
law”,University oNew Brunswick Law Journal, vol. 33 (1984),
pp. 155–201.
unIted natIOns enVIrOnment prOgramme, Handbook for the
International Treaties for the Protection of the Ozone Layer,
5th ed., 2000.
bath, C. R., “U.S.–Mexico experience in managing transboundary air
resources: problems, prospects and recommendations for the future”,Natural
Resources
Journal, vol. 22 (1982), pp.
1147–1167.
churchIll, R. R., G. k üttIng and L. M. w arren, “The 1994 UN
ECE Sulphur Protocol”,Journal oEnvironmental Law, vol. 7,
No. 1 (1995), pp. 169–197.
yOshIda, O., The International Legal Régimeor the Protection o
the Stratospheric Ozone Layer: International Law, International
Régimes and Sustainable Development, The Hague, Kluwer Law
International, 2001.
fraenkel, A. A., “The Convention on Long-Range Transboundary
Air Pollution: meeting the challenge ointernational cooperation”,Harvard
International Law Journal, vol. 30, No. 2 (1989),
pp. 447–476.
(b) Articles
benedIck, R. E., “The Montreal Ozone Treaty: implicationsor global
warming”,American University Journal oInternational Law and
Policy, vol. 5, No. 2 (1990), pp. 227–233.
hajOst, S. A., “International legal implications oUnited States policy
on acid deposition”, in D. B.m agraw (ed.), International Law and
Pollution, Philadelphia, University of Pennsylvania Press, 1991,
pp. 344–354.
carOn, D. D., “La Protection de la couche d’ozone stratosphérique
et la structure de l’activité normative internationale en matière
d’environnement”, AFDI, vol. 36 (1990), pp. 704–726.
lammers, J. G., “The European approach to acid rain”, in D. B.m agraw
(ed.), International Law and Pollution, Philadelphia, University of
—“Protection othe stratospheric ozone layer and the structure oin-
ternational environmental lawmaking”,Hastings International and
Pennsylvania Press, 1991, pp. 265–309.
Comparative Law Review, vol. 14, No. 1 (1990), pp. 755–780.
Protection of the atmosphere
197
haas, P. M., “Banning chlorofuorocarbons: epistemic community
eorts to protect stratospheric ozone”,International Organization,
vol. 46, No. 1 (1992), pp. 187–224.
bOdansky, D., “Managing climate change”,Yearbook of International
Environmental Law, vol. 3 (1992), pp. 60–74.
—“The United Nations Framework Convention on Climate Change:
a commentary”,Yale Journal of International Law, vol. 18, No. 2
(1993), pp. 451–558.
kIndt, J. W., and S. P. menefee,“The vexing problem oozone depletion
in international environmental law and policy”,Texas International
Law Journal, vol. 24, No. 2 (1989), pp. 261–293.
bOIssOn de chazOurnes, L., “De Kyoto à La Haye, en passant par
Buenos Aires et Bonn: la régulation de l’eet de serre auxorceps”,
Annuaire français de relations internationales, vol. 1 (2000),
pp. 709–718.
kOskennIemI, M., “Breach otreaty or non-compliance? Refections
on the enorcement othe Montreal Protocol”,Yearbook of
International Environmental Law, vol. 3 (1992), pp. 123–162.
lammers, J. G., “Eorts to develop a protocol on chlorofuorocarbons
to the Vienna Conventionor the Protection othe Ozone Layer”,
Hague Yearbook of International Law, vol. 1 (1988), pp. 255–269.
carOn, D. D., “When law makes climate change worse: rethinking
the law obaselines in light oa rising sea level”,Ecology Law
Quarterly, vol. 17, No. 4 (1990), pp. 621–653.
lawrence, P. M., “International legal regulationor protection o
the ozone layer: some problems oimplementation”,Journal of
Environmental Law, vol. 2, No. 1 (1990), pp. 17–52.
daVIes, P. G. G., “Global warming and the Kyoto Protocol”,
International and Comparative Law Quarterly, vol. 47 (1998),
pp. 446–461.
mIntz, J. A., “Progress toward a healthy sky: an assessment othe
London amendments to the Montreal Protocol on Substances that
Deplete the Ozone Layer”,Yale Journal of International Law,
vol. 16, No. 2 (1991), pp. 571–582.
fOx, S. T., “Responding to climate change: the caseor unilateral trade
measures to protect the global atmosphere”,Georgetown Law
Journal, vol. 84, No. 7 (1996), pp. 2499–2542.
french, D., “1997 Kyoto Protocol to the 1992 UN Framework
Convention on Climate Change”,Journal oEnvironmental Law,
trIpp, J. T. B., “The UNEP Montreal Protocol: industrialized and
developing countries sharing the responsibilityor protecting
vol. 10, No. 2 (1998), pp. 227–239.
the stratospheric ozone layer”,New York University Journal o
International Law and Politics, vol. 20, No. 3 (1988), pp. 733–752.
4. clImate change
(a) Books
InternatIOnal law assOcIatIOn, “First report of the Committee on
the Legal Principles relating to Climate Change”,Report of the
Seventy-ourth Conerence Held in The Hague, 15–19 August
2010, London, 2010, pp. 346–401, at pp. 396 et seq.; available
rom www.ila-hq.org/en/committees/index.cm/cid/1029, pp. 37
et seq.
benedIck, R. E., et al. (eds.), Greenhouse Warming: Negotiating a
Global Regime, Washington, D.C., World Resources Institute, 1991.
churchIll, R., and D. freestOne (eds.), International Law and Global
Climate Change, London, Graham and Trotman, 1991.
japan branch cOmmIttee On clImate change,“Legal principles relating
to climate change: preliminary issues on the methodology
and scope othe work”,Japanese Yearbook of International Law,
vol. 52 (2009), pp. 500–537.
IntergOVernmental panel On clImate change (IPCC), Climate Change
2007: Mitigation of Climate Change, Cambridge University Press,
2007.
nanda, V. P., “Global warming and international environmental law: a
preliminary inquiry”,Harvard International Law Journal, vol. 30,
No. 2 (1989), pp. 375–392.
Iwama, T. (ed.), Policies and Laws on Global Warming: International
and Comparative Analysis, Tokyo, Environmental Research Center,
1991.
sands, P., “The United Nations Framework Convention on Climate
Change”,RECIEL—Review oEuropean, Comparative and
International Environmental Law, vol. 1, No. 3 (1992), pp. 270–277.
Verheyen, R., Climate Change Damage and International Law:
Prevention Duties and State Responsibility, Leiden, Martinus
Nijho, 2005.
stOne, C. D., “Beyond Rio: ‘insuring’ against global warming”, AJIL,
vol. 86, No. 3 (1992), pp. 445–488.
(b) Articles
VOIgt, C., “State responsibilityor climate change damages”,Nordic
Journal of International Law, vol. 77, Nos. 1–2 (2008), pp. 1–22.
barratt-brOwn, E. P., et al., “Aorumor action on global warming:
the UN Framework Convention on Climate Change”,Colorado
Journal oInternational Environmental Law and Policy, vol. 4
zaelke, D., and J. camerOn,“Global warming and climate change: an
overview othe international legal process”,American University
Journal of International Law and Policy, vol. 5, No. 2 (1990),
(1993), pp. 103–118.
pp. 249–290.
PROTECTION OF THE ATMOSPHERE
[Agenda item 11]
DOCUMENT A/CN.4/667
First report on the protection of the atmosphere, by Mr. Shinya Murase, Special Rapporteur
*
[Original: English]
[14 February 2014]
CONTENTS
Page
Multilateral instruments cited in the present report ........................................................................................................................................ 240
Works cited in the present report .................................................................................................................................................................... 242
Paragraphs
Introduction ......................................................................................................................................................................... 1–19 245
A. Inclusion of the topic in the programme of work of the Commission ................................................................
1–7 245
B. Purpose of the present report ..............................................................................................................................
8–9 247
C. Rationale for the topic and basic approaches .....................................................................................................
10–19 247
1. Rationale .....................................................................................................................................................
10–14 247
2. Approaches .................................................................................................................................................
15–19 248
Chapter
I. Background .............................................................................................................................................................. 20–63 250
A. Evolution of international law on the protection of the atmosphere .................................................................
20–28 250
B. Sources ...............................................................................................................................................................
29–63 252
1. Treaty practice ...........................................................................................................................................
30–41 252
2. Jurisprudence of international courts and tribunals ....................................................................................
42–50 258
3. Customary international law .......................................................................................................................
51–62 262
4. Literature ....................................................................................................................................................
63 265
II. Definition ................................................................................................................................................................. 64–70 265
A. Physical characteristics of the atmosphere ........................................................................................................
64–68 265
B. Definition of the atmosphere .............................................................................................................................
69–70 268
III. Scope of the draft guidelines ............................................................................................................................... 71–78 269
A. Anthropogenic environmental degradation .......................................................................................................
71–74 269
B. Protection of natural and human environments .................................................................................................
75 270
C. Causes of atmospheric degradation ....................................................................................................................
76 270
D. Linkages with other areas of international law ...................................................................................................
77–78 271
IV. Legal status of the atmosphere .............................................................................................................................. 79–90 271
A. Differentiation between airspace and the atmosphere ........................................................................................
80–83 271
B. Natural resources, shared or common ................................................................................................................
84–85 272
C. Common concern of humankind ........................................................................................................................
86–90 273
V. Conclusion ................................................................................................................................................................ 91–92 274
*
The Special Rapporteur wishes to thank Ms. Maya Inuzuka, Osgoode Hall Law School, York University, Canada, and Mr. Masayuki Hiromi,
Research Associate, Institute of Comparative Law, Waseda University, Japan, for their valuable contribution in writing the present report, and
Ms. Nadia Sanchez, PhD candidate at Leiden University, the Netherlands, for her assistance. He is also grateful to his interns from New York University
School
of
Law
for
their
assistance
during
the
sessions
of
the
Commission:
Mr.
Joseph
Jerome
in
2010;
Mr.
Joseph
Rome
in
2011;
Ms.
Annie
Hillman
in
2012; and
Mr.
Michael
Lu
in
2013.
239
240
Documents of the sixty-sixth session
Multilateral instruments cited in the present report
Source
Declaration (IV, 1) to prohibit for the term of five years the launching of projectiles
and explosives from balloons, and other new methods of a similar nature
(The Hague, 29 July 1899)
J.B. Scott, ed., The Hague Conventions
and Declarations of 1899 and 1907,
New York, Oxford University Press,
3rd ed., 1918, p. 220.
Convention relating to the regulation of Aerial Navigation (Paris, 13 October 1919)
League of Nations, Treaty Series, vol. XI,
No. 297, p. 173.
Convention on International Civil Aviation (Chicago, 7 December 1944)
United Nations, Treaty Series, vol. 15,
No. 102, p. 295.
General Agreement on Tariffs and Trade (GATT) (Geneva, 30 October 1947)
Ibid., vol. 55, No. 814, p. 187.
Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces
(London, 19 June 1951)
Ibid., vol. 199, No. 2678, p. 67.
Agreement concerning the adoption of uniform technical prescriptions for wheeled vehicles,
equipment and parts which can be fitted and/or be used on wheeled vehicles and the
conditions for reciprocal recognition of approvals granted on the basis of these prescriptions
(Geneva, 20 March 1958)
Ibid., vols. 335, 516, 609, 1059 and 1891,
No. 4789. See also ECE, TRANS/
WP.29/409.
Convention on the Continental Shelf (Geneva, 29 April 1958)
Ibid., vol. 499, No. 7302, p. 311.
Treaty banning nuclear weapon tests in the atmosphere, in outer space and under water
(Moscow, 5 August 1963)
Ibid., vol. 480, No. 6964, p. 43.
Treaty on principles governing the activities of States in the exploration and use of outer space,
including the moon and other celestial bodies (Moscow, London and Washington, D.C.,
27 January 1967)
Ibid., vol. 610, No. 8843, p. 205.
Vienna Convention on the law of treaties (Vienna, 23 May 1969)
Ibid., vol. 1155, No. 18232, p. 331.
Convention on wetlands of international importance especially as waterfowl habitat
(Ramsar, 2 February 1971)
Ibid., vol. 996, No. 14583, p. 245.
International Convention for the prevention of pollution from ships, 1973 (MARPOL
Convention) (London, 2 November 1973)
Ibid., vol. 1340, No. 22484, p. 184.
Protocol of 1978 relating to the International Convention for the prevention of pollution
from ships, 1973 (London, 17 February 1978)
Ibid., vol. 1340, No. 22484, p. 61.
Protocol of 1997 to amend the International Convention for the prevention of pollution
from ships, 1973, as modified by the Protocol of 1978 relating thereto
(London, 26 September 1997)
United Nations Juridical Yearbook 1997,
ST/LEG/SER.C/41 (United Nations
publication, Sales No. E.02.V.1),
p. 300.
Convention on the prohibition of military or any other hostile use of environmental
modification techniques (New York, 10 December 1976)
United Nations, Treaty Series, vol. 1108,
No. 17119, p. 151.
Convention on Long-range Transboundary Air Pollution (Geneva, 13 November 1979)
Ibid., vol. 1302, No. 21623, p. 217.
Protocol on long-term financing of the co-operative programme for monitoring
and evaluation of the long-range transmission of air pollutants in Europe (EMEP)
(with annex) (Geneva, 28 September 1984)
Ibid., vol. 1491, No. 25638, p. 167.
Protocol on the reduction of sulphur emissions or their transboundary fluxes
by at least 30 per cent (Helsinki, 8 July 1985)
Ibid., vol. 1480, No. 25247, p. 215.
Protocol concerning the control of emissions of nitrogen oxides or their transboundary
fluxes (Sofia, 31 October 1988)
Ibid., vol. 1593, No. 27874, p. 287.
Protocol concerning control of emissions of volatile organic compounds or their
transboundary fluxes (Geneva, 18 November 1991)
Ibid., vol. 2001, No. 34322, p. 187.
Protocol on Further Reduction of Sulphur Emissions (Oslo, 14 June 1994)
Ibid., vol. 2030, No. 21623, p. 122.
Protocol on Heavy Metals (Aarhus, 24 June 1998)
Ibid., vol. 2237, No. 21623, p. 3.
Protocol on Persistent Organic Pollutants (Aarhus, 24 June 1998)
Ibid., vol. 2230, No. 21623, p. 79.
Protection of the atmosphere
241
Source
Protocol to Abate Acidification, Eutrophication and Ground-level Ozone (Gothenburg,
30 November 1999)
Ibid., vol. 2319, No. 21623, p. 80.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982)
Ibid., vol. 1833, No. 31363, p. 3.
Vienna Convention for the Protection of the Ozone Layer (Vienna, 22 March 1985)
Ibid., vol. 1513, No. 26164, p. 293.
Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal, 16 September 1987)
Ibid., vol. 1522, No. 26369, p. 3.
Adjustments to the Montreal Protocol on Substances that Deplete the Ozone Layer
(London, 29 June 1990)
Ibid., vol. 1598, No. 26369, p. 469.
Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer
(London, 29 June 1990)
Official Journal of the European
Communities, L 377,
31 December 1991.
Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer
(Copenhagen, 25 November 1992)
United Nations, Treaty Series, vol. 1785,
No. 26369, p. 516.
Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal, 17 September 1997)
Ibid., vol. 2054, No. 26369, p. 522.
Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer
(Beijing, 3 December 1999)
Ibid., vol. 2173, No. 26369, p. 183.
Convention on environmental impact assessment in a transboundary context
(Espoo, 25 February 1991)
Ibid., vol. 1989, No. 34028, p. 309.
Convention on the Protection and Use of Transboundary Watercourses and International Lakes
(Helsinki, 17 March 1992)
Ibid., vol. 1936, No. 33207, p. 269.
Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992)
Ibid., vol. 2105, No. 36605, p. 457
United Nations Framework Convention on Climate Change (New York, 9 May 1992)
Ibid., vol. 1771, No. 30822, p. 107.
Kyoto Protocol to the United Nations Framework Convention on Climate Change
(Kyoto, 11 December 1997)
Ibid., vol. 2303, No. 30822, p. 162.
Convention on Biological Diversity (Rio de Janeiro, 5 June 1992)
Ibid., vol. 1760, No. 30619, p. 79.
United Nations Convention to combat desertification in those countries experiencing serious
drought and/or desertification, particularly in Africa (Paris, 14 October 1994)
Ibid., vol. 1954, No. 33480, p. 3.
Comprehensive Nuclear-Test-Ban Treaty (New York, 10 September 1996)
A/50/1027, annex.
Convention on the Law of the Non-navigational Uses of International Watercourses
(New York, 21 May 1997)
Official Records of the General Assembly,
Fifty-first Session, Supplement No. 49
(A/51/49), vol. III, resolution 51/229,
annex.
Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles,
Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles
(Geneva, 25 June 1998)
United Nations, Treaty Series, vol. 2119,
No. 36868, p. 129.
Stockholm Convention on Persistent Organic Pollutants (Stockholm, 22 May 2001)
Ibid., vol. 2256, No. 40214, p. 119.
ASEAN Agreement on Transboundary Haze Pollution (Kuala Lumpur, 10 June 2002)
UNEP, Selected Texts of Legal Instruments
in International Environmental Law.
Ardsley (New York), Transnational
Publishers, 2005, p. 604.
Protocol on Civil Liability and Compensation for Damage Caused by Transboundary Effects
of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection
and Use of Transboundary Watercourses and International Lakes and to the 1992
Convention on the Transboundary Effects of Industrial Accidents (Kiev, 21 May 2003)
ECE/MP.WAT/11-ECE/CP.TEIA/9.
Framework Convention for the Protection of the Environment for Sustainable Development
in Central Asia (Ashgabat, 22 November 2006)
TRE-143806. Available from www.
ecolex.org.
Minamata Convention on Mercury (Kumamoto, 10 October 2010)
Minamata Convention on Mercury:
Text and Annexes. UNEP, 2013.
242
Documents of the sixty-sixth session
Works cited in the present report
Ahrens, C. Donald
Essentials of Meteorology: An Invitation to the Atmosphere, 6th ed.
Belmont (California), Brooks/Cole, 2012.
Brunnée, Jutta
“Common areas, common heritage, and common concern”, in
Daniel Bodansky, Jutta Brunée and Ellen Hey, eds., The Oxford
Handbook of International Environmental Law. Oxford, Oxford
University Press, 2007, pp. 550–573.
Allaby, Michael
Dictionary of the Environment, 3rd ed. New York, New York
University Press, 1989.
Brunnée, Jutta, and Stephen J. Toope
“Environmental security and freshwater resources: ecosystem
regime building”, American Journal of International Law,
vol. 91 (1997), pp. 26–59.
Anton, Donald K.
“ ‘Treaty congestion’ in contemporary international environmental
law”, in Shawkat Alam and others, eds., Routledge Handbook
of International Environmental Law. London/New York,
Routledge, 2013, pp. 651–665.
Buhi, Jason, and Lin Feng
“The International Joint Commission’s role in the United States–
Canada transboundary air pollution control regime: a century
of experience to guide the future”, Vermont Journal of
Environmental Law, vol. 11 (2009), p. 129.
Attard, David
“The meeting of the Group of Legal Experts to examine the
concept of the common concern of mankind in relation to global
environmental issues”. Nairobi, UNEP, 1991.
Cheng, Bin
The Law of International Air Transport. London, Stevens and Sons,
1962.
“Air law”, in Rudolf Bernhardt, ed., Encyclopedia of Public
International Law, vol. 1. Amsterdam, North-Holland, 1992,
pp. 66–72.
Bae, Jon
“Review of the dispute settlement mechanism under the International
Civil Aviation Organization: contradiction of political body
adjudication”, Journal of International Dispute Settlement,
vol. 4, No. 1 (2013), pp. 65–81.
Bagader, Abubakr Ahmed and others,
Environmental Protection in Islam, 2nd ed. (IUCN Environmental
Davies, Peter, and Jeffrey Goh
“Air transport and the environment: regulating aircraft noise”, Air
and Space Law, vol. 18, No. 3 (1993), pp. 123–135.
Policy and Law Paper, No. 20 Rev). Gland, IUCN, 1994.
Davis, Ray J.
“Atmospheric water resources development and international law”,
Natural Resources Journal, vol. 31 (1991), p. 11–44.
Bartels, Lorand
“The WTO legality of the application of the EU emissions trading
system to aviation”, European Journal of International Law,
vol. 23, No. 2 (2012), pp. 429–467.
Dolzer, Rudolf
“Atmosphere, protection”, in Rudolf Bernhardt, ed., Encyclopedia
of Public International Law, vol. 1. Amsterdam, North-Holland,
1992, pp. 289–295.
Bevans, Charles I. (ed.)
Treaties and Other International Agreements of the United States
of America 1776-1949, vol. 12. Washington, D.C, United States
Government Printing Office, 1974.
Dupuy, Pierre-Marie
La responsabilité internationale des États pour les dommages
d’origine technologique et industrielle. Paris, Pedone, 1976.
Biermann, Frank
“ ‘Common concern of humankind’: the emergence of a new
concept of international environmental law”, in Otto Kimminich
and others, eds., Archiv des Völkerrechts, vol. 34. Tübingen,
J.C.B. Mohr, 1996, pp. 426–481.
Faber, Jasper, and Linda Brinke
The Inclusion of Aviation in the EU Emissions Trading System: An
Economic and Environmental Assessment, Trade and Sustainable
Energy Series, Issue Paper No. 5. Geneva, International Centre
for Trade and Sustainable Development, 2011.
Birnie, Patricia, Alan Boyle, and Catherine Redgwell
International Law and the Environment, 3rd ed. Oxford, Oxford
University Press, 2009.
Fauchille, Paul
“Le domaine aérien et le régime juridique des aérostats”, RGDIP,
vol. 8 (1901), pp. 414–485.
Boyle, Alan E.
“International law and the protection of the global atmosphere:
concepts, categories and principles”, in Robin Churchill and
David Freestone, eds., International Law and Global Climate
Change. London, Graham and Trotman/Martinus Nijhoff, 1991,
pp. 7–19.
Fitzmaurice, Malgosia
“The Gabčíkovo-Nagymaros case: the law of treaties”, Leiden
Journal of International Law, vol. 11 (1998), pp. 321–344.
Boyle, Alan, and Christine Chinkin
The Making of International Law. Oxford, Oxford University Press,
2007.
Franck, Thomas M.
“Word made law: the decision of the ICJ in the nuclear test cases”,
American Journal of International Law, vol. 69 (1975),
pp. 612–620.
Brown Weiss, Edith
“International responses to weather modification”, International
Organization, vol. 29, No. 3 (1975), pp. 805–826.
“International environmental law: contemporary issues and the
emergence of a new world order”, Georgetown Law Journal,
vol. 81 (1993), pp. 675–710.
“Opening the door to the environment and to future generations”,
Goldie, Louis Frederick Edward
“Liability for damage and the progressive development of
international law”, International and Comparative Law
Quarterly, vol. 14 (1965), p. 1189–1264.
“A general view of international environmental law: a survey of
capabilities, trends and limits”, in Alexandre-Charles Kiss,
in Laurence Boisson de Chazournes and Philippe Sands, eds.,
ed., The Protection of the Environment and International Law,
International Law, the International Court of Justice and
Nuclear Weapons. Cambridge, Cambridge University Press,
1999, pp. 338–353.
The Hague Academy of International Law, Leiden, Sitjhoff,
1975, pp. 25–143.
Bruce, Jim
“Law of the air: a conceptual outline”, Environmental Policy and
Law, vol. 18 (1988), p. 5.
Grennfelt, Peringe and others, eds.
Saltjöbaden V—Taking International Air Pollution Policies into the
Future, Gothenburg, 24–26 June 2013. Copenhagen, Nordic
Council of Ministers, 2013.
Protection of the atmosphere
243
Grotius, Hugo
The Freedom of the Seas or the Right which Belongs to the Dutch
to Take Part in the East Indian Trade, translated by Ralph Van
Deman Magoffin. New York, Oxford University Press, 1916.
Kuhn, Arthur K.
“The Trail Smelter arbitration—United States and Canada”,
American Journal of International Law, vol. 32 (1938), pp. 785–
788, and vol. 35 (1941), pp. 665–666.
Guinchard, M.
“La collaboration franco-helvétique en matière d’aéroports (BâleMulhouse
et
Genève)”,
Annuaire
français de
droit
international,
vol.
3 (1957),
pp.
668–677.
Lefeber, René
“The Gabčíkovo-Nagymaros Project and the law of State
responsibility”, Leiden Journal of International Law, vol. 11
(1998), pp. 609–623.
Handl, Günther
“Balancing of interests and international liability for the pollution
of international watercourses: customary principles of law
revisited”, Canadian Yearbook of International Law, vol. 13
(1975), pp. 156–194.
Leggett, Jane, Bart Elias, and Daniel T. Shedd
Aviation and the European Union’s Emission Trading Scheme,
Congressional Research Service Report for Congress R42392.
Washington, D.C., Congressional Research Service, 2012.
Heere, Wybo P.
“Problems of jurisdiction in air and outer space”, in Terry D. Gill
and Wybo P. Heere, eds., Reflections on Principles and Practice
of International Law: Essays in Honour of Leo J. Bouchez.
Boston, Martinus Nijhoff, 2000, pp. 65–81.
Lellouche, Pierre
“The International Court of Justice—the nuclear tests cases: judicial
silence v. atomic blasts”, Harvard International Law Journal,
vol. 16 (1975), pp. 614–637.
Lidskog Rolf, and Göran Sundqvist, eds.
Governing the Air: The Dynamics of Science, Policy, and Citizen
Interaction. Cambridge, Massachusetts, MIT Press, 2011.
Hobe, Stephan
“Airspace”, in Rüdiger Wolfrum, ed., Max Planck Encyclopedia
of Public International Law, vol. I. Oxford, Oxford University
Press, 2012, pp. 263–267.
MacDonald, R.St.J., and Barbara Hough
“The Nuclear Tests case revisited”, German Yearbook of
International Law, vol. 20 (1977), pp. 337–357.
Hogan, John C.
“Legal terminology for the upper regions of the atmosphere and
for the space beyond the atmosphere”, American Journal of
International Law, vol. 51 (1957), pp. 362–375.
Madders, Kevin J.
“Trail Smelter arbitration”, in Rudolf Bernhardt, ed., Encyclopedia
of Public International Law, vol. 4. Amsterdam, North-Holland,
1992, pp. 900–903.
Hunter, David, James Salzman, and Durwood Zaelke
International Environmental Law and Policy, 3rd ed. New York,
Foundation Press, 2007.
Jans, Jan H., and Hans B. Vedder
European Environmental Law: After Lisbon, 4th ed. Groningen,
Europa Law Publishing, 2012.
Mateesco Matte, Nicolas
Traité de droit aérien-aéronautique, 2nd ed. Paris, Pedone, 1964.
“Space law”, in Rudolf Bernhardt, ed., Encyclopedia of Public
International Law, vol. 1. Amsterdam, North-Holland, 1992,
pp. 552–557.
Jenks, C. Wilfred
“Liability for ultra-hazardous activities in international law”,
Collected Courses of The Hague Academy of International Law,
vol. 117. Leiden, Martinus Nijhoff, 1966, pp. 99–200.
McDougal, Myers S., Harold D. Lasswell, and Ivan A. Vlasic
Law and Public Order in Space. New Haven, Yale University Press,
1963.
Jones, Gareth and others
Collins Dictionary of Environmental Science. Glasgow, Harper
Collins, 1990.
McRae, Donald
“The interrelationship of codification and progressive development
in the work of the International Law Commission”, Kokusaiho
Gaiko Zassi (Journal of International Law and Diplomacy),
vol. 111 (2013), pp. 76–94.
Justinian
Justinian’s Institutes, translated with an introduction by Peter Birks
and Grant McLeod with the Latin text of Paul Krueger. Ithaca,
New York, Cornell University Press, 1987.
McWhinney, Edward
“International law-making and the judicial process: the World
Court and the French Nuclear Tests case”, Syracuse Journal of
International Law and Commerce, vol. 3 (1975), pp. 9–46.
Kiss, Alexandre, and Dinah Shelton
International Environmental Law, 3rd ed. Ardsley, New York,
Transnational Publishers, 2004, pp. 555–592.
Kiss, Alexandre-Charles, and Claude Lambrechts
“Les dommages causés au sol par les vols supersoniques”, Annuaire
français de droit international, vol. 16 (1970), p. 769–781.
Knox, John H.
“Climate change and human rights law”, Virginia Journal of
International Law, vol. 50, No. 1 (2009).
Momtaz, Djamchid
“The use of nuclear weapons and the protection of the environment:
the contribution of the International Court of Justice”, in
Laurence Boisson de Chazournes and Philippe Sands, eds.,
International Law, the International Court of Justice and
Nuclear Weapons. Cambridge, Cambridge University Press,
1999, pp. 354–374.
Kokott, Juliane
“Equity in international law”, in F.L. Toth, ed., Fair Weather?
Equity Concerns in Climate Change. London, Earthscan, 1999,
pp. 173–192.
Moore, John Bassett
“Fur seal arbitration”, History and Digest of the International
Arbitrations to which the United States has been a Party, vol. I.
Washington, Government Printing Office, 1898, pp. 755–961.
Koskenniemi, Martti
“International law and hegemony: a reconfiguration”, Cambridge
Murase, Shinya
Review of International Affairs, vol. 17, No. 2 (2004),
pp. 197–218.
The Politics of International Law. Oxford, Hart Publishing, 2011.
“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.
Kreuter-Kirchhof, Charlotte
“Atmosphere, international protection”, in Rüdiger Wolfrum, ed.,
Max Planck Encyclopedia of Public International Law, vol. I.
Oxford, Oxford University Press, 2012, pp. 737–744.
“Unilateral measures and the WTO dispute settlement”, in Simon
S.C. Tay and Daniel C. Esty, eds., Asian Dragons and Green
Trade: Environment, Economics and International Law.
Singapore, Times Academic Press, 1996, pp. 137–144.
244
Documents of the sixty-sixth session
“Conflict of international regimes: trade and the environment”, in
Kalliopi Koufa, ed., Protection of the Environment for the New
Millennium. Thessaloniki, Institute of International Public Law
and International Relations, 2002, pp. 297–340.
Rowlands, Ian H.
“Atmosphere and outer space”, in Daniel Bodansky, Jutta Brunnée
and Ellen Hey, eds., Oxford Handbook of International
Environmental Law. Oxford, Oxford University Press, 2007,
pp. 315–336.
Kokusai Rippo: Kokusaiho no Hogenron (International Lawmaking:
Sources of International
Law).
Tokyo,
Toshindo,
2002.
International Law: An Integrative Perspective on Transboundary
Issues. Tokyo, Sophia University Press, 2011.
Rubin, Alfred P.
“Pollution by analogy: the Trail Smelter arbitration”, Oregon Law
Review, vol. 50 (1971), pp. 259–282
“Protection of the atmosphere and international law: rationale for
codification and progressive development”, Sophia Law Review,
No. 55 (2012), pp. 1–58.
Sand, Peter H.
“Internationaler Umweltschutz und neue Rechtsfragen der
Atmosphärennutzung”, Zeitschrift für Luft- und Weltraumrecht
(German Journal of Air and Space Law), vol. 20 (1971),
pp. 109–133.
Murase, Shinya and others
“Compliance with international standards: environmental case
studies”, in Proceedings of the Annual Meeting of the American
Society of International Law: Structures of World Order,
vol. 89, April 5–8, 1995, Washington, D.C., American Society
of International Law, pp. 206–224.
Lessons Learned in Global Environmental Governance.
Washington, D.C., World Resources Institute, 1990.
Nordberg, Lars
Air Pollution: Promoting Regional Cooperation. Nairobi, UNEP,
2010.
“Regional approaches to transboundary air pollution”, in
John L. Helm, ed., Energy Production, Consumption, and
Consequences. Washington, D.C., National Academy Press,
1990, pp. 246–264.
Nordquist, Myron H., Shabtai Rosenne, and Alexander Yankov, eds.
United Nations Convention on the Law of the Sea 1982: A
Commentary, vol. IV. Dordrecht, Martinus Nijhoff, 1991.
“UNCED and the development of international environmental law”,
Yearbook of International Environmental Law, vol. 3, No. 1
(1992), pp. 3–17.
Oda, Shigeru
“The hydrogen bomb tests and international law”, Die Friedenswarte,
vol.
53 (1956),
pp.
126–135.
“Carrots without sticks? New financial mechanisms for global
environmental agreements”, Max Planck Yearbook of
United Nations Law, vol. 3 (1999), pp. 363–388.
Osaka, Eri
“Reevaluating the role of the tort liability system in Japan”, Arizona
Journal of International and Comparative Law, vol. 26, No. 2
(2009), pp. 393–426.
Transnational Environmental Law: Lessons in Global Change,
International Environmental Law and Policy Series, vol. 53.
London, Kluwer Law International, 1999.
“Shared responsibility for transboundary air pollution”, in André
Nollkaemper and Ilias Plakokefalos, eds, The Practice of Shared
Responsibility in International Law. Cambridge, Cambridge
University Press, forthcoming.
Perera, Amrith Rohan
“Role of international law in meeting challenges to contemporary
international relations: contribution of the International Law
Commission (ILC)”, in Miha Pogacnik, ed., Challenges of
Contemporary International Law and International Relations:
Liber Amicorum in Honour of Ernest Petric. Nova Gorica,
European Faculty of Law, 2011, pp. 313–325.
Sand, Peter H., Geoffrey N. Pratt, and James T. Lyon
An Historical Survey of the Law of Flight. Montreal, McGill
University Institute of Air and Space Law, 1961.
Ramcharan, B.G.
The International Law Commission: Its Approach to the Codification
and Progressive Development of International Law. The Hague,
Martinus Nijhoff, 1977.
Sands, Philippe, ed.
Chernobyl: Law and Communication—Transboundary Nuclear
Air Pollution—The Legal Materials. Cambridge, Grotius
Publications, 1988.
Rauschning, Dietrich
“Interim report of the Committee: legal problems of continuous and
instantaneous long-distance air pollution”, in Report of the SixtySecond
Conference Held at Seoul:
August
24th to
August
30th,
1986. Seoul, International
Law
Association, 1986,
pp.
198–223.
Sands, Philippe
Principles of International Environmental Law, 2nd ed. Cambridge,
Cambridge University Press, 2003.
Read, John E.
“The Trail Smelter dispute”, Canadian Yearbook of International
Sands, Philippe, and Jacqueline Peel
Principles of International Environmental Law, 3rd ed. Cambridge,
Cambridge University Press, 2012.
Law, vol. 1 (1963), pp. 213–229.
Rest, Alfred
“Tschernobyl und die Internationale Haftung”, Versicherungsrecht,
vol. 37 (1986), pp. 609–620.
“International environmental law in German courts”, Environmental
Policy and Law, vol. 27 (1997), pp. 409–422.
Schulze, Teresa, Hanna Wang-Helmreich, and Wolfgang Sterk
Human Rights in a Changing Climate—Demands on German and
International Climate Policy: The Human Rights to Food and to
Water. Heidelberg, Germany, FIAN International, 2011.
Selden, John
Of the Dominion, or, Ownership of the Sea (Mare Clausum),
translated by M. Needham. New Jersey, Lawbook Exchange,
2004.
Robb, Cairo, A.R., ed.
International Environmental Law Reports, vol. 1, Early Decisions.
Cambridge, Cambridge University Press, 1999.
Roch, Philippe, and Franz Xaver Perrez
“International environmental governance: the strive towards a
comprehensive, coherent, effective and efficient international
environmental regime”, Colorado Journal of International
Environmental Law and Policy, vol. 16 (2005), pp. 1–25.
Shelton, Dinah
“Equity”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey, eds.,
The Oxford Handbook of International Environmental Law.
Oxford, Oxford University Press, 2007, pp. 639–662.
Roslycky, Lada L.
“Weather modification operations with transboundary effects: the
technology, the activities and the rules”, Hague Yearbook of
Sliggers, Johan, and Willem Kakebeeke, eds.
Clearing the Air: 25 years of the Convention on Long-range
Transboundary Air Pollution (United Nations publication, Sales
International Law, vol. 16 (2003), pp. 19–40.
No. E.04.II.E.20), New York and Geneva, 2004.
Protection of the atmosphere
245
Sommer, Jerzy
“Transboundary co-operation between Poland and its neighbouring
States”, in Cees Flinterman, Barbara Kwiatkowska and Johan
G. Lammers, eds., Transboundary Air Pollution: International
Legal Aspects of the Cooperation of States. Dordrecht, Martinus
Nijhoff, 1986, pp. 205–233.
Tomas, Lisa
“Air law”, in Rüdiger Wolfrum, ed., Max Planck Encyclopedia of
Public International Law, vol. I. Oxford, Oxford University
Press, 2012, pp. 233–242.
van Bogaert, E.R.C.
Aspects of Space Law. Deventer, Netherlands, Kluwer Law and
Taxation Publishers 1986.
Soroos, Marvin S.
The Endangered Atmosphere: Preserving a Global Commons.
Columbia, University of South Carolina Press, 1997.
von Ciriacy-Wantrup, Siegfried
Resource Conservation: Economics and Policies, 3rd ed. Berkeley,
University of California Press, 1968.
Sur, Serge
“Les affaires des essais nucléaires (Australie c. France; NouvelleZélande c. France:
C.I.J.—arrêts
du 20 décembre 1974)”,
RGDIP, vol. 80 (1975), pp. 972–1027.
Wallace, John M., and Peter V. Hobbs
Atmospheric Science: An Introductory Survey, 2nd ed. International
Geophysics Series, vol. 92. Boston, Elsevier Academic Press,
2006.
Takahashi, Wakana
“Formation of an East Asian regime for acid rain control: the
perspective of comparative regionalism”, International Review
for Environmental Strategies, vol. 1, No. 1 (2000), pp. 97–117.
Weil, Prosper
“L’équité dans la jurisprudence de la Cour Internationale de Justice:
un mystère en voie de dissipation?”, in Vaughan Lowe and
Malgosia Fitzmaurice, eds., Fifty Years of the International
Court of Justice: Essays in Honour of Sir Robert Jennings,
Cambridge, Cambridge University Press, 1996, pp. 121–144.
Tan, Alan Khee-Jin
“The ASEAN Agreement on Transboundary Haze Pollution:
prospects for compliance and effectiveness in post-Suharto
Indonesia”, New York University Environmental Law Journal,
vol. 13, No. 3 (2005), pp. 647–722.
Tarbuck, Edward J., Frederick K. Lutgens, and Dennis Tasa
Earth Science, 13th ed. Upper Saddle River (New Jersey), Pearson
Prentice Hall, 2011.
Weiss, Wolfgang
“The global dimensions of atmospheric radioactivity detection:
experience and conclusions after the Fukushima Daiichi nuclear
power plant accident”, CTBTO Spectrum, vol. 17 (2011),
pp. 27–29.
Taubenfeld, Howard J.
“International environmental law: air and outer space”, in Ludwik
A. Teclaff and Albert E. Utton, eds., International Environmental
Law. New York, Praeger, 1974, pp. 187–198.
Whiteman, Marjorie M.
Digest of International Law, vol. 4. Washington, D.C.,
US Government Printing Office, 1965.
Xue, Hanqin
Transboundary Damage in International Law. Cambridge,
Cambridge University Press, 2003.
Thierry, Hubert
“Les arrêts du 20 décembre 1974 et les relations de la France avec
la Cour internationale de justice”, Annuaire français de droit
international, vol. 20, No. 20 (1974), pp. 286–298.
Thompson, Graham R., and Jonathan Turk
Earth Science and the Environment, 4th ed. Belmont (California),
Brooks/Cole, 2007.
Yoshida, Osamu
The International Legal Régime for the Protection of the
Stratospheric Ozone Layer, International Law, International
Régimes, and Sustainable Development. The Hague, Kluwer
Law International, 2001.
Introduction
A. Inclusion of the topic in the programme
3. During the consideration by the Sixth Committee of
of work of the Commission
the report of the Commission, a number of States wel-
comed the inclusion of the topic in the Commission’s programme
of
work.
These
States
expressed
their
keen
interest
in the
subject.
1. At its sixty-third session, held in 2011, the International
Law Commission endorsed the inclusion of the
topic
“Protection
of
the
atmosphere”
in
its
long-term
programme
of
work.
3
Some also expressed a desire for the Com-
mission to give priority to the topic.
4
The view was also
1
The syllabus, containing a brief outline
expressed that the “topic of protection of the atmosphere
addressed a growing global concern” and that an “effort
by the Commission to take stock of rules under existing
of the topic and a selected bibliography, was annexed to
the report of the Commission submitted to the General
Assembly at its sixty-sixth session.
2
2. At its sixty-sixth session, the General Assembly, in its
resolution 66/98 of 9 December 2011 on the report of the
3
For example: Algeria, Official Records of the General Assembly,
Sixty-sixth Session, Sixth Committee, 28th meeting (A/C.6/66/SR.28),
para. 50; Denmark (on behalf of the Nordic countries), ibid., 18th meeting
(A/C.6/66/SR.18),
para.
30;
Canada,
ibid.,
19th
meeting
(A/C.6/66/
Commission on the work of its sixty-third session, inter
alia, took note of the inclusion by the Commission of the
topic “Protection of the atmosphere” in its long-term programme of work
(para.
7).
SR.19), para. 46; China, ibid., para. 15; Nigeria, ibid., 20th meeting
(A/C.6/66/SR.20), para. 85; Poland, ibid., para. 64; Slovenia, ibid.,
para. 9; Spain, ibid., 27th meeting (A/C.6/66/SR.27), para. 37; and Sri
Lanka, ibid., para. 29.
4
Denmark (on behalf of the Nordic countries), ibid., 18th meeting
1
Yearbook … 2011, vol. II (Part Two), para. 32.
(A/C.6/66/SR.18), para. 30, and Poland, ibid., 20th meeting (A/C.6/66/
2
Ibid., annex II.
SR.20), para. 64.
246
Documents of the sixty-sixth session
conventions and to elaborate a new legal regime would be
commendable”.
5
Another delegation expressed a concur-
ring view, going on further to state that the “deteriorating
state
of
the
atmosphere
made
its
protection
a
pressing
concern”.
6
It was hoped that the Sixth Committee would
(a) 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;
give strong endorsement to the topic to be taken up by the
Commission. Support was given in respect of the Commission’s foray into new areas of international
law,
with
one
State stating that the Commission was now entering
some areas of international law that it had never addressed
before, such as the environment, humanitarian law and
investment law and that the policy reflecting the current
development of international law and the interests of the
international community promised to bring very useful
results.
(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” the gaps in the treaty regimes;
(c) questions relating to outer space, including its delimitation, are
not part of the topic;
7
It was noted that the protection of the atmosphere
(d) 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.
was “most deserving of consideration as [it] addressed
fundamental aspects of environmental protection”, a field
in which there was no lack of international instruments or
scholarly attention, but where there was “a need for further review and systematization in order to respond to
the
growing
concerns
of
the
international
community”.
The Special Rapporteur’s reports would be based on such
understanding.
13
8
Some
States, however, expressed concerns as to the feasibility
of the topic owing to its “highly technical issues”.
9
6. During the Sixth Committee’s consideration of the
Commission’s report on the work of its sixty-fifth session,
held in 2013, a number of delegates welcomed the inclusion of the
topic,
With
14
while a few States expressed the same
regard to codification and progressive development, it was
hoped that the topic’s “highly technical nature would not
render the exercise futile”.
concerns as had been expressed in previous years.
15
10
The view was also expressed
that since “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”.
11
7. The Special Rapporteur has undertaken to establish
contacts with representatives of interested intergovernmental
and international organizations, including the United
Nations Environment Programme (UNEP), the World
Meteorological Organization (WMO) and the United
Nations Economic Commission for Europe (ECE).
The Spe-
16
cial Rapporteur takes such criticisms very seriously and has
tried to address the concerns in the present report. It is his
sincere hope that the Member States will be convinced that
the protection of the atmosphere is an important and appropriate topic for the Commission to
address.
13
Ibid. It may be noted that the understanding relates only to “rel-
4. At its sixty-fifth session, held in 2013, the Commission
decided
to
include
the
topic
in
its
current
programme
of work and
appointed
Mr.
Shinya
Murase as Special
Rapporteur for the
topic.
12
evant political negotiations” and “the subjects of negotiations”; therefore,
such discussion is not prevented in relation to subjects that are not part
of the agenda of any ongoing treaty negotiations, although the Special
Rapporteur did not intend, from the beginning, to interfere with political
processes or to deal with specific substances. That the project will not
“deal with, but is also without prejudice to” certain questions mentioned
above does not preclude the Special Rapporteur from referring to them
in the present study. The project is not intended to fill the gaps in treaty
regimes but it will certainly identify such gaps. Furthermore, it should be
noted that the understanding indicates no restriction on discussing any
matters of customary international law relating to the subject by taking
treaty practice into consideration either as State practice or opinio juris.
5. The Commission included the topic on the following
understanding:
14
Austria, Official Records of the General Assembly, Sixty-eighth
5
Austria, ibid., 19th meeting (A/C.6/66/SR.19), para. 4.
6
Session, Sixth Committee, 17th meeting (A/C.6/68/SR.17), para. 73;
Czech Republic, ibid., 18th meeting (A/C.6/68/SR.18), para. 102;
Indonesia, ibid., 19th meeting (A/C.6/68/SR.19), para. 69; Peru, ibid.,
18th meeting (A/C.6/68/SR.18), para. 27; Portugal, ibid., 17th meeting
Japan, ibid., 18th meeting (A/C.6/66/SR.18), para. 63.
7
Czech Republic.
(A/C.6/68/SR.17), para. 86; Romania, ibid., 18th meeting (A/C.6/68/
8
Italy, Official Records of the General Assembly, Sixty-sixth Ses-
sion, Sixth Committee, 26th meeting (A/C.6/66/SR.26), para. 43.
Slovenia also noted that the topic was of particular relevance (ibid.,
20th meeting (A/C.6/66/SR.20), para. 9).
9
It was noted that the topic appeared to be a highly technical topic,
many aspects of which lay outside the areas of expertise of the Commission (France,
ibid.,
20th
meeting
(A/C.6/66/SR.20),
para.
48).
A
similar
concern was expressed by the Netherlands, which stated that the
“question
of
protection
of
the
atmosphere
seemed
more
suited
for
discussion
among specialists”
(ibid.,
28th
meeting (A/C.6/66/SR.28),
para.
64).
SR.18), para. 116; Singapore, ibid., 17th meeting (A/C.6/68/SR.17),
para. 78; and as well as Cuba (on behalf of the Community of Latin
American and Caribbean States), India, Italy, Malaysia, Slovenia, Spain
and Thailand. Austria suggested a redefinition of the understanding,
stating that “some of the issues currently excluded from the mandate
would also have to be taken up … such as liability and the precautionary principle”
(ibid.,
17th
meeting
(A/C.6/68/SR.17),
para.
73).
Japan
stated that the “protection
of
atmospheric environment
required
coordinated
action
by
the
international
community”,
expressing
hope
that
“it
looked
forward to
a
fruitful
outcome
of
the
work on
the
topic”
(ibid.,
para.
81).
10
Islamic Republic of Iran, ibid., 27th meeting (A/C.6/66/SR.27),
15
China, Official Records of the General Assembly, Sixty-eighth
para. 52.
11
United States of America, ibid., 20th meeting (A/C.6/66/SR.20),
Session, Sixth Committee, 19th meeting (A/C.6/68/SR.19), para. 60;
France, ibid., 17th meeting (A/C.6/68/SR.17), para. 106; Russian Fed-
para. 15. Similar remarks were made in 2012: China, ibid., Sixty-seventh
Session, Sixth Committee, 19th meeting (A/C.6/67/SR.19), para. 52;
France, ibid., para. 91; Netherlands, ibid., para. 31; Russian Federation,
ibid., 22nd meeting (A/C.6/67/SR.22), para. 103; United Kingdom,
ibid., 19th meeting (A/C.6/67/SR.19), para. 68; and United States, ibid.,
para. 118.
eration, ibid., 19th meeting (A/C.6/68/SR.19), para. 55; United Kingdom,
ibid.,
18th
meeting
(A/C.6/68/SR.18),
para.
21;
and
United
States,
ibid,
17th
meeting
(A/C.6/68/SR.17),
para.
50.
France
pointed
out
that
the limits
imposed on the scope of the work seem to be “wise
precautions” (A/C.6/68/SR.17,
para.
106).
16
A two-day workshop, organized by the Division of Environmen-
12
Yearbook … 2013, vol. II (Part Two), p. 78, para. 168.
tal Law and Conventions of UNEP, was held for his benefit at UNEP
Protection of the atmosphere
247
B. Purpose of the present report
environment, the Commission had not dealt with any
topic in the field of international environmental law since
concluding its work on international liability for injurious
consequences arising out of acts not prohibited by international
law, namely, by adopting the draft articles on
prevention of transboundary harm from hazardous activities
8. The present report aims to address the general objective of the project in order to ascertain
the rationale
for
work
on the progressive development and codification
of international law on the topic; and address the general
scope of the topic in order to properly circumscribe it.
The report is not, however, merely an exploratory study.
It will attempt to identify the basic concepts, perspectives
and approaches to be taken in connection with the subject.
The purpose of the report is to outline the questions the
Commission must consider from the outset with respect
to the protection of the atmosphere and the corresponding
legal problems to which they give rise, while simultaneously
providing
the
basis
for
a
common
understanding
of
the
basic concepts, objectives
and scope of the
project.
It
is hoped that
the
report will stimulate
discussion within
the
Commission
in order to provide
the
Special
Rapporteur
with
the
requisite
guidance
as
to
the
approach
to
be
followed and the goal to be
achieved.
19
and the draft principles on the allocation of loss in
the case of transboundary harm arising out of hazardous
activities.
20
This appeared to be a significant oversight at
a time when the world was undergoing serious environmental
degradation.
21
11. It may be recalled that the Commission had specified
in 1997 and 1998 that, in selecting a new topic, it should
be guided by the following criteria in particular: the topic
should reflect the needs of States with respect to the progressive
development
and
codification
of
international
law;
the
topic
should
be
at
a
sufficiently
advanced
stage
in
terms
of
State practice to permit progressive development and
codification; and the topic should be settled and feasible
enough for progressive development and codification.
22
9. The present report first describes the rationale for the
topic and basic approaches. It then traces the historical evolution of protection of the atmosphere in international
law.
It
refers
to
the
sources
relevant
to
the
progressive
development
and
codification
of
the
law
on
the
topic
and
provides
relevant
information on
the physical
characteristics of
the
atmosphere,
which will serve as a basis for defining the
atmosphere in legal terms. It also provides a broad outline
of the various elements comprising the general scope of the
project, with a view to identifying the main legal questions
to be covered. Lastly, the report discusses the question of
the legal status of the atmosphere as a prerequisite for the
Commission’s consideration of the topic. The Special Rapporteur advances tentative conclusions on these
preliminary questions in the form of draft
guidelines.
It should be stressed that the Commission further agreed
that it should not restrict itself to “traditional topics”, and
could also consider those that reflect “new developments in
international law and pressing concerns of the international
community as a whole”.
23
The topic of protection of the
atmosphere clearly satisfies those tests. First, the deteriorating
state
of
the
atmosphere
has
made
its
protection
a
pressing
concern
for
today’s
international
community.
Second,
there
is
abundant
evidence
of
State
practice
including
judicial precedents, treaties and other normative
documents.
Third,
it
is
essentially
a
legal
question
rather
than
a
political issue. For those reasons, the Commission and the
Sixth
Committee approved taking on the proposed
topic.
12. As indicated in paragraphs 84 and 85 below, the
atmosphere (air mass) is the planet’s largest single natural
C. Rationale for the topic and basic approaches
1. Rationale
10. While the draft articles of the Commission on the
law of non-navigational uses of international watercourses
19
Yearbook … 2001, vol. II (Part Two), pp. 146 et seq., para. 97.
20
Yearbook … 2006, vol. II (Part Two), pp. 58 et seq., para. 66.
21
It was therefore welcomed that the Commission decided, in 2013,
17
and the law of transboundary aquifers
18
contain
to adopt two environmental topics: “Protection of the atmosphere” and
“Protection of the environment in relation to armed conflicts” (with
Ms. Marie G. Jacobsson as the Special Rapporteur; see Yearbook …
2013, vol. II (Part Two), p. 78, para. 167).
some provisions relevant to the protection of the
22
Yearbook … 1997, vol. II (Part Two), pp. 71–72, para. 238; and
headquarters in Nairobi on 17 and 18 January 2011 on the topic “Pro-
Yearbook … 1998, vol. II (Part Two), p. 110, para. 553. In the same
vein, three criteria have been suggested for topic selection: practical
tection of the atmosphere”. The Special Rapporteur wishes to express
concern, namely, whether there is any pressing need for the topic in
his deep appreciation to Mr. Masaharu Nagai, Acting Deputy Director
of
the
Division,
for
organizing
the
workshop.
A
similar
workshop
was
organized
on
the
topic
at
the
International
Environment
House
in
Geneva on
15
July
2011, and was attended
by experts from
Genevabased
international environmental organizations, such as the UNEP
Regional Office for Europe, WMO and ECE. The Special Rapporteur
wishes to thank the organizer of the workshop, Ms. Barbara Ruis of the
UNEP Regional Office for Europe. Finally, a workshop on the topic
was held in New York on 26 October 2011 at the Permanent Mission
of Japan to the United Nations, jointly organized by UNEP and the
Government of Japan. The Special Rapporteur wishes to express his
deep gratitude to Mr. Tsuneo Nishida for hosting the workshop and to
Mr. Chusei Yamada (former member of the Commission) for acting as
moderator, as well as to the following for their contributions as speakers:
Mr.
Donald McRae (University of Ottawa School of Law and
member
of the Commission); Mr. Richard Stewart (New York University
School of Law); and Mr. Masaharu Nagai (UNEP).
the international community as a whole; technical feasibility, namely,
whether the topic is “ripe” enough in the light of relevant State practice
and literature; and political feasibility, namely, whether dealing with the
proposed topic is likely to receive broad support from States. See Ramcharan,
The International Law Commission:
Its
Approach to the
Codification
and
Progressive
Development
of
International
Law,
pp.
60–63;
and
Murase,
Kokusai
Rippo:
Kokusaiho
no
Hogenron
(International
Lawmaking:
Sources of International
Law),
pp.
217–221.
23
Yearbook … 1997, vol. II (Part Two), pp. 71–72, para. 238.
17
See Yearbook … 1994, vol. II (Part Two), pp. 89 et seq., para. 222.
The draft articles resulted in the Convention on the Law of the Nonnavigational Uses of International
Watercourses.
Mr. Amrith Rohan Perera, a member of the Commission during the
2006–2011 quinquennium, noted that “over time, the International
Law of Co-existence evolved into an International Law of Co-operation, positive in
character, to meet the needs and aspirations of the
new
global
community
and
the
accompanying
challenges”,
and
in
“the
final
analysis,
the
ability
of
the
Commission
to
effectively
address
these
complex
and challenging issues in formulating the new legal framework
for
contemporary international
relations … will ensure the
continuing
relevance
and
the
central
role
of
the
International
Law
Commission”
(see
Perera,
“Role
of
international
law
in
meeting
challenges
to
contemporary
international
relations:
contribution
of the
International
18
Yearbook … 2008, vol. II (Part Two), pp. 19 et seq., para. 53.
Law Commission (ILC)”, pp. 315 and 325, respectively).
248
Documents of the sixty-sixth session
resource; it is indispensable to the survival of humankind.
Degradation
of
the
conditions
of
the
atmosphere
has
long
been
a
matter
of
serious
concern
to
the
international
community.
24
While a number of relevant conventions
limited (as they focus on questions related to the prevention and allocation of loss caused by transboundary
harm
and hazardous activities).
As such, they do not
adequately
address
the
protection
of
the
atmosphere.
Therefore,
it
is
proposed that the Commission tackle the problem in a
comprehensive and systematic
manner.
The prior work of
the
Commission
should
be
referred
to
as
important
guidelines,
where
appropriate.
dealing with transnational and global atmospheric issues
have been concluded, they remain a patchwork of instruments.
Substantial gaps exist in terms of geographical
coverage, regulated activities, regulated substances and,
most importantly, applicable principles and rules. Such a
piecemeal or incremental approach has created particular
limitations for the protection of the atmosphere, which
by its very nature warrants holistic treatment. There is no
legal framework at present that covers the entire range of
atmospheric environmental problems in a comprehensive
and systematic manner. The Commission can therefore
make a significant contribution by identifying the legal
principles and rules applicable to the whole range of
atmospheric problems on the basis of State practice and
jurisprudence.
2. Approaches
(a) Adhering exclusively to a legal approach
13. The goal to be achieved by the proposed project
of progressive development and codification of international
law is fourfold.
First,
the
project
aims
to
identify
the
status of customary
international
law, established
or
emerging,
examining the gaps and overlaps, if any, in
existing law relating to the atmosphere. Second, it aims
to provide appropriate guidelines for harmonization and
coordination among treaty regimes within and outside
international environmental law. The issue of trade and
the environment will prove to be a challenge in that area.
25
15. Needless to say, the Commission, charged with the
work of the progressive development and codification
of international law, will adhere exclusively to a legal
approach in dealing with the topic. It will attempt to
avoid the impassioned political and policy debate associated
with certain environmental topics by addressing
only the legal principles and rules pertaining to the protection
of the atmosphere, as a Commission composed of
legal
experts.
In
the
work
of
the
Commission,
it
is
critical
to
distinguish
arguments
based
on
lex
lata (law as it
is)
from
those based on
lex
ferenda
(law
as
it
ought
to
be).
In
the
field
of
international
environmental
law,
lex
ferenda
proposals
and
preferences
are
sometimes
smuggled
into
the process of
“interpretation” of
lex
lata, which should
be
avoided.
Thus,
the
Commission
will
adopt
a
cautious
approach
to elaborating the draft guidelines on the protection
of the
atmosphere.
First,
it
should seek to
clarify
the
meaning
and
function
of
the
existing
legal
principles
in their
interpretation
and application
de
lege
lata. Next,
should
existing
law
be
found
lacking,
it
could
explore
a
reinterpretation
of
the
existing
legal
concepts,
principles
and rules.
Finally, it
may, after careful analysis of the
possibilities
and
boundaries
of
existing
principles,
add
certain
clarifications
with
regard
to
the
progressive
development
of
emergent rules of international
law.
Third, the proposed draft guidelines will help to clarify
a framework for the harmonization of national laws and
regulations with international rules, standards and recommended
practices
and
procedures
relating
to
the
protection
of the atmosphere.
Fourth, the project
aims to establish
guidelines
on
the
mechanisms
and
procedures
for
cooperation
among
States
in
order
to
facilitate
capacity-building
in
the
field
of
transboundary
and
global
protection
of
the
atmosphere.
It must be stressed that
the purpose of this
project is not to mould “shame and blame” matrices for
potential
polluters
but that,
on the
contrary, it
is primarily
to explore possible mechanisms
of international
cooperation to solve the problems of common
concern.
14. Last, as a word of reminder, it should be noted that the
project does not duplicate the previous work of the Commission.
The Commission adopted the draft articles on
preven-
tion of transboundary harm in 2001 and the draft principles
on the allocation of loss in the case of transboundary harm
arising out of hazardous activities in 2006. Both drafts contain important provisions potentially applicable to
atmospheric
damage.
However,
their
scope
of
application
is,
on
the one hand, too broad (as they are intended to cover
all
types
of environmental
harm)
and,
on the
other
hand,
too
24
See, for example, Kiss and Shelton, International Environmental
16. Naturally, all issues in international law, including
the present topic, have both legal and political aspects.
It is important, however, for the Commission to focus on
the legal aspects of the issue. It is hoped that clarifying
the key concepts from a legal perspective will enable a
more disciplined analysis of their legal status, meanings,
functions, implications, possibilities and limits within
the existing legal regimes and set the stage for a more
constructive elaboration and progressive development
of international law in the future. The work of the Commission
will
take
the
various
legal
frameworks
that
have
heretofore
been
set
up
to
handle
only
discrete
and
specific
atmospheric
problems
and
rationalize
them
into
a
single,
flexible
set of guidelines. As agreed at the time of taking
up
the
present
topic,
the
work
of
the
Commission
will
proceed in a manner so as not to interfere
with relevant
political negotiations (see
para.
5
above).
Law, pp. 555–592. See also Sands, Principles of International Environmental
Law,
pp.
317–390;
Sands
and
Peel,
Principles
of International
Environmental
Law,
pp.
238–298;
Birnie,
Boyle
and
Redgwell,
International Law and the
Environment,
pp.
335–378;
Hunter,
Salzman
and
Zaelke,
International
Environmental
Law and
Policy,
pp.
538–733;
and
Xue,
Transboundary Damage in International
Law,
pp.
200–203.
(b) Referring to general international law
25
See Murase, “Perspectives from international economic law
17. It is important for the Commission to consider the
legal principles and rules on the subject within the framework
of general international law. Obviously, the fundamental issues to be studied by the Commission
involve
such
questions as the basic rights and obligations of
on transnational environmental issues”; from the same author, International
Law:
An
Integrative
Perspective
on
Transboundary
Issues,
pp.
1–127, and “Conflict of international regimes: trade and the
environment”.
States, the jurisdiction of States, the implementation of
Protection of the atmosphere
249
international obligations through the domestic law of
States, the responsibility of States and the settlement of
disputes, as well as the sources of international law—classic
issues
for
international
lawyers
in
general
and
for
the
Commission
in
particular.
In
that
regard,
the
Commission
should resist the tendency towards
“compartmentalization
(or
fragmentation)” caused by dominant “single-issue”
approaches to international environmental law.
26
In other
necessary, therefore, to place each isolated compartment
within the framework of general international law in order
to establish coherent links among them. The “generalist”
or “integrative” approach, which cuts across the boundaries
of special regimes, is thus indispensable to today’s
law-making activities, and efforts to codify and progressively develop international law by the Commission
are
more important than ever
before.
words, the legal principles and rules applicable to the
atmosphere should, as far as possible, be considered in
relation to the doctrine and jurisprudence of general international
law.
27
It also implies that the work of the Commis-
18. Given that the Commission is a body that primarily
comprises
experts
in
general
international
law,
some
may
see it
as ill-suited
to accommodate
new specialized
subfields
of
international
law.
On
the
contrary,
the
Special
Rapporteur sees new possibilities
and new opportunities
for
the
Commission
in
the
twenty-first
century.
The
enormous
growth
in
the
number
of
treaties
in
such
specialized
fields
has
led
to
“treaty
congestion”
or
“treaty
inflation”.
sion should extend to applying the principles and rules of
general international law to various aspects of the problem
of atmospheric protection. The Commission must look to
new topics in international law for progressive development
and
codification
in
specialized
fields
such
as
human
rights,
environmental
protection,
and
trade
and
investment,
since
most
of
the
significant
“traditional”
topics
in
international law have been exhausted. It is true to some
extent
that the development of those areas of law would be
better
carried
out
by
specialized
law-making
bodies
and
experts
with
specialized
knowledge.
However,
this
would
serve
to
further compartmentalize international
law. It
is
absolutely
28
The multitude of conventions notwithstanding, they are
faced with significant gaps as well as overlaps because
there has been little or no coordination or harmonization
and, therefore, no coherence among them. The need to
enhance synergies among the existing conventions has
been emphasized repeatedly;
29
the Commission should
26
Murase, International Law, p. 10. Mr. Martti Koskenniemi, a for-
seize upon this opportunity. In its exercise of progressive
development and codification of international law, the
Commission should deal with these proposed new topics
in specialized fields from the perspective of general international
law,
with
a
view
to
ensuring
coordination
among
the
various
subfields
(compartments)
of
international
law.
The Commission is best placed to play that
role.
mer member of the Commission, challenges the very raison d’être of
the Commission by stating as follows: “Old law-making bodies such as
the UN’s International Law Commission find themselves increasingly
jobless. Unable to identify stakeholder interests or regulatory objectives,
‘generalist’
law-making
bodies
will
wither
away
to
the
extent
that
political
commitment
to
that
which
is
merely
‘general’
seems
pointless.
If
human
rights
interests
can
best
be
advanced
in
human
rights
bodies,
environmental
interests in
environmental bodies and trade interests in
trade bodies, while transnational
activities
create
de
facto practices
that
are
as
good
(or
even
better)
than
formal
law
in
regulatory
efficiency,
why
bother with ‘the codification and progressive development of
international law’ (Statute of the International Law Commission, Article
1)
beyond
tinkering
with
diplomatic
immunities
or
technical
treaty
law?”
(Koskenniemi, “International law and hegemony: a reconfiguration”,
p.
212). See also Koskenniemi,
The Politics
of International
Law,
p.
237. It seems,
however, that
Koskenniemi’s assertion
contradicts
the
general
conclusion
of
the
Study
Group
on
Fragmentation
of
International
Law (A/CN/L.682 and
Add.1 and
Corr.1, available
from
the
Commission’s
website,
documents
of
the
fifty-eighth
session;
the
final
text
will
appear
as
an
addendum
to
Yearbook …
2006, vol. II (Part
One)), which he chaired.
(See also
The
Work of the International
Law
Comission,
8th
ed.,
vols.
I
and
II
(United
Nations
publication,
Sales
No.
E.12.V.2),
pp.
231–234
and
pp.
430–444.)
Naturally,
human
rights
bodies
will
be
able
to
advance
human
rights
interests
more
efficiently
than
other bodies; the situation is similar with environmental bodies
and environmental interests, and trade bodies and trade interests. How-
(c) Consulting scientific institutions and experts
19. Taking on a subject such as the protection of the
atmosphere requires the Commission to have a certain
level of understanding of the scientific and technical
aspects of the problem, such as the sources and effects of
the damage in question. It is therefore necessary for the
Commission to reach out to international environmental
organizations and to the scientific community. Its statute
authorizes, in article 16 (e), the Commission to “consult
with scientific institutions and individual experts” for
the progressive development of international law. There
are also comparable precedents: Mr. Chusei Yamada, as
Special Rapporteur for the law of transboundary aquifers,
engaged UNESCO experts on the hydrology of
aquifers for successful completion of the draft articles
on the subject. As the author of the present report indi-
ever, leaving law-making to specialist bodies results in a fragmentation
cated above, steps have been taken to reach out to the
of international law in an international society where there is neither
a supreme legislature nor constitutional courts to ensure coordination
among conflicting interests.
28
See Brown Weiss, “International environmental law: contempo-
27
For example, the use of the concept of “equity” in the context
rary issues and the emergence of a new world order”, pp. 697–702;
Murase and others, “Compliance with international standards: environmental
case
studies”;
and
Anton,
“
‘Treaty
congestion’
in
contemporary
international environmental
law”.
of climate change—often ambiguous and arbitrary—clearly demonstrates the need to refer to the jurisprudence
of the International
Court
of
Justice,
including
the
1985
Chamber
judgment
of
the
Court
in
the
frontier dispute case between Burkina Faso and Mali
(Frontier Dispute,
Judgment,
I.C.J
Reports
1986,
p.
554,
at
pp.
567–568,
para.
28),
in
which
the
Court
indicated
that
there
were
three
categories
of
equity
in
international
law: equity
infra
legem (within the law), equity
praeter
legem (outside, but close to, the law) and equity
contra
legem (contrary
to law).
The notion of equity
praeter legem
is particularly
important
for
its function in filling gaps in existing law. See, in general, Weil,
“L’équité dans la jurisprudence de la Cour Internationale de Justice: un
mystère en voie de dissipation?”; Kokott, “Equity in international law”,
pp. 186–188; and Shelton, “Equity”, pp. 653–658. See also the report of
the National Committee on Climate Change of Japan, “Legal principles
relating to climate change: preliminary issues on the methodology and
scope of the work”, Japanese Yearbook of International Law, vol. 52
29
UNEP has been emphasizing the need for synergy among mul-
tilateral environmental agreements: see the appendix to decision
SS.VII/1 of 15 February 2002 on international environmental governance
of
the
seventh
special
session
of
the
Governing
Council
entitled
“Report
of the Open-ended Intergovernmental Group of Ministers or
Their Representatives on International Environmental Governance”,
sect. III.C entitled “Improved coordination among and effectiveness
of multilateral environmental agreements”, in particular paragraph 27
(see A/57/25, annex I). The UNEP Governing Council has adopted
similar decisions almost every year. The latest is the Nusa Dua Declaration
of
26
February 2010 (A/65/25,
annex
I, decision SS.XI/9,
see
paras.
10–12). See also Roch and Perrez, “International
environmental
governance:
the strive towards a comprehensive, coherent, effective
(2009), pp. 500–537.
and efficient international environmental regime”.
250
Documents of the sixty-sixth session
relevant international organizations as well as the scientific/technical
community
for
their
advice
and
expertise
in
helping the Commission to understand what has to
be regulated. The situation is similar to the one faced
by contemporary judges of international courts and
tribunals, who, confronted with an increasing number
of environmental disputes being filed in their dockets,
require experts for proof of scientific evidence in those
fact-intensive cases.
30
30
Most notably, see Pulp Mills on the River Uruguay (Argentina
v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, at paras. 160–168
(on the burden of proof and expert evidence), and the joint dissenting
opinion
of
Judges
Al-Khasawneh
and
Simma
(ibid.,
pp.
108–111,
paras.
1–6).
Chapter I
Background
A. Evolution of international law
on the protection of the atmosphere
ever, most international lawyers did not attempt to look
at the substances in the atmosphere or the role of the
atmosphere in transporting pollutants even into the
1950s.
20. The gaseous content of the atmosphere (aër in
Greek and Latin) has been categorized as one of the legal
commons since Roman times—as proclaimed in the sixth
century in a famous passage in the Institutes of Emperor
Justinian: “Things can be: everybody’s by the law of
nature … the things which are naturally everybody’s are:
air, flowing water, the sea and the sea-shore.”
36
For a long time, the differentiation between air-
31
space and atmosphere was not made clear among international
lawyers, and it was generally considered that
the highest altitude of an aircraft was the upper limit of
airspace. For example, by interpreting the French text
“espace aérien” in article 1 of the Convention on International
Civil
Aviation,
37
it was asserted that airspace
reached as far as the atmosphere could be found. However, earlier in the twentieth
century, a
United
States
domestic court was faced with the air pollution
case
described
below, which was later to have a significant
impact on international law.
21. Sharia law, which was systematized in the early
years of the Muslim era (the eighth and ninth centuries),
places importance on “the air” as the element indispensable “for the perpetuation
and preservation of life”.
An
authoritative
study states that “[t]his element is no less
important than water” and “[s]ince the atmosphere performs
all
these
biological
and
social
functions,
its
conservation,
pure and unpolluted,
is an essential
aspect
of the
conservation
of
life
itself
which
is
one
of
the
fundamental
objectives of Islamic
law”.
23. One of the earliest air-pollution cases to be considered in a domestic court was the
United
States
Supreme
Court case of the
State of
Georgia
v.
Tennessee
Copper
Company
38
in 1907 and 1915. The dispute concerned two
32
22. For many centuries, oceans were at the centre of
modern international law. Meanwhile, neither the atmosphere
nor
the
air
were
considered
objects
to
be
regulated
by international law until the twentieth
century.
33
Law-
yers first started looking to the sky in 1783 when a hot air
balloon was launched by the Montgolfier brothers with
the authorization of the French police. The authorization,
containing clearly defined conditions to be observed,
demonstrated the power of the State to regulate activities in what is now called
airspace.
34
Development of the
notion of airspace since then is well known.
35
copper mining companies located in the State of Tennessee
that
conducted
mining
and
smelting
operations
near
the
border
of
the
State
of
Georgia.
The
companies
emitted
large
quantities
of
sulphur
dioxide,
which
produced
sulphuric
acid in the atmosphere. Georgia brought an
original action in the United States Supreme Court to
restrain the two companies from discharging the noxious
gas from their works. They alleged that the emissions,
carried by the wind, resulted in a wholesale destruction
of forests, orchards and crops in Georgia. The Supreme
Court found that it was a fair and reasonable demand on
the part of a sovereign entity that the air over its territory
should not be polluted on a great scale. By 1914, Geor-
How-
gia and the Tennessee Copper Company had come to an
agreement, whereby the latter undertook to contribute to
31
Justinian’s Institutes, Book Two, 1.1. The classification of things
(de rerum divisione ); see Sand, “Shared responsibility for transboundary air
pollution”.
32
Bagader and others, Environmental Protection in Islam, p. 4.
The Special Rapporteur wishes to express his gratitude to the author of
the study, Wolfgang E. Burhenne.
33
At the local level, legislative action in the face of atmospheric pol-
lution dates back to at least 1273, when an ordinance aimed at the prohibition
of
coal
burning
in
London
was
issued
(see
Rowlands,
“Atmosphere and outer space”,
p.
317).
property of the air was impossible because no one could appropriate it
and that the same applied to the possibility of the State to “dominate”
the air. The result was that airspace was a res communis omnium, and
therefore free. For reasons of security, however, he proposed a safety
zone for the first 1,500 metres above ground. Fauchille, “Le domaine
aérien et le régime juridique des aérostats”. The Convention relating to
the regulation of Aerial Navigation recognized the complete and exclusive
sovereignty
over
the
airspace
above
a
State
territory
(see
Mateesco
Matte,
Traité de
droit
aérien-aéronautique,
p.
95
et
seq.).
34
In the period between 1870 and 1871 during the Franco-Prussian
war, balloons were used on both sides, especially during the siege of
Paris. Based on the experience of the war, the First Hague Peace Conference
in 1899 adopted
declaration
(IV,
1) to prohibit
for the
term
of
five
years the launching of projectiles and explosives from balloons,
and other new methods of a similar nature (see Sand, Pratt and Lyon,
An Historical Survey of the Law of Flight, p. 9; and Heere, “Problems
of jurisdiction in air and outer space”.
36
See, for example, Hogan, “Legal terminology for the upper
regions of the atmosphere and for the space beyond the atmosphere”.
37
The Convention entered into force in 1947; see Cheng, “Air law”,
and The Law of International Air Transport, pp. 120–121.
38
State of Georgia v. Tennessee Copper Company and Ducktown
35
At the turn of the twentieth century, Paul Fauchille was the leading
Sulphur, Copper and Iron Company, Ltd, United States Supreme Court,
13 May 1907, 10 May 1915, United States Reports, vol. 237, pp. 474
and 477; reproduced in Robb, International Environmental Law
advocate of freedom of the air. The gist of his arguments was that real
Reports, pp. 514–523.
Protection of the atmosphere 251
a fund to compensate those injured by the fumes from
its works, to allow inspections of its plant and to not
operate more green ore furnaces than it found necessary.
However, no agreement was reached with the Ducktown
Company, and a second opinion of the Supreme Court
was therefore rendered on 10 May 1915. The Court,
while ultimately ruling in favour of Georgia’s injunction request, found that it was impossible to
ascertain
the necessary reduction in sulphur content to
Ducktown
Company’s emissions to prevent injury to the
State.
The Court imposed certain conditions on the
Ducktown
Company
related
to
record-keeping,
inspection
and
limiting emission
levels.
Long-range Transboundary Air Pollution, of 1979, was
concluded within a regional framework in response to
such problems.
44
The other challenge was the rapid devel-
opment of so-called “ultra-hazardous activities”, such as
the operation of oil tankers, aircraft, nuclear power plants
and space objects. While those activities are generally
beneficial for the welfare of people, they carry the potential
for
tremendous
damage
to
human
life
in
the
event
of
accidents,
and accidents
have occurred. It was therefore
necessary
to
establish
a
special
regime
of
liability
in
the
relevant
conventions.
45
24. The case was indeed a precursor to the famous Trail
Smelter case
39
between the United States and Canada
26. Since the 1980s, the world has witnessed the rapid
deterioration of the global environment in the form of
ozone depletion and climate change. The initial response
by the international legal community comprised the
Vienna Convention for the Protection of the Ozone Layer
(then a Dominion of the United Kingdom) in the 1930s.
The Trail Smelter case remains the leading case of transboundary
air
pollution
in
international
law
today,
affirming
the
customary
principle
of
“good
neighbourliness”
in
bilateral
arrangements between neighbouring countries.
Its final judgment in 1941, which cited at length the decision in the
State
of
Georgia
v.
Tennessee Copper
Company
case,
46
and the Montreal Protocol on Substances that Deplete the
Ozone Layer.
47
The United Nations Framework Conven-
tion on Climate Change
48
and the Kyoto Protocol to the
Convention
49
were later concluded to meet the challenge
40
demonstrated that some of the most basic princi-
of climate change. In response to these global issues,
international law has developed a number of new techniques
to
cope
with
the
scientific
uncertainty
associated
with
environmental
problems,
including
the
adoption
of
precautionary
approaches; a combination of framework
conventions and protocols; and unique non-compliance
procedures and flexible mechanisms.
ples in international law are derived from domestic court
decisions. The Trail Smelter case is representative of the
traditional type of international environmental dispute in
two ways: the causes and effects of the environmental
damage are identifiable, and a territorial State is under an
obligation to exercise due diligence over the activities of
individuals and companies within its territory in order to
ensure that the activities do not cause harm to other States
and their nationals. That principle of prevention (or “preventive
principle”)
was
later
confirmed
as
principle
21
of
the Declaration of the
United
Nations Conference on
the
Human Environment (Stockholm Declaration)
in
1972.
50
27. It may be noted that in the late 1980s there were certain
significant
movements
promoting
the
idea
of
a
“law
of the atmosphere” aimed at the adoption of a
comprehensive
approach
to
combating
atmospheric
problems.
51
44
The Convention entered into force in 1983; see Sand, “Regional
41
approaches to transboundary air pollution”.
Transboundary air pollution caused by industrial accidents
has
become
serious
and
large
scale
since
the
1970s,
as seen
in the catastrophic
accidents
at
Seveso,
Italy
(1976), and Bhopal, India
(1984).
45
See, for example, Goldie, “Liability for damage and the progres-
42
The Convention on
sive development of international law”; Jenks, “Liability for ultrahazardous
activities in international law”, pp. 111–120; Dupuy, La
responsabilité internationale des États pour les dommages d’origine
technologique et industrielle.
the Transboundary Effects of Industrial Accidents
43
was
46
The Convention entered into force in 1988.
designed to protect humans and the environment from
the consequences of industrial accidents through preventive measures and, should accidents
occur, to
implement
efforts
to
reduce
their
severity
and
mitigate
their
impacts.
47
The Protocol entered into force in 1989.
48
The Convention entered into force in 1994.
49
The Protocol entered into force in 2005.
50
Murase, International Law: An Integrative Perspective on Trans-
boundary Issues, pp. 24–30.
25. The 1960s saw not only the repetition of tradi-
51
For the 1988 and 1989 conferences organized by the Govern-
tional transboundary environmental problems but also the
ment of Canada, see, “International Conference on Atmosphere”,
appearance of new challenges in international environmental
law.
The
challenges
came
from
two
perspectives.
One
challenge
was
the
broadening
of
environmental
damage
both
in
terms
of
its
causes
and
effects,
as
in
the
case
of
acid rain, which made it difficult to identify distinct
point-sources of pollution as well as specifically affected
locations. The cumulative nature of the damage makes it
particularly difficult to allocate blame. The Convention on
39
Trail Smelter, UNRIAA, vol. III (United Nations publication,
Sales No. 1949.V.2), pp. 1905–1982.
40
Ibid., p. 1965.
41
See Report of the United Nations Conference of the Human Envi-
ronment, Stockholm 5–16 June 1971 (United Nations publication, Sales
No. E.73.II.A.14), chap. I.
42
Murase, International Law: An Integrative Perspective on Trans-
Environmental Policy and Law, vol. 18, No. 5 (1988), p. 155 and
“Protection of the atmosphere: statement of the International Meeting
of Legal and Policy Experts, Ottawa, Ontario, Canada, February 22,
1989”, American University Journal of International Law and Policy,
vol. 5 (1989–1990), pp. 529–542; Bruce, “Law of the air: a conceptual
outline”; Sand, “UNCED and the development of international
environmental law”; and Soroos, The Endangered Atmosphere: Preserving a
Global
Commons.
Mr.
Donald McRae
recalls
that
the
topic
of the protection of the atmosphere has had a link with the
Commission
since
the
late
1980s,
remarking:
“In
June
1988
Canada
hosted
a
conference
in Toronto on the changing atmosphere, which engaged
scientists and officials from Governments, the United Nations and
other intergovernmental and non-governmental organizations. That
conference called on Governments to work with urgency toward an
action plan for the protection of the atmosphere, which would include
an international framework convention. The next year in February
1989 a meeting of legal and policy experts was held in Ottawa. The
meeting endorsed the idea of a framework convention on the protection of the atmosphere and set out the elements that would be
needed
in such a framework convention. Of course, events moved on,
climate
boundary Issues, pp. 74–96.
43
The Convention entered into force in 2000.
(Continued on next page.)
252
Documents of the sixty-sixth session
Chapter 9 of Agenda 21 addressed the “Protection of
the atmosphere”,
52
and in ensuing years the Commis-
sion on Sustainable Development held substantive discussions on the subject
in
2001
53
and 2007,
54
focusing
on a cluster of thematic issues, including the atmosphere
and air pollution. In 2002, the Johannesburg
Declaration on Sustainable Development stated that
the global environment continued to suffer and that
air, water and marine pollution continued to rob millions
of
a
decent
life.
55
However, efforts to protect the
28. Finally, it may be worth pointing out that one of the
outcomes of the workshop held in Gothenburg, Sweden,
from 24 to 26 June 2013, on future international air pollution
strategies, which was organized by the Swedish
Environmental Protection Agency and the Swedish Environmental
Research
Institute,
in
close
collaboration
with
the
secretariat of the Convention on Long-range Transboundary
Air Pollution
and
the
European
Commission,
was a recommendation
to call
upon the
expertise
of the
Commission
in addressing atmospheric protection. Participants
at
the workshop stated
that
the
Convention
on
Long-range
Transboundary Air Pollution should invite
the Commission “to continue exploring the scope for a
‘Law of the Atmosphere’, which would facilitate integrated
action on climate change and tropospheric air
pollution”.
atmosphere have not yet materialized into a hard-law
instrument. Nonetheless, in recent years, there appears
to be a revival of enthusiasm for a comprehensive multilateral convention on the atmosphere. For
instance,
the
fifteenth World Clean Air Congress held in Vancouver,
Canada, in September 2010 adopted its final
declaration entitled “One atmosphere”, which sought
to encourage the integration of climate and pollution
policies and called for a new “law of the atmosphere”,
which would parallel the United Nations Convention
on the Law of the Sea.
57
The high expectations of the international
community in respect of the Commission should be duly
noted.
B. Sources
56
It may be a little too ambitious
to talk about the “law of the atmosphere” just yet. It
appears more realistic to consider a “law on the protection of the atmosphere” with a relatively
narrower
focus.
It
is
nonetheless
encouraging
to
see
that
momentum
appears
to
be
mounting
for
a
comprehensive
consideration of the
subject.
29. Several sources relevant to the protection of the
atmosphere can be cited. The relevant multilateral conventions
can
be
roughly
classified
into
those
of,
primarily,
regional
application
and
those
of
universal
application.
In
contrast
to the number of multilateral
conventions,
bilateral
conventions
are
few,
evincing
the
essentially
regional
and
global
character
of
the
majority
of
the
problems
relating
to
the
atmosphere.
Principles
and
rules
of
customary
international
law must be ascertained in light of opinio
juris and the general practice of States. The jurisprudence
of international courts and tribunals is no doubt an important
source for determining the customary law status of
the rules and principles relating to the protection of the
atmosphere. Non-treaty instruments, domestic legislation
and the jurisprudence of domestic courts are also important
sources
for
ascertaining
existing
or
emergent
rules
of
customary
law—the
basis
for
the
exercise
of
codification
and progressive
development.
(Footnote 51 continued.)
change became a more major focus and while some of the ideas at
that meeting of experts were incorporated into other conventions,
no framework convention on the protection of the atmosphere was
concluded. I mentioned that one could draw a link between the 1989
meeting and the [International Law Commission]. A leading participant
in
that
meeting
of
legal
and
policy
experts
was
Alan
Beesley,
the
Canadian international
lawyer and diplomat who
had
been a
central
figure
in
the
[Law
of
the
Sea]
negotiations
and
played
a
role
at
Stockholm
as
well,
and
was
at
that
time
a
member
of
the
[Commission].
Beesley
spoke
at
the
opening
of
the
meeting
about
the
need
for
creative solutions to be
adopted by lawyers and how lawyers
had to
take
a
lead
in
policy
development
in
this
field.
And
on
the
list
of
invitees
were
Julio
Barboza,
at
that
time
a
member
of
the
[Commission],
and
Vaclav Mikulka, Hanqin Xue and myself, all later to become
members
of
the
[Commission].
So,
in
some
sense,
Professor
Murase’s
proposal that the Commission take up the topic of the ‘Protection of
the
Atmosphere
reaches
back
to
a
challenge
of
twenty
years
ago.
And,
if
it was ripe as a topic then, it is certainly ripe
today.” (Donald
McRae,
paper presented at the workshop on the Protection of the
Atmosphere,
held on
26
October
2011, at the Permanent Mission of Japan to
the
United
Nations in New York. The workshop was organized jointly
1. Treaty practice
30. The following is a non-exhaustive list of binding
multilateral and bilateral agreements relevant to atmospheric
problems:
(a) Multilateral agreements relating to air pollution
by the Government of Japan and UNEP.) See Murase, “Protection of
the atmosphere and international law: rationale for codification and
progressive development”, p. 9, footnote 10.
52
Report of the United Nations Conference on Environment
and Development, Rio de Janeiro, 3–14 June 1992, vol. I, Resolutions
Adopted
by the
Conference
(A/CONF.151/26/Rev.1
(Vol 1))
(United
Nations publication,
Sales
No.
E.93.I.8),
resolution
1,
annex
II.
53
Commission on Sustainable Development, Report on the ninth
session (5 May 2000 and 16–27 April 2001), Official Records of the
Economic and Social Council, 2001, Supplement No. 9 (E/2001/29).
54
Commission on Sustainable Development, Report on the fifteenth
— The Convention on Long-range Transboundary Air
Pollution and the protocols thereto, including on longterm
financing of the co-operative programme for
monitoring and evaluation of the long-range transmission
of air pollutants in Europe; on the reduction of
sulphur emissions or their transboundary fluxes by at
least 30 per cent and on Further Reduction of Sulphur
Emissions; concerning the control of emissions of nitrogen
oxides or their transboundary fluxes; concerning
session (12 May 2006 and 30 April–11 May 2007), Official Records of
the Economic and Social Council, 2007, Supplement No. 9 (E/2007/29).
55
Report of the World Summit on Sustainable Development, Johan-
57
Grennfelt and others, Saltjöbaden V—Taking International Air
nesburg, South Africa, 26 August–4 September 2002 (A/CONF.199/20)
(United Nations publication, Sales No. E.03.II.A.1), chap. I, para. 13.
56
Available from www.iuappa.org/newsletters/VancouverDeclar
ation.pdf. The World Clean Air Congress is organized by the International
Union of
Air Pollution
Prevention and Environmental
Protection
Associations,
which comprises non-governmental organizations from
Pollution Policies into the Future, Gothenburg, 24–26 June 2013, p. 14.
At its 32nd session, held from 9 to 13 December 2013, the Executive
Body for the Convention on Long-range Transboundary Air Pollution
took note of the recommendations of the Saltjöbaden V workshop (see
ECE/EB.AIR/122). The 16th World Clean Air Congress, held in Cape
Town, South Africa, from 29 September to 4 October 2013, made a
40 States.
similar recommendation to the Commission.
Protection of the atmosphere 253
the control of emissions of volatile organic compounds
or their transboundary fluxes; on Heavy Metals; on
Persistent Organic Pollutants; and the Protocol to
Abate Acidification, Eutrophication and Ground-level
Ozone (Gothenburg Protocol), as amended on 4 May
2012;
wheeled vehicles;
66
Directive 2008/50/EC on ambient
air quality and cleaner air for Europe;
67
and Directive
2010/75/EU on industrial emissions (integrated pollution prevention and
control);
68
58
— International Standards and Recommended Practices of
the International Civil Aviation Organization (ICAO)
for aircraft engine emissions: annex 16 (Environmental
Protection) of the Convention on International Civil
Aviation;
— Agreement concerning the adoption of uniform conditions
of
approval
and
reciprocal
recognition
of
approval
for motor
vehicle equipment
and parts—later
renamed
Agreement
concerning
the
adoption
of
uniform
technical
prescriptions for
wheeled
vehicles,
equipment
and
parts
which can be fitted and/or be used on wheeled
vehicles and the conditions for reciprocal recognition of
approvals granted on the basis of these prescriptions,
69
59
— Protocol of 1997 (new annex VI—Regulations for the
prevention of air pollution from ships) to amend the
International Convention for the prevention of pollution
from
ships,
1973,
as
modified
by
the
Protocol
of
1978 relating
thereto;
subsequently “globalized” by the Agreement concerning
the Establishing of Global Technical Regulations
for Wheeled Vehicles, Equipment and Parts, which can
be fitted and/or used on Wheeled Vehicles;
70
60
— Association of Southeast Asian Nations (ASEAN)
Agreement on Transboundary Haze Pollution;
— Convention on environmental impact assessment in a
transboundary context;
61
— Stockholm Convention on Persistent Organic
Pollutants;
71
— Convention on the Transboundary Effects of Industrial
Accidents, with its Protocol on Civil Liability and
Compensation for Damage Caused by Transboundary
Effects of Industrial Accidents on Transboundary
Waters to the 1992 Convention on the Protection and
Use of Transboundary Watercourses and International
Lakes and to the 1992 Convention on the Transboundary
Effects of Industrial Accidents;
— Framework Convention for the Protection of the
Environment for Sustainable Development in Central
Asia;
72
— Minamata Convention on Mercury.
62
66
Especially through Regulation 715/2007 of the European Par-
— The directives of the European Union on air
pollution,
63
including, in particular, Directive 2001/81/
EC on national emission ceilings for certain atmospheric
pollutants;
64
Directive 2007/46/EC establishing
a framework for the approval of motor vehicles and
their trailers, and of systems, components and separate technical
units intended for such
vehicles,
65
with
liament and the Council of 20 June 2007 on type approval of motor
vehicles with respect to emissions from light passenger and commercial vehicles
(Euro
5 and
Euro
6) and on access to vehicle repair and
maintenance
information
(ibid.,
L
171,
29
June 2007) (as amended
by
Regulation
(EC)
595/2009
of
the
European
Parliament
and
the
Council
of
18
June
2009
on
type-approval
of
motor
vehicles
and
engines
with
respect to emissions from heavy duty vehicles
(Euro
VI) and on access
to
vehicle
repair
and
maintenance
information
and
amending
Regulation
(EC)
No.
715/2007
and
Directive
2007/46/EC
and
repealing
Directives
80/1269/EEC, 2005/55/EC
and
2005/78/EC
(ibid.,
L
188,
18
July
2009); entered into force
in
2013.
related annexes and technical regulations implementing/adapting
the corresponding ECE agreements for
67
Directive 2008/50/EC of the European Parliament and of the
58
Executive Body for the Convention on Long-range Transbound-
ary Air Pollution, decisions 2012/1 and 2012/2. See C.N.171.2013.
TREATIES-XXVII.1.h and C.N.155.2013.TREATIES-XXVII.1.h.
59
The Agreement entered into force in 1959. The title was amended
in 1995 upon entry into force of amendments adopted by the Inland
Council of 21 May 2008 on ambient air quality and cleaner air for
Europe, ibid., L 152, 11 June 2008, replacing (as from 11 June 2010)
several earlier “substance-specific” directives on ambient air quality (for
sulphur dioxide (1980); lead (1982); nitrogen dioxide (1985); groundlevel
ozone
(1992);
and
volatile
organic
compounds
(1999/2004)),
and
the
related
Council Directive
96/62/EC of
27
September 1996 on
ambient
air quality assessment and management (Official Journal of the
European Communities, L 296, 21 November 1996).
Transport Committee of the Economic Commission for Europe at
its 103rd session on 18 August 1994 (see E/ECE/324/Rev.2-E/ECE/
TRANS/505/Rev.2); it was implemented by a series of technical regulations
dealing
with
pollutant
emissions
(especially
Nos.
40,
41,
47,
49,
51
and
83).
68
Directive 2010/75/EU on industrial emissions (integrated pollu-
60
The Agreement entered into force in 2000 and was implemented
by a series of technical regulations including the measurement of carbon dioxide and other exhaust
gases.
61
The Convention entered into force in 1997.
62
The Protocol is not yet in force.
tion prevention and control), Official Journal of the European Union,
L 334, 17 December 2010. This directive will (as from 7 January 2016)
replace Directive 2001/80/EC of the European Parliament and of the
Council of 23 October 2001 on the limitation of emissions of certain
pollutants into the air from large combustion plants (Official Journal
of the European Communities, L 309, 27 November 2001, repealing
an earlier 1988 directive), and Directive 2000/76/EC of the European
Parliament and of the Council of 4 December 2000 on the incineration
of
waste
(Official
Journal
of
the
European
Communities,
L
332,
28
December
2000).
63
For a current summary, see Jans and Vedder, European Environ-
mental Law: After Lisbon, pp. 419–430.
69
The first edition of annex 16, vol. II (“Aircraft engine emissions”),
64
Directive 2001/81/EC of the European Parliament and of the
was adopted on 30 June 1981 and entered into force in 1982; it is periodically
amended
by the ICAO Council. See Sand,
Lessons
Learned in
Global
Environmental
Governance,
pp.
18–20.
Council of 23 October 2001 on national emission ceilings for certain
atmospheric pollutants, Official Journal of the European Communities,
L 309, 27 November 2001, p. 22, currently under review.
70
Annex VI entered into force in 2005 and has been periodically
65
Directive 2007/46/EC of the European Parliament and of the
amended by the IMO Marine Environment Protection Committee.
Council of 5 September 2007 establishing a framework for the approval
of motor vehicles and their trailers, and of systems, components and
separate technical units intended for such vehicles, Official Journal of
71
The Convention entered into force in 2004.
72
The Convention is not yet in force. The following States have
signed the Convention: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmeni-
the European Union, L 263, 9 October 2007.
stan and Uzbekistan. Article 8 deals with “air protection”.
254
Documents of the sixty-sixth session
(b) Bilateral agreements on transboundary air
pollution
— Treaty between Czechoslovakia and Poland concerning protection of the atmosphere against
pollution;
73
— Memorandum of Intent between the United States of
America and Canada concerning transboundary air
pollution;
74
— Agreement between the United Mexican States and the
United States of America on cooperation for the protection and improvement of the environment in the border
area,
75
together with two supplementary agreements;
76
the auspices of ECE in the form of a framework agreement
to address the major
concerns about acid
rain and
other
dispersed pollutants. According to article 1 (b) of
the Convention, the term “long-range transboundary air
pollution” is defined as pollution having effects at such a
distance that “it is not generally possible to distinguish the
contribution of individual emission sources or groups of
sources”. While the Convention did not stipulate specific
limits on emissions of industrial pollutants, it did establish
a
regime
for
continued
consideration
of
the
issue.
It
has
been
noted
that
“[d]espite
its
evident
weaknesses,
the
Geneva
Convention’s real
value is that
it
has provided
a
successful framework for cooperation
and the
development
of further measures
of pollution
control”.
80
A series
of eight separate protocols have subsequently been negotiated and agreed
upon.
— Agreement between Canada and the United States of
America on air quality;
77
— Agreements between Germany and the Czech Republic
of 1992, 1994, 2000 and 2004.
78
(c) Multilateral conventions on global atmospheric
problems
— Vienna Convention for the Protection of the Ozone
Layer, with its Montreal Protocol on Substances that
Deplete the Ozone Layer;
— United Nations Framework Convention on Climate
Change and its Kyoto Protocol.
31. Some of the agreements are briefly highlighted
below. They are no doubt important sources from which
the Commission can draw inspiration when elaborating
draft guidelines on the protection of the atmosphere.
33. Protocols to the Convention on Long-range
Transboundary Air Pollution. The protocols reveal
significant innovations in rule-making. The first Protocol,
of 1985, on the reduction of sulphur emissions or their
transboundary fluxes by at least 30 per cent, required
parties to reduce such emissions or fluxes by at least
30 per cent by 1993, applying a single flat rate to all parties. In contrast, the second Protocol, of 1994, on Further
Reduction
of Sulphur Emissions, applied
the “critical
loads”
concept
to
set
differentiated
emissions
targets
for
each
party.
Targets
ranged
from
an
80
per-cent
reduction
for Germany to a
49
per-cent increase for Greece, for an
overall
collective emissions reduction of
50.8
per
cent.
While
the first Protocol’s emissions reduction target of
30 per cent was arrived at essentially arbitrarily, the differentiated
national targets of the second Protocol were
reached using the critical loads approach, together with
cost efficiency, reflecting a high degree of scientific and
technical knowledge.
32. Convention on Long-range Transboundary Air
Pollution.
81
The resulting commitments are
79
The Convention was formulated under
73
Signed at Warsaw on 24 September 1974 (United Nations, Treaty
Series, vol. 971, No. 14068, p. 407) and entered into force in 1975. See
Sommer, “Transboundary cooperation between Poland and its neighbouring
States”.
74
Signed at Washington, D.C., on 5 August 1980 (United Nations,
Treaty Series, vol. 1274, No. 21009, p. 235).
75
Signed at La Paz (Baja California) on 14 August 1983 (ibid.,
vol. 1352, No. 22805, p. 71).
76
Agreement of cooperation between the United Mexican States
fairer to all parties, given that they are based on calculations
of
actual
sources
and
effects.
The
Protocol
of
1988
concerning
the control of emissions of nitrogen oxides
or their transboundary fluxes required parties to stabilize
their
nitrogen
oxide
emissions
or
their
transboundary
fluxes
at
1987
levels
by
1994.
The
Protocol
covered
major
stationary
sources (for
example, power plants)
and mobile
sources (for example,
vehicle
emissions),
and provided
for
the eventual negotiation of internationally accepted
critical loads for nitrogen oxide pollution to take effect
after 1996. The approach is considered better suited to
and the United States of America regarding transboundary air pollu-
regional environmental protection than flat-rate emission
tion caused by copper smelters along their common border (annex IV),
signed at Washington, D.C., on 29 January 1987 (ibid., vol. 1465,
No. 22805, p. 357) and the Agreement of cooperation between the
United States of America and the United Mexican States regarding
international
transport
of
urban
air
pollution
(annex
V),
signed
at
Washington,
D.C.,
on
3
October
1989
(United
States
of
America,
TIAS
11269).
reductions.
82
Between 1991 and 1998, three protocols
77
Signed at Ottawa on 13 March 1991 (United Nations, Treaty
Series, vol. 1852, No. 31532, p. 79).
78
The 1994 Agreement provides for implementation of joint envi-
were adopted to regulate emissions from volatile organic
compounds, persistent organic pollutants, lead, cadmium
and mercury. Finally, in 1999, ECE adopted the Protocol
to Abate Acidification, Eutrophication and Ground-level
Ozone (Gothenburg Protocol) to abate the adverse effects
of acidification, eutrophication and ground-level ozone
on human health, natural ecosystems and crops resulting
from transboundary air pollution. The Protocol recognizes the need for a
precautionary approach and requires
ronmental pilot projects for flue gas cleaning in coal-fired power plants;
the 2000 and 2004 Agreements provide for joint implementation of a
“clean air fund” and other pilot projects in the Czech Republic, aimed
at reducing the impact of transboundary air pollution in Germany; the
2004 Agreement specifically refers to “joint implementation” under the
Kyoto Protocol of the United Nations Framework Convention on Climate
Change.
80
Birnie, Boyle and Redgwell, International Law and the Environ-
ment, p. 345.
81
Ibid., p. 346. For this reason, it has been noted, the need to apply
79
See Sliggers and Kakebeeke, eds., Clearing the Air: 25 years
the precautionary principle was obviated in this case, although the Protocol’s
preamble acknowledges scientific uncertainty and the precautionary
principle.
of the Convention on Long-range Transboundary Air Pollution; and
Lidskog and Sundqvist, Governing the Air: The Dynamics of Science,
Policy, and Citizen Interaction.
82
Ibid., p. 347.
Protection of the atmosphere 255
that emissions not exceed the critical loads stipulated in
the annexes. It should be noted that in May 2012, the parties
to
the
Convention
made
a
historic
step
by
amending
the
Gothenburg
Protocol
with
regard
to
certain
substances
to
include
black carbon—as
a component
of particulate
matter—in
the revision of the Gothenburg Protocol;
83
and black carbon, ozone and methane in the medium and
long-term workplans of the Conventions as important air
pollutants and short-lived climate forcers.
84
preventative measures, but does not define the measures
or provide specific standards. Consistent with the cooperative
approach
of
ASEAN,
the
Agreement
contains
provisions
for
the
exchange
of
information
and
technology,
the
development
of
a
regional
early
warning
system
and
mutual assistance. It
establishes
an
ASEAN
Coordinating
Centre
for
Transboundary
Haze
Pollution
Control
to
facilitate
such
cooperation
and
coordination
in
managing
the
impact of fires. However, in reflecting a traditional
emphasis on sovereignty, the Agreement stipulates that a
party must request or consent to such assistance, notwithstanding
transboundary
effects.
Although
the
Agreement
ultimately
suffers
from
compliance
problems,
owing
to
a
lack
of
provisions
on
monitoring
and
enforcement
and
to
non-participation
by
the
main
target
actor,
it
does
attempt
to
overcome
some
of
the
barriers
to
implementation;
for
example, it establishes an
ASEAN
Transboundary
Haze
Pollution
Control
Fund
to
address
the
issue
of
financial
capacity.
It also creates an intergovernmental body, the
Conference of the Parties, to evaluate implementation
and adopt protocols or amendments, as necessary. Overall,
it
can
be
said
that
the
Agreement
represents
a
more
concrete
and
law-oriented
approach
in
dealing
with
the
haze
problem.
34. Convention on the Transboundary Effects of
Industrial Accidents. Like the Convention on Longrange
Transboundary Air Pollution, the Convention on
the Transboundary Effects of Industrial Accidents was
negotiated by ECE as part of its legal framework to protect
the environment.
The Convention
aims to protect
both
humans
and
the
environment
from
the
far-reaching
transboundary
effects
of
industrial
accidents
such
as
the
mine
tailings
spill
at
Baia
Mare
(Romania).
In
article
3,
paragraph
4,
the
Convention
affirms
the
principle
of
State
responsibility
and obligates Parties to take legislative,
regulatory, administrative and financial measures to prevent industrial accidents
and improve preparedness and
response measures. Parties
are
to identify
hazardous
operations
within
their
borders
(article
4,
paragraph
1)
and
site
new projects
where risks for environmental
harm
are
minimal
(article
7).
The Convention creates
a framework for
international
cooperation that extends beyond assistance
in the event of an accident.
Parties are required to inform
and
consult other parties that could potentially suffer
from the transboundary effects of hazardous operations
and to draw up joint or compatible contingency plans.
The Convention also promotes the exchange of information
and
safety
technologies
and
cooperation
in
research
and development. In order to help States to better respond
to accidents, the Convention
calls on parties to set up an
industrial
accident notification system to immediately
inform affected parties. The Conference of the Parties, as
the governing body, reviews the implementation of the
Convention and defines priorities of work.
85
36. Stockholm Convention on Persistent Organic
Pollutants. The Convention seeks to protect human
health and the environment from the risks posed by
persistent organic pollutants, which are chemical substances
that possess toxic properties, resist degradation
and bio-accumulate through the food chain. UNEP initiated
negotiations
in
response
to
calls
for
global
action
in
the
light
of
scientific
evidence
on
the
harmful
effects
of
such
pollutants
and
their
ability
to
travel
long
distances
through
the
air
and
water.
The
Convention
is
mindful
of
the
precautionary
approach
and
obligates
parties
to
eliminate
or reduce
the production
and use of 12 persistent
organic
chemicals (pesticides, industrial chemicals and
unintentionally produced persistent organic chemicals).
Other key elements include the requirement to prohibit or
restrict the import and export of listed persistent organic
chemicals, the development and use of safer substitutes,
environmentally sound management of stockpiles and
wastes, and the promotion of best alternative technologies
and best environmental practices. The Convention recognizes
that
the
ability
of
developing
countries
to
implement
their
obligations
will
depend
on
the
transfer
of
technology,
35. ASEAN Agreement on Transboundary Haze
Pollution. The Agreement was drafted as a legally
binding regional environmental agreement in collaboration with
UNEP, in an attempt to remedy some of
the
compliance
problems
associated
with
previous
efforts
to
tackle the problem of heavy haze in the area, such as
the
Regional Haze Action Plan. Recognizing the transbound-
financial resources and technical assistance from industri-
ary health and environmental effects of haze (largely
originating from recurrent forest and land fires in Indonesia
and
Brunei
Darussalam),
the
Agreement,
in
article
2,
encourages
regional
and
international
cooperation
to
prevent and monitor transboundary air pollution. It
adopts
the preventive principle and requires States to
identify
and
monitor fire-prone areas and to take the necessary
83
See Amendment of the text of and annexes II to IX to the Proto-
alized countries, and designates the Global Environment
Facility as an interim financial mechanism for providing
assistance. The institutions and procedures created by the
Convention are of significance since they are the source
of its flexibility and dynamism. The meetings of the Conference
of
the
Parties,
the
governing
body
of
the
Convention,
allow
for
regular
review
of
implementation
and
the
adoption
of
amendments.
During
the
first
meeting
of
the
Conference of the Parties, the decision was made to create
a
Persistent
Organic
Pollutants
Review
Committee.
The
col and addition of new annexes X and XI (document C.N.155.2013.
TREATIES-XXVII.1.h), annex, article 10, new para. 3.
84
For a background study, see “Hemispheric transport of air pol-
lution 2010” (ECE/EB.AIR/2010/10 and Corr.1–2). On the need to
integrate the regulation of atmospheric pollutants and climate-forcing
substances, see also the comprehensive new report On Thin Ice: How
Cutting Pollution Can Slow Warming and Save Lives (joint report of
the World Bank and International Cryosphere Climate Initiative, Washington,
D.C., 2013). Available from http://documents.worldbank.org
85
See Tan, “The ASEAN Agreement on Transboundary Haze Pol-
lution: prospects for compliance and effectiveness in post-Suharto
Indonesia”; and Rodziana Mohamed Razali, “The shortcomings of the
ASEAN’s legal mechanism to address transboundary haze pollution
and proposals for improvement”, paper submitted to the Third Biennial
Conference of the Asian Society of International Law, Beijing,
/curated/en/146561468180271158/Main-report.
27–28 August 2011.
256
Documents of the sixty-sixth session
scientific body, comprising 31 experts, reviews proposals
for new additions to the list of regulated chemicals
according to the procedure established by the Convention.
First, the Committee applies the screening criteria of the
Convention in respect of new persistent organic chemicals. Second, if all the criteria
are met, it drafts a risk
profile
to
evaluate
whether
a
substance
is
likely,
as
a
result
of
long-range
environmental
transport,
to
lead
to
significant
adverse
effects
on
human
health
or
the
environment,
thereby
warranting
global
action.
Third,
it
develops
a
risk
management
evaluation, taking into account socioeconomic
considerations,
and
makes
a
recommendation
to
the
Conference
of
the
Parties,
which
makes
the
final
decision.
To date, the Conference
of the Parties has decided
to
include
10 new substances:
9 chemicals
at
the
fourth
meeting
in
2009
and
endosulfan
at
the
most
recent
meeting in
April
2011.
of ground-level ozone), with a view to establishing ozone
air quality standards in the long term.
89
38. Vienna Convention for the Protection of the
Ozone Layer. This Convention was the second multilateral
treaty
to
address
a
global
atmospheric
issue.
90
Together
37. Agreement between Canada and the
United States of America on air quality. The Agreement
was
signed
on
13
March
1991
in
order
to
address
the
issue
of
transboundary
air
pollution
leading
to
acid
rain.
At
the
heart
of
the
bilateral
agreement
are
commitments
by both parties to control transboundary air pollution.
Annex
1
of
the
Agreement
establishes
specific
objectives
and deadlines for each country to limit sulphur dioxide
and nitrogen oxide emissions, affecting the main chemicals
contributing to acid rain. The Agreement reaffirms
the decision in the Trail Smelter case and principle 21
of the Declaration of the United Nations Conference on
the Human Environment (Stockholm Declaration) and
creates a framework for addressing shared concerns. It
“applies customary environmental law rules, such as the
prior assessment of proposed actions, activities, and projects
if
they
are
likely
to
cause
significant
transboundary
air
pollution,
the
duty
to
notify
the
other
State
concerning
such
activities
or projects
as well as those that
create
the
risk
of
significant
transboundary
harm,
and
to
consult
on
request
of the
other
party”.
86
It is evident that a great deal
of cooperation is envisaged by the system: it calls for scientific
and
technical
cooperation
in
addition
to
emissions
monitoring
and
consultation.
In
order
to
assist
in
implementing
the
Agreement
and
review
progress,
a
permanent
bilateral
Air
Quality
Committee
was established.
The
International
Joint Commission, a body created
under the
1909
Boundary
Waters
Treaty,
87
has oversight over the Air
Quality Committee. The International Joint Commission
with the Montreal Protocol on Substances that Deplete the
Ozone Layer and its subsequent amendments, it comprises
the legal regime for the protection of the stratospheric
ozone layer. Treaty negotiations were initiated by UNEP
in response to scientific evidence that widely used chemical
substances, chlorofluorocarbons, were destroying the
ozone layer. The resulting treaty, in the form of a framework
convention, led to a general obligation on the part
of States to take appropriate legislative or administrative
measures, as stated in its preamble, “to protect human
health and the environment against adverse effects resulting
from modifications of the ozone layer”. The Vienna
Convention does not set specific targets, name particular
substances to which the measures would relate (it merely
lists in an annex the substances thought to have an effect
on the ozone layer) or create a legal obligation to reduce
emissions of ozone-depleting substances. The nature of the
measures to be taken was left to the discretion of each State
party. Instead, it emphasizes cooperation in the exchange of
systemic observations, research, information and technology,
as
well
as
cooperation
in
formulating
“agreed
measures, procedures and standards for the implementation
of
this
Convention”
(article
2,
paragraph
2
(c)).
In
recognizing
the global nature of the problem, the drafters of the
Convention tried to ensure participation by all countries.
They considered some of the reservations that developing
countries might have regarding the costs of implementing
the
treaty,
both
in
terms
of
the
cost
of
alternative
technologies
and
in
terms
of
the
effect
on development. As a
result, in addition to a weak transfer of technology clause
(article 4), a proviso was added that measures should be
taken in accordance with “the means at their disposal and
their capabilities” (article 2, paragraph 2). A bare-bones
framework, the success of the Convention was in laying
the foundation for future cooperation and creating the institutions,
namely, the meeting of the parties, which would
enable it to adapt in response to new scientific data through
reviews of the implementation and adoption of new protocols
or
amendments.
It
also
signified
a
more
precautionary
approach
in
environmental
treaties,
given
that
the
effects
of
ozone
depletion
and
the
harmful
effects
of
ultraviolet
rays
has an important function with respect to enforcement:
were still speculative.
a party may refer a dispute to it. Furthermore, the International
Joint Commission solicits/reports
on views from
the public and exposes the process to public
scrutiny.
88
39. Montreal Protocol on Substances that Deplete the
Ozone Layer. The Montreal Protocol obligates States
parties to limit the production and consumption of chlorofluorocarbons
and halons, the key ozone-depleting substances.
The Montreal Protocol was adopted in
response
to an international UNEP/WMO assessment prompted
by
In December 2000, an annex on ozone was added to the
Agreement in order to address the issue of transboundary
air pollution leading to high levels of ground-level ozone.
Pursuant to this annex, both countries commit to controlling
and
reducing
their
emissions
of
nitrogen
oxides
and
volatile
organic
compounds
(precursors
to
the
formation
89
A further supplementary annex on particulate matter is currently
under negotiation.
90
The first multilateral instrument was the Treaty banning nuclear
86
Kiss and Shelton, International Environmental Law, p. 572.
87
Signed at Washington, D.C., on 11 January 1909. See Bevans,
Treaties and other International Agreements of the United States of
America 1776-1949, vol. 12, p. 319.
88
Buhi and Feng, “The International Joint Commission’s role in the
United States–Canada transboundary air pollution control regime: a
weapon tests in the atmosphere, in outer space and under water, which
was prompted by the global risk of radioactive pollution fallout from the
atmosphere. It is noteworthy to recall the historic speech by President
of the United States John F. Kennedy (his commencement address at
American University, Washington, D.C., on 10 June 1963), announcing
his support for the Treaty, in which he said: “we all inhabit this planet.
We all breathe the same air. We all cherish our children’s futures” (The
century of experience to guide the future”, p. 129.
Department of State Bulletin, vol. XLIX, No. 1253, 1 July 1963, p. 4).
Protection of the atmosphere
257
the discovery of a “hole” in the ozone layer above Antarctica.
The
assessment
revealed
that
chlorofluorocarbon
production
levels would lead to dangerous ozone depletion,
indicating a need for firm targets leading to reductions in
the emissions of ozone-depleting substances.
91
The Mon-
substances, and cutting illegal trade in chlorofluorocarbons
through a system of export/import licences, which provide
incentives to join and comply with the Montreal Protocol.
The Montreal Protocol can be considered a success in that
it has been widely adopted and implemented and in that
global production of chlorofluorocarbons has decreased
from the peak year of 1998. At the same time, it must be
viewed within the greater scheme of atmospheric protection.
Some
chlorofluorocarbon
substitutes are greenhouse
gases, illustrating the need to coordinate efforts with the
Kyoto Protocol to the United Nations Framework Convention on Climate
Change.
treal Protocol required industrialized countries to freeze
production and consumption of chlorofluorocarbons at
1986 levels (the base year), to reduce them by half by 1999
and to freeze the consumption of halons at 1986 levels.
The Montreal Protocol also established a meeting of the
parties charged with making systematic observations of
the ozone layer and responding to new scientific developments
through the introduction, as necessary, of additional
legal
obligations
upon
States—a
key
component
of
its success.
Amendments were made
in
1989
(Helsinki),
1990
(London),
98
92
1992 (Copenhagen),
93
1997 (Montreal)
94
and 1999 (Beijing).
95
The amendments not only accel-
40. United Nations Framework Convention on Climate
Change. The General Assembly began intensifying
its
efforts
to
address
climate
change
in
1988,
adopting
a
resolution
stating
that
climate
change
was
a
common
concern of mankind (see General
Assembly
resolution
43/53
of
6
December
1988).
The
following
year,
in
recognition
of
the need to adopt measures to control anthropogenic
emissions of greenhouse gases, it established the Intergovernmental
Negotiating
Committee
to
negotiate
a
treaty
for the 1992
United
Nations Conference on the
Environment and Development. Much like the
Vienna
Convention
for the Protection of the Ozone
Layer, the
United
Nations
erated the phasing out of various substances and added
new substances, they also addressed the important issues
of participation by developing countries, non-compliance
and non-parties. The London amendment was particularly
significant in strengthening the principle of common but
differentiated responsibilities. Paragraph 6 of the preamble
was amended to include a reference to the need to take into
account the “developmental needs of developing countries”. Furthermore, old
article
5, which contained the
provision of a 10-year compliance period for countries
whose
consumption
of
chlorofluorocarbons
was
less
than
0.3
kg
per
capita (basically developing countries), was replaced
with a new article 5, which recognized that compliance by
developing countries will depend on financial assistance
and the transfer of technology.
96
Meanwhile, article 10
Framework Convention on Climate Change does not establish
quantitative commitments to limit greenhouse gases.
As stated in article 2, its objective is framed in general
terms: “stabilization of greenhouse gas concentrations in
the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system”. There
is no express commitment to return greenhouse emissions
to 1990 levels by the year 2000, only a weakly worded
recognition of a goal to that effect. The Convention establishes
a
number
of
key
principles
to
guide
any
international
response
to climate change (many of the principles are
also reflected in the Rio Declaration on Environment and
Development
established a multilateral fund voluntarily financed by nonarticle
5
parties
to
assist
developing
countries
in
meeting
the costs of compliance. In respect of non-compliance,
the
Montreal
Protocol
has
relied
on
soft
enforcement,
placing
emphasis on
a
facilitative
and
promotional
approach.
Parties
in
difficulty
can
be
brought
before
an
implementation
committee either by self-referral, referral by another
party
or by the secretariat. It employs such measures as the
provision
of
Global
Environment
Facility
funding,
99
and Agenda 21), including the principle of
97
technical
assistance or the issuing of cautions—mainly in an effort to
ensure that parties comply with data reporting requirements.
The Montreal Protocol has dealt with the problem of nonparties
by
taking
an
enforcement
approach.
It
implements
trade-restricting
measures,
namely,
banning
trade
with
nonparties
in
controlled
substances
or
products
containing
such
equity and common but differentiated responsibilities, sustainable
development, cost-effectiveness, and precautionary measures
(article
3).
The core of the commitments to
be
undertaken by parties can be found in
article
4. Parties
that
are developed countries
(annex
I) are required to
“adopt
national
policies
and
take
corresponding
measures
on
the
mitigation
of
climate
change,
by
limiting
its
anthropogenic
emissions
of
greenhouse
gases
and
protecting
and
enhancing
its
greenhouse
gas
sinks
and
reservoirs”
(article
4,
para-
91
Yoshida, The International Legal Régime for the Protection of the
Stratospheric Ozone Layer, International Law, International Régimes,
and Sustainable Development; and Sands, Principles of International
Environmental Law, p. 575.
92
Adjustments and Amendment to the Montreal Protocol on Sub-
stances that Deplete the Ozone Layer, adopted at the second meeting of
the parties, London, 27–29 June 1990.
93
Amendment to the Montreal Protocol on Substances that Deplete
the Ozone Layer, adopted at the fourth meeting of the parties, Copenhagen,
23–25
November
1992.
graph 2 (a)). In order to promote implementation, article 4
also requires each of those parties to “communicate, within
six months of the entry into force of the Convention for
it and periodically thereafter, and in accordance with article
12, detailed information on its policies and
measures,
…
as
well
as
on
its
resulting
projected
anthropogenic
emissions
by
sources
and
removal
by
sinks
of
greenhouse
gases
not controlled by the Montreal Protocol”
(article
4,
paragraph
2 (b)). Taken as a whole, the Convention provides
a sound framework for future consideration of the issue; it
establishes a Conference of the Parties and provides it with
94
Amendment to the Montreal Protocol on Substances that Deplete
the Ozone Layer, adopted at the ninth meeting of the parties, Montreal,
15–17 September 1997.
98
See UNEP, Environmental Effects of Ozone Depletion and its
95
Amendment to the Montreal Protocol on Substances that Deplete
the Ozone Layer, adopted at the eleventh meeting of the parties, Beijing, 29
November–3
December
1999.
Interactions with Climate Change: 2010 Assessment (Nairobi, 2010).
Available from www.unenvironment.org/resources/report/environmen
tal-effects-ozone-depletion-and-its-interactions-climate-change-2010.
96
See footnote 92 above.
99
Report of the United Nations Conference on Environment and
97
Sand, “Carrots without sticks? New financial mechanisms for
Development, Rio de Janeiro, 3–14 June 1992 (see footnote 52 above),
global environmental agreements”.
resolution 1, annex I.
258
Documents of the sixty-sixth session
a wide enough mandate—one that includes review of the
implementation and the adoption of protocols—to elaborate specific
obligations.
the regime. Annex I parties must establish national systems
to
estimate
anthropogenic
emissions
by
source
and
removal
by sinks
(article
5), as well as annual
inventories
to incorporate
the
supplementary information
necessary
to
demonstrate
compliance
with
the
commitments
under
the
Protocol
(article
7,
paragraph
2).
It
was
agreed
at
the
seventh session of the
Conference
of the
Parties of the
Framework Convention, held in Marrakesh, Morocco,
in
2001, that
the promotional
approach established
under
the Montreal
Protocol
could
not be relied
upon to ensure
compliance
by
annex
I parties.
Consequently,
it
took
an
enforcement
approach
and
established
a
non-compliance
mechanism
whereby an enforcement
branch would
examine non-compliance
by
annex
I
countries
41. Kyoto Protocol to the United Nations Framework
Convention on Climate Change. The Kyoto Protocol
was negotiated after the first Conference of the Parties
held in Berlin (the Berlin Mandate), which revealed the
inadequacy of the commitments provided for in article 4 of
the Convention. The Kyoto Protocol set quantified emission
reduction targets and a specific timetable for their
achievement. Its major achievement was a commitment
by developed countries (annex I parties) to reduce their
emissions of six greenhouse gases (carbon dioxide, methane,
nitrous
oxide,
sulphur
hexafluoride,
hydrofluorocarbons
and
perfluorocarbons)
by
a
specified
amount,
with
a
view
to
reducing
collective
emissions
by
at
least
5
per
cent
below
1990 levels
in
the
commitment
period
between
2003
and
2012
(article
3,
paragraph
1).
Parties
could
meet
their
commitments in any number of ways, including
the enhancement of energy efficiency, the protection and
enhancement of sinks and reservoirs of greenhouse gases
and the promotion of sustainable forms of agriculture, to
name only a few (article 2, paragraph 1 (a)). Significantly,
developing countries were not assigned emission limitation and
reduction
commitments, in view of the concept of
common
but
differentiated
responsibilities.
The
principle
was
also
reflected
in
provisions
requiring
the
transfer
of
technology
and
financial
assistance.
Special
consideration
was
given
to
countries
most
vulnerable
to
climate
change,
including
small
island
developing
States,
countries
with
low-lying
coastal
areas,
countries
with
areas
prone
to
natural
disasters and countries with areas liable to drought
and desertification (article 4, paragraph 8, of the Convention
itself).
The
Kyoto Protocol
is particularly
notable
for
several
of the innovations it introduced. The agreement
includes three “flexibility mechanisms”, market mechanisms
that aim primarily to achieve the cost-effective
implementation of emission reduction commitments and
secondarily to encourage widespread participation. Article
4
allows
annex
I
parties to
fulfil
their emission
limitation
commitments
jointly.
The
first
two
mechanisms,
the
joint
implementation
and the
clean
development
mechanisms, are project-based. Joint implementation
enables
one developed country to earn emission reduction units
by
investing
in
an
emission-reduction
project
in
another
developed
country
(article
6).
The
clean
development
101
and imposed
a penalty equal to 1.3 times the respective non-complying
portions of their commitments. The penalty was to be
added to their commitments for the second commitment
period.
102
Since the first commitment period came to an
end in 2012, the seventeenth session of the conference of
the parties (Durban Conference), in 2011, decided to work
on the content of a second commitment period set to begin
in 2013. However, Canada, Japan and the Russian Federation
made
clear
that
they
had
no
intention
of
assuming
any
obligations
in
the
second
commitment
period.
Canada
announced
on
12
December
2011 that
it
would withdraw
from
the Kyoto Protocol
entirely.
The
Durban Conference
also decided to “launch a process to develop a protocol,
another
legal instrument or agreed outcome with legal
force” that would be “applicable to all Parties”,
103
and that
would be adopted no later than 2015 and come into effect
from 2020. The eighteenth conference of the parties (Doha
Conference), in 2012, officially adopted an amendment
to the Kyoto Protocol that contained the commitments
of annex I parties during the second commitment period
(2013–2020), but some developed countries decided that
their commitments would not be prescribed in the amendment.
104
During the nineteenth session of the conference
of the parties (Warsaw Conference), in 2013, parties discussed
the
elements
of
an
agreement
to
be
adopted
at
the
twenty-first
session
of
the
conference
of
the
parties,
to
be
held
in
Paris
in
2015.
The
Warsaw Conference
decided
to
invite
“all
Parties” to
elaborate their
intended
nationally
determined
“contributions”
and to communicate
them
well
in
advance
of
the
twenty-first
session,
without
prejudice to the legal nature of the
contributions.
105
2. Jurisprudence of international courts
mechanism, the only flexibility mechanism that engages
and tribunals
developing countries, allows developed country parties to
earn saleable emission reduction credits by investing in
reduction or emission-limitation projects in developing
countries with a view to stimulating sustainable development
(article
12).
The mechanism
is overseen by an
executive
board,
and
emission
reductions
from
projects
must
be
certified
by
designated
national
authorities
(article
12,
paragraph
4)). The third mechanism concerns international
emissions trading. Permits are allocated to each
party in accordance with their emission limitation obligations;
any
unused
emission
permits
can
be
traded
to
other
42. There are several judicial decisions by international courts and tribunals that should be examined
carefully in the course of the study addressed in the
present
report. The
Trail
Smelter
case
106
laid the ground for the
law on transboundary air pollution. Following the
101
See FCCC/CP/2001/13/Add.3, decision 24/CP.7, annex. The
decision was adopted by the first meeting of the parties to the Kyoto
Protocol on 9 and 10 December 2005.
102
Murase, International Law: An Integrative Perspective on Trans-
parties on the “carbon market” (article 17).
100
Monitoring
boundary Issues, p. 174.
provisions are important in promoting compliance with
103
See FCCC/CP/2011/9/Add.1, decision 1/CP.17, para. 2. It may
be noted here that there is no longer any reference to the principle of
“common but differentiated responsibilities”.
100
Rowlands argues that the introduction of these market-based
instruments to environmental regimes is significant, “for it represents
further commodification of the international environment” (Rowlands,
104
See FCCC/KP/CMP/2012/13/Add.1, decision 1/CMP.8.
105
See FCCC/CP/2013/10/Add.1, decision 1/CP.19, para. 2 (b).
“Atmosphere and outer space”, p. 332).
106
See footnote 39 above.
Protection of the atmosphere 259
arbitration of the case, the 1973/1974 Nuclear Tests cases
(Australia v. France and New Zealand v. France)
107
brought
southwards over the United States, causing extensive
damage to crops, timber, pastures, livestock and buildings.
The arbitral tribunal established pursuant to the
Convention for settlement of difficulties arising from
operation of smelter at Trail
before the International Court of Justice sparked heated
discussions related to possible atmospheric pollution. The
Court also referred to the obligation of States to refrain
from causing significant environmental damage beyond
their borders through transboundary pollution, including
atmospheric pollution, in its advisory opinion on the Legality of the
Threat or Use of Nuclear
Weapons
115
was required, pursuant to
108
in 1996.
Although not directly related to pollution of the atmosphere,
the
1997
Gabčíkovo-Nagymaros
Project
(Hungary/
Slovakia)
case
109
addressed the issue of environmental
article IV of the Convention, to apply “the law and practice
followed in dealing with cognate questions in the
United States of America as well as international law and
practice, and [to] give consideration to the desire of the
high contracting parties to reach a solution just to all parties
concerned”.
A
frequently
quoted
passage
of
the
award
reads as follows:
harm in a broader perspective. In the judgment of the Pulp
Mills on the River Uruguay (Argentina v. Uruguay)
110
case rendered in April 2010, the Court referred in part to
the issue of alleged air pollution (to the extent relevant to
the river’s aquatic environment). Furthermore, the Aerial
Herbicide Spraying (Ecuador v. Colombia) case
111
under the principles of international law, as well as of the law of the
United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory
of another or the properties or persons therein, when the case is of
serious
consequence
and
the
injury
is
established
by
clear
and
convincing
evidence.
brought
116
to the Court in 2008, although subsequently settled and
withdrawn, also concerned the subject. The 1996 World
Trade Organization (WTO) case United States—Standards
for Reformulated and Conventional Gasoline
112
posed the
important question of the compatibility of a country’s
domestic law (in this case, the United States Clean Air Act
of 1990) with the trade provisions of the General Agree-
The Trail Smelter case was a traditional type of transboundary air pollution dispute—one in which the
cause
of
the
damage
as
well
as
its
effect
was
sufficiently
identifiable.
The
decision
is
frequently
cited
in
support
of
the
view that under international
law, States have a duty
to
ensure that activities within their jurisdiction and
control
do
not
cause
transboundary
damage
when
the
injury
is
foreseeable, supported by clear and convincing evidence.
ment on Tariffs and Trade. Another decision of note is the
judgment of the European Court of Justice in Luxembourg
in December 2011, Air Transport Association of America
and Others v. Secretary of State for Energy and Climate
Change,
117
The standard of proof is to be established on
113
confirming the validity of the European Union
directive to include aviation activities in the European
Union emissions trading scheme.
114
The decision could
the basis of empirical probability. It is important to note
that the tribunal affirmed the preventive principle based
on scientific evidence, and that it adopted a corresponding
regime to maintain a certain level of emissions.
The precedential value of the award, however, cannot
be upheld completely without qualification:
be challenged by the United States (and possibly China)
in WTO, illustrating the “trade versus environment” conflicts.
A
brief
preliminary
account
of
each
of
those
cases
may be appropriate in the present report to the extent
that
it is relevant to the topic of atmospheric
protection.
118
while the
tribunal relied on the principles of United States law in
accordance with the compromise, the principles referred
to in the award, such as nuisance, trespass and strict
liability, cannot easily be equated with what are considered the established principles of international law
in
all
circumstances.
43. Trail Smelter case. The case was concerned
with cross-border damage in the State of Washington,
United States, caused by smelting operations in Trail,
British Columbia, Canada. At the smelting plant, zinc
and lead-bearing ores were roasted to extract their metals.
In
the
process, the
ores,
which
also
contained
sulphur,
discharged
sulphur dioxide into the atmosphere. Owing
to the physical and meteorological conditions prevalent
in the area, the smelter’s sulphur dioxide clouds moved
119
The significance in the arbitration
lies in the tribunal’s ability to achieve a proper balancing
of
interests
between
industry
and
agriculture
120
and,
by analogy, between economic development and environmental protection, which is in line with the
modern
concept of sustainable
development.
44. Nuclear Tests cases. In the Nuclear Tests cases,
Australia asked the Court in its application “to adjudge
107
Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, p. 253 and Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 457.
108
and declare that the carrying out of atmospheric nuclear
weapon tests in the South Pacific area is not consistent
with obligations imposed on France by applicable rules
of international law”.
Legality of the Threat or Use of Nuclear Weapons, Advisory
121
While the Court indicated provi-
Opinion, I.C.J. Reports 1996, p. 226.
109
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
I.C.J. Reports 1997, p. 7.
115
Signed at Ottawa on 15 April 1935 (UNRIAA, vol. III
110
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judg-
(United Nations publication, Sales No. 1949.V.2), p. 1907).
ment, I.C.J. Reports 2010, p. 14.
116
UNRIAA, vol. III, p. 1965; Kuhn, “The Trail Smelter arbitration,
111
Aerial Herbicide Spraying (Ecuador v. Colombia), Application
United States and Canada”; and Read, “The Trail Smelter dispute”.
by Ecuador (2008, General List No. 138), 31 March 2008, para. 37.
117
UNRIAA, vol. III, p. 1965.
112
WTO, Appellate Body, WT/DS2/AB/R, adopted 20 May 1996.
118
Madders, “Trail Smelter arbitration”, p. 903.
113
Judgment of the Court (Grand Chamber), 21 December 2011,
119
Rubin, “Pollution by analogy: the Trail Smelter arbitration”.
Case C-366/10, European Court Reports 2011.
120
Handl, “Balancing of interests and international liability for the
114
Directive 2008/101/EC of the European Parliament and the
pollution of international watercourses: customary principles of law
revisited”.
Council of 19 November 2008 amending Directive 2003/87/EC so as
to include aviation activities in the scheme for greenhouse gas emission
allowance trading within the Community (Official Journal of the Euro-
121
Memorial on Jurisdiction and Admissibility submitted by the
Government of Australia, I.C.J. Pleadings, Oral Arguments, Docu-
pean Union, L 8, 13 January 2009).
ments: Nuclear Test Cases, vol. I (Australia v. France), para. 430.
260
Documents of the sixty-sixth session
sional measures on 22 June 1973, it rendered a judgment
on 20 December 1974. It held that the objective pursued
by the applicants, namely, the cessation of the nuclear tests,
had been achieved by French declarations not to continue
atmospheric tests and that the Court was therefore not
called upon to give a decision on the claims put forward
by the applicants.
that activities within their jurisdiction and control respect the environment of other States or of areas beyond national
control is now part of
the corpus of international law relating to the
environment.
125
However, it qualified its position by saying the following:
The Court does not consider that the treaties in question could have
122
It may be noted that Australia filed the
case on the grounds of protecting not only its own legal
interests but also the interests of other States since it considered French nuclear tests a violation of the freedom
of
the high seas. Its memorial stated,
inter
alia,
that:
intended to deprive a State of the exercise of its right of self-defence
under international law because of its obligations to protect the environment.
Nonetheless,
States
must take
environmental
considerations
into
account
when
assessing
what
is
necessary
and
proportionate
in
the
pursuit
of
legitimate
military
objectives.
Respect
for
the
environment
is
one
of
the
elements
that
go
to
assessing
whether
an
action
is
in
conformity with the principles of necessity and
proportionality.
126
The sea is not static; its life systems are complex and closely interre-
lated. It is evident, therefore, that no one can say that pollution—especially
pollution
involving
radioactivity—in
one
place
cannot
eventually
have
consequences
in
another.
It
would,
indeed,
be
quite
out
of
keeping
with
the
function
of the
Court
to
protect
by judicial
means
the
interests
of
the
international
community,
if
it
were
to
disregard
considerations
of
this
character.
The Court noted furthermore that
123
Articles 35, paragraph 3, and 55 of Additional Protocol I provide additional
protection
for
the
environment.
Taken
together,
these
provisions
embody
a
general
obligation
to
protect
the
natural
environment
against
widespread,
long-term
and
severe
environmental
damage;
the
prohibition of methods and means of warfare which are intended,
or may be
expected,
to
cause
such
damage;
and
the
prohibition
of
attacks
against
the natural environment by way of reprisals.
These are powerful
constraints for all the States having subscribed to these
provisions.
On that point, the joint dissenting opinion of Judges
Onyeama, Dillard, Jiménez de Aréchaga and Waldock
stated the following:
127
With regard to the right to be free from atmospheric tests, said to
be possessed by Australia in common with other States, the question of
“legal interest” again appears to us to be part of the general legal merits
In his dissenting opinion, Judge Weeramantry elaborated
at length on the effects of nuclear weapons, especially
damage to the environment and the ecosystems, and to
future generations.
of the case. If the materials adduced by Australia were to convince the
Court of the existence of a general rule of international law, prohibiting
atmospheric
nuclear
tests,
the
Court
would
at
the
same
time
have
to
determine what is the precise
character
and content
of that
rule and,
in
particular,
whether
it
confers
a
right
on
every
State
individually
to
prosecute a claim
to secure respect for the rule. In short, the question of
“legal
interest”
cannot
be
separated
from
the
substantive
legal
issue
of
the
existence
and
scope
of
the
alleged
rule
of
customary
international
law.
Although
we
recognize
that
the
existence
of
a
so-called
actio
popularis in
international
law
is a
matter
of
controversy, the
observations
of this Court in the
Barcelona
Traction, Light and Power
Company,
Limited
case
(Second
Phase,
I.C.J.
Reports
1970,
at
p.
32)
suffice
to
show
that the question
is one that
may be considered
as capable
of
rational
legal argument and a proper subject of litigation before this
Court.
128
124
46. Gabčíkovo-Nagymaros Project (Hungary/Slovakia).
This case was essentially concerned with the use of an
international watercourse and was not directly related to
the atmosphere. Nonetheless, the International Court of
Justice touched on several issues relevant to the topic, the
findings of which could also be applicable to the protection
of the atmosphere. While Hungary essentially relied on a
“state of ecological necessity” to justify the suspension or
abandonment of certain works necessary for building the
planned dams, Slovakia argued that the alleged state of
necessity had not existed, and that, regardless, it did not
constitute a reason for the suspension of the party’s treaty
obligations. The Court supported the latter position. With
regard to the measures taken by Slovakia to divert water,
the Court concluded that they could not be considered a
lawful countermeasure, and thus Slovakia was not entitled
to put the diversion installations into operation.
45. Legality of the Threat or Use of Nuclear Weapons.
In its advisory opinion on the Legality of the Threat or
Use of Nuclear Weapons case (as requested by the General
Assembly
in
1996), the
International
Court
of
Justice
questioned
whether
the
use of nuclear
weapons would
lead
to
damage
to
the
environment,
presumably
including
the atmospheric environment.
The Court recognized
that
129
During
the environment is under daily threat and that the use of nuclear weap-
the proceedings, Hungary presented several arguments in
support of the lawfulness of its action, including the impossibility
of
performance
of
the
1977
Agreement
130
(owing in
ons could constitute a catastrophe for the environment [and] … that the
environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including generations
unborn.
The
existence
of
the
general
obligation
of
States
to
ensure
part to ecological imperatives), a fundamental change of
122
circumstances (owing in part to the progress of environmental
knowledge)
and
the
development
of
new
norms
and
prescriptions in international environmental
law.
However,
the
Court, in rejecting the contention of Hungary, relied
Nuclear Tests (Australia v. France), Interim Protection,
Order of 22 June 1973, I.C.J. Reports 1973, p. 99, and Judgment,
I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand v. France),
Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 135,
and Judgment, I.C.J. Reports 1974, p. 457. See Thierry, “Les arrêts du
20 décembre 1974 et les relations de la France avec la Cour internationale
de
justice”;
Franck,
“Word
made
law:
the
decision
of
the
ICJ
in
the
nuclear
test
cases”;
Lellouche,
“The
International
Court
of
Justice—the
Nuclear
Tests
cases: judicial silence v. atomic blasts”; McWhinney,
“International law-making and the judicial process: the World Court
and the French Nuclear Tests case”; Sur, “Les affaires des essais nucléaires”;
and
MacDonald
and
Hough,
“The
Nuclear
Tests case
revisited”.
125
I.C.J. Reports 1974, pp. 241–242, para. 29.
126
Ibid., p. 242, para. 30.
127
Ibid., para. 31.
128
Ibid., pp. 433–555. See Brown Weiss, “Opening the door to the
environment and to future generations”; and Momtaz, “The use of
nuclear weapons and the protection of the environment: the contribution of the International Court of
Justice”.
129
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
123
Memorial on Jurisdiction and Admissibility submitted by the
I.C.J. Reports 1997, p. 7, at pp. 55–57, paras. 82–87.
Government of Australia, I.C.J. Pleadings, Oral Arguments, Documents: Nuclear
Test
Cases,
vol.
I (Australia
v.
France),
para.
459.
130
Agreement between Czechoslovakia and Hungary concerning
124
Nuclear Tests (Australia v. France), Judgment,
mutual assistance in the construction of the Gabčíkovo-Nagymaros
system of locks, Budapest, 16 September 1977, United Nations, Treaty
I.C.J. Reports 1974, p. 253, at pp. 369–370, para. 117.
Series, vol. 1724, No. 30074, p. 120.
Protection of the atmosphere
261
largely on the law of treaties embodied in the Vienna Convention on the Law of
Treaties and the law of State
responsibility
reflected
in
the
Commission’s
2001
draft
articles
131
rather than the principles and rules of international environmental
law.
132
It may be noted that Judge Weeramantry
discussed at length the concept of sustainable development
in his separate opinion.
133
spraying has already caused serious damage to people,
to crops, to animals, and to the natural environment on
the Ecuadorian side of the frontier, and poses a grave
risk of further damage over time”, and requested the
Court to “adjudge and declare that: (A) Colombia has
violated its obligations under international law by causing
or
allowing
the
deposit
on
the
territory
of
Ecuador
of
toxic
herbicides
that
have
caused
damage
to
human
health,
property and the environment; (B) Colombia
shall indemnify Ecuador for any loss or damage caused
by its internationally unlawful acts, namely the use of
herbicides, including by aerial dispersion”.
47. Pulp Mills on the River Uruguay (Argentina v.
Uruguay). In this case, which primarily concerned the
river’s water quality, the International Court of Justice
referred in part to the issue of alleged air pollution to
the extent relevant to the river’s aquatic environment.
138
However,
134
the case was removed from the Court’s list on 13 September
2013
at
the
request
of
Ecuador
since
agreement
had
been reached between the parties regarding, inter
alia, Colombia’s discontinuance of aerial spraying and
the creation of a joint commission.
Argentina contended that emissions from the plant’s
stacks had deposited substances with harmful effects into
the aquatic environment. The Court, however, found that
“the record does not show any clear evidence that substances
with
harmful
effects
have
been
introduced
into
the
aquatic
environment
of
the
river
through
the
emissions
of
the
… mill into the
air”.
135
What is striking about the judg-
49. United States—Standards for Reformulated and
Conventional Gasoline. In this case before the WTO
Appellate Body (1996) a number of important issues on
the protection of the atmosphere were presented. It was
the first ruling in which WTO dispute settlement procedures were
employed.
ment is the Court’s dismissal of virtually every argument
made by Argentina concerning Uruguay’s alleged breach
of the latter’s substantive obligations, on the ground of
lack of evidence, with little elaboration of the substantive
issues. The judgment was met with criticism (in a joint
dissenting opinion, a separate opinion, as well as a declaration)
that
the Court should have
adopted
inquisitorial
methods
(such
as
entrusting
an
enquiry
to
a
commission)
and should not have depended
solely on evidence
produced by the
parties.
139
In the case, Brazil and Vene-
136
One of the distinctive features of
environmental disputes, such as the case at hand, is that
they are often fact-intensive. Accordingly, the gathering
and evaluation of scientific evidence is crucial. The Pulp
Mills case thus posed the further question of what role the
Court should play in the assessment of technical scientific
evidence when settling environmental disputes.
48. Aerial Herbicide Spraying (Ecuador v. Colombia).
This case was squarely concerned with alleged transboundary air pollution. In March 2008, Ecuador
instituted
proceedings claiming “that by aerially spraying
toxic herbicides at locations at, near and over its border with
Ecuador, Colombia has violated
Ecuador’s
rights
under customary and conventional international
law”.
137
In its application, Ecuador stated that “[t]he
131
zuela (Bolivarian Republic of) requested that the Dispute
Settlement Body examine the compatibility of the Clean
Air Act and the “baseline establishment methods” of
the “Gasoline Rule” promulgated by the United States
Environmental Protection Agency with the relevant
WTO provisions. The Clean Air Act and its regulations
are intended to prevent and control air pollution in the
United States by setting standards for gasoline quality and
motor vehicle emissions. Under the 1990 amendment to
the Act, new regulations on vehicular emissions of toxic
air pollutants and ozone-forming volatile organic compounds
were promulgated to improve air quality in the
most polluted areas of the country. These new regulations
applied to United States refiners, blenders and importers.
In
recognizing
that
clean
air
was
a
natural
resource
that could be depleted, the conclusion was reached
that
the baseline establishment methods were not
consistent
with
article
III,
paragraph
4,
of
the
General
Agreement
on
Tariffs
and
Trade
and
could
not
be
justified
under
article
XX,
paragraphs
(b),
(d)
and
(g).
The Panel found
that
imported
and domestic gasoline were “like products”
and that imported gasoline was treated less favourably
than domestic gasoline. The United States appealed to
Draft articles on responsibility of States for internationally
wrongful acts, Yearbook … 2001, vol. II (Part Two), pp. 26 et seq.,
para. 76.
the Appellate Body, arguing that the Panel erred in rul-
132
See “Symposium: the Case concerning the Gabčíkovo-
Nagymaros Project”, Yearbook of International Environmental Law,
vol. 8 (1997), pp. 3–116; Fitzmaurice, “The Gabčíkovo-Nagymaros
case: the law of treaties”; Lefeber, “The Gabčíkovo-Nagymaros Project
and the law of State responsibility”.
133
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
I.C.J. Reports 1997, p. 7, at pp. 88–119.
134
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judg-
ment, I.C.J. Reports 2010, pp. 100–101, paras. 263–264. The issue was
raised during the oral proceedings, see public sitting on 8 June 2006,
CR 2006/47, paras. 22, 28 and 34.
ing that the baseline did not constitute a measure relating
to
the
conservation
of
clean
air
within
the
meaning
of
article
XX,
paragraph
(g).
The
Appellate Body
found
that the
United
States Gasoline Rule was within
the
scope
of the article XX, paragraph (g), exemption, but
that the United States measure constituted “arbitrary”
or “unjustifiable” discrimination or a “disguised restriction” on international trade and thus failed to meet
the
requirements of the chapeau of
article
XX. Hence,
the
case
demonstrated
a
conflict
between
a
domestic
law
for
the
protection of clean air and an international regime
135
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judg-
ment, I.C.J. Reports 2010, p. 101, para. 264.
for free trade, on which the Appellate Body decided in
136
See the joint dissenting opinion of Judges Al-Khasawneh and
favour of the latter.
Simma, ibid., pp. 108–111, paras. 1–6; the separate opinion of Judge
Cançado-Trindade, ibid., p. 191, para. 151; and the declaration of Judge
Yusuf, ibid., pp. 216–220.
138
Ibid., paras. 2 and 38.
137
Application by Ecuador (2008, General List No. 138), 31 March
139
See, in general, Murase, “Unilateral measures and the WTO dis-
2008, para. 37.
pute settlement”.
262
Documents of the sixty-sixth session
50. Air Transport Association of America and Others
v. Secretary of State for Energy and Climate
Change. The judgment of the European Court of Justice
in this case
customary law is in the making, rather than established,
which is known as “emergent rules of customary law”.
144
140
affirmed the validity of including aviation
activities in the European Union emissions trading scheme
within Directive 2008/101/EC of the European Parliament
and the Council of 19 November 2008 amending Directive
2003/87/EC
so
as
to
include
aviation
activities
in
the
scheme
for greenhouse gas emission allowance trading
within the Community. The decision could potentially be
challenged by non-European countries in other forums,
illustrating the conflict between trade and environment.
141
3. Customary international law
52. It is expected that a great part of the Commission’s
work on the present project, like all other projects, will
be devoted to the determination of the customary status
of
given
principles
and
rules
relating
to
the
protection of the atmosphere. From an analytical
perspective,
the
distinction
between
established
and
emergent
rules
becomes important if a parallel is drawn between
the
work
of codification, which is conducted on the basis
of established customary law, and that of progressive
development, which is conducted on the basis of emergent
rules
of
customary
law.
145
However, the Commis-
(a) Opinio juris and general practice
sion does not seem very concerned about distinguishing
the two types of work, suggesting that the difference
between the two sources of rules may not be that significant
in
the
actual
context
of
codification
and
progressive
development (unlike the context of judicial process
in
which the distinction could have a
decisive
impact
on
the determination of whether a particular provision of
a
convention
is
representative
of
a
pre-existing
customary
law).
Of greater importance is the distinction between
emergent rules of customary law and rules that have not
yet reached the necessary stage of maturity to be called
emergent. Elaborating such rules would simply be an
exercise in law-making, which, being outside the mandate of the Commission, should be avoided.
The
crucial
task entrusted to the Commission is thus to clarify
which
elements
are
considered
as
constituting
emergent
rules
of
customary
law
suitable
for
progressive
development.
Again,
this
must
be
determined
on
a
case-by-case
basis.
It is therefore necessary to look to the various
materials
that
may
be
deemed
relevant
in
determining
what
constitutes
an
emergent
rule
of
customary
international
law.
Accordingly,
the material sources praeter legem (outside, but close to, the formal sources of law) should
be
examined.
51. In addition to the multilateral and bilateral conventions described above, there is abundant State
practice
and literature
on the
subject.
The frequently
cited
Trail
Smelter
arbitration continues to be the leading case on
transboundary air pollution. The principle of sic utere tuo
ut alienum non laedas (use your own property so as not
to injure that of another) applied in the award is now generally
recognized
as
part
of
customary
international
law,
although
with certain qualifications and conditions. The
principle is recognized as customary international law as
far as transboundary air pollution between adjacent countries
is
concerned,
to
the
extent
that
cause
and
effect
can
be
proved
with
clear
and
convincing
evidence.
Questions
remain as to whether the same principle
can be extended
to
the case of long-distance (transcontinental) air pollution,
where
the
causal
link
is
difficult
to
prove;
and
as
to
whether
it can be extended to global atmospheric problems
such
as
ozone
depletion
and
climate
change.
Careful
analysis is required in each case to determine
whether and
to what extent a principle
or rule is considered
“established”
as customary international law in the light of
opinio juris sive necessitatis and general State practice.
142
The assessment of evidence regarding the customary
nature of a rule must be done on a case-by-case basis. It is
generally understood that neither opinio unsupported by
custom (usage) nor mere custom unsupported by opinio
qualify as customary law.
(b) Non-binding instruments
143
53. Non-binding instruments are an important source
for determining opinio juris. They include:
There are also cases where
140
See Faber and Brinke, The Inclusion of Aviation in the EU Emis-
— Resolution of the Council of Europe Committee of
Ministers on air pollution in frontier areas;
146
sions Trading System: An Economic and Environmental Assessment;
Leggett, Elias and Shedd, Aviation and the European Union’s Emission
Trading Scheme; and Bartels, “The WTO legality of the application of
the EU emissions trading system to aviation”.
144
See North Sea Continental Shelf, Judgment, I.C.J. Reports 1969,
141
With regard to potential disputes on the European Union emis-
sions trading system before the ICAO Council, see Bae, “Review of
the dispute settlement mechanism under the International Civil Aviation
Organization: contradiction of political body adjudication”. Regarding
ICAO activities to combat climate change in the field of aviation, see the
resolutions adopted at the thirty-eighth session of the ICAO Assembly,
in 2013, entitled “Consolidated statement of continuing ICAO policies
and practices related to environmental protection—general provisions,
noise and local air quality” (resolution A38-17) and “Consolidated statement
of
continuing
ICAO
policies
and
practices
related
to
environmental
protection—climate
change”
(resolution
A38-18)
(Assembly
Resolutions
in
Force (as of
4
October
2013), Montreal, ICAO,
2014).
142
Colombian–Peruvian asylum case, Judgment of November 20th,
p. 3, at p. 41, paras. 69–71. Denmark and the Netherlands asserted that,
even if the provision in article 6 of the Convention on the Continental
Shelf had not been considered as reflecting pre-existing customary law,
that it, as a norm-creating provision, “constituted the foundation of, or
has generated a rule which … has since passed into the general corpus
of international law”. The Court stated that “this process is a perfectly
possible one and does occur from time to time: it constitutes indeed
one of the recognized methods by which new rules of customary international
law may
be formed”
(ibid.,
para.
71).
Although
the
Court
did
not
accept the contention by Denmark and the Netherlands on this
particular
provision
of
article
6, the
Special
Rapporteur
considers
there
to
be
a
strong
basis
for
the
progressive
development
of
“emergent
rule(s)
of customary law”, if supported by other material
sources of law such
as
non-binding
instruments,
domestic
law
and
domestic
court
decisions
and other relevant incidents of State
practice.
1950: I.C.J. Reports 1950, p. 266, at pp. 276–277; North Sea Continental Shelf, Judgment,
I.C.J.
Reports
1969,
p.
3, at
p.
44,
para.
77.
145
For an enlightening analysis on the interrelationship of codifica-
143
It is not always easy to categorize material as evidence of opinio
tion and progressive development, see McRae, “The interrelationship
of codification and progressive development in the work of the International Law
Commission”.
juris or State practice. Sometimes, the same source (such as domestic
legislation) is double counted as evidence of both opinio juris and State
practice.
146
Resolution (71) 5, 26 March 1971.
Protection of the atmosphere
263
— Declaration of the United Nations Conference on the
Human Environment (Stockholm Declaration);
of the human environment”,
155
although it does not spe-
cifically refer to the protection of the atmosphere.
156
The
— OECD recommendation of the Council on principles
concerning transfrontier pollution;
147
— OECD recommendation of the Council for the implementation
of
a
regime
of
equal
right
of
access
and
nondiscrimination in relation to transfrontier
pollution;
148
most important provision of the Declaration is principle
21, which asserts that
States have the “responsibility
to ensure that activities
within their jurisdiction
or control
do
not
cause
damage
to
the
environment
of
other
States
or
of areas beyond the limits
of national
jurisdiction”.
While
the
word
“responsibility”
(to
ensure)
is
somewhat
ambiguous (the
word “devoir”
is
used
in
the
French
text),
the
principle
is now widely
considered
to
have
acquired
the
status
of customary
international
law
as far
as
transboundary
air
pollution
is
concerned,
having
been
incorporated
into several
conventions.
— Rio Declaration on Environment and Development;
— Malé Declaration on Control and Prevention of Air
Pollution and its Likely Transboundary Effects for
South Asia;
157
149
— Acid Deposition Monitoring Network in East Asia;
— International Law Commission, draft articles on
prevention of transboundary harm from hazardous
activities;
150
— International Law Commission, draft principles on the
allocation of loss in the case of transboundary harm
arising out of hazardous activities;
151
— Eastern Africa Regional Framework Agreement on Air
Pollution (Nairobi, 2008);
152
56. Rio Declaration on Environment and Development.
The Rio Declaration was a product of the 1992
United Nations Conference on Environment and Development.
While
it
is
non-binding,
it
establishes
general
principles
on
sustainable
development,
thereby
providing
the
foundation
for future environmental protection regimes.
In addition to general principles, the Declaration contains
specific provisions on procedural elements, such as access
to information and opportunities for public participation
(principle 10); environmental impact assessments (principle
17);
and
notification,
information
exchange
and
consultation
(principle
19). In that
way, it can be seen as a
framework
for
environmental
law-making
at
the
national
and
international levels and a benchmark against which
future developments can be measured.
—Southern African Development Community Regional
Policy Framework on Air Pollution (Lusaka, 2008);
158
Significantly,
153
— West and Central Africa Regional Framework
Agreement on Air Pollution (Abidjan, 2009);
154
the Declaration represents a paradigm shift from environmental
law to the
law of sustainable
development.
The
shift
is evident in the wording of principle 2, a slightly
modified version of principle 21 of the Stockholm Declaration. It states
that
— North African Framework Agreement on Air Pollution
(2011).
States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental and developmental
policies,
and the
responsibility
to
ensure that
activities
within
their
jurisdiction
or
control
do
not
cause
damage
to
the
environment
of
other States or of areas beyond the limits of national
jurisdiction.
54. Although not binding in form, some soft-law instruments
are
very
important
as
they
reflect
material
sources
of
international
law;
a
brief
account
of
some
of
those
documents is therefore appropriate.
55. Declaration of the United Nations Conference
on the Human Environment (Stockholm Declaration).
The Stockholm Declaration laid the ground for international
environmental
law in the
twentieth
century. It
contains
a
set
of
“common
principles
to
inspire
and
guide
the
The Declaration recognizes that in order to effect substantial
change, environmental concerns must be integrated
into the greater framework of economic development;
its stated purpose is to elaborate strategies and measures
to halt and reverse the effects of environmental degradation
in
the
context
of
strengthened
national
and
international
efforts
to
promote
sustainable
and
environmentally
peoples of the world in the preservation and enhancement
sound development in all countries. The Declaration can
147
OECD/LEGAL/0133, available from https://legalinstruments
.oecd.org/en/instruments/OECD-LEGAL-0133.
148
OECD/LEGAL/0152, available from https://legalinstruments
.oecd.org/en/instruments/OECD-LEGAL-0152.
149
Report of the Seventh Governing Council Meeting of the South
Asia Cooperative Environment Programme, annex XVI, Malé, 22 April
1998.
be viewed as a compromise between developed countries
primarily concerned with environmental protection and
developing countries primarily concerned with economic
development. That balance is evident in its key provisions, namely
principles
3 and 4,
respectively.
Principle
3
states
that: “The right to development must be fulfilled
as to equitably meet developmental and environmental
needs of present and future generations.” Principle 4, in
150
Yearbook … 2001, vol. II (Part Two), pp. 146 et seq., para. 97.
151
Yearbook … 2006, vol. II (Part Two), pp. 58 et seq., para. 66.
155
Second preambular paragraph.
152
Available from www.york.ac.uk/media/sei/documents/publica
156
Principle 6 provides that: “The discharge of toxic substances or
tions/gapforum/Eastern_Africa_Air_Pollution_Agreement.pdf. See also
Nordberg, Air Pollution: Promoting Regional Cooperation.
153
Available from https://web.archive.org/web/20111226174616/
of other substances and the release of heat, in such quantities or concentrations
as to
exceed
the
capacity
of the
environment
to
render
them
harmless, must be halted in order to ensure that serious or irreversible
damage is not inflicted upon
ecosystems.”
www.unep.org/urban_environment/PDFs/SADC-LusakaAgreement.pdf.
154
Available from https://www.york.ac.uk/media/sei/documents/
157
Murase, International Law: An Integrative Perspective on Trans-
publications/gapforum/West_and_Central_Africa_Air_Pollution_
boundary Issues, p. 24.
Agreement_English_final.pdf.
158
Sands, Principles of International Environmental Law, p. 54.
264
Documents of the sixty-sixth session
turn, states that: “In order to achieve sustainable development, environmental
protection shall constitute an
integral
part of the development process and cannot be
considered in isolation from it.” Read together, the two
principles form the core of sustainable development. The
Declaration goes on to codify several important principles
contained within the concept of sustainable development:
the precautionary principle,
159
equity (both intragenera-
tional and intergenerational),
160
and common but differ-
entiated responsibilities.
161
The principles laid down in
the Rio Declaration have significantly guided subsequent
environmental treaties.
harm from hazardous activities to the General Assembly.
The draft articles represent the Commission’s attempt not
only to codify but to progressively develop the law through
its elaboration of the procedural and substantive content
of the duty of prevention. Underpinning the draft articles
is the principle of sic utere tuo ut alienum non laedas (as
articulated in the Trail Smelter case and in principle 21
of the Stockholm Declaration). Draft article 3 states that
the State of origin shall take all appropriate measures to
prevent significant transboundary harm or at any event to
minimize the risk thereof. The obligation to prevent transboundary
harm is based on a standard of due diligence.
Due diligence further involves the duty to assess the risk
of activities likely to cause significant transboundary harm
(draft article 7) and the duty to notify and provide relevant
information to State(s) likely to be affected (draft article 8).
Read with the duty of prior State authorization for risk-posing
activities,
the
draft
articles
illustrate
the
interrelatedness
of prevention and precaution, and endorse the
precautionary
principle with regard to environmental protection. In
addition to elaborating the duty of due diligence, the draft
articles codify several important overarching principles,
some already well established in international law and
some referred to with increasing frequency in international
environmental treaties. The Commission refers to the duty
to cooperate in good faith (draft article 4) in preventing significant
transboundary
harm
and
to
seek
solutions
“based
on an equitable balance of interests” (draft
article
9).
57. Acid Deposition Monitoring Network in
East Asia. The Acid Deposition Monitoring Network in
East Asia was developed as part of the initiative to establish
a
regional
framework
for
the
control
of
transboundary
air
pollution.
Owing
to
rapid
economic
growth
and
industrialization,
many countries in the East Asia subregion
are facing a serious threat from air pollution, including
acid deposition. Regional cooperation for countermeasures
to
prevent
regional
air
pollution
is
urgently
needed.
Led
by
Japanese
efforts,
the
Network
aims
to
reduce
the
adverse impact
of acid deposition on human health and
the environment.
As the
institutional
framework for the
Network,
the
intergovernmental
meeting
is
the
decisionmaking
body. In addition, a Scientific Advisory Committee,
composed
of
scientific
and
technical
experts,
has
been
established under the intergovernmental meeting.
The secretariat and the Network Centre are designed to
support the Network. By 2010, 54 deposition monitoring
sites had been set up in 10 participating States, and ecological
surveys had been conducted at 44 sites (forests,
lakes and rivers) in the subregion.
162
59. The Commission’s draft principles on the allocation
of
loss
in
the
case
of
transboundary
harm
arising
out
of
hazardous
activities.
The Commission resumed
its work on the issue of liability with respect to transboundary
harm in 2002, “bearing in mind the interrelationship
between prevention and liability”.
164
The scope of activities
58. The Commission’s draft articles on prevention of
transboundary harm from hazardous activities. The
Commission, while addressing State responsibility for
wrongful acts, also turned its attention to liability for lawful
acts. Based on the recommendation of the Working
Group (established to consider the topic), the Commission
decided that the two aspects of the topic, namely, prevention and remedial
measures, should
be dealt
with
separately.
163
In 2001, the Commission adopted and submitted the
final text of the draft articles on prevention of transboundary
included in the draft principles remains the same as in the
draft articles. The purpose of the draft principles is twofold:
first, to “ensure prompt and adequate compensation to victims
of
transboundary
damage”;
and
second,
to
“preserve
and protect
the
environment in
the
event
of
transboundary
damage,
especially with respect to mitigation of damage
to the environment and its restoration or reinstatement”
(draft principle 3). It is significant that the principles recognize
the
intrinsic
value
of
the
environment
and
prioritize
its protection/preservation. In conjunction with the
draft
articles, they reinforce the principles of equity and
sustainable development. Compensation is based on the
polluter
159
Principle 15 represents a comparatively weak version of the pre-
pays principle. In requiring “prompt and adequate com-
cautionary principle.
160
Principle 3 refers to the needs of both present and future gen-
erations: “The right to development must be fulfilled as to equitably
meet developmental and environmental needs of present and future
generations.”
161
Principle 7 states that: “States shall cooperate in a spirit of global
partnership to conserve, protect and restore the health and integrity of
the Earth’s ecosystem. In view of the different contributions to global
environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the responsibility
that
they bear
in the
international
pursuit
of sustainable
development
in
view
of
the
pressures
their
societies
place
on
the
global
environment
and of the technologies and financial resources they
command.”
pensation” (principle 4) for transboundary environmental
damage, the cost-benefit analysis of preventive measures
is altered; environmental costs (for example, control and
remedial measures) are internalized, giving operators a
greater incentive to take preventive measures. The draft
principles do not provide for State liability. Instead, they
provide for operator liability on a strict liability basis. The
role of the State is to put in place a system of victim compensation
through the adoption of national laws or international
agreements.
The
draft
principles
attempt
to
create
a
framework
to
guide
States
with
its
substantive
and
pro-
162
The Acid Deposition Monitoring Network in East Asia was
cedural provisions. At the substantive end is principle 4,
adopted in Jakarta in March 2000; see Takahashi, “Formation of an
East Asian regime for acid rain control: the perspective of comparative
regionalism”;
13
countries,
namely,
Cambodia,
China,
Indonesia,
Japan,
Lao
People’s
Democratic
Republic,
Malaysia,
Mongolia,
Myanmar, Philippines,
Republic
of Korea, Russian Federation,
Thailand
and
Viet Nam have participated in the
Network.
the provision of prompt and adequate compensation for
164
In accordance with General Assembly resolution 56/82
of 12 December 2001, para. 3. See also Yearbook … 2006,
vol. II (Part Two), p. 57, paras. 62–63; see also General Assembly reso-
163
Yearbook … 1992, vol. II (Part Two), paras. 344–349.
lution 61/36 of 4 December 2006, annex.
Protection of the atmosphere
265
victims of transboundary damage
165
(comprising assigna-
tion of liability without proof of fault, specification of minimum
conditions,
and
establishing
insurance,
bonds
or
other
financial
guarantees
to
cover
liability).
It
should
be
noted
that
a
threshold
of
“significant”
transboundary
harm
must
be
met
in
order
to
trigger
the
application
of
the
regime.
166
At
may be derived from domestic court decisions that can
be applied to an international law context. Typically, the
most relevant cases are those involving transboundary
air pollution such as the 1957 Walter Poro v. Houillères
du Bassin de Lorraine case along the French-German
border.
169
However, there have also been pertinent cases
the procedural end is principle 6: the provision of domestic
and international procedures for claim settlements (comprising
non-discriminatory
access,
availability
of
effective
legal
remedies
and
access
to
information).
The
provisions
are
neither
couched
in
the
language
of
rights
or
obligations,
nor do they address the issue of non-operator State
liability.
involving global issues, notably, Massachusetts v. Environmental
Protection
Agency, which dealt
with the
question of whether the
United
States Environmental
Protection
Agency
could
decline
to
regulate
carbon
dioxide
and
other
greenhouse
gases.
170
Japanese courts have dealt
with a number of cases related to air pollution
171
from
(c) Domestic legislation
which important analogies can be drawn to the protection
of the atmosphere at the international level.
60. Domestic legislation is important insofar as it
addresses issues of transboundary harm to and global protection of the atmosphere. Inspiration may also be
derived
from laws of purely domestic concern that can be applied
by
analogy
to
the
relevant
international
legal
issues.
Domestic
law can be cited as evidence of State practice and, as
such,
constitute
existing or emergent customary international
law. It is also noteworthy that certain domestic legislation
can have the norm-creating effect of opposability.
(e) Other relevant incidents
62. Incidents falling outside the categories listed above
should also be taken into account and analysed to the
extent to which they are considered relevant to State practice.
For
instance,
atmospheric
nuclear
testing
in
the
1950s
manifested
itself
as
one
of
the
first
environmental
issues
to
be
confronted by the
international
community.
172
Acci-
167
For
instance, it can be said that in the United States—Standards for Reformulated and Conventional
Gasoline
case
dents at nuclear facilities can have a direct impact on the
atmosphere, as demonstrated by the accidents at Chernobyl
in
1986 and Fukushima
in
2011 (caused by the
devastating
earthquake
and
tsunami
of
11
March
2011),
and
are
currently
a major
concern,
not only for Japan, but the
international community in
general.
of the WTO Dispute Settlement Body (see paragraph 49
above), the central issue was whether the Clean Air Act of
the United States was opposable vis-à-vis Brazil and Venezuela (Bolivarian Republic
of).
168
In any event, the Special
Rapporteur hopes to be supplied with relevant information
on domestic legislation as well as the judicial decisions of
the domestic courts referred to in paragraph 61 below.
4. Literature
(d) Jurisprudence of domestic courts
63. A selected bibliography of the relevant international
legal issues can be found in the syllabus on the topic,
“Protection of the atmosphere”.
173
61. The decisions of domestic courts are also instructive
to the extent that they are relevant to the protection of
the atmosphere. As with domestic legislation, inspiration
169
Walter Poro v. Houillères du Bassin de Lorraine, Court of
165
Under principle 2 (a), “ ‘Damage’ means significant damage
caused to persons, property, or the environment”. It includes, among
other things, the costs of reasonable response measures and of reinstatement of the
property, or environment including natural
resources.
166
Paragraph (2) of the commentary to principle 2 notes that: “The
Appeals (Oberlandesgericht, 2nd Civil Chamber) of Saarbrücken, Germany,
22
October
1957
(Z
U
45/57),
upon
appeal
against
a
judgment
of
12
February
1957
by
the
Saarbrücken
District
Court
(Landgericht) as
court
of
first
instance;
English
summary
in
Sand,
Transnational
Environmental Law:
Lessons
in Global
Change,
pp. 89–90 and 121; see
also Rest, “International environmental law in German courts”s, p. 412.
term ‘significant’ is understood to refer to something more than ‘detectable’ but need not be at the level
of
‘serious’ or
‘substantial’
”. See also
Yearbook
…
2001,
vol.
II
(Part
Two),
p.
152,
paras.
(4) and (5), of the
commentary
to draft
article
2 of the
draft
articles
on prevention
of
transboundary harm from hazardous
activities.
170
See, for example, Massachusetts v. Environmental Protection
Agency, U.S. Supreme Court decision of 2 April 2007 (549 U.S. 497),
which was concerned in part with certain obligations of the Environmental Protection
Agency to regulate emissions of greenhouse
gases.
167
It is well known that certain domestic measures based on domestic
171
See Osaka, “Re-evaluation of the role of the tort liability system
law have generated the creation of new international law, such as the
regimes of conservation zones (see Moore, “Fur seal arbitration”); and
preferential fishery zone (see Fisheries Jurisdiction (United Kingdom
v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 3). See, on the concept
of
opposability
and
its
law-making
function,
Murase,
International
Law:
An Integrative Perspective on
Transboundary
Issues,
pp.
216–266.
in Japan”, pp. 413–423.
172
See, for example, the Daigo Fukuryu Maru (Lucky Dragon
168
No. 5) incident (Japan–United States) in 1954 (Whiteman, Digest of
International Law, vol. 4, pp. 565–566); Oda, “The hydrogen bomb
tests and international law”; and Goldie, “A general view of international
environmental
law:
a
survey of
capabilities,
trends
and
limits”,
pp.
72–73.
Murase, International Law: An Integrative Perspective on Trans-
boundary Issues, pp. 273–274.
173
Yearbook … 2011, vol. II (Part Two), p. 189, annex II, .
Chapter II
Definition
A. Physical characteristics of the atmosphere
64. In order to determine the definition, scope and
objective of the exercise of codification and progressive
development of international law on the protection of the
atmosphere and characterize its legal status, it is first necessary to understand
the
physical
structure
and
characteristics of the atmosphere.
266
Documents of the sixty-sixth session
65. The “atmosphere” is “the envelope of gases surrounding
the earth”.
174
The average composition of the
atmosphere up to an altitude of 25 km is as follows:
nitrogen (78.08 per cent), oxygen (20.95 per cent), argon
(0.93 per cent), carbon dioxide (0.03 per cent), trace
gases (0.01 per cent) and water vapour
175
in highly vari-
basis of temperature characteristics, namely, from the lower
to upper layers: troposphere, stratosphere, mesosphere and
thermosphere (see figure I). 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.
able amounts. The atmosphere exists in what is called the
atmospheric shell.
177
176
Physically, it extends upwards from
the earth’s surface, the bottom boundary of the atmosphere.
It is divided vertically into four atmospheric spheres on the
In contrast, in the stratosphere (up to the stratopause, at a
height of nearly 50 km), temperatures gradually increase
with height
178
because of the absorption of ultraviolet radi-
174
Concise Oxford English Dictionary, 12th ed. (Oxford, Oxford
ation by ozone. In the third layer, the mesosphere (up to
the mesopause, at a height of 80 km), temperatures again
decrease with altitude. In the fourth layer, the thermosphere,
temperatures once more rise rapidly because of X-ray and
ultraviolet radiation from the sun. The atmosphere extends
above the mesopause and “has no well-defined upper
limit”.
University Press, 2011). A similar definition is found in the Oxford
English Dictionary (Oxford, Oxford University Press, 2014); The New
Shorter Oxford English Dictionary (Oxford, Clarendon Press, 1993);
Webster’s Third New International Dictionary of the English Language
Unabridged (Springfield, Massachusetts, G. and C. Merriam, 1961);
and Le Grand Robert de la langue française, vol. 1 (Paris, Dictionnaires Le Robert, 1985)
(“Enveloppe gazeuse qui
entoure le globe
terrestre”).
The American Meteorology Society physically defines the
atmosphere as “a gaseous envelope gravitationally bound to a celestial
body”. See http://glossary.ametsoc.org/wiki/Atmosphere.
179
Accordingly, there is no sharp scientific boundary
175
between the atmosphere and outer space. Above 100 km,
only 0.00003 per cent of the atmosphere remains. Beyond
that altitude, traces of the atmosphere gradually merge with
the emptiness of space.
Physically, water vapour, which accounts for roughly 0.25
180
per cent of the mass of the atmosphere, is a highly variable constituent.
In
atmospheric
science,
“[b]ecause
of
the
large
variability
of
water
vapor
concentrations
in
air,
it
is
customary
to
list
the
percentages
of
the
177
The thickness of the troposphere is not the same everywhere; it
various constituents in relation to dry air”. Ozone concentrations are
varies with latitude and the season. The top of the troposphere lies at an
also highly variable. Exposure to ozone concentrations [greater than]
0.1 [parts per million by volume] is considered hazardous to human
health. See Wallace and Hobbs, Atmospheric Science: An Introductory
Survey, p. 8.
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 Tarbuck, Lutgens and Tasa, Earth Science, p. 466; Thompson
and
Turk,
Earth Science and the
Environment,
p.
438.
176
The American Meteorological Society defines the “atmospheric
178
Strictly, the temperature of the stratosphere remains constant to a
shell” (also called the “atmospheric layer” or “atmospheric region”) as
“[a]ny one of a number of strata or ‘layers’ of the earth’s atmosphere”
(http://glossary.ametsoc.org/wiki/Atmospheric_shell).
height of about 20 to 35 km and then begins a gradual increase.
179
Tarbuck, Lutgens and Tasa, Earth Science, p. 467.
180
Ibid., pp. 465–466.
Figure I
Spheres above the earth
Altitude{km)
Outer Space
Hori zontal dclimitJlion
,..--·-· or air space
....
..,,., 5phere
Ther .. ~
Upper
100
(no consensus)
100km The lowes.t orbit~
of sa tellites ç--
Atmosphere
Air Space
90km air Pressure 0.000H~
80
Mesopa~u~s~e.::::+-------7r------
Mesosphere
60
Stra\o ause
50km air Pressure 0_
1
%
40
Stretosphere
20
25km The _highest altitude
of arrcrafts
popause ~-Q
.... . .....
re
StateA
17
Earth
Note: The diagram was drawn by the author with the assistance of Jun Okamoto, based on Ahrens, Essentials of Meteorology:
An Invitation to the Atmosphere.
Protection of the atmosphere
267
66. Because of gravity, the atmosphere exerts a downward
force on the surface of the earth. Accordingly, as
altitude increases, the gases in the atmosphere gradually
become
more
dilute.
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. In the troposphere and the stratosphere, the
relative proportions of most gases are fairly stable. Scientifically,
those
spheres
are
grouped
together
as
the
lower
atmosphere,
50 km, and can be distinguished from the upper atmosphere.
182
The atmosphere moves and circulates around the
earth in a complicated manner called atmospheric circulation.
183
The gravitational influence of the sun and moon
also affect its movements by creating atmospheric tides.
184
Figure II shows where atmospheric problems, such as
transboundary air pollution, depletion of the ozone layer
and the accumulation of greenhouse gases, occur.
meaning for the upper atmosphere” (http://glossary.ametsoc.org/wiki
/Lower_atmosphere).
181
which extends to an average altitude of
182
In the same vein, the American Meteorological Society defines
the “upper atmosphere” as residual, that is, “[t]he general term applied
to the atmosphere above the troposphere” (http://glossary.ametsoc.org
/wiki/Upper_atmosphere).
181
The American Meteorological Society defines the “lower
atmosphere” as “[g]enerally 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
183
Jones and others, Collins Dictionary of Environmental Science,
p. 41.
184
Allaby, Dictionary of the Environment, p. 34.
Figure II
Atmospheric circulation
Atmospheric Circulation
Altitude (km)
40
Ozone Layer
Ozone Layer
Greenhouse Gases
t>,ir po\\utio11
Note: The diagram was drawn by the author, with the assistance of Jun Okamoto, based on C. Donald Ahrens, Essentials of
Meteorology: An Invitation to the Atmosphere, 6th ed. (Belmont, California, Brooks/Cole, 2011), p. 210.
18
67. Both human and natural environments can be
adversely affected by certain changes in the condition of
the atmosphere. There are three particularly important
causes for the degradation of the atmosphere.
185
First,
the introduction of harmful substances (namely, air
atmospheric conditions. The major contributing sources
of air pollution are acids (namely, nitrogen oxides and
sulphur oxides), carbon monoxide, particulate matter
and volatile organic compounds. Ozone and other
photochemical oxidants are produced by a photochemi-
pollution) into the troposphere and lower stratosphere
cal reaction of nitrogen oxides and volatile organic
and associated chemical reactions
186
cause changes in
185
See Dolzer, “Atmosphere, protection”, p. 290; and Kreuter-
Kirchhof, “Atmosphere, international protection”.
186
Scientifically, pollutants are divided into two types: primary pol-
and secondary pollutants, substances that are not emitted directly into
the air, but form in the atmosphere when reactions take place among
primary pollutants. After the primary pollutant is emitted into the
atmosphere, it combines with other substance(s) to produce other constituent
pollutants through solar radiation or by photochemical reac-
lutants, substances that are emitted directly from identifiable sources;
tions. See Tarbuck, Lutgens and Tasa, Earth Science, p. 464.
268
Documents of the sixty-sixth session
compounds under the sunlight in the troposphere; they
produce harmful effects on humans and ecosystems.
187
Strong horizontal winds, for example, jet streams,
188
destroying the stratospheric ozone layer, have residence
times that often exceed a century. The upper atmosphere
(namely, the mesosphere and
thermosphere),
which comprises approximately
0.0002
per
cent of
the
atmosphere’s total mass, and outer space are of
little
concern
as regards the environmental problems under
consideration.
can quickly transport and spread such trace gases
horizontally all over the globe far from their original
sources (although vertical transport is mostly slow). It
is important to recognize this functional aspect of the
atmosphere as a medium for transporting pollutants.
Some pollutants that are relatively innocuous while in
the atmosphere can have significant deleterious effects
when they accumulate in polar regions—both on fauna
and flora and, through food chains, on humans, as in the
cases of persistent organic pollutants and mercury. Second,
chlorofluorocarbons,
halons
and
other
halocarbons
emitted into the upper troposphere and
stratosphere
cause
ozone
depletion.
The ozone
layer, as its name
implies,
contains significant amounts of ozone. Ozone
has the same chemical structure, whether it occurs miles
above the earth or at ground level. It can be “good” or
“bad”, depending on its location in the atmosphere. The
main concentrations of ozone (“good” ozone) are at altitudes of between 15 and
40
km (maximum concentrations
occur
between
20
and
25
km).
The
ozone
layer
filters
out
harmful
ultraviolet
radiation
(known to
cause
skin
cancer
and
other
injury
to
life)
from
the
sun.
Third,
changes
in
the
composition of the
troposphere
and
lower
stratosphere
cause
climate
change.
The
main
source
of
anthropogenic
climate
change is the emission of gases (which already
exist in trace amounts in the atmosphere), such as carbon
dioxide,
nitrous
oxide,
methane
and
hydrofluorocarbons.
Such
greenhouse
gases
are
listed
in
annex
A
of
the
Kyoto
Protocol (see paragraph 33 above).
B. Definition of the atmosphere
69. Having briefly described the unique physical characteristics
of the atmosphere, it is now
necessary to
formulate
an appropriate legal definition that reasonably
corresponds to the scientific definition. Most international
treaties and documents do not define “atmosphere”, even
though it is the object of protection for the purpose of the
application of those treaties. Alternatively, such instruments
tend
to
define
the
causes
and
effects
of
damage
to
the object of
protection.
192
It may nonetheless be noted
that, in the contribution of Working Group I to the Fourth
Assessment Report of the Intergovernmental Panel on
Climate Change, Climate Change 2007—The Physical
Science Basis, atmosphere is defined as follows:
The gaseous envelope surrounding the Earth. The dry atmosphere
189
Conditions
consists almost entirely of nitrogen (78.1% volume mixing ratio) and
oxygen (20.9% volume mixing ratio), together with a number of trace
gases, such as argon (0.93% volume mixing ratio), helium and radiatively
active greenhouse gases such as carbon dioxide (0.035% volume
mixing
ratio)
and
ozone.
In
addition,
the
atmosphere
contains
the
greenhouse
gas
water
vapour,
whose
amounts
are
highly
variable
but
typically
around 1% volume mixing ratio. The atmosphere also contains clouds and
aerosols.
193
within the troposphere heavily affect the weather on the
earth’s surface, including cloud formations, haze and precipitation.
While
some
gases
and
aerosols
are
expunged
through
a
natural
cleansing
process
in
the
troposphere,
190
and a certain amount of carbon dioxide is absorbed by
forests and oceans, emissions can overwhelm these processes, causing climate change to
occur.
70. Once it undertakes the task of elaborating guidelines
on the law relating to the atmosphere, the Commission
will
need
to
define
the
atmosphere.
In
so
doing,
it may need to address both the substantive aspect
of
the
atmosphere as a layer of gases and the functional
aspect of the atmosphere as a medium within which the
68. The three core international issues concerning
the atmosphere—air pollution, ozone depletion and
climate change—relate to the troposphere and the
stratosphere,
192
For instance, in the Convention on Long-range Transboundary
191
although the major contributing factors
may differ in each case. One such factor is residence
time. While traditional air pollution constituents have a
residence time of days to weeks, greenhouse gases, such
Air Pollution, “air” is not defined, only a definition of “air pollution”
is given. Article 1 (a) defines “air pollution” as “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 or interfere with amenities and other legitimate uses of the
as carbon dioxide and nitrous oxide, and compounds
environment”; and article 1 (b) defines “long-range transboundary air
187
See Royal Society, Ground-level Ozone in the 21st Century: Future
Trends, Impacts and Policy Implications (London, 2008). Available
from https://royalsociety.org/topics-policy/publications/2008/ground
-level-ozone.
188
Jet streams are narrow air currents, especially westerly winds
(namely, those flowing from west to east) found in the upper stratum of
the troposphere. They move at high speeds of between 240 and 720 km
per hour.
189
In recent years, however, experts have found that some of the
pollution” as “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 such a distance that it is not generally possible to distinguish
the contribution of individual emission sources or groups of sources”.
The Convention also refers to “substances or energy” in its definition
of air pollution (art. 1 (a)). Some of the protocols to the Convention,
while referring to the “atmosphere” in their preambles, and in their
object and purpose clauses, give no definition of the term. The definition
of
“emission”
is
given
as
“the
release
of
a
substance
from
a
point
or
diffuse source into the atmosphere”. The United Nations Framework
Convention
on
Climate
Change
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”
(art.
1,
substances in the troposphere are also responsible for climate change.
On a scientific basis, chlorofluorocarbons also have greenhouse effects.
Such contributions are defined as “a greenhouse warming potential
(GWP)” (see Wallace and Hobbs, Atmospheric Science: An Introductory
Survey,
pp.
453–454).
190
“Tropospheric … is continually being cleansed or scavenged
para. 2). The same article defines “greenhouse gases” as “those gaseous
constituents
of
the
atmosphere,
both
natural
and
anthropogenic,
that
absorb
and
re-emit
infrared
radiation”
(art.
1,
para.
5).
Such
definitions
refer
to
the
effects
and
causes
of
the
damage
to
the
object
the
Convention aims to
protect.
of aerosols by cloud droplets and ice particles, some of which subsequently fall to the ground as rain or snow”
(ibid.,
p.
11).
193
Annex I (available from www.ipcc.ch/site/assets/uploads/2018/05
191
Kiss and Shelton, International Environmental Law, pp. 556–562.
/ar4_wg1_full_report-1.pdf), p. 941.
Protection of the atmosphere
269
transport and dispersion of airborne pollutants occurs.
The Special Rapporteur thus proposes the draft guideline set out
below.
stratosphere, within which the transport and dispersion
of airborne substances occurs.”
194
194
Definitions of other terms will be proposed at later stages, as
“Draft guideline 1. Use of terms
appropriate. Nonetheless, it may be helpful to give a tentative definition
of “air pollution” (which will be discussed in some depth in the second
report of the Special Rapporteur). Draft guideline 1 (b): “Air pollution”
means the introduction by humans of chemicals, particulate matter, biological
material
or
energy
that
degrade
or
alter,
or
form
part
of
a
process
of
degradation or alteration of, the atmosphere, and that have or are
likely to have significant adverse effects on human life or health or the
earth’s natural environment.
“For the purposes of the present draft guidelines,
“(a) ‘Atmosphere’ means the layer of gases
surrounding the earth in the troposphere and the
Chapter III
Scope of the draft guidelines
A. Anthropogenic environmental degradation
not only activities conducted by States but also those conducted by natural and juridical
persons.
71. In clarifying the scope of the project, it is necessary to address the main elements
to be encompassed by
the
draft
guidelines
on
the
protection
of
the
atmosphere,
leaving
no ambiguity as to its coverage. It may be useful to refer to the previous work of the
Commission.
195
73. The atmosphere has been used in several ways, most
notably in the form of aerial navigation. Acoustic/noise
pollution has raised transboundary problems for airports
in border regions, which have been addressed by a number
of bilateral treaties and a growing body of judicial
cases.
In general, the articles of multilateral environmental treaties
relating
to
scope
refer
either
to
the
effects
of
pollution
(significant
adverse
effects)
or
to
its
causes
(human
activities).
However, those two components are
complementary
to each
other, with the “causes” of human activities
resulting in certain
effects,
199
Weather modification is another example for uti-
196
and vice versa.
197
lization of the atmosphere. Scientists have been suggesting
various
possible
methods
for
active
utilization
of
the
atmosphere.
Some
of
the
proposed
geoengineering
technologies
(such
as
solar
radiation
management
and
carbon
dioxide
removal) are relevant if they become realizable.
Thus, modalities
of the
use (or utilization)
of
the
atmosphere
should certainly
be considered
in depth
by the
present
study.
72. The proposed draft guidelines only address damage
caused
by
human
activities.
Accordingly,
their
scope
would
not extend to, for instance, damage caused by
volcanic eruption or desert sands (unless exacerbated by
human activities).
198
The term “human activities” includes
195
See draft article 1 (“Scope”) of the draft articles on the law of
transboundary aquifers (Yearbook … 2008, vol. II (Part Two), p. 20,
para. 53), as follows: “The present draft articles apply to: (a) utilization
of
transboundary
aquifers
or
aquifer
systems;
(b)
other
activities
that have or are likely to have an impact
upon such aquifers or aquifer
systems;
and
(c)
measures
for
the
protection,
preservation
and
management of such aquifers or aquifer systems.”
196
For example, article 1 of the Convention on Long-range Trans-
74. Obviously, most of the activities so far are those
conducted without a clear or concrete intention to affect
atmospheric conditions. There are, however, certain activities
whose very purpose is to alter
atmospheric
conditions,
namely, weather modification (weather control).
While weather modification in warfare has been prohibited under the Convention on the prohibition
of military
or
any other hostile use of environmental modification
techniques,
200
weather control has been experimented
boundary Air Pollution provides that: “For the purpose of the present
Convention: (a) ‘Air pollution’ means the introduction by man, directly
or indirectly, of substances or energy into the air resulting in deleterious
effects”. Draft principle 1 (“Scope of application”) of the draft principles
with and practised widely since the 1940s to produce
desirable changes in weather. The General Assembly
addressed the issue in 1961.
201
The goals of weather con-
on the allocation of loss in the case of transboundary harm arising out of
hazardous activities (Yearbook … 2006, vol. II (Part Two), p. 58, para. 66)
states that: “The present draft principles apply to transboundary damage
caused by hazardous activities not prohibited by international law.” Draft
article 1 (“Scope”) of the draft articles on prevention of transboundary
harm from hazardous activities (Yearbook … 2001, vol. II (Part Two),
p. 146, para. 97) states that: “The present articles apply to activities not
prohibited by international law which involve a risk of causing significant
transboundary harm through their physical consequences.”
199
See, for example, the French–Swiss border, the judgment of the
197
For example, article 1, paragraph 2, of the United Nations Frame-
work Convention on Climate Change provides that for the purpose of
this Convention, “ ‘climate change’ means a change of climate which is
attributed directly or indirectly to human activity”.
French Court of Appeal at Lyon in the Cointrin airport case (Gazette
du Palais, vol. 74-II (1954), p. 205), followed by a bilateral boundary
airport treaty in 1956; see Guinchard, “La collaboration franco–helvétique
en matière d’aéroports (Bâle-Mulhouse et Genève)”. Multilateral
regimes
relevant
to
aircraft
noise
damage
include
the
Agreement
between
the
Parties
to
the
North
Atlantic
Treaty
regarding
the
status
of
their
forces;
see,
for
example,
Kiss
and
Lambrechts,
“Les
dommages
causés
au sol par les vols supersoniques”, p. 771. Global technical
standards for aircraft noise emissions have been laid down since 1971
by ICAO; see Davies and Goh, “Air transport and the environment:
regulating aircraft noise”.
198
In the context of the Convention on Long-range Transboundary
Air Pollution, Iceland even made a premonitory reservation upon signature of the Convention
that it “does not take upon itself any
responsibility
for
long-range
transboundary
air
pollution
caused
by
volcanic
eruptions in Iceland”
(see ECE/HLM.1/2/Add.1,
vol.
II,
annex
IV).
Note,
however,
that
some
regional
instruments
also
cover
air
pollution
from
natural
causes;
for
example,
article
1,
paragraph
6,
of
the
ASEAN
Agreement
on
Transboundary
Haze
Pollution,
and
the
African
regional
200
The Convention entered into force in 1978.
201
In section C, paragraph 1 (a), of its resolution 1721 (XVI) of
20 December 1961 on international cooperation in the peaceful uses of
outer space, the General Assembly advised Member States and other
relevant organizations “to advance the state of atmospheric science
and technology so as to provide greater knowledge of basic physical
forces
affecting
climate
and
the
possibility
of
large-scale
weather
framework agreements.
modification.”
270
Documents of the sixty-sixth session
trol range from preventing the occurrence of damaging
meteorological events, such as hurricanes or tornadoes,
to causing beneficial weather, such as artificial rainfall in
an area experiencing drought; or, conversely, to stopping
the rain in a designated area where an important event is
scheduled to take place. Cloud seeding is a common technique
to enhance precipitation; it entails spraying small
particles such as dry ice and silver iodide into the sky in
order to trigger cloud formation for eventual rainfall. Evidence
of
its
safety
is
strong,
but
doubts
remain
as
to
its
efficacy.
The
Governing
Council
of
UNEP
approved
a
set
of
recommendations
for
consideration
by
States
and
other
weather
modification
operators
in
1980.
guidelines should include both. It should also be added
that any adverse effects on the environment should be
“significant”, warranting international regulation.
C. Causes of atmospheric degradation
76. While the present draft guidelines address various
aspects of atmospheric degradation, both transboundary
and global in nature, the causes of such environmental
degradation are diverse. The causes generally fall into
two categories, the first of which is the introduction of
(deleterious) substances or energy into the atmosphere.
205
202
If large-scale
weather control were to become feasible in the future,
there could be harmful consequences. Potential negative
implications might include unintended side effects, damage
to existing ecosystems and health risks to humans.
Such effects, if transboundary in nature, could generate
international concern for their injurious consequences.
203
It is suggested that progressive development of international law in this particular area should be
pursued.
204
B. Protection of natural and human environments
The major pollutants are acids (namely, nitrogen oxides),
sulphur oxides, carbon monoxide, particulate matters
and photochemical oxidants. Ozone depletion occurs as
a result of the introduction of (deleterious) substances,
such as chlorofluorocarbons and halons, into the atmosphere.
In contrast, the main cause of climate change is
the emission of greenhouse gases, such as carbon dioxide,
nitrous oxide and methane. These gases are not always
inherently deleterious to human health; rather, they have
an indirect effect. They tend to cause climate change by
altering the composition of the atmosphere.
206
Thus, the
75. The draft guidelines should make clear the objects
subject matter of the present draft guidelines, from a
causal viewpoint, will include not only the introduction
of certain substances but also of energy into the atmosphere, which would cover the problems of
radioactive/
nuclear
pollution,
to be protected: natural and human environments. For
the purpose of the present draft guidelines, the former is
addressed as “the composition and quality of the atmosphere”
and
the
latter
as
“human
health
or materials
useful
to mankind”. Since the present draft guidelines are
aimed at protecting the atmosphere, the primary concern
is obviously the natural environment. However, given the
intrinsic relationship between the natural environment
and the human environment (which includes not only
human health in a narrow sense but also natural vegetation
and
crops,
materials
and
historical
heritage),
the
draft
207
and will also include the cases of the
205
For example, article 1 (a) of the Convention on Long-range
202
Decision 8/7 A of the UNEP Governing Council on provisions
Transboundary Air Pollution provides that: “ ‘air 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 or interfere with amenities and other legitimate uses
of the environment”; while article 1, paragraph 1, of the Agreement
between Canada and the United States of America on air quality provides
that
“
‘air
pollution’ means
the
introduction
by man,
directly
or
indirectly,
of
substances
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 or interfere with
amenities
and
other
legitimate
uses
of
the
environment”.
It
should
be
noted
that
article
1,
paragraph
1
(4),
of
the
United
Nations
Convention
on
the
Law
of
the
Sea
defines
“pollution
of
the
marine
environment”
as
“the
introduction
… of substances or
energy into the marine
environment”.
for cooperation between States in weather modification, adopted at
its eighth session, on 29 April 1980 (Official Records of the General
Assembly, Thirty-fifth Session, Supplement No. 25 (A/35/25), annex I).
It may be noted that, as early as 1963, WMO made an important remark
cautioning the need for a prudent approach to weather modification
technologies, stating: “the complexity of the atmospheric processes is
such that a change in the weather induced artificially in one part of the
world will necessarily have repercussions elsewhere. This principle can
be affirmed on the basis of present knowledge of the mechanism of the
general circulation of the atmosphere. However, that knowledge is still
far from sufficient to enable us to forecast with confidence the degree,
206
For example, article 1 of the United Nations Framework Con-
vention on Climate Change provides that “ ‘climate change’ means 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”. See also article 1, paragraph 1, of resolution III of the
nature or duration of the secondary effects to which change in weather
or climate in one part of the earth may give elsewhere, nor even in
fact to predict whether these effects will be beneficial or detrimental.
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”. Roslycky,
“Weather
modification
operations
with
transboundary
effects:
the
technology, the activities and the rules”,
p.
20.
Institute of International Law of 20 September 1987 on transboundary
air pollution, which provides that: “For the purposes of this Resolution,
‘transboundary air pollution’ means any physical, chemical or biological alteration in the composition or quality of the
atmosphere*
which
results directly or indirectly
from human acts or omissions, and
produces
injurious
or
deleterious
effects
in
the
environment
of
other
States
or of
areas beyond the limits of national
jurisdiction”
(Yearbook,
Session of Cairo 1987,
vol.
62, Part II, Paris, Pedone,
1988).
203
Sand, “Internationaler Umweltschutz und neue Rechtsfragen der
207
Questions on radioactive air pollution were debated in the context
Atmosphärennutzung”; see also Taubenfeld, “International environmental
law:
air
and
outer
space”,
p.
195;
and
Brown
Weiss,
“International responses to weather modification”,
p.
813.
204
It is suggested that the following points may be considered as
of the Convention on Long-range Transboundary Air Pollution. While,
according to the explanatory memorandum to the Convention contained
in a communication from the Government of Germany to Parliament
(“Entwurf eines Gesetzes zu dem Übereinkommen vom 13, November
1979
über
weiträumige
grenzüberschreitende
Luftverunreinigung”,
Deutscher
Bundestags-Drucksache
9/1119,
2
December
1981,
p.
14),
regards weather modification: the duty to benefit the common good of
humankind; the duty not to cause significant transboundary harm; the
duty to perform environmental impact assessments; public participation;
the
duty
to
cooperate;
exchange
of
information
and
notification;
consultation;
the
duty
to
utilize
international
organizations;
and
State
responsibility.
See Roslycky, “Weather modification operations with
transboundary effects: the technology, the activities and the rules”,
pp. 27–40. See also Davis, “Atmospheric water resources development
radioactive substances are not covered (see also Rest, “Tschernobyl und
die Internationale Haftung”, pp. 612–613), the Government of Austria
had expressed the contrary view, in a statement during the preparatory
work of the Convention in January 1979 suggesting that the scope of the
Convention should also include the study of possible negative effects
resulting from the peaceful uses of nuclear energy on the environment
and international law”, pp. 17 et seq.
of a State or States other than the State within which such activities are
Protection of the atmosphere
271
alteration of the composition of the atmosphere. It bears
repeating that the present draft guidelines will not attempt
to deal with the specific substances causing such atmospheric
degradation.
law
210
and international human rights law.
211
The present
draft guidelines will refer to those interrelationships, as
appropriate. However, the linkages will be referred to as
far as they are relevant to the other parts of the present
draft guidelines.
D. Linkages with other areas of international law
78. On the basis of the foregoing considerations, the
Special Rapporteur’s proposal for draft guideline 2 would
read as follows:
77. Obviously, the law of the atmosphere is intrinsically
linked
with
other
fields
of
international
law
such
as the law of the
sea
208
and biodiversity (forestry, deser-
tification and wetlands),
209
as well as international trade
“Draft guideline 2. Scope of the guidelines
carried out; in this sense, see also Rauschning, “Interim report of the
Committee: legal problems of continuous and instantaneous long-distance
air
pollution”,
p.
219;
and
Sands,
Chernobyl: Law
and
Communication—Transboundary Nuclear
Air Pollution—The
Legal
Materials,
p.
163
(the
definition
in
the
Convention
on
Long-range
Transboundary
Air
Pollution
is
“clearly
wide
enough
to
bring
radioactive
fallout
within
the
scope
of
the
Convention”).
At
the
global
level,
the
United
Nations
Scientific
Committee
on
the
Effects
of
Atomic
Radiation,
established
by the General
Assembly in its resolution
913
(X) of
3
December
1955
and
now operating under the auspices of UNEP in Vienna, regularly
monitors the levels and effects of ionizing radiation irrespective of its
origin, including atmospheric emissions from underground tests not
prohibited by the Treaty banning nuclear weapon tests in the atmosphere,
in outer
space
and under water of 1963.
These
measurements
thus
reflect
the
cumulative
impact
of
transnational
radioactive
air
pollu-
“(a) The present draft guidelines address human
activities that directly or indirectly introduce deleterious
substances
or
energy
into
the
atmosphere
or
alter
the
composition
of
the
atmosphere,
and
that
have
or
are
likely
to
have
significant
adverse
effects
on
human
life
and health and the
earth’s natural
environment;
“(b) The present draft guidelines refer to the basic
principles relating to the protection of the atmosphere
as well as to their interrelationship.”
tion from an aggregate of sources worldwide; see Sources and Effects of
Ionizing Radiation: United Nations Scientific Committee on the Effects
of Atomic Radiation: UNSCEAR 2008 Report to the General Assembly
with Scientific Annexes (United Nations publication, Sales No. E.10.
IX.3, 2010). On data-sharing by the Committee with the International
Monitoring System under the Comprehensive Nuclear Test Ban Treaty
(see General Assembly resolution 50/245 of 10 September 1996 and
document A/50/1027), see Weiss, “The global dimensions of atmospheric
radioactivity
detection:
experience
and conclusions
after
the
Fukushima Daiichi nuclear power plant
accident”.
natural ecosystems, and article 4, paragraph 1, calls upon State parties
to conserve “sinks and reservoirs of all greenhouse gases … including
biomass,
forests
and
oceans
as
well
as
other
terrestrial,
coastal
and
marine
ecosystems”.
See
also
article
2,
paragraph
1
(a)
(ii), of the Kyoto
Protocol
and
the
Convention
on
Biological
Diversity,
United
Nations
Convention
to combat desertification in those countries experiencing
serious drought and/or desertification, particularly in Africa, and
the Convention on wetlands of international importance especially as
waterfowl habitat.
208
See United Nations Convention on the Law of the Sea, arti-
210
See, in general, Murase, International Law: An Integrative Per-
cles 212 (“Pollution from or through the atmosphere”) and 195 (“Duty
not to transfer damage or hazards or transform one type of pollution
into another”).
spective on Transboundary Issues, pp. 130–166.
211
See, in general, Schulze, Wang-Helmreich and Sterk, Human
209
The preamble of the United Nations Framework Convention on
Climate Change refers to the negative impact of climate change on
Rights in a Changing Climate—Demands on German and International
Climate Policy: The Human Rights to Food and to Water; and Knox,
“Climate change and human rights law”.
Chapter IV
Legal status of the atmosphere
79. There are five concepts that may be considered
applicable to the legal status of the atmosphere: airspace,
the Convention on International Civil Aviation provides
that “every State has complete and exclusive sovereignty
shared or common natural resources, common prop-
over the ‘airspace’ above its territory”. Article 2 of the
erty, common heritage and common concern (common
interest).
212
Each of the concepts is briefly considered
below as to whether and to what extent they are applicable
to the protection of the atmosphere.
same Convention defines the territory of a State to be the
land areas and adjacent territorial waters. 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 (see also the reference
to airspace in article 2 of the United Nations Convention
on the Law of the Sea).
A. Differentiation between airspace
and the atmosphere
214
80. The notion of “airspace” differs significantly from
that of the “atmosphere”. The two terms cannot be used
interchangeably. Airspace is a concept used to signify the
214
Article 2 (“Legal status of the territorial sea, of the air space over
spatial dimension where States exercise their jurisdiction
or control for aviation and defence.
213
Thus, article 1 of
212
Boyle, “International law and the protection of the global atmos-
phere: concepts, categories and principles”; see also Brunnée, “Common areas, common heritage, and common
concern”.
the territorial sea and of its bed and subsoil”) states:
“1. The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an archipelagic State,
its archipelagic waters, to an adjacent belt of sea, described as the territorial
sea.
“2.
This sovereignty extends to the air space over the territorial
sea as well as to its bed and subsoil.
“3. The sovereignty over the territorial sea is exercised subject to
213
See Hobe, “Airspace”, and Tomas, “Air law”.
this Convention and to other rules of international law.”
272
Documents of the sixty-sixth session
81. Airspace refers to a domain,
215
an area-based
Therefore, the inclusion of a saving clause is proposed to
the effect that nothing in the draft guidelines shall affect
the legal status of airspace provided in other conventions.
approach; the atmosphere, in contrast, is a natural resource
that flows through national boundaries. In respect of the
legal status of the atmosphere, a functional, non-territorial,
approach is more appropriate
because it is a dynamic
and
fluctuating
substance.
Obviously,
(vertical)
delimitation
is
possible
in
the
case
of
airspace
by
drawing
lines
vertically
along
territorial
borders,
but
such
artificial
lines
are
not
useful
in the
case
of the
atmosphere
(air),
which
moves beyond borders in line with “atmospheric
circulations”
and
“jet
streams”.
Thus,
the
atmosphere
is
a
fluid,
single
and non-partitionable unit, whereas airspace is a
static—and separable—spatial domain.
B. Natural resources, shared or common
84. The atmosphere (air mass) is the earth’s largest
single natural resource, so listed—along with mineral,
energy and water resources—by the Committee on Natural
Resources,
218
as well as in the Stockholm Declara-
tion
219
and in the World Charter for Nature.
220
It provides
renewable “flow resources” essential for human, plant
and animal survival on the planet; and, in addition to
contributing basic economic production supplies (for
example, oxygen and precipitation) as well as waste
absorption services (for example, as a sink resource or
dilution medium for combustion exhausts), it serves as a
medium for transportation and communication (“spatialextension
resource”).
82. Thus, the area-based approach adopted, for instance,
by the United Nations Convention on the Law of the Sea
(part XII, “Protection and preservation of the marine environment”)
cannot be followed for the protection
of the
atmosphere.
The environmental regulations of the Convention
are
predominantly
based
on spatial
(territorial)
criteria
(including the territorial sea, contiguous zones,
exclusive economic zones and the high seas) for allocation of proper jurisdiction to control marine pollution, for
example,
flag-State
jurisdiction,
coastal-State
jurisdiction
and port-State
jurisdiction.
221
It must be borne in mind that the
216
atmosphere is a limited resource with limited assimilation
capacity.
The
WTO Panel and
Appellate Body
recognized
in
the
Gasoline case
of
1996 that clean air was
a
natural
resource that
could be depleted.
The
atmosphere
was
long
considered
to
be
unlimited,
non-exclusive
and
neutral
(simply not worth fighting over) since it was
assumed that everyone could benefit from it without
depriving others.
83. States may nonetheless feel it necessary to refer to
the notion of airspace in the project since article 1 of the
Convention on International Civil Aviation reaffirms the
rule that “every State has complete and exclusive sovereignty
over
the
airspace
above
its
territory”.
Although
the
legal
principles, rules and regulations envisaged in the
proposed draft guidelines are perhaps most applicable to
certain activities conducted on the ground within a State’s
territorial jurisdiction, there may be situations where the
activities in question may be conducted in its airspace.
222
That assumption is no longer valid.
Although the atmosphere is not exploitable in the ordinary sense of the word (such as in the context of oil
and
gas
resources),
its
proper
maintenance
is
necessary
for
organisms
to breathe and enjoy stable climatic conditions;
thus,
any
polluting
industry
or
polluting
States
in
fact
exploit
the
atmosphere
by
reducing
its
quality
and
218
The inclusion of “atmospheric resources” among “other natural
217
215
The strict (horizontal) delimitation of airspace and outer space
resources” by the former Committee on Natural Resources was first
mentioned in the Committee’s report on its first session (New York,
22 February–10 March 1971), chap. II, sect.A.4 (“Other natural
resources”), paragraph 94 (d) (Official Records of the Economic and
Social Council, Fiftieth Session, Supplement No. 6 (E/4969-E/C.7/13)).
The work of the Committee on Natural Resources (later Committee on
Energy and Natural Resources for Development) was transferred to the
Commission on Sustainable Development.
currently seems difficult, if not impossible (whereas the differentiation between the atmosphere and outer space is quite
clear, because
of
the
simple
fact
that
there
is
no
air
in
outer
space).
There
is
no
agreement
as
to
where
airspace
ends
and
outer
space
begins.
Traditionally,
two
schools
of
thought
existed.
One
school
espoused
the
theory
of
the
highest
altitude
of
aircrafts
while
the
other
espoused
the
theory
of
the
lowest
orbit
of
satellites
(see
Matte,
“Space
law”,
p.
555).
Bin
Cheng
for example, asserted that airspace reaches as far as the
atmosphere
can
be
found,
by
interpreting
the
French
text
“espace
aérien”
in
article
1
of
the Convention
on International Civil
Aviation.
In
this
theory,
the
delimitation
of
airspace
and
outer
space
coincides
with
the
dif-
219
Principle 2: “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.”
220
“[A]tmospheric resources that are utilized by man … shall be
managed to achieve and maintain optimum sustainable productivity”
(General Assembly resolution 37/7 of 28 October 1982, annex, para. 4).
ferentiation between the atmosphere and outer space (van Bogaert,
221
See the terminology coined by von Ciriacy-Wantrup, Resource
Aspects of Space Law, p. 12).
216
Nordquist, Rosenne and Yankov, United Nations Convention on
Conservation: Economics and Policies, pp. 40–42, and McDougal,
Lasswell and Vlasic, Law and Public Order in Space, pp. 777–779.
the Law of the Sea 1982: A Commentary, pp. 3–22. It may be noted,
however, that the relevant part contains a provision based on the functional
notion
of
the
sea
as
a
common
good:
article
216
(“Enforcement
with
respect
to
pollution
by
dumping”)
provides
for
so-called
“loading
State
jurisdiction”
in
paragraph
1:
“reduction
and
control
of
pollution
of
the
marine
environment
by
dumping
shall
be
enforced”
and
in
subparagraph
(c)
“by
any
State
with
regard
to
acts
of
loading
of
wastes
or
other
matter
occurring
within
its
territory
or
at
its
off-shore
terminals”.
It
appears
that
loading
State
jurisdiction
has
the
same
theoretical
foundation
as State
jurisdiction
for the
protection
of the
atmosphere
under
the present draft
guidelines.
222
This appears quite similar to the classic 16th–17th century con-
217
Annex 16 of the 1944 Convention on International Civil Aviation
is entitled “Environmental protection”. The ICAO Council has established
rules on aircraft engine emissions standards and recommended
practices since 1981, with a view to achieving maximum compatibility
between the safe and orderly development of civil aviation and the quality of the human environment.
These emissions standards establish
rules,
inter
alia,
for
vented
fuel
(Part
II)
and
emission
certification
(part III),
troversy between Hugo Grotius’ Mare Liberum and John Selden’s Mare
Clausum over whether ocean resources were to be regarded as unlimited
or
limited.
Grotius
advocated
the
freedom
of
the
ocean
by
asserting
that,
in
light
of
its
nature,
the
ocean
could
not
be
the
object
of
occupation
or
possession.
Therefore,
according
to
the
author,
a
State
was
not
able
to
assert
an
exclusive
right
for
fishing,
which
he
thought
had
to
presuppose
dominium over the
ocean.
Moreover, in
Grotius’
view, there
was no need
to
modify
this
historical
construction,
for he
considered
ocean
resources unlimited. Accordingly, everyone could exploit fish
stocks without infringing on the interests of others under the regime
of the freedom of the seas. See Grotius, The Freedom of the Seas or
the Right which Belongs to the Dutch to Take Part in the East Indian
Trade, chap. 5. In contrast, Selden maintained that States possessed and
could possess a part of the ocean as long as they actually exercised their
power over that part of the ocean. In addition, Selden disputed Grotius’
view by emphasizing that ocean resources were exhaustible and that
there was a danger that the free use of the ocean would result in their
including emissions limits for smoke and certain chemical particles.
depletion (see Selden, Of the Dominion, Or, Ownership of the Sea).
Protection of the atmosphere
273
its capacity to assimilate the pollutants of other industries or
States.
223
This rationale underlies, for example,
“trade in emission rights”. Accordingly, the concept of
shared natural resources appears to be applicable in part
to the problem of bilateral or regional transboundary air
pollution, and common natural resources to global environmental issues relating to the
atmosphere.
88. While the concepts of common property and common
heritage may not be appropriate indicators of the
legal status of the atmosphere, the notion of common
concern is, and should be included in its legal status
under international law. In 1988, the General Assembly
declared, in its resolution 43/53 of 6 December 1988 on
the protection of global climate for present and future
generations of mankind, that climate change was a
“common concern of mankind”, somewhat mitigating
the failure of the proposal by Malta. The same concept
was incorporated into paragraph 1 of the preamble to
the United Nations Framework Convention on Climate
Change. In view of the growing recognition of the linkages
between transboundary air pollution and global
climate change, application of the concept of common
concern to all atmospheric problems should be considered
appropriate.
85. Assuming that the atmosphere is a natural resource,
the term “protection” employed in this project may need
to be clarified. In the context of the environment, the term
is often used (consciously or unconsciously) in two ways:
preservation and conservation. “Preservation” means the
measures taken to maintain the original state of nature
by requiring a total restriction on human activities in a
designated off-limits area. “Conservation”, on the other
hand, means to maintain the state of the environment in a
designated area through intentional human activities, for
example, a conservation zone for fisheries resources on
the high seas. As was indicated in paragraph 73 above,
the utilization aspects of the atmosphere are becoming
increasingly important and, accordingly, the draft guidelines to be
elaborated on the protection
of the atmosphere
will refer not only to the preservation
aspect
(in the sense
that
the
international
community
will
strive
as much
as
possible not to change the existing composition and
balance of the atmosphere) but also to the conservation
approach, which will aim at achieving sustainability in
the utilization of the atmosphere.
226
89. The legal content of the concept of common concern
is
that
States
can
no
longer
claim
that
atmospheric
problems are within the reserved domain of domestic
jurisdiction
because
the
issues
now
legitimately
fall
under
“matters of international
concern”. It will certainly
lead to
the
creation
of
substantive
legal
obligations
on
the
part
of
all
States
to
protect
the
global
atmosphere
as
enforceable
erga
omnes.
227
It may be too early at present to interpret
the concept of common concern as giving “all States a
legal interest, or standing, in the enforcement of rules concerning
protection
of
the
global
atmosphere”,
228
in view of
C. Common concern of humankind
the absence of appropriate procedural law to implement
such an interpretation. It may also be premature to consider
the
concept
of
common
concern
as
creating
rights
for individuals and future
generations.
86. Common property, or res communis, refers to areas
such as the high seas that are open for legitimate use by
all States and that may not be appropriated to the sovereignty
of
any
individual
State.
The
airspace
above
the
high
seas
is
in
this
sense
“common
property”.
However,
like
sovereign airspace, common property is fundamentally
a
spatial
dimension
and
is
therefore
insufficient
when
it
comes
to
dealing
with
the
atmosphere
as
a
global
unit,
90. Yet, based on the foregoing analysis, it may be
concluded that the atmosphere has the legal status of
226
The implications of the concept of common concern of human-
224
kind in relation to global environmental issues were examined at a
meeting of the UNEP Group of Legal Experts held in Malta from 13
to 15 December 1990. It has been noted that the “ ‘common concern’
concept has at least two important facets: spatial and temporal. Spatial
aspect means that common concern implies cooperation of all States on
matters being similarly important to all nations, to the whole international
community.
Temporal
aspect
arises
from
long-term
implications
of
major
environmental
challenges
which
affect
the
rights
and
obligations
not only of present but also of future generations” (see Attard,
“The meeting of the Group of Legal Experts to examine the concept of
as described in paragraphs 81 to 85 above.
87. The concept of common heritage was employed in
the United Nations Convention on the Law of the Sea
and in the Treaty on principles governing the activities of States in the exploration and use of outer
space,
including
the
moon
and
other
celestial
bodies.
However,
the attempt of Malta at the General Assembly in 1988
to have the global atmosphere declared part of the common
heritage of humankind was unsuccessful. Since
“common heritage” implies that a resource must be
exploited and conserved for the benefit of mankind as
a whole, such designation would usually require a farreaching
institutional
apparatus
to
control
the
allocation
of
exploitation rights and benefits. If the atmosphere
were treated as part of the common heritage of mankind,
it would, in effect, place atmospheric problems under
collective management—something widely considered
premature.
the common concern of mankind in relation to global environmental
issues”, p. 37). This illustrates strong linkages with principles such as
intergenerational equity contained in the Rio Declaration on Environment and Development
and other international
environmental
instruments.
One
application
of the
concept
of common
concern
has been
explored
from the viewpoint of an ecosystem, e.g., in the context of
regional watershed management (see Brunnée and Toope, “Environmental
security
and
freshwater
resources:
ecosystem
regime
building”).
227
As the International Court of Justice indicated in the Barcelona
225
223
Biermann, “ ‘Common concern of humankind’: the emergence
of a new concept of international environmental law”, p. 428.
224
Boyle, “International law and the protection of the global atmos-
Traction case, such obligations are owed to the international community as a whole. Because of their importance,
they are “the concern
of all States”
(Barcelona
Traction, Light and Power
Company,
Limited, Judgment,
I.C.J.
Reports
1970,
p.
3, at
p.
30,
para.
33). In this
context,
one may
also recall
the
Commission’s reference
to “massive
pollution
of the
atmosphere
or of the
seas”
as an international
crime
in
draft
article
19,
para.
3
(d), of the draft articles
on State
responsibility
for
internationally
wrongful
acts
(Yearbook
…
1976,
vol.
II
(Part
Two),
p.
96)
in
its
first
reading,
although
the
article
disappeared
in
the
final
draft
adopted
on
second
reading
(Yearbook
…
2001,
vol.
II
(Part
Two),
p.
26
et seq.,
para.
76).
phere: concepts, categories and principles”, p. 9.
228
Boyle, “International law and the protection of the global atmos-
225
Ibid., pp. 9–10.
phere: concepts, categories and principles”, pp. 11–13.
274
Documents of the sixty-sixth session
an international resource, whether shared or common,
indispensable for sustaining life on earth, human health
and welfare, crops and the integrity of ecosystems; and
that consequently its protection is a common concern of
humankind. It may also be appropriate to add a caveat,
so as to avoid any misunderstanding, to the effect that
the present draft guidelines are not intended to prejudice
in any way the status of airspace already established in
international law. Thus, draft guideline 3 would read as
follows:
“Draft guideline 3. Legal status of the atmosphere
“(a) The atmosphere is a natural resource essential
for
sustaining
life
on
earth,
human
health
and
welfare,
and
aquatic
and
terrestrial
ecosystems;
hence,
its
protection is a common concern of
humankind;
“(b)
Nothing in the present draft guidelines is
intended to affect the legal status of airspace under
applicable international law.”
Chapter V
Conclusion
91. In preparing the present report, the Special Rapporteur
aimed to provide as thorough and exhaustive a
background as possible on the topic, such as its historical development and the sources of law relevant to it,
as
well
as to
explain
the
rationale of
the topic and the
basic
approaches, objectives and scope of the project. It has
aptly
been
said
that,
“at
its
best,
the
[Commission’s]
real
strength
is the ability to take a systematic view of international
law
as
a whole, to integrate new developments and different
bodies of law and to articulate in its commentaries reasoned
and fully researched conclusions”.
important and proper topic for the codification and progressive
development of international law—a topic through
which the Commission can contribute significantly to the
international community as a whole.
229
Nonetheless, a num-
ber of problems had to be addressed here in a preliminary
and general manner, leaving in-depth analysis of specific
legal problems for a later stage. The Special Rapporteur
hopes that he has been able to show that, with an appropriate approach, the protection of the atmosphere is both
an
229
Boyle and Chinkin, The Making of International Law, p. 172.
92. As a tentative plan of work to succeed the present
first report, the Special Rapporteur hopes to consider, in
the remaining two years (2015 and 2016) of the current
quinquennium, questions relating to basic principles for the
protection of the atmosphere. They will include the general
obligations of States to protect the atmosphere, the principle of
sic
utere tuo ut alienum non
laedas as applied
to
transboundary air pollution, as well as principles of
equity,
sustainable
development and good faith. It is hoped that,
during the next quinquennium (2017–2021), the Commission will complete its consideration of other related
matters,
such
as
international
cooperation,
compliance with
international norms, dispute settlement and
interrelationships.
A/CN.4/692
United Nations
General Assembly
Distr.: General
25 February 2016
Original: English
International Law Commission
Sixty-eighth session
Geneva, 2 May-10 June and 4 July-12 August 2016
Third report on the protection of the atmosphere
by Shinya Murase, Special Rapporteur*
Contents
Page
I. Introduction ................................................................... 2
II. Obligations of States to protect the atmosphere ...................................... 6
A. The duty to prevent transboundary atmospheric pollution ......................... 6
B. The duty to mitigate the risk of global atmospheric degradation .................... 17
C. The duty to assess environmental impacts ...................................... 20
III. Obligations of sustainable and equitable utilization of the atmosphere ................... 33
A. Sustainable utilization of the atmosphere ....................................... 33
B. Equitable utilization of the atmosphere ......................................... 37
C. Legal limits on intentional modification of the atmosphere ........................ 44
IV. Conclusion .................................................................... 51
Annex
Draft guidelines ................................................................ 52
* The Special Rapporteur wishes to acknowledge the valuable assistance given to him by the
following researchers: Dr. Charles Wharton, formerly Assistant Professor at Renmin University
School of Law; Dr. Masayuki Hiromi of Waseda University Institute of Comparative Law;
Deng Hua, PhD candidate at Renmin University Graduate School of Law; Zhang Maoli, Gao
Lihua, Wang Shan, Zhang Mengru, Ren Zhuoyao and Cheng Erquan of the Graduate School of
Law, China Youth University of Political Studies.
■
'.·l!l
16-02241 (E) 170516
Pl~" my<le ,0)\ l .· "'·. :_: ..
*1602241*
'éJ<7' l!l
.
.
A/CN.4/692
I. Introduction
1. At its sixty-seventh session in 2015, the International Law Commission had
before it the second report submitted by the Special Rapporteur on the topic of the
protection of the atmosphere (A/CN.4/681 and Corr.1 (Chinese only)). The report
contained proposals for five draft guidelines regarding the use of terms, scope of th e
guidelines, common concern of humankind, general obligation of States and
international cooperation.
2. The second report was considered by the Commission during its 3244th to
3249th meetings, held on 4 to 8 and 12 May 2015. In addition, the Commission held
an informal meeting in the form of a dialogue with scientists organized by the
Special Rapporteur on 7 May 2015, which members of the Commission found
useful and of which they were appreciative.
1
3. The Commission decided to send to the Drafting Committee all the draft
guidelines proposed by the Special Rapporteur, except draft guideline 4 on the
general obligation of States to protect the atmosphere, which the Special Rapporteur
did not ask to have considered by the Drafting Committee. When sending t he draft
guidelines to the Drafting Committee, the Commission also agreed that draft
guideline 3 on the common concern of humankind be moved to the preambular
section of the draft guidelines. The Drafting Committee recommended that the
expression “common concern of humankind” should be changed to “pressing
concern of the international community as a whole”, and it was included in the
preamble in that form. The Drafting Committee also recommended draft guideline 1
on the use of terms (namely, “atmosphere”, “atmospheric pollution” and
“atmospheric degradation”), draft guideline 2 on the scope, and draft guideline 5 on
international cooperation for adoption by the Commission. The Commission
provisionally adopted the preamble and the draft guidelines, with the c ommentaries
thereto, at its sixty-seventh session.
2
Debate held by the Sixth Committee of the General Assembly at its
seventieth session
4. In November 2015, during the seventieth session of the General Assembly, the
Sixth Committee considered the Special Rapporteur’s second report and the work of
the Commission on the topic. The delegations generally welcomed the work of the
__________________
1
The dialogue with scientists on the protection of the atmosphere was chaired by the Special
Rapporteur. Prof. Øystein Hov (President, Commission of Atmospheric Sciences, WMO) spoke
on “Scientific aspects of the atmosphere: A General Overview” , Prof. Peringe Grennfelt (Chair of
the Working Group on Effects, CLRTAP, UNECE) on “Trans -continental transport of pollutants
and their effects”, Mr. Masa Nagai (Deputy Director, Division of Environmental Law and
Conventions, UNEP) on “Pollutants affecting the global environment through the atmosphere”,
Mr. Christian Blondin (Director of Cabinet and External Relations Department, WMO) on “The
role of the atmosphere in the global climate” and Ms. Jacqueline McGlade (Chief Scientist and
Director, Division of Early Warning and Assessment, UNEP) on overall issues on atmospheric
pollution and atmospheric degradation. Ms. Albena Karadjova (Secretary to CLRTAP, UNECE)
also spoke on the economic implication of transboundary atmospheric pollution. For a summary
of the meeting, see the UNEP document: Charles Wharton, “UN ILC’s Dialogue with Scientists
on the protection of the atmosphere”, available at www.unep.org/delc/Events/montevideoevents/tabid/1060317/Default.aspx.
2
Official Records of the General Assembly, Seventieth session, Supplement No. 10 (A/70/10),
chap. V, paras. 45-54.
2/52
16-02241
A/CN.4/692
3
Commission,
while a few delegates remained sceptical.
4
Most delegations
expressed their endorsement of the collaboration of the Commission with
atmospheric scientists in pursuing the work on the topic.
5
5. With regard to the concept of “common concern of humankind” proposed by
the Special Rapporteur, most delegations expressed agreement with changing the
term to the “pressing concern of the international community as a whole” and
placing it in the preamble,
6
while other delegations preferred to retain the original
7
term.
One delegation stated that, instead of “pressing concern”, “[a] more positive
signal would be sent by referring to the concept of ‘care’ rather than using words
that expressed anxiety.”
8
Regarding draft guideline 1 (b), some delegations
wondered whether the definition of “atmospheric pollution” should be restricted to
activities having transboundary effects.
9
Some delegations also questioned whether
it was appropriate to delete the word “energy” in the definition, in view of the fact
that article 1 (1) (b) of the United Nations Convention on the Law of the Sea
explicitly referred to “energy” as a cause of pollution.
10
One delegation favoured
inclusion of a reference to the significant adverse effects to living resources in draft
guideline 1 (c).
11
It was also suggested by another delegation that the word “global”
be inserted before “atmospheric conditions” in the definition of “atmospheric
degradation” in draft guideline 1 (c) in order to “make it clear that the atmospheric
degradation referred to was the alteration of atmospheric conditions to such an
extent that they produced worldwide deleterious effects.”
12
__________________
3
Finland (on behalf of the Nordic countries, Official Records of the General Assembly, Seventieth
session, Summary records, Sixth Committee, A/C.6/70/SR.17, para. 36), Singapore (SR.17,
para. 46), Italy (SR.17, para. 57), Belarus (SR.17, para. 68), Austria (SR.17, para. 81), Romania
(SR.17, para. 102), Israel (SR.18, para. 4), Federated States of Micronesia (SR.18, para. 11),
China (SR.18, para. 17), Japan (SR.18, para. 25), India (SR.18, para. 29), Islamic Republic of
Iran (SR.18, para. 32), Sri Lanka (SR.18, para. 40), El Salvador (SR.18, para.47), Poland (SR.18,
para. 63), Thailand (SR.18, para. 67), South Africa (SR.18, para. 73), Viet Nam (SR.18,
para. 78), Republic of Korea (SR.18, para. 81), Malaysia (SR.19, para. 10), Germany (SR.19,
para. 12), Philippines (SR.19, para. 15), Portugal (SR.19, para. 24), Algeria (SR.19, para. 34),
Argentina (SR.19, para. 42), France (SR.20, para. 15), Hungary (SR.21, para. 81).
4
Czech Republic (A/C.6/70/SR.17, para. 93), United Kingdom (SR.18, para. 10), Russian
Federation (SR.19, para. 5), United States (SR.18, para. 18), Slovakia (SR.19, para. 31).
5
Finland (on behalf of the Nordic countries, A/C.6/70/SR.17, para. 36), Singapore (SR.17,
para. 46), Belarus (SR.17, para. 68). Austria, for instance, welcomed “the dialogue which the
Commission had had with scientists, thereby promoting a better understanding of the complex
physical phenomena involved” (SR.17, para. 81). One delegation however cautioned that “such
dialogues might sometimes give rise to misleading conclusions, especially in the case of topics in
which many important elements were defined by physics or other natural sciences, and not by the
law” (Slovakia, SR.19, para. 31).
6
Finland (on behalf of the Nordic countries, A/C.6/70/SR.17, para. 36), Singapore (SR.17,
para. 46), Israel (SR.18, para.4), China (SR.18, para. 18), Japan (SR.18, para. 25), Sri Lanka
(SR.18, para. 41), Poland (SR.18, para. 63), Republic of Korea (SR.18, para. 81), France (SR.20,
para. 15).
7
Federated States of Micronesia (A/C.6/70/SR.18, paras. 13-15), Germany (SR.19, para. 12),
Portugal (SR.19, para. 24).
8
Belarus (A/C.6/70/SR.17, para. 20).
9
Finland (on behalf of the Nordic countries, A/C.6/70/SR.17, para. 37), Austria (SR.17, para. 81),
Poland (SR.18, para. 64).
10
Austria (A/C.6/70/SR.17, para. 82), Poland (SR.18, para. 64).
11
Romania (A/C.6/70/SR.17. para. 102).
12
China (A/C.6/70/SR.18, para. 18).
16-02241
3/52
A/CN.4/692
6. With regard to draft guideline 2, delegations generally welcomed the fact that
the scope of the guidelines was clearly delineated by it.
13
However, one delegation
suggested that a “‘without prejudice clause’ would be more helpful and appropriate
than the exclusion of specific substances from the project’s scope.”
14
It was stated
by one delegation that, in view of the fact that “most health problems were caused
by particulate matter, including black carbon and tropospheric ozone, those
pollutants should also be included in the scope of the draft guidelines”, and that
“thought might be given to enlarging its scope or even elaborating a new, global
convention on air pollution.”
15
In regard to the 2013 understanding,
16
one delegation
expressed its belief that the reference to political negotiations was not necessary and
should be removed from draft guideline 2 and from the general commentary.
17
Another delegation sought clarification of the logic behind the double -negative “do
not deal with” followed by “but without prejudice to” in the understanding.
18
7. Regarding draft guideline 5 on international cooperation, delegations generally
supported it, together with the wording “as appropriate”.
19
A few delegations noted,
however, that the wording should be reconsidered.
20
Some States expressed the view
that the scope of cooperation in guideline 5 was too limited
21
and should be
expanded beyond scientific knowledge to “other areas, such as regulatory
institutions and international emergency actions and communications ” as well as to
“promoting technical cooperation, such as the exchange of experiences and capacity
building”.
22
It was suggested that it might be possible to follow the provisions of the
relevant draft articles of the Commission on the topic of prevention of
transboundary harm.
23
Information provided by Member States
8. In chapter III of its report on the work of its sixty -seventh session, the
Commission indicated that it would welcome any information relevant to the
topic.
24
Information on domestic legislation was received from Singapore on
25
30 January 2016.
__________________
13
Italy (A/C.6/70/SR.17, para. 57), China (SR.18, para. 17), Poland (SR.18, para. 65), Republic of
Korea (SR.18, para. 83).
14
Islamic Republic of Iran (A/C.6/70/SR.18, para. 32).
15
Hungary (A/C.6/70/SR.21, paras. 81-82).
16
Official Records of the General Assembly, Sixty -eighth session, Supplement No. 10 (A/68/10),
chap. XII, para. 168.
17
El Salvador (A/C.6/70/SR.18, para. 49).
18
Philippines (A/C.6/70/SR.19, para. 15).
19
Finland (on behalf of the Nordic countries, A/C.6/70/SR.17, para. 38), Sri Lanka (SR.18,
para. 41). Singapore stressed also that the principle of “good faith” should be articulated in the
commentary (SR.17, para. 48).
20
E.g. Belarus (A/C.6/70/SR.17, para. 72).
21
E.g. El Salvador (A/C.6/70/SR.18, para. 48).
22
Singapore (A/C.6/70/SR.17, para. 50). Other States expressed a similar view: Islamic Republic
of Iran (SR.18, para. 35), Malaysia (SR.19, para. 11), Algeria (SR.19, para. 34).
23
Russian Federation (A/C.6/70/SR.19, para. 7).
24
Official Records of the General Assembly, Seventieth Session, Supplement No. 10 (A/70/10),
para. 24.
25
“Information on domestic legislation of Singapore: Transboundary Haze Pollution Act of 2014”.
This legislation is referred to in para. 32 and footnote 96 of the present report.
4/52
16-02241
A/CN.4/692
Recent developments
9. The United Nations summit for the adoption of the post-2015 development
agenda was held from 25 to 27 September 2015 in New York and convened as a high level
plenary meeting of the General Assembly. It formally adopted the post-2015
development agenda, entitled “Transforming our world: the 2030 Agenda for
Sustainable Development”,
26
to guide the development of the international
community over the next 15 years. As such, it called for action by all countries for
all people in five areas of critical importance: people, planet, prosperity, peace and
partnership. Throughout the summit, heads of State and government welcomed the
2030 Agenda for Sustainable Development and emphasized its transformative,
universal and inclusive nature, its applicability to all countries and stakeholders and
its motto of leaving no one behind.
27
The Agenda includes 17 Sustainable
Development Goals with 169 associated targets,
28
covering a wide range of issues,
including combating climate change, which are integrated and indivisible, to replace
the Millennium Development Goals.
29
10. At its twenty-first session, held in Paris from 30 November to 12 December
2015, the Conference of the Parties to the United Nations Framework Convention
on Climate Change
30
adopted the Paris Agreement under the Convention with no
objections from the 196 parties,
31
which is regarded as a new chapter for humankind
in tackling climate change issues after 2020. In the Paris Agreement, the parties to
the Convention, acknowledging that “climate change is a common concern of
humankind”,
32
dealt with, inter alia, mitigation, adaptation, loss and damage,
finance, technology development and transfer, capacity -building, and transparency
of action and support. The Paris Agreement aims to hold “the increase in the global
average temperature to well below 2 degrees Celsius above pre -industrial levels and
pursues efforts to limit the temperature increase to 1.5 degrees Celsius above
pre-industrial levels” (article 2 (1) (a)).
33
It is significant that the Paris Agreement,
pursuant to the Durban Platform for Enhanced Action, obliges “all parties” to
undertake the commitments made thereunder (article 3).
Purpose of the present report
11. Building on the previous two reports, the Special Rapporteur wishes to
consider, in the present (third) report, several key issues of the topic, namely, the
obligations of States to prevent transboundary atmospheric pollution and mitigate
global atmospheric degradation and the requirement of due diligence and
environmental impact assessment (see section II below). He also explores the
principle of sustainable and equitable utilization of the atmosphere and the legal
__________________
26
A/RES/70/1.
27
See the overview in “Informal Summary on United Nations Summit on Sustainable Development
2015”, at https://sustainabledevelopment.un.org/content/documents/8521Informal%20Summary
%20-%20UN%20Summit%20on%20Sustainable%20Development%202015.pdf. See Birgit Lode
et al., “Clean Air for All? Air Quality in the 2030 Agenda, and in International Law”, Review of
European, Comparative and International Environmental Law, vol. 25, No. 2 (forthcoming,
2016).
28
General Assembly resolution 70/1, para. 59. See also paras. 12, 31, 49 and 73.
29
General Assembly resolution 55/2.
30
See http://unfccc.int/meetings/paris_nov_2015/session/9057.php.
31
FCCC/CP/2015/L.9/Rev.1.
32
Ibid., annex, preamble.
33
Ibid., annex, article 2 (1) (a).
16-02241
5/52
A/CN.4/692
limits on certain activities aiming at intentional modification of the atmosphere (see
section III below).
II. Obligations of States to protect the atmosphere
A. The duty to prevent transboundary atmospheric pollution
12. In his second report in 2015 (A/CN.4/681), the Special Rapporteur proposed
draft guideline 4 on the “General obligation of States to protect the atmosphere”,
stipulating in a straightforward form that “States have the obligation to protect the
atmosphere”. That was modelled on article 192 of the United Nations Convention on
the Law of the Sea, which provides that “States have the obligation to protect and
preserve the marine environment”.
34
The Special Rapporteur’s characterization of this
obligation as an “obligation erga omnes” was a point of debate in the Commission
35
and in the Sixth Committee,
36
which was not resolved. The proposed guideline was
supported by some members of the Commission,
37
while others expressed objections
on the grounds that it was “too open-ended and general”.
38
To address the criticism of
some members, the Special Rapporteur proposes in the present report to differentiate
between two dimensions of the protection of the atmosphere, one on transboundary
atmospheric pollution and the other on global atmospheric degradation. That division
corresponds to the definitions provisionally adopted by the Commission in draft
guideline 1, paragraphs (2) and (3), respectively.
13. The maxim sic utere tuo ut alienum non laedas (use your own property in such
a manner as not to injure that of another) has been accepted in inter -State relations
as the principle that the sovereign right of a State to use its te rritory is
circumscribed by an obligation not to cause injury to, or within, the territory of
another State.
39
That maxim has become the basis for the so-called “no harm rule”, a
prohibition of harmful transboundary impacts in the context of air pollution, most
__________________
34
See A/CN.4/681, paras. 41-59.
35
Critical views were expressed by Murphy (A/CN.4/SR.3246), Hassouna (SR.3247), Kittichaisaree
(SR.3247) and McRae (SR.3248), while Maina Peter stated that he “could live with t he Special
Rapporteur’s proposal, which was likely to garner more general support” , noting that “once it had
been agreed that the atmosphere was an area of common concern of mankind, there was an
obligation on all States to protect it. Furthermore, the very nature of the atmosphere, which was in
constant movement around the Earth, militated in favour of such an obligation” (SR.3247). Nolte
was not convinced that “theoretical developments regarding the nature of obligations erga omnes
were really helpful and even feared that they went too far” (SR.3246).
36
Federated States of Micronesia supporting “a normative statement that imposed erga omnes
obligations” (SR.18, para. 15). Islamic Republic of Iran drew attention to “the case law of the
International Tribunal for the Law of the Sea that might be replicated for the purpose of the
protection of the atmosphere”, citing the advisory opinion of 1 February 2011 on responsibilities
and obligations of States sponsoring persons and entities with respect to activities in the Area,
which referred to the erga omnes character of the obligations under article 137 of UNCLOS
(SR.18, para. 34).
37
Nolte (A/CN.4/SR.3246), Hmoud (SR.3247), Comissario-Afonso (SR.3247), Peter (SR.3247),
Candioti (SR.3248), Vasquez-Bermudez (SR.3248).
38
Park (A/CN.4/SR.3244), Murphy (SR.3246), Wood (SR.3247), Hassona (SR.3247), Kittichasaree
(SR.3247), Sturma (SR.3247), Petric (SR.3247), Jacobsson (SR.3248), Escobar-Hernandez
(SR.3248), McRae (SR.3248).
39
Jutta Brunnée, “Sic utere tuo ut alienum non laedas”, in Encyclopedia of Public International
Law, vol. IX (Oxford: Oxford University Press, 2012), p. 188.
6/52
16-02241
A/CN.4/692
notably in the famous 1938-41 Trail Smelter Arbitration, in which the tribunal
confirmed the existence of the rule in international law, stating as follows:
“... under the principles of international law, ... no State has the right to use or
permit the use of its territory in such a manner as to cause injury by fumes in
or to the territory of another or the properties or persons therein, when the case
is of serious consequence and the injury is established by clear and convincing
evidence.”
40
14. The Trail Smelter case was a traditional type of transboundary air pollution
dispute — one in which the cause of the damage and its effects were sufficiently
identifiable. That decision is frequently cited in support of the view that, under
international law, States are obligated to ensure that activities within their jurisdiction
or control do not cause transboundary damage when the injury is foreseeable, as
supported “by clear and convincing evidence”.
41
Thus, the sic utere tuo ut alienum
non laedas principle has been recognized as customary international law as applied to
the relationship with an “adjacent State” sharing a common territorial border. That
rule was confirmed in principle 21 of the 1972 Declaration of the United Nations
Conference on the Human Environment (Stockholm Declaration),
42
and reconfirmed,
in a slightly modified form, in principle 2 of the 1992 Rio Declaration on
Environment and Development.
43
In those Declarations, which provided for the duty
of States “to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the limits of national
jurisdiction” (emphasis added), the scope of application of that principle has been
broadened to the relationship with long-range transboundary causes and effects
between the State of origin and the affected States. The same “no harm rule” has been
endorsed in a large number of conventions relating to transboundary air pollution,
such as the 1979 Convention on Long-range Transboundary Air Pollution.
44
1. Prevention
15. As a corollary of the sic utere tuo principle, the principle of prevention
(obligation of States to take preventive measures) is recognized as a rule of
__________________
40
United Nations, Reports of International Arbitral Awards, vol. III, pp. 1907 f. (Award of 1941),
at 1965; See 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; ibid.,
vol. 35 (1941), pp. 665-666; J. Read, “The Trail Smelter Dispute”, Canadian Yearbook of
International Law, vol. 1 (1963), pp. 213-229.
41
Award, ibid., p. 1965.
42
Adopted at Stockholm on 16 June 1972, see Report of the United Nations Conference on the
Human Environment, Stockholm, 5 -16 June 1972 (A/CONF.48/14/Rev.1), part one, chap. I. See
Louis B. Sohn, “The Stockholm Declaration on the Human Environment”, Harvard International
Law Journal, vol. 14 (1973), pp. 485-493.
43
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),
p. 3; See Leslie-Anne Duvic-Paoli and Jorge E. Vinuales, “Principle 2: Prevention”, in Jorge E.
Vinuales, ed., The Rio Declaration on Environment and Development: A Commentary (Oxford,
Oxford University Press, 2015), pp. 107-138.
44
United Nations Treaties Series, vol. 1302, p. 217.
16-02241
7/52
A/CN.4/692
customary international law in the context of transboundary atmospheric pollution.
45
That principle is regarded as consisting of two different obligations, one being the
obligation to “prevent” before actual pollution or degradation occurs, and the other the
duty to “eliminate”, “mitigate” and “compensate” after they have already occurred.
For example, article 7 of the 1997 Convention on the Law of Non -navigational Uses
of International Watercourses, under the heading “Obligation not to cause significant
harm”, provides both for the obligation to prevent (paragraph 1) and the obligation to
compensate if harm nevertheless occurred (paragraph 2).
46
In that context, more
weight is given to the prevention of predictable future damage than to the reparation
for damage which has already occurred. The Commission has recognized that in its
previous work on the prevention of transboundary harm from hazardous activities
“the emphasis upon the duty to prevent, as opposed to the obligation to repair,
remedy or compensate, has several important aspects. Prevention should be a
preferred policy because compensation in case of harm often cannot restore the
situation prevailing prior to the event or accident. ... In any event, prevention as a
policy is better than cure.”
47
The International Court of Justice has emphasized
prevention as well. In the Gabčikovo-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”.
48
In the Iron Rhine Railway case, the arbitral tribunal also
stated that “Today, in international environmental law, a growing emphasis is being
put on the duty of prevention”.
49
16. The Commission has dealt with the obligation of prevention in its 2001
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 ...”. 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 ”.
50
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.
51
__________________
45
Gunther Handl, “Transboundary Impacts”, in Daniel Bodansky, et al., eds., Oxford Handbook of
International Environmental Law (Oxford: Oxford University Press, 2007), pp. 532, pp. 538-540;
Nicolas de Sadeleer, “The principle of prevention and precaution in international law: two heads of
the same coin?” in Malgosia Fitzmaurice, et al., eds., Research Handbook on International
Environmental Law (Cheltenham: Edward Elgar, 2010), pp. 182-199.
46
General Assembly resolution 51/229, annex.
47
Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 148, para. (2).
48
Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78,
para. 140.
49
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, p. 116, para. 222.
50
Yearbook … 2001, vol. II, Part Two, p. 62, para. 14.
51
Ibid.
8/52
16-02241
A/CN.4/692
2. Due diligence
17. The principle of prevention in environmental law is based on the concept of
due diligence. Significant adverse effects on the atmosphere are caused, in large
part, by the activities of individuals and private industries, which are not normally
attributable to a State. In that respect, due diligence requires States to ensure that
such activities within their jurisdiction or control do not cause significant adverse
effects. That does not mean, however, that due diligence applies solely to private
activities. The activities of a State are also subject to the due diligence rule.
52
18. Due diligence is an obligation to make best possible efforts in accordance with
the capabilities of the State controlling the activities. Therefore, even where actual
adverse effects materialize, that does not automatically constitute a failure of due
diligence. Such failure is limited to the negligence of the State in meeting its
obligation to take all appropriate measures to control, limit, reduce or prevent
human activities where those activities have or are likely to have significant adverse
effects. The obligation of States “to ensure” does not require the achievement of a
certain result (obligation of result) but only requires the best available efforts not to
cause adverse effects (obligation of conduct). In that sense, it does not guarantee
that the harm would never occur.
53
19. In its previous work analysing the due diligence standard, the Commission
considered it to be “a diligence proportioned to the magnitude of the subject and to
the dignity and strength of the power which is to exercise it”
54
or “to be appropriate
and proportional to the degree of risk of transboundary harm in the particular
instance”.
55
Accordingly, “activities which may be considered ultra-hazardous
require a much higher standard of care in designing policies”, which is an absolute
standard.
56
In the case of activities relating to the atmosphere, the required standard of
care is set according to the scale and magnitude of a planned activity in the particular
instance on the one hand, and the significance and irreparability of the adverse effects
which that activity is expected to cause, or is likely to cause on the other hand.
3. Knowledge or foreseeability
20. A State may be deemed to have failed in its duty of due diligence only if it
knew or ought to have known that the particular activities would cause significant
__________________
52
Ibid., p. 154, para. 7 (“The obligation of the State of origin to take preventive … measures is one
of due diligence”); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
Reports 2010, p. 55, para. 101 (“the principle of prevention, as a customary rule, has its origins
in the due diligence”). See generally on due diligence, Duncan French (Chair) and Tim Stephens
(Rapporteur) of the International Law Association Study Group on Due Diligence, “First report
on due diligence in international law”, pp. 1-33 (2014), available from http://www.ila-hq.org/en/
study-groups/index.cfm/cid/1045.
53
Although the principle to prevent is referred to as “no harm rule” , that term is somewhat
misleading, Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the
Environment, 3rd ed. (Oxford: Oxford University Press, 2009), p. 137. In relation to obligations
of result and obligations of conduct, see generally Pierre -Marie Dupuy, “Reviewing the
Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of
Result in Relation to State Responsibility”, European Journal of International Law, vol. 10
(1999), 371-385. See also S. Murase, International Law: An Integrative Perspective on
Transboundary Issues (Tokyo: Sophia University Press, 2011), pp. 113-115.
54
Yearbook …, 1994, vol. II, Part Two, p. 103, para. (4).
55
Ibid., … 2001, vol. II, Part Two, p. 154, para. 11.
56
Ibid.
16-02241
9/52
A/CN.4/692
harm to other States.
57
As observed by the International Court of Justice in the
Corfu Channel case, it is “every State’s obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other States ” (emphasis
added).
58
The use of the word “knowingly” in this case clarifies a key subjective
condition of due diligence. The Court then associated the condition of knowledge
with the concept of control and stated that:
“It is true, as international practice shows, that a State on whose territory or in
whose waters an act contrary to international law has occurred, may be called
upon to give an explanation. ... But it cannot be concluded from the mere fact
of the control exercised by a State over its territory and waters that that State
necessarily knew, or ought to have known, of any unlawful act perpetrated
therein ...”
59
21. In the area of international environmental law, the knowledge required of a
State is intimately connected with the obligation to carry out an environmental
impact assessment. An environmental impact assessment is “one of the central
mechanisms used by states to acquire knowledge respecting the environmental
consequences of their actions”,
60
and “addresses foreseeability by requiring project
proponents to comprehensively analyse the likely impacts of proposed activities,
including trans-boundary impacts”.
61
As the International Court of Justice pointed
out in the Pulp Mills case, “due diligence, and the duty of vigilance and prevention
which it implies, would not be considered to have been exercised, if a party ... did
not undertake an environmental impact assessment on the potential effects of such
works”.
62
The Court, in the recent cases of Certain Activities carried out by
Nicaragua in the Border Area and Construction of a Road in Costa Rica along the
San Juan River, also stated that “to fulfil its obligation to exercise due diligence in
preventing significant transboundary environmental harm, a State must, before
embarking on an activity having the potential adversely to affect the environ ment of
another State, ascertain if there is a risk of significant transboundary harm, which
would trigger the requirement to carry out an environmental impact assessment ”.
63
The Court continued that “to conduct a preliminary assessment of the risk posed by
an activity is one of the ways in which a State can ascertain whether the proposed
activity carries a risk of significant transboundary harm”.
64
Since the Court
concluded in the Pulp Mills case that “it may now be considered a requirement
under general international law to undertake an environmental impact assessment
where there is a risk that the proposed industrial activity may have a significant
__________________
57
Ibid., 1994, vol. II, Part Two, p. 104, para. 8.
58
Corfu Channel Case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 22. Karine Bannelier,
“Foundational Judgment or Constructive Myth? The Court’s Decision as a Precursor to
International Environmental Law”, in Karine Bannelier, Theodore Christakis and Sarah
Heathcote, eds., The International Court of Justice and the Evolution of International Law: The
Enduring Impact of the Corfu Channel Case (New York: Routledge, 2012), pp. 246-247.
59
Corfu Channel Case, Judgment, p. 18.
60
Neil Craik, The International Law of Environmental Impact Assessment (Cambridge: Cambridge
University Press, 2008), p. 64.
61
Ibid.
62
Pulp Mills on the River Uruguay, Judgment, p. 83, para. 204.
63
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, I.C.J. Reports 2015, paras. 104, 153.
64
Ibid., para. 154.
10/52
16-02241
A/CN.4/692
adverse impact in a transboundary context, in particular, on a shared resource ”,
65
it
can be concluded from the fact of an environmental impact assessment carried out
by a State that the State necessarily knew, or ought to have known, of a risk of
significant transboundary harm.
4. Degree of care
22. Since due diligence requires States to “act” so as not to cause significant
transboundary harm, it is necessary to clarify the degree of care required of a State, that
is, the extent to which the behaviour of a State in a set of given circumstances
discharges the due diligence obligation.
66
While the condition of knowledge is a
subjective element of due diligence, the degree of care constitutes an objective element.
Those are cumulative conditions. In the theory and practice of international
environmental law, two categories of degree of care exist: “generally accepted
international standards” on the one hand and “best practicable means” on the other
hand.
67
23. The former criteria, generally accepted international standards, are
“internationally agreed minimum standards set out in treaties or in the resolutions
and decisions of international bodies”.
68
For example, articles 207, 208, 210-212 of
the United Nations Convention on the Law of the Sea provide for “generally
accepted rules and standards established through the competent international
organization or general diplomatic conference” (emphasis added). Those provisions
can incorporate recommendations and resolutions of international organizations,
such as the International Maritime Organization (IMO), into the obligations of the
treaty by reference.
69
Quite apart from their incorporation by treaty, such criteria
may require to be recognized as having the force of customary international law by
virtue of the obligation of due diligence if international support is sufficiently
widespread and representative.
70
24. The latter criteria require States to employ the best practicable means available
to them at their disposal and in accordance with their capabilities, so as to prevent
transboundary harm so far as possible.
71
A typical example is article 194, paragraph 1,
of the United Nations Convention on the Law of the Sea which provides that “States
shall take ... all measures ... that are necessary to prevent, reduce and control
pollution of the marine environment from any source, using for this purpose the best
practicable means at their disposal and in accordance with their capabilities ...”
(emphasis added). In the application of that criterion, the regulatory capacity and
technology of the State concerned are taken into account, so that a differentiated
degree of care for different States is allowed.
72
The Commission confirmed such
__________________
65
I.C.J. Reports 2010, p. 83, para. 204. See also para. 55 below.
66
Pierre-Marie Dupuy, “Due diligence in the international law of liability”, in Legal Aspects of
Transfrontier Pollution (Paris: OECD, 1977), pp. 369-379.
67
Birnie, Boyle and Redgwell, International Law and the Environment, op. cit., pp. 148-150; Ilias
Plakokefalos, “Prevention obligations in international environmental law”, Yearbook of
International Environmental Law, vol. 23 (2012), pp. 3-43, at 32-36.
68
Ibid. (Birnie, Boyle and Redgwell), p. 149.
69
Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University
Press, 2007), p. 219.
70
Birnie, Boyle and Redgwell, op. cit., p. 150.
71
Ibid., p. 149.
72
Ibid. See also Ilias Plakokefalos, “Prevention Obligations in International Environmental Law” ,
Yearbook of International Environmental Law, vol. 23 (2012), at 32-36.
16-02241
11/52
A/CN.4/692
consideration in its work on the Prevention of Transboundary Harm from Hazardous
Activities, stating that:
“the degree of care in question is that expected of a good Government. It
should possess a legal system and sufficient resources to maintain an adequate
administrative apparatus to control and monitor the activities. It is, however,
understood that the degree of care expected of a State with a well -developed
economy and human and material resources and with highly evolved systems
and structures of governance is different from States which are not so well
placed. Even in the latter case, vigilance, employment of infrastructure and
monitoring of hazardous activities in the territory of the State, which is a
natural attribute of any Government, are expected.”
Therefore, to fulfil the duty of due diligence under general international law, States
are required to use the best practicable means at their disposal and in accordance
with their capabilities.
25. As regards the temporal scope of application, the Commission has affirmed in
its previous work that “The duty of prevention based on the concept of due
diligence is not a one-time effort but requires continuous effort. This means that due
diligence is not terminated after granting authorization for the activity and
undertaking the activity; it continues ... as long as the activity continues.”
73
In that
regard, the content of “due diligence” is not static, and the degree of care may change
over time. The Commission stated that “What would be considered a reasonable
standard of care or due diligence may change with time; what might be considered an
appropriate and reasonable procedure, standard or rule at one point in time may not be
considered as such at some point in the future. Hence, due diligence in ensuring safety
requires a State to keep abreast of technological changes and scientific
developments.”
74
The Seabed Disputes Chamber of the International Tribunal for the
Law of the Sea also held, as a matter of general international law, that “due diligence
is a variable concept”, and that “It may change over time as measures considered
sufficiently diligent at a certain moment may become not diligent enough in light, for
instance, of new scientific or technological knowledge”.
75
5. Burden of proof and standard of proof
26. In the Trail Smelter case, the tribunal applied the sic utere tuo principle only
under the condition when “the injury is established by clear and convincing
evidence”.
76
In general, there are two main standards of proof: the higher “beyond
reasonable doubt” standard in a criminal case and the lower standard of proof of a
__________________
73
Ibid., p. 165, para. (2). Although the context is slightly different, the International Court of
Justice stated in the Pulp Mills case that “the obligation … to prevent pollution is an obligation
to act with due diligence in respect of all activities which take place under the jurisdiction and
control of each party. It is an obligation which entails not only the adoption of appropriate 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 under taken by such operators …” Pulp Mills on the River Uruguay, Judgment, p. 79,
para. 197.
74
Ibid., p. 154, para. (11).
75
International Tribunal for the Law of the Sea, Seabed Disputes Chamber, Responsibilities and
Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area ,
Advisory Opinion, ITLOS, Case No. 17, para. 117.
76
Trail Smelter case (United States, Canada), 11 March 1941, UNRIAA, vol. III, p. 1965.
12/52
16-02241
A/CN.4/692
“balance of probabilities” in a civil case.
77
The tribunal in the Trail Smelter case
appears to have set a higher standard of proof for transboundary air pollution,
78
and
the special context and circumstances of that case should not be overlooked. First,
both parties referred the case to the tribunal by special agreement. Therefore, the
attitudes of both parties were relatively cooperative for the resolution of the dispute,
and consequently they were able to entrust the International Joint Commission
established pursuant to the Boundary Waters Treaty of 1909, with the scientific
investigation.
79
Secondly, as a result of the scientific examination, it was considered
that the direction of the wind that carried pollution across the boundary was
unidirectional by reason of the geographical features and resulting meteorological
conditions prevailing in the Columbia River valley.
80
Those factors enabled the
tribunal to set a higher standard of proof in the case.
27. One can observe somewhat similar developments in the Lac Lanoux case.
81
The tribunal was established by compromis between the States. As for the factfinding,
the tribunal stated that “It has not been clearly affirmed that the proposed
works [i.e. the diversion of the waters of the international river] would entail an
abnormal risk in neighbourly relations or in the utilization of the waters” (emph asis
added).
82
Therefore, the tribunal set a higher standard of proof. However, in that
case, the river flow was unidirectional so that the chain of causation was relatively
easy to establish as well.
28. By contrast, when one of the parties refers a dispute to an international court
or tribunal on the basis of an optional clause, compromissory clause or treaty, or
forum prorogatum, there tend to be different claims on the facts and allocation of
the burden of proof. In that case, in accordance with the well -established principle
of onus probandi incumbit actori, it is for the party alleging a fact to establish its
existence.
83
However, it will be difficult for the (potentially) affected States to
establish the alleged facts by clear and convincing evidence, because “the necessary
information may largely be in the hands of the party causing or threatening the
damage”.
84
That is the main reason why a (potentially) affected State may claim a
shift or reversal of the burden of proof based on the alleged precautiona ry principle.
However, it may be noted that the International Court of Justice pointed out in the
Pulp Mills case that the precautionary approach does not necessarily operate “as a
reversal of the burden of proof”.
85
__________________
77
Anna Riddell and Brendan Plant, Evidence before the International Court of Justice (London,
BIICL, 2009), p. 124; Eduardo Valencia-Ospina, “Evidence before the International Court of
Justice”, International Law Forum du Droit international, vol. 1 (1999), p. 203.
78
Stephen C. McCaffrey, “Of paradoxes, precedents, and progeny: the Trail Smelter arbitration 65
years later”, in Rebecca M. Bratspies and Russell A. Miller (eds.), Transboundary Harm in
International Law: Lessons from the Trail Smelter Arbitration (New York, Cambridge University
Press, 2006), p. 39.
79
Trail Smelter case, p. 1918.
80
Ibid., pp. 1943, 1969-1974. See also, John E. Read, “The Trail Smelter dispute [abridged]”, in
Bratspies and Miller (eds.), Transboundary Harm in International Law (New York: Cambridge
University Press, 2006), p. 27.
81
Affaire du Lac Lanoux (Spain v. France), 16 November 1957, UNRIAA, vol. XII, p. 281.
82
Ibid.
83
In the civil procedure of municipal courts, the result is the rule of ei incumbit probatie qui dicit,
non qui negat (the burden of proof lies with who declares, not who denies).
84
Dissenting Opinion of Judge Weeramantry, I.C.J. Reports 1995, p. 342.
85
Pulp Mills on the River Uruguay, Judgment, I.C.J. Reports 2010, p. 71, para. 164.
16-02241
13/52
A/CN.4/692
29. In that case, the majority opinion preferred to resolve the burden-shifting
problem by requiring the other party to cooperate “in the provision of such evidence
as may be in its possession that could assist the Court in resolving the dispute
submitted to it”.
86
In the recent case of the Application of the Genocide Convention
(Croatia v. Serbia), although the applicant claimed that “the respondent is best
placed ... to provide explanations of acts which are claimed to have taken place in a
territory over which [the respondent] exercised exclusive control”, the Court
primarily allocated the burden of proof to the party alleging a fact, while it relied on
the other party’s “duty to co-operate” in good faith in matters of evidence.
87
However, the duty to cooperate in matters of evidence is a proced ural duty,
non-compliance with which does not give rise to State responsibility.
88
30. In contrast, Judge Greenwood suggested, in his separate opinion in the Pulp
Mills case, a lessening of the standard of proof in the circumstances of that case.
Referring to the statement of the Court in the Application of the Genocide
Convention case (Bosnia and Herzegovina v. Serbia and Montenegro) that charges
of conduct as grave as genocide require “proof at a high level of certainty
appropriate to the seriousness of the allegation”,
89
he indicated that “in that
statement ... a lower standard of proof is acceptable than in the case of other, less
grave, allegations”.
90
He concluded that “the nature of environmental disputes is
such that the application of the higher standard of proof would have the effect of
making it all but impossible for a State to discharge the burden of proof”, and
accordingly the (potentially) affected State is required to establish the facts on the
balance of probabilities.
91
31. Indeed, the International Court of Justice had already implied a “lessening of
the standard of proof” in the 1949 Corfu Channel case,
92
stating:
“It is true, as international practice shows, that a State on whose territory or in
whose waters an act contrary to international law has occurred, may be called
upon to give an explanation. ... But it cannot be concluded from the mere fact
of the control exercised by a State over its territory an d waters that that State
__________________
86
Ibid., p. 71, para. 163.
87
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, paras. 170, 173.
88
Durward V. Sandifer, Evidence before International Tribunals (Charlottesville: University Press
of Virginia, 1975), pp. 112, 117; Mariko Fukasaka, “Burdens of proof before international
litigation: burden of proof and producing evidence (1)”, Sophia Law Review, vol. 52 No. 4
(2009), pp. 183-184 [in Japanese].
89
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 130,
para. 210. The standard of proof, i.e., what a party must do in order to discharge the burden of
proof when that burden rests upon it, is essentially a common law tradition. In the civil law
tradition, “if the judge considers himself to have been persuaded by the argument on a ce rtain
matter, then the standard of proof has been met”. Whereas the International Court of Justice,
being composed of the judges of “the principal legal systems of the world” (article 9 of the
Statute), had long not referred to the standard of proof, in the case of the Application of the
Genocide Convention (Croatia v. Serbia), it addressed that concept for the first time.
90
Separate Opinion of Judge Greenwood, I.C.J. Reports 2007, p. 230, para. 25.
91
Ibid., p. 230, para. 26.
92
Katherine Del Mar, “The International Court of Justice and Standards of Proof”, in Bannelier,
Christakis and Heathcote (eds.), The International Court of Justice and the Evolution of
International Law (London: Routledge, 2013), pp. 98-123.
14/52
16-02241
A/CN.4/692
necessarily knew, or ought to have known, of any unlawful act perpetrated
therein ... On the other hand, the fact of this exclusive territorial control
exercised by a State within its frontiers has a bearing upon the methods of
proof available to establish the knowledge of that State as to such events. By
reason of this exclusive control, the other State, the victim of a breach of
international law, is often unable to furnish direct proof of facts giving rise to
responsibility. Such a State should be allowed a more liberal recourse to
inferences of fact and circumstantial evidence. This indirect evidence is
admitted in all systems of law, and its use is recognized by international
decisions. It must be regarded as of special weight when it is based on a series
of facts linked together and leading logically to a single conclusion.”
93
6. Jurisdiction and control
32. As stated in Max Huber’s dictum in the Island of Palmas case, the dominant
criterion for identifying the State that owes the obligation of protection is territorial
jurisdiction.
94
Territory is a primary basis of jurisdiction. Consequently, when an
activity occurs within the territory of a State, the duty to protect falls firstly on that
State. The territoriality principle is not without exceptions,
95
and there may be a
situation where extraterritorial application of a domestic law is envisaged in the
context of transboundary atmospheric pollution.
96
On the other hand, in common
__________________
93
Corfu Channel Case, Judgment, p. 18.
94
“Perspectives from international economic law on transnational environmental issues” , in Shinya
Murase, International Law: an Integrative Perspective on Transboundary Issues (Tokyo, Sophia
University Press, 2011), p. 92.
95
Ibid., pp. 54-57, 295-304; American Law Institute, Foreign Relations of the United States,
Restatement Third (Philadelphia/PA: ALI, 1987), section 402, pp. 230 -234. F. A. Mann, “The
doctrine of jurisdiction in international law”, in Studies in International Law, Oxford: Oxford
University Press, 1973, pp. 39-41; F. A. Mann, “The doctrine of international jurisdiction
revisited after twenty years”, Further Studies in International Law (Oxford: Clarendon Press,
1990), pp. 5-10; Werner Meng, “Extraterritorial effects of administrative, judic ial and legislative
acts”, in Bernhardt, ed., Encyclopedia of Public International Law, vol. II, 1992, p. 340; Menno
T. Kamminga, “Extraterritoriality”, in Rüdiger Wolfrum, ed., Encyclopedia of Public
International Law, vol. III, 2012, p. 1071.
96
Section 4 of Singapore’s Transboundary Haze Pollution Act 2014 (No. 24 of 2014) stipulates for
extraterritorial application that “[t]his Act shall extend to and in relation to any conduct or thing
outside Singapore which causes or contributes to any haze pollution in Singapore.” It was
explained by Singapore’s Minister for the Environment and Water Resources (D. Vivian
Balakrishanan) before Parliament that “[b]ecause we are addressing transboundary haze
pollution, an extraterritorial approach is necessary for the law to be effective. This exercise of
extraterritorial jurisdiction under the Bill is in line with international law, specially the objective
territorial principle” (Parliament of Singapore, Official Reports, No. 12, Session 2, 4 August
2014). It may be noted, however, that the ASEAN Haze Convention is now effective (ASEAN
Agreement on Transboundary Haze Pollution, entered into force on 25 November 2003,
http://haze.asean.org/status-of-ratification/. To date, all the ASEAN member States are parties,
since Indonesia, the last tenth ASEAN Member State, ratified the Agreement on 14 October
2014), it may not be necessary to resort to extraterritorial application of a domestic law, since the
same objective can be achieved by application of the Convention, the meth od which is normally
more desirable. However, if the measures contemplated under the Act extend beyond the scope of
the Agreement, that part of the measures may be considered either as opposable or non -opposable
in view of the legitimacy and effectiveness of the measures in question. See “Unilateral measures
and the concept of opposability in international law”, in Shinya Murase, International Law: An
Integrative Perspective on Transboundary Issues (Tokyo: Sophia University Press, 2011),
pp. 214-266.
16-02241
15/52
A/CN.4/692
areas, such as the high seas and the airspace above the high seas, there is no
territorial link between a State and the activity because of the location of the
activity. In such situations, if the activity leads to significant adverse effects on the
atmosphere, the State exercising jurisdiction over the area in question should
comply with the duty to prevent. An example is the introduction of substances or
energy into the atmosphere by vessels or aircraft flying its flag in the area of other
States or in areas beyond national jurisdiction, such as the high seas and the
airspace above the high seas.
33. It may be noted that there has been a shift of emphasis from “jurisdiction” to
“control” in exercising the State obligation of prevention. As both principle 21 of the
1972 Stockholm Declaration and principle 2 of the 1992 Rio Declaration use the
disjunctive conjunction “or”, the term “control” is distinct from the term
“jurisdiction”,
97
The two concepts have acquired a special meaning, to the effect that
“activities within their ... control” are treated on a separate and independent basis.
98
In its previous work, the Commission considered that “[t]he function of the concept
of ‘control’ in international law is to attach certain legal consequences to a State
whose jurisdiction over certain activities or events is not recognized by international
law; it covers situations in which a State is exercising de facto jurisdiction, even
though it lacks jurisdiction de jure ...”
99
Therefore, jurisdiction refers to “legal” ties,
whereas “control” refers to the factual capacity of effective control over activities
outside the jurisdiction of a State. As for the concept of “control”, the International
Court of Justice stated in the Namibia case that “[t]he fact that South Africa no
longer has any title to administer the Territory [of Namibia] does not release it from
its obligations and responsibilities under international law towards other States in
respect of the exercise of its powers in relation to this Territory. Physical control of
a territory, and not sovereignty or legitimacy of title, is the basis of State liability
for acts affecting other States” (emphasis added).
100
34. In line with the jurisprudence of international courts and tribunals, the Special
Rapporteur concludes that, in the context of transboundary atmospheric pollution,
the principle sic utere tuo ut alienum non laedas has now been confirmed as a
principle of general international law.
101
__________________
97
However, there is a difference between the wording of the Stockholm Declaration, principle 21,
and the observation of the advisory opinion in the Nuclear Weapons Case. While principle 21
provides for “activities within their jurisdiction or control”, the Inte rnational Court of Justice
used the coordinate conjunction, stating “activities within their jurisdiction and control”. One
observer considers that “[i]t constrains the application of the principle by limiting extraterritorial
application.” Edith Brown Weiss, “Opening the door to the environment and to future
generations”, in Laurence Boisson de Chazournes and Philippe Sands, eds., International Law,
the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University
Press, 1999), p. 340.
98
Louis B. Sohn, “The Stockholm Declaration on the Human Environment” , Harvard International
Law Journal, vol. 14 (1973), p. 493; Shinya Murase, Kokusai Rippo (International Lawmaking),
Tokyo: Toshindo, 2002, pp. 421-422 (in Japanese), Chinese translation (Beijing: Chinese
People’s University of Public Safety Press, 2012), pp. 210 -212.
99
Yearbook … 2001, vol. II, Part Two, p. 151, para. (12).
100
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 54, para. 118.
101
See A/CN.4/681, para. 58.
16/52
16-02241
A/CN.4/692
B. The duty to mitigate the risk of global atmospheric degradation
1. The sic utere tuo principle in the global context
35. As discussed above (para. 12), in the present draft guidelines, the sic utere tuo
principle has two distinct dimensions, one in a transboundary context and the other
in the global context. That differentiation should be viewed in line with the
judgment in the Pulp Mills case by the International Court of Justice, which
distinguished two different forms of obligations flowing from the principle.
102
One
is the sic utere tuo principle in the narrow sense, as formulated in the Trail Smelter
award, the other being the broader interpretation extending beyond the
transboundary perspective. In one way, the Court in Pulp Mills limited the scope of
application of the principle to damage to the environment of another State, stating
that “A State is ... obliged to use all the means at its disposal in order to avoid
activities which take place in its territory, or in any area under its jurisdiction,
causing significant damage to the environment of another State” (emphasis
added),
103
a formula which, according to the Court, is derived from the judgment in
the Corfu Channel case.
104
In another way, the Court interpreted the sic utere tuo
principle in the broader sense, affirming that the principle has since been expanded
in scope to encompass a broader geographical context, by referring to the Nuclear
Weapons advisory opinion that “the general obligation of States to ensure that
activities within their jurisdiction and control respect the environment of other
States or of areas beyond national control” (emphasis added).
105
36. In his second report, the Special Rapporteur stated that the sic utere tuo ut
alienum non laedas principle, whose application was initially limited to the
relationship with an “adjacent State” sharing a common territorial border, has
subsequently been widened to include global atmospheric issues.
106
While the
traditional principle dealt only with transboundary harm to other States in a narrow
sense, it has evolved to extend the territorial scope so as to address the global
commons per se.
107
In principle 21 of the Stockholm Declaration, the principle was
reformulated, providing that “States have ... the responsibility [devoir] to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.”
That part of the principle was reiterated in principle 2 of the Rio Declaration. The
areas beyond the jurisdiction and sovereignty of any State, generally referred to as
“global commons”, are understood to include the high seas, outer space and the
global atmosphere.
108
Although the atmosphere, which is not an area-based notion,
does not conform to the notion of “areas beyond the limits of national jurisdiction”,
__________________
102
Karine Bannelier, “Foundational Judgment or constructive myth? The Court ’s decision as a
precursor to international environmental law”, in Karine Bannelier, Theodore Christakis and
Sarah Heathcote, eds., The International Court of Justice and the Evolution of International
Law: The Enduring Impact of the Corfu Channel Case (New York: Routledge, 2012), p. 251.
103
I.C.J. Reports 2010, p. 56, para. 101.
104
Ibid., p. 55, para. 101. The Court affirmed in the Corfu Channel case “every State’s obligation
not to allow knowingly its territory to be used for acts contrary to the rights o f other States”.
I.C.J. Reports 1949, p. 22.
105
Ibid., p. 78, para. 193.
106
See A/CN.4/681, paras. 52-57.
107
Xue Hanqin, Transboundary Damage in International Law (Cambridge: Cambridge University
Press, 2003), p. 191.
108
Ibid., pp. 191-193; Alan E. Boyle, “State responsibility for breach of obligations to protect the
global environment”, in W. E. Butler, ed., Control over Compliance with International Law
(Dordrecht: Nijhoff, 1991), p. 69.
16-02241
17/52
A/CN.4/692
it is nonetheless clear that the atmosphere existing above those areas is now covered
by principle 21 of the Stockholm Declaration.
109
37. It is notable that the sic utere tuo principle encounters certain evidentiary
difficulties when it is applied to global issues, such as long -distance,
transcontinental air pollution, ozone depletion and climate change. In such cases,
the chain of causation, i.e. the physical link between cause (activity) and effect
(harm), is difficult to prove, because of the widespread, long -term and cumulative
character of their effects. The adverse effects, because of their complex and
synergistic nature, result from multiple sources and any single activity is not
sufficiently attributable to such adverse effects. In the global setting, virtually all
States are likely to be responsible States as well as injured States. Consequently,
even where actual harm has occurred, it is difficult, if not impossible, to identify a
single responsible State of origin.
110
The difficulty of establishing the causal link
between the wrongful act and the harm suffered has already been acknowledged by
the Convention on Long-range Transboundary Air Pollution (1979). Article 1 of that
convention characterizes long-range transboundary air pollution as pollution “at
such a distance ... that it is not generally possible to distinguish the contribution of
individual emission sources or groups of sources”. Notwithstanding that definition,
the Convention enshrines principle 21 of the Stockholm Declaration in the preambular
paragraph as a “common conviction”. The Vienna Convention for the Protection of
the Ozone Layer and the United Nations Framework Convention on Climate Change
recognize the above difficulties as well. However, they also expressly incorporate
principle 21 of the Stockholm Declaration into their preambles and therefore can lead
it to be considered an integral component of international law.
111
38. In fact, it was confirmed in the International Court of Justice advisory opinion
on Nuclear Weapons that the terms of principles 21 of the Stockholm Declaration and
principle 2 of the Rio Declaration are “now part of the corpus of international law
relating to the environment”.
112
In the Gabčikovo-Nagymaros Project case, the Court
reaffirmed this view, recognizing further that “it has recently had occasion to stress ...
__________________
109
Birnie, Boyle and Redgwell, International Law and the Environment, op. cit., p. 145, citing the
preambles of the United Nations Framework Convention on Climate Change and other global
conventions.
110
In contrast, an “injured State” for the purpose of the law of state responsibility may be identified
even in that case. According to article 42(b)(i) of the Articles on the responsibility of States for
internationally wrongful acts, where the obligation breached is owed to the inter national
community as a whole, a specially affected State is considered to be an injured State. According
to the Commentary, “[e]ven in cases where the legal effects of an internationally wrongful act
extend by implication … to the international community as a whole, the wrongful act may have
particular adverse effects on one State or on a small number of States”. Yearbook … 2001, vol. II,
Part Two, article 43, para. (12). An example given in the Commentary is the pollution of the high
seas, which constitutes a breach of the customary rule, where such pollution has a particular
impact on the territorial sea of a particular State. In that case, “the breach exists in respect of all
other States, but among these the coastal State which is particularly affected by the pollution is
to be considered as ‘specially’ affected.” Giorgio Gaja, “The concept of an injured State”, in
James Crawford, Alain Pellet and Simon Olleson, eds., The Law of International Responsibility
(Oxford: Oxford University Press, 2010), p. 947. The same can be applied, for example, to acid
rain damage resulting from transboundary air pollution or damage caused by the ozone hole.
111
Yoshida Osamu, The International Legal Régime for the Protection of the Stratospheric Ozone
Layer (The Hague: Kluwer Law International, 2001), pp. 62-67; Malgosia Fitzmaurice,
“Responsibility and climate change”, German Yearbook of International Law, vol. 53 (2010),
pp. 117-118.
112
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 ,
pp. 241-242, para. 29.
18/52
16-02241
A/CN.4/692
the great significance that it attaches to respect for the environment, not only for
States but also for the whole of mankind” (emphasis added).
113
The Court also cited
the same paragraph in the Pulp Mills case.
114
In addition, in the Iron Rhine Railway
case, the tribunal stated that “Environmental law ... require[s] that where development
may cause significant harm to the environment there is a duty to prevent, or at least
mitigate, such harm ... This duty ... has now become a principle of general
international law.”
115
Those cases have confirmed the principle of not causing
significant harm to the atmospheric environment of other States, not limited
exclusively to adjacent States, as an established principle of customary international
law.
2. Precaution
39. In the context of the protection of the atmosphere from global atmospheric
degradation, substantive obligations incorporated in the relevant conventions are
those of precautionary measures. Unlike the “preventive measures” that are based
on scientific knowledge, precaution is addressed where there exists no sufficient
scientific certainty. Thus, in dealing with the protection of the atmosphere,
consideration of precaution is inevitable. Precaution is distinguished into two types:
one is “precautionary measures” (precautionary approach) and the other the
“precautionary principle”. While the former implies administrative measures
implementing the rules of precaution, the latter is a legal principle to be a pplicable
before a court of law, the main function of which is to shift the burden of proof from
the party alleging the existence of damage to the defendant party, who is required to
prove non-existence of the damage.
116
While there are a few conventions providing
for a precautionary principle,
117
international courts and tribunals have thus far
__________________
113
Gabčikovo-Nagymaros Project (Hungary vs. Slovakia), Judgment, I.C.J. Reports 1997, p. 41,
para. 53.
114
Pulp Mills on the River Uruguay, Judgment, p. 78, para. 193.
115
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. 66-67, para. 59. It may have been premature to say that Principle 21 was only a
starting point and that the principle had not yet entered into customary international law at the
time of the adoption of the Stockholm Declaration in 1972. However, subsequent developments
of jurisprudence, such as the 1995 Nuclear Tests II case, the 1996 Nuclear Weapons case, the
1997 Gabčikovo-Nagymaros Project case and the 2010 Pulp Mills case, confirm the customary
status of the principle, consolidated by State practice and opinio juris as well; see Birnie, Boyle
and Redgwell, International Law and the Environment, op. cit., p. 143; Paolo Galizzi, “Air,
Atmosphere and Climate Change”, in Shawkat Alam, et al., eds., Routledge Handbook of
International Environmental Law (London: Routledge, 2014), pp. 333-347.
116
In adopting the 2000 Cartagena Protocol on Biosafety, States opted for “pre cautionary approach”
rather than “precautionary principle” as reflected in its preamble (Nicolas de Sadeleer, “The
principle of prevention and precaution in international law: two heads of the same coin?” in
Malgosia Fitzmaurice, et al., eds., Research Handbook, op. cit., pp. 191-192). On this continuing
discourse, see Jonathan B. Wiener, “The rhetoric of precaution”, in Jonathan B. Wiener et al.,
eds., The Reality of Precaution: Comparing Risk Regulation in the United States and Europe
(Washington/DC and London: Earthscan, 2011), pp. 3-35.
117
For example, 1996 Protocol to the London Dumping Convention and the 2001 Stockholm POPs
Convention. Sadeleer, op. cit., pp. 186-187. Arie Trouwborst, Evolution and Status of the
Precautionary Principle in International Law (The Hague: Kluwer Law International, 2002),
p. 15; Jonathan B. Wiener, “Precaution”, in Daniel Bodansky et al., eds., Oxford Handbook,
op. cit., p. 601. See Antonio A. Cançado Trindade, “Principle 15: precaution”, in Duvic -Paoli and
Vinuales, The Rio Declaration on Environment and Development, op, cit., pp. 417-421.
16-02241
19/52
A/CN.4/692
never recognized the precautionary principle as customary international law,
although it has been invoked several times by claimants.
118
It should thus be
considered inappropriate to refer to a precautionary principle in the present
guidelines.
119
As mentioned above, the law relating to degradation of the atmosphere
is based on the idea of precaution and the relevant conventions incorporate the
precautionary approaches/measures, either explicitly or implicitly, as essential
elements for the obligation of States to minimize the risk of atmospheric
degradation.
40. On the basis of the foregoing, the following draft guideline is proposed:
Draft guideline 3: Obligation of States to protect the atmosphere
States have the obligation to protect the atmosphere from transboundary
atmospheric pollution and global atmospheric degradation.
(a) Appropriate measures of due diligence shall be taken to prevent
atmospheric pollution under international law.
(b) Appropriate measures shall be taken to minimize the risk of
atmospheric degradation in accordance with relevant conventions.
C. The duty to assess environmental impacts
41. One of the important obligations of States in protecting the atmosphere by
preventing atmospheric pollution and minimizing the risk of atmospheric
degradation is to conduct an appropriate environmental impact assessment. In the
recent case of the International Court of Justice on the Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court 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”,
120
and concluded
that the State in question had “not complied with its obligation under general
__________________
118
The ITLOS order on the provisional measures of 27 August 1999 in the cases of Southern Blue
Fin Tuna (New Zeeland v. Japan; Australia v. Japan) held that the parties should “act with
prudence and caution to ensure that effective conservation measures are taken to prevent serious
harm to the stock of southern blue fin tuna” (emphasis added), but the Tribunal avoided referring
to the “precautionary principle” that had been invoked by the applicants. (para. 77 of the Order.
This Order was nullified by the subsequent award by the Arbitral Tribunal of 4 August 2000.) In
the Mox Plant (Ireland v. United Kingdom) case, the Tribunal again referred to “prudence and
caution” rather than the “precautionary principle” (Order of 3 December 2001, para. 84). The
phrase was repeated by the Tribunal in the Case concerning Land Reclamation by Singapore in
and around the Strait of Johor (Malaysia v. Singapore) (Order of 8 October 2003, para. 99). See
Sadeleer, op. cit., pp. 189, 208.
119
In elaborating the 2013 understanding, this difference was stressed by the Special Rapporteur
and it was agreed that “precautionary approach/measures” could be dealt with in the draft
guidelines, if not the “precautionary principle” (noting however the phrase “but without
prejudice to” in the said understanding). The present guidelines proposed by the Special
Rapporteur do not refer to either of the two concepts. The concept of precautionary approach/
measures is naturally implicit in draft guideline 3 (a) below.
120
Construction of a Road in Costa Rica along the San Juan River, Judgment, para. 153.
20/52
16-02241
A/CN.4/692
international law to perform an environmental impact assessment prior to the
construction of the road”.
121
It may be 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”.
122
1. Evolution of environmental impact assessment in international law
42. Environmental impact assessment, a process which identifies and analyses the
environmental impact of a certain project, plan or programme,
123
was first
introduced in the 1969 National Environmental Policy Act of the United States of
America. Today, more than 130 States around the world have followed or adapted
the model of environmental impact assessment in their national legislation.
124
At the
international level, environmental impact assessment is said to have emerged after the
United Nations Conference on the Human Environment, held in Stockholm in 1972.
Even though the Stockholm Declaration did not expressly refer to environmental
impact assessment, its principles 14 and 15 have been interpreted as implying the
rationale underlying environmental impact assessment.
125
Furthermore, Principle 17
__________________
121
Ibid., para. 168.
122
Judge Hisashi Owada’s separate opinion, para. 18.
123
Astrid Epiney, “Environmental impact assessment”, in Encyclopedia of Public International
Law, vol. III (Oxford: Oxford University Press, 2012), pp. 580 -592; Philippe Sands and
Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge
University Press), 3rd ed., 2012, pp. 601-623; Olufemi Elias, “Environmental impact
assessment”, in Malgosia Fitzmaurice et al., eds. Research Handbook on International
Environmental Law, op. cit., pp. 227-242; John Glasson, Riki Therivel and Andrew Chadwick,
Introduction To Environmental Impact Assessment (Oxford: Routledge, 2013); David B. Hunter,
“International environmental law: sources, principles and innovations” in Paul G. Harris,
Routledge Handbook of Global Environmental Politics (Oxford: Routledge, 2013); Donald K.
Anton, “Case concerning pulp mills on the River Uruguay (Argentina v Uruguay) (Judgment)
[2010] I.C.J. Reports (10 April 2010)”, available from http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1705810; Deng Hua, “The evolution and implementation of
environmental impact assessment in international law”, Sun Yat-Sen University Law Review,
vol. 13, No. 3 (2015), pp.129-148 (in Chinese). See also Nicholas A. Robinson, “International
trends in environmental assessment”, Boston College Environmental Affairs Law Review, vol. 19
(1992), pp. 591-622; Kevin R. Gray, “international environmental impact assessment -potential
for a multilateral environmental agreement”, Colorado Journal of International Environmental
Law and Policy, vol.11 (2000), pp. 83-128; John H. Knox, “The myth and reality of
transboundary environmental impact assessment”, AJIL, vol.96 (2002), pp. 291-319; John H.
Knox, “Assessing the candidates for a global treaty on transboundary environmental impact
assessment”, New York University Environmental Law Journal, vol.12 (2003), pp. 153-168;
Charles M. Kersten, “Rethinking transboundary environmental impact assessment”, Yale Journal
of International Law, vol. 34 (2009), pp.173-206; Vanessa Edwards, “Review of the Court of
Justice’s case law in relation to waste and environmental impact assessment”, Journal of
Environmental Law, vol. 25 (2013), pp. 515-530; Mary Sabina Peters, “Minimize risk of carbon
sequestration through environmental impact assessment and strategic environmental
assessment”, European Energy and Environmental Law Review, vol. 24 (2015), pp. 12-16.
124
Kersten, ibid., p.176; James Rasband et al., Natural Resources Law and Policy (New York:
Foundation Press, 2nd ed., 2009), p. 253.
125
Principles 14 and 15 of the Stockholm Declaration provide as follows. Principle 14: “Rational
planning constitutes an essential tool for reconciling any conflict between the needs of
development and the need to protect and improve the environment.” Principle 15: “Planning
must be applied to human settlements and urbanization with a view to avoiding adverse effects
on the environment and obtaining maximum social, economic and environmental benefits for all.
In this respect projects which are designed for colonialist and racist domination must be
abandoned.” A/CONF.48/14/Rev.1.
16-02241
21/52
A/CN.4/692
of the 1992 Rio Declaration provides in a mandatory form (although the Declaration
itself is a non-binding instrument): “Environmental impact assessment, as a national
instrument, shall be undertaken for proposed activities that are likely to have a
significant adverse impact on the environment and are subject to decision of a
competent national authority.”
126
43. Today, environmental impact assessment has been widely adopted in
international legal systems and included in numerous international conventions.
127
It
is defined as “a national procedure for evaluating the likely impact of a proposed
activity on the environment” (Convention on Environmental Impact Assessment in a
Transboundary Context, Espoo Convention, article 1 (vi)).
128
A number of
international judicial precedents have confirmed the requirements of environmental
impact assessment.
129
Generally, it is used as a legal technique for rendering
possible integration of environmental considerations into the decision -making
process, proposing possible measures to mitigate adverse environmental effects and
describing alternatives that are less harmful to the environment, helping the decision
maker to evaluate a project and then make a decision as to whether to implement the
project or not, and enabling possible affected persons to participate in the decisionmaking
process, etc.
130
Furthermore, it is regarded as necessary to understand the
environmental impacts of a project as early as possible, in order to prevent, reduce
or control environmental harm.
131
Moreover, in the context of the principle of
sustainable development, it is also a legal technique for reconciling socioeconomic
development and environmental protection, with a view to striking a proper balance
for sustainable development.
132
Environmental impact assessment itself is a
procedure and neither compels by itself a particular result, nor imposes substantive
environmental standards.
133
2. Treaties
44. There is so far no comprehensive global convention governing transboundary
environmental impact assessment; instead, States have addressed the subject mainly
through a series of regional or sectoral treaties. As a result, environmental impact
assessment regimes vary from region to region and from resource to resource.
134
A
large number of conventions include provisions requiring an environmental impact
assessment, of which the field of marine environmental protection is of special
importance for the development of the process.
135
The following conventions refer
__________________
126
Rio Declaration on Environment and Development, A/CONF.151/26/Rev.1, vol. I.
127
See paras. 44-50 below.
128
Convention on Environmental Impact Assessment in a Transboundary Context, 25 February
1991, United Nations Treaties Series, vol. 1989, p. 310 (entered into force 10 September 1997)
(hereinafter Espoo Convention).
129
See paras. 52-58 below.
130
Epiney, “Environmental impact assessment”, p. 581.
131
Ibid., p. 580.
132
Gerry Bates, Environmental Law in Australia, 7th ed. (Chastwood, N.S.W: Lexis Nexis
Butterworths, 2010), p. 307.
133
Elias, “Environmental Impact Assessment”, op. cit., p. 227.
134
For a discussion as to why a global treaty on environmental impact assessment remains elusive,
see Knox, “Assessing the candidates for a global treaty on transboundary environmental impact
assessment”, op. cit., pp. 153-168; see also Kersten, “Rethinking transboundary environmental
impact assessment”, op. cit., p. 178.
135
Epiney, “Environmental impact assessment”, op. cit., p. 582.
22/52
16-02241
A/CN.4/692
in different ways to the obligation to conduct an environmental i mpact assessment:
(a) Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter (London Convention 1972 and its 1996 Protocol) (articles 4 and 5,
annexes II and III);
136
(b) United Nations Convention on the Law of the Sea 1982
137
(article 206);
(c) Kuwait Regional Convention for Co-operation on the Protection
of the Marine Environment from Pollution 1978 (article 11);
138
(d) Convention for
Co-operation in the Protection and Development of the Marine and Coastal
Environment of the West and Central African Region 1981 (article 13);
139
(e) Convention for the Protection of the Marine Environment and Coastal Area of
the South-East Pacific 1981 (article 8);
140
(f) Regional Convention for the
Conservation of the Red Sea and Gulf of Aden Environme nt 1982 (article 11);
141
(g) Cartagena Convention for the Protection and Development of the Marine
Environment of the Wider Caribbean Region 1983 (article 12);
142
(h) Convention for
the Protection, Management and Development of the Marine and Coastal
Environment of the Western Indian Ocean 1985/2010 (article 14);
143
(i) Convention
for the Protection of the Natural Resources and Environment of the South Pacific
Region 1986 (Noumea Convention) (article 16);
144
(j) Convention for the Protection
of the Marine Environment and the Coastal Region of the Mediterranean 1976/1995
(article 4);
145
and its Protocols for the Protection of the Mediterranean Sea against
Pollution Resulting from Exploration and Exploitation of the Continental Shelf and
the Seabed and its Subsoil (1994, article 5) and on Integrated Coastal Zone
Management in the Mediterranean (2008, article 19); (k) Framework Convention for
the Protection of the Marine Environment of the Caspian Sea 2003 (article 17)
146
and
its Protocol on Pollution from Land-based Sources and Activities (2012, article 12; a
further protocol on environmental impact assessment in a transboundary context is
scheduled to be adopted in 2016).
45. Conventions in other fields of international environmental law also provide for
an environmental impact assessment: (a) Convention on the Protection of the
Environment between Denmark, Finland, Norway, and Sweden 1974 (article 6);
147
(b) Association of Southeast Asian Nations (ASEAN) Agreement on the
Conservation of Nature and Natural Resources 1985 (article 14 (1));
148
(c) Canada-
USA Agreement on Air Quality 1991 (article 5)
149
; (d) United Nations Framework
__________________
136
United Nations Treaty Series, vol. 1046, p. 138.
137
United Nations Treaty Series, vol. 1833, p. 396.
138
United Nations Treaty Series, vol. 1140, p. 155.
139
Available from http://abidjanconvention.org/media/documents/publications/Abidjan%
20Convention%20English.pdf.
140
Available at: http://sedac.ciesin.org/entri/texts/
marine.environment.coastal.south.east.pacific.1981.html.
141
Environmental Policy and Law, vol. 9, p. 56, available at http://sedac.ciesin.org/entri/texts/
red.sea.gulf.of.aden.1982.html.
142
United Nations Treaty Series, vol. 1506, p. 157.
143
Available at http://www.unep.org/NairobiConvention/docs/Final_Act_Nairobi_Amended_
Convention&Text_Amended_Nairobi_Convention.pdf.
144
Available at http://sedac.ciesin.org/entri/texts/natural.resources.south.pacific.1986.html.
145
United Nations Treaty Series, vol. 1102, p. 27.
146
Available at: http://www.tehranconvention.org/IMG/pdf/Tehran_Convention_text_final_pdf.pdf .
147
Available at http://sedac.ciesin.org/entri/texts/acrc/Nordic.txt.html.
148
Available at http://environment.asean.org/agreement-on-the-conservation-of-nature-and-naturalresources/.
149
Available at www.ijc.org/rel/agree/air.html.
16-02241
23/52
A/CN.4/692
Convention on Climate Change 1992 (article 4 (1) (f));
150
(e) Convention on
Biological Diversity 1992 (article 14 (1));
151
(f) Protocol on Environmental
Protection to the Antarctic Treaty 1991 (article 8);
152
(g) Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989
(article 4 (2) (f));
153
(h) Convention on the Protection and Use of Transboundary
Watercourses and International Lakes 1992 (articles 3 (1) (h) and 9 (2) (j)).
154
46. It is noteworthy that several multilateral financial institutions insist that the
borrower States conduct an environmental impact assessment as a condition of their
lending activities. The pertinent instruments of the International Bank for
Reconstruction and Development (World Bank) provide for its own assessment
procedures, which are laid down in the World Bank environmental assessment
operational policy 4.01 (January 1999, revised in April 2013, currently under further
review), according to which the World Bank requires an environmental impact
assessment of projects proposed for financing. In the course of the assessment, an
array of factors are to be taken into consideration, including the natural
environment, human health and safety, social aspects and transboundary and global
environmental implications, and public participation has to be guaranteed. The
World Bank is free to refuse financing of a project that may have harmful
consequences for the environment. The purpose of imposing this obligation is to
help ensure that the projects are environmentally sound and sustainable with a view
to improving its decision-making.
155
It may be noted that the newly established
Asian Infrastructure Investment Bank has also proposed certain environmental
assessment provisions.
156
47. The leading multilateral instrument in the field of environmental impact
assessment is the Espoo Convention,
157
which is particularly important in the
development of the environmental impact assessment regime in international law. The
Convention sets out the obligations of parties to assess the environmental impact of
certain activities at an early stage of planning and it also lays down the general
obligation of States to notify and consult each other on all major projects under
consideration that are likely to have a significant adverse environmental impact across
boundaries.
158
Since it was adopted under the auspices of the Economic Commission
__________________
150
United Nations Treaty Series, vol. 1771, p. 107.
151
Ibid., vol. 1760, p. 79.
152
International Legal Materials, vol. 30, p. 1455 (1991), and available at http://www.polarlaw.org/
1991protocol.htm.
153
United Nations Treaty Series, vol. 1673, p. 57.
154
Ibid., vol. 1936, p. 269.
155
Epiney, “Environmental impact assessment”, op. cit., pp. 582 -583; see also Philippe Sands,
Principles of International Environmental Law, 2nd ed. (Manchester: Manchester University
Press, 2003), pp. 821-822. For similar environmental assessment guidelines adopted by the
African Development Bank, the Asian Development Bank and the Inter -American Development
Bank, see Günther Handl, Multilateral Development Banking: Environmental Principles and
Concepts Reflecting General International Law and Public Policy (London: Kluwer Law
International, 2001). See also the International Seabed Authority, “Recommendations for the
guidance of contractors for the assessment of the possible environmental impacts arising from
exploration for marine minerals in the Area”, ISBA/19/LTC/8.
156
See www.aiib.org/uploadfile/2015/0907/20150907061253489.pdf.
157
Convention on Environmental Impact Assessment in a Transboundary Context, Feb 25, 1991,
United Nations Treaties Series, vol. 1989, p. 310 (entered into force 10 September 1997) (Espoo
Convention).
158
See http://www.unece.org/env/eia/eia.html.
24/52
16-02241
A/CN.4/692
for Europe (ECE), the geographical scope of the Espoo Convention was at first
limited to the ECE region (45 parties, including the European Union). However,
following the entry into force of its first amendment on 26 August 2014, the
Convention is now open to all States Members of the United Nations, which it is
expected will play an important role in international law, further advancing
environmental impact assessment as an important tool for sustainable development.
159
48. According to its article 2 (1), the general purpose of the Esp oo Convention is
the commitment of parties to take all appropriate and effective measures to prevent,
reduce and control significant adverse transboundary environmental impact from
proposed activities. Therefore, according to article 2 (2), the parties are required to
establish an environmental impact assessment procedure for certain activities within
their jurisdiction that are likely to have a “significant adverse transboundary
impact”; moreover, the parties have the obligation to notify and consult with
potentially affected States regarding the expected transboundary effects of the
activity. According to article 1 on definitions, “proposed activities” means any
activity or any major change to an activity subject to a decision of a competent
authority in accordance with an applicable national procedure; “environmental
impact assessment” means a national procedure for evaluating the likely impact of a
proposed activity on the environment; “impact” means any effect caused by a
proposed activity on the environment including human health and safety, flora,
fauna, soil, air, water, climate, landscape and historical monuments or other physical
structures or the interaction among these factors, and also includes effects on
cultural heritage or socioeconomic conditions resulting from alterations to those
factors; “transboundary impact” means any impact, not exclusively of a global
nature, within an area under the jurisdiction of a Party caused by a proposed activity
the physical origin of which is situated wholly or in part within the area under the
jurisdiction of another Party.
160
More detailed procedural obligations are laid down
in the other provisions of the Convention. The significance of the Convention lies in
the fact that it provides for rather detailed and precise standards as regards the
manner of carrying out an environmental impact assessment.
161
The Espoo
Convention has been applied with significant frequency, which reflects the increase in
the number of parties, but also indicates that States consider transboundary
environmental impact assessment as a valuable procedure for informing and
consulting the authorities and the public of neighbouring countries. In 2003, the
Convention was supplemented by the Protocol on Strategic Environmental
Assessment (entered into force in 2011). The Protocol lays the groundwork for
sustainable development: it ensures that parties integrate environmental, including
health, considerations and public concerns into their plans and programmes and, to the
extent possible, also into policies and legislation, at the earliest stages. As of January
2016, there were 26 parties to the Protocol, including the European Union.
162
__________________
159
UNECE press releases, “UNECE Espoo Convention on Environmental Impact Assessment
Becomes a Global Instrument” (27 August 2014), available at http://www.unece.org/info/
media/presscurrent-press-h/environment/2014/unece-espoo-convention-on-environmentalimpact-assessment-becomes-a-global-instrument/unece-espoo-convention-on-environmentalimpact-assessment-becomes-a-global-instrument.html.
160
See article 1 of the Convention (Definitions) http://www.unece.org/fileadmin/DAM/env/eia/
documents/legaltexts/Espoo_Convention_authentic_ENG.pdf.
161
Epiney, “Environmental impact assessment”, op cit., p.584.
162
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4b&chapter=27&lang=en.
16-02241
25/52
A/CN.4/692
49. Transboundary environmental impact assessment has also been adopted by the
European Union, which has issued directives that require a member State to assess
the impact of a project on the environment of other member States. The original
environmental impact assessment directive (85/337/EEC) has been in force since
1985 and applies to a wide range of public and private projects, as defined in
annexes I and II.
163
The directive has been amended three times, in 1997, 2003 and
2009 respectively. Directive 97/11/EC brought its content into line with the Espoo
Convention, widening its scope of regulation by increasing the types of projects
covered and the number of projects requiring mandatory environmental impact
assessment (at annex I). It also provided for new screening arrangements, including
new screening criteria (at annex III) for annex II projects and established mini mum
information requirements. Directive 2003/35/EC was aimed at aligning the
provisions on public participation with the 1998 Convention on Public Participation
in Decision-making and Access to Justice in Environmental Matters. Directive
2009/31/EC amended annexes I and II of directive 85/337/EEC by adding projects
related to the transport, capture and storage of carbon dioxide. Directive
85/337/EEC and its three amendments were codified by directive 2011/92/EU of
13 December 2011. Directive 2011/92/EU was amended in 2014 by directive
2014/52/EU, which entered into force on 15 May 2014 to simplify the rules for
assessing the potential effects of projects on the environment.
164
It is in line with the
drive for smarter regulation in order to reduce administrative burdens. It also
improves the level of environmental protection, with a view to making business
decisions on public and private investments more sound, predictable and sustainable
in the longer term. The new approach pays greater attention to threats and
challenges that have emerged since the original rules came into force over 30 years
ago. That means that more attention is paid to areas such as resource efficiency,
climate change and disaster prevention, which are now better reflected in the
assessment process.
165
In comparison with a large number of international
instruments, the environmental impact assessment directive contains rather detailed
provisions that have also been specified by many rulings of the European Court of
__________________
163
Kersten, “Rethinking trans-boundary environmental impact assessment”, op. cit., p. 180.
164
See http://ec.europa.eu/environment/eia/eia-legalcontext.htm.
165
The main amendments of EIA Directive 2014/52/EU are as follows: (1) Member States now have
a mandate to simplify their different environmental assessment procedures. (2) Time frames are
introduced for the different stages of environmental assessments: screening decisions should be
taken within 90 days (although extensions are possible) and public consultations should last at
least 30 days. Member States also need to ensure that final decisions are taken within a
“reasonable period of time”. (3) The screening procedure, determining whether an EIA is
required, is simplified. Decisions must be duly motivated in the light of the updated screening
criteria. (4) EIA reports are to be made more understandable for the public, especially as regards
assessments of the current state of the environment and alternatives to the proposal in question.
(5) The quality and the content of the reports will be improved. Competent authorities will also
need to prove their objectivity to avoid conflicts of interest. (6) The grounds for development
consent decisions must be clear and more transparent for the public. Member States may also set
time frames for the validity of any reasoned conclusions or opinions issued as part of the EIA
procedure. (7) If projects do entail significant adverse effects on the environment, developers
will be obliged to do the necessary to avoid, prevent or reduce such effects. These projects will
need to be monitored using procedures determined by the member States. Existing monitoring
arrangements may be used to avoid duplication of monitoring and unn ecessary costs. See for
details: http://ec.europa.eu/environment/eia/review.htm.
26/52
16-02241
A/CN.4/692
166
Justice.
The Court has thus contributed in a decisive way to the effectiveness of
the directive, while its formulations still leave notable discretion to member
States.
167
50. The 1991 Protocol on Environmental Protection to the Antarctic Treaty
incorporates a more progressive form of environmental impact assessment. Article 8 (1)
provides that proposed activities shall be subject to the procedures set out in annex I
to the Protocol for prior assessment of the impacts of those activities on the
Antarctic environment. If a proposed activity is found to cause “less than a minor or
transitory impact”, that activity may proceed. If it is not so found, an initial
environmental evaluation will be prepared, and if it is found that there is “minor or
transitory impact”, the activity may proceed under appropriate procedures of
monitoring, assessment and verification of the impact of the activity. If it is found
that there is “more than a minor or transitory impact”, a comprehensive evaluation
will be circulated to all parties and made publicly available, and considered by the
Consultative Meeting. That represents an advanced version of how the requirement
for an environmental impact assessment operates and is more likely to be acceptable
within defined contexts such as Antarctica.
168
3. Non-binding instruments
51. With regard to non-binding instruments on the subject of environmental
impact assessment, the following instruments are noteworthy: (a) United Nations
Environment Programme (UNEP), draft principles of conduct in the field of the
environment for the guidance of states in the conservation and harmonious
utilization of natural resources shared by two or more States (principle 5),
169
endorsed by the General Assembly in resolution 34/186; (b) UNEP, conclusions of
the study of legal aspects concerning the environment related to offshore mining and
drilling within the limits of national jurisdiction (UNEP/GC.9/5/Add.5, annex III),
170
endorsed by the General Assembly in resolution 37/217; (c) World Charter for
Nature (paras. 11 (b) and (c)) endorsed by the General Assembly in resolution 37/7
(1982);
171
(d) UNEP, Goals and Principles of Environmental Impact Assessment of
1987 (UNEP/GC.14/17, annex III) endorsed by the General Assembly in resolution
42/184;
172
(e) United Nations Conference on Environment and Development, Rio
Declaration on Environment and Development (principle 17) (1992);
173
and finally,
(f) the draft articles on prevention of transboundary harm from hazardous activities
__________________
166
For example: Case C-301/95 Commission of the European Communities v. Federal Republic of
Germany (1998) ECR I-6135; Case C-392/96 Commission of the European Communities v. Ireland
(1999) ECR I-5901; Case C-87/02 Commission v. Italy (2004) ECR I-5975; Case C-508/03
Commission of the European Communities v. United Kingdom of Great Britain and Northern
Ireland (2006) ECR I-3969; Case C-290/03 Barker v. London Borough of Bromley (2006)
ECR I-3949; Case C-435/97 World Wildlife Fund v. Autonome Provinz Bozen (1999) ECR I-5613;
Case C-287/98 State of the Grand Duchy of Luxembourg v. Linster (2000) ECR I-6917; etc.
167
Epiney, “Environmental impact assessment”, op. cit., p. 586.
168
Elias, “Environmental impact assessment”, op. cit., p. 234.
169
UNEP/GC.6/17.
170
UNEP/GC.9/5/Add.5, annex III.
171
Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 51 (A/37/51),
p. 17, UN Doc. A/Res/37/7 (1982).
172
UNEP/GC.14/17, annex III, endorsed by A/Res/42/184.
173
See para. 14, supra above, footnote 42.
16-02241
27/52
A/CN.4/692
174
of 2001.
It should be noted that draft article 7 provides as follows: “Any decision
in respect of the authorization of an activity within the scope of the p resent articles
shall, in particular, be based on an assessment of the possible transboundary harm
caused by that activity, including any environmental impact assessment.” According
to its commentary, draft article 7 does not oblige the State of origin to require risk
assessment for any activity being undertaken within its territory or otherwise under its
jurisdiction or control. However, draft article 7 is fully consonant with principle 17 of
the Rio Declaration, which provides also for assessment of the r isk of activities that
are likely to have a significant adverse impact on the environment. A State of origin
should thus ensure that an assessment is undertaken of the risk of the activity
causing significant transboundary harm and that the assessment enab les the State to
determine the extent and the nature of the risk involved in an activity and
consequently the type of preventive measures it should take. Although draft article 7
does not specify what the content of the risk assessment should be, such an
assessment should contain an evaluation of the possible transboundary harmful
impact of the activity and include the effects of the activity not only on persons and
property, but also on the environment of other States.
175
4. Judicial decisions
52. It may be appropriate here to review briefly how international courts and
tribunals have regarded the obligation of carrying out an environmental impact
assessment in their jurisprudence. In the second Nuclear Tests case before the
International Court of Justice in 1995,
176
New Zealand sought to prevent France
resuming underground nuclear testing in the Pacific, citing among other reasons that
France had not conducted an environmental impact assessment, as required under
the Noumea Convention, 1986,
177
and also under customary international law.
178
It
may be noted that France does not seem to have denied the existence of those
obligations under the Noumea Convention and under customary international law.
Instead, its argument was that an environmental impact assessment s hould be
understood as leaving some latitude to States in conducting the assessment. While
the majority of the members of the Court did not consider those points for lack of
jurisdiction, Judge Weeramantry stated that in his opinion the obligation to carry out
the transboundary environmental impact assessment had become sufficiently
developed for the Court to “take notice” of it,
179
and Judge ad hoc Sir Geoffrey
Palmer also considered that customary international law might require such an
assessment in respect of activities that could have significant environmental
effects.
180
53. In the 1997 Gabčikovo-Nagymaros Project case, the concept of environmental
impact assessment was first referred to by Hungary, claiming that “a joint
__________________
174
See Yearbook … 2001, vol. II, Part Two, para. 97.
175
Ibid., para. 98.
176
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgement of 20 December 1974 in the Nuclear Tests, I.C.J. Reports 1995, pp. 288f.
177
Convention for the Protection of Natural Resources and Environment of the South Pacific
Region, 24 November 1986 (entered into force 22 August 1990, see para. 44 supra) available at:
http://sedac.ciesin.org/entri/texts/natural.resources.south.pacific.1986.html.
178
New Zealand’s pleadings, 1995: CR/95/20, paras. 10-25.
179
Dissenting Opinion of Judge Weeramantry, Request for an Examination of the Situation in
Accordance with Paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear
Tests, I.C.J Reports 1995, p. 344.
180
Ibid., p. 412; See Elias, “Environmental impact assessment” , op. cit., pp. 234-235.
28/52
16-02241
A/CN.4/692
environmental impact assessment of the region and of the future of Variant C
structures in the context of the sustainable development of the region should be
carried out”.
181
In its judgment, the International Court of Justice seems to admit
that there is an obligation to proceed to an environmental impact assessment before
realizing a project with potentially harmful effects on the environment of another
State, the Court doing so by interpreting the relevant treaty in an evolving way
182
and holding that: “It is clear that the Project’s impact upon, and its implications for,
the environment are of necessity a key issue. The numerous scientific reports which
have been presented to the Court by the Parties ... provide abundant evidence that
this impact and these implications are considerable. In order to evaluate the
environmental risks, current standards must be taken into consideration. This is not
only allowed by the wording of articles 15 and 19 of the Treaty on the Construction
and Operation of the Gabčikovo-Nagymaros Barrage System signed in Budapest on
16 September 1977, but even prescribed, to the extent that these articles impose a
continuing — and thus necessarily evolving — obligation on the parties to maintain
the quality of the water of the Danube and to protect nature. The Court is min dful
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.”
183
The Court stressed that newly developed environmental standards had
to be taken into account “not only when States contemplate new activities but also
when continuing with activities begun in the past”,
184
thus noting the close
relationship between prior impact assessment and subsequent monitoring of the
implementation of treaties to take account of environmental effects.
185
54. The 2005 award of the Iron Rhine arbitration provided support as to the
general requirement of an environmental impact assessment under international law.
The tribunal stated that both international law and European Community law require
“the integration of appropriate environmental measures in the design and
implementation of economic development activities” and that “emerging prin ciples
now integrate environmental protection into the development process”, thus
endorsing the views expressed by the International Court of Justice in the
Gabčikovo-Nagymaros Project judgment.
186
55. In the 2010 Pulp Mills case judgment, the International Court of Justice noted
the practice of environmental impact assessment, “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 asses sment
where there is a risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context, in particular, on a shared resource”
(emphasis added).
187
Although the 1975 Statute of the River Uruguay between
__________________
181
Gabcikovo-Nagymaros Project, Judgment, p. 73, para. 125.
182
Epiney, “Environmental impact assessment”, op. cit., p. 588.
183
Gabcikovo-Nagymaros Project, Judgment, pp. 77-78, para. 140.
184
Ibid., Judge Wearamantry referred in his opinion to the “principle of continuing environmental
impact assessment”, stating that the incorporation of environmental considerations into the treaty
meant that EIA with a duty of monitoring was also built into the treaty. Ibid., pp. 111 -112.
185
Elias, “Environmental impact assessment”, op. cit., p. 235.
186
UNRIAA, vol. XXVII, para. 59.
187
In the Pulp Mills case, the Court held that “an environmental impact assessment must be
conducted prior to the implementation of a project”. Pulp Mills on the River Uruguay, Judgment,
p. 83, para. 204.
16-02241
29/52
A/CN.4/692
Argentina and Uruguay did not require an environmental impact assessment,
Uruguay had prepared one. While both parties agreed that international law required
such an assessment, Argentina argued that the scope of the Uruguayan assessment
did not satisfy international standards, particularly with regard to the evaluation of
siting alternatives and public consultation. The Court found that the assessment was
adequate in both respects.
188
One of the most significant outcomes of the Pulp Mills
case is the recognition by the Court that environmental impact assessment is a
practice that has become an obligation of general international law in situations
where a proposed industrial activity may have a significant adverse impact on
another State or a shared natural resource. The comments of the Court should be
seen as reflecting standard practice in defining some of the issues that States should
consider when implementing the obligation to carry out an assessment through their
own domestic legislation or project authorization procedures. For example, the
indication by the Court that an environmental impact assessment must be conducted
“prior to the implementation of a project”
189
would seem to imply that such an
assessment can influence the decision and the overall design of a project.
190
The
statement by the Court that an environmental impact assessment must be followed,
when necessary, by continuous monitoring of the effects of the project on the
environment throughout the life of the project is reflective of best practice and
logically flows from the acknowledgement by the Court of “due diligence, and the
duty of vigilance and prevention which it implies”.
191
Thus, while in the Gabčikovo -
Nagymaros Project case the Court stopped short of recognizing the non-conventional
status of the requirement of an environmental impact assessment, it seems that the
Court positively endorsed such a status in the Pulp Mills case. It may be concluded
that environmental impact assessment is now recognized as an essential tool for
integrating environmental concerns into the development process and therefore that
a general requirement of environmental impact assessment is now part of positive
international law.
192
56. In 2011, the Seabed Disputes Chamber of the International Tribunal for the
Law of the Sea rendered its Advisory Opinion on the responsibilities and obligations
of States sponsoring persons and entities with respect to activities in the Area.
193
In
its opinion, the Chamber dealt with environmental impact assessment by referring to
the Pulp Mills judgment. In answering the question submitted by the Council of the
International Seabed Authority as to “what are the legal ... obligations of States
Parties to the Convention [on the Law of the Sea] with respect to the sponsorship of
activities in the Area ...”, the Chamber singled out the obligation to conduct
environmental impact assessments as one of the direct obligations incumbent on
sponsoring States.
194
As the Chamber noted, under article 206 of the Convention and
related instruments, such as regulation 31, paragraph 6, of the Regulations on
__________________
188
Ibid., pp. 85, 87, paras. 210, 211, 219.
189
Ibid., p. 83, para. 205.
190
See the dissenting opinion of Judge ad hoc Vinuesa (at para. 65): “all of the consultations … took
place after environmental authorizations had been granted, and therefore all are meaningless”.
191
Pulp Mills on the River Uruguay, pp. 82-83, para. 204. Also see Cymie R. Payne, “Pulp Mills on
the River Uruguay”, AJIL, vol. 105 (2011), pp. 99-100.
192
Elias, “Environmental impact assessment”, op. cit., p. 236.
193
The International Tribunal for the Law of the Sea, Seabed Disputes Chamber, Responsibilities
and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area ,
Advisory Opinion, ITLOS, Case No. 17, para. 141f.
194
Ibid., p. 44, para. 122.
30/52
16-02241
A/CN.4/692
Prospecting and Exploration for Polymetallic Nodules in the Area and regulation 33,
paragraph 6, of the Regulations on Prospecting and Exploration for Polymetallic
Sulphides in the Area adopted by the International Seabed Authority, sponsoring
States have the obligation to conduct an environmental impact assessment.
195
However, the Chamber did not stop there and it stated that: “It should be stressed
that the obligation to conduct an environmental impact assessment is a direct
obligation under the Convention and a general obligation under customary
international law” (emphasis added).
196
The Chamber deduced this statement from
the Pulp Mills judgment,
197
and broadened the scope of the obligation to cover
activities in the Area. According to the Chamber: “Although aimed at the specific
situation under discussion by the Court [in the Pulp Mills case], the language used
[by the International Court of Justice] seems broad enough to cover activities in the
Area even beyond the scope of the Regulations. The Court’s reasoning [in the Pulp
Mills case] in a transboundary context may also apply to activities with an impact
on the environment in an area beyond the limits of national jurisdiction; and the
Court’s references to ‘shared resources’ may also apply to resources that are the
common heritage of mankind” (emphasis added).
198
Bearing the opinion in mind, it
may be concluded that the obligation to conduct an environmental impact
assessment under general international law also applies in the context of activities in
an area beyond the limits of national jurisdiction.
57. The 2013 partial award of the Indus Waters Kishenganga Arbitration (Pakistan
v. India) confirmed the obligation of the State under customary international law to
undertake an environmental impact assessment in light of the judgments of the
International Court of Justice in the Gabčikovo-Nagymaros Project, Pulp Mills and
Iron Rhine cases.
199
58. In the recent case of Certain Activities carried out by Nicaragua in the Border
Area and Construction of a Road in Costa Rica along the San Juan River, the
International Court of Justice reiterated its statement in the Pulp Mills case that “it
may now be considered a requirement under general international law to undertake
an environmental impact assessment”.
200
The Court in the present case developed
the content of the obligation held in the Pulp Mills case in three ways. First,
although the statement by the Court in the Pulp Mills case refers to industrial
activities undertaken by private companies, it concluded in the present case that the
obligation of environmental impact assessment “applies generally to proposed
activities which may have a significant adverse impact in a transboundary
context”,
201
and therefore applies to projects conducted by a State itself as well.
Secondly, although the Court held in the Pulp Mills case that the obligation to carry
out environmental impact assessments is a continuous one, the Court in that case put
an emphasis on the obligation to conduct the assessment prior to undertaking an
activity, stating that “the obligation to conduct an environmental impact assessment
__________________
195
Ibid., p. 49, para. 142 and p. 50, para. 146.
196
Ibid., p. 50, para. 145.
197
Ibid., p. 51, para. 147.
198
Ibid., p. 51, para. 148.
199
PCA, Indus Waters Kishenganga Arbitration, Partial Award of 18 February 2013, paras. 450, 451
and 452. This was confirmed by the Final Award of 20 December 2013, para. 112.
200
Certain Activities carried out by Nicaragua in the Border Area, Judgment, I.C.J. Reports, 2015 ,
para. 104.
201
Ibid.
16-02241
31/52
A/CN.4/692
requires an ex ante evaluation of the risk of significant transboundary harm”.
202
Thirdly, the Court observed that the “reference to domestic law does not relate to
the question of whether an environmental impact assessment should be
undertaken”.
203
5. Customary international law
59. Based on the aforementioned international practice, there has been
considerable support for the view that an environmental impact assessment is
required as customary international law with regard to the activities or projects that
may cause considerable transboundary environmental effects. Since the early 1980s,
an environmental impact assessment is regularly required in a broad range of
international instruments in case of potentially harmful activities: in addition, more
than 130 countries have incorporated requirements for environmental impact
assessments in their national legislation, so a rather uniform and continuous State
practice exists. States also recognize that obligation as legally binding, at least as
far as projects with potential transboundary effects are concerned. Therefore, at
least the principle of requiring prior environmental assessment of projects, which
may cause significant transboundary environmental harm, can be considered as
international customary law. In other words, States have the obligation to conduct
an environmental impact assessment if the following conditions are fulfilled: first,
the project must be likely to have an impact on the environment; second,
transboundary effects must be likely; third, the impact must be significant.
Meanwhile, according to international practice, some indications with regard to the
procedure of an environmental impact assessment have to be observed: first, the
assessment should be carried out prior to the decision on the project; second, it must
be carried out in such a manner that all relevant environmental impacts can be
analysed and evaluated; third, public participation should be guaranteed in some
way; fourth, in practice, the assessment is generally conducted by State authorities;
and fifth, the result of an assessment must be taken into consideration when the
competent authority decides on the realization of the project.
204
Concerning the
conditions or indications mentioned above, some are still vague and lack details in
many international instruments, even though some supranational instruments, such
as directive 85/337/EEC,
205
contain more precise elements as to the procedure.
However, those elements can hardly be said to reflect a real continuous practice, so
that it is not possible at the present stage to formulate more precise conclusions as
to the manner how to conduct an environmental impact assessment under customary
international law.
60. While those observations primarily address the requirement of environmental
impact assessment in transboundary contexts, it is uncertain, mainly for the lack of
relevant precedents, whether the same applies to environmental impact assessment
for projects intended to have significant effects on the global atmosphere, such as
geo-engineering activities. It is submitted, however, that those activities are likely to
carry a more extensive risk of “widespread, long-term and severe” damage than
even those of transboundary harm and therefore that the same rules should a fortiori
be applied to those activities potentially causing global atmospheric degradation.
__________________
202
Ibid., para. 161. It must be borne in mind, however, even in the Pulp Mills case the Court held
that “an environmental impact assessment must be conducted prior to the implementation of a
project”. Pulp Mills on the River Uruguay, p. 83, para. 205.
203
Ibid., para. 157.
204
Epiney, “Environmental impact assessment”, op. cit., pp. 588 -590.
205
See para. 42 above supra.
32/52
16-02241
A/CN.4/692
61. In view of the above, the following draft guideline is proposed:
Draft guideline 4: Environmental impact assessment
States have the obligation to take all necessary measures to ensure an
appropriate environmental impact assessment, in order to prevent, mitigate
and control the causes and impacts of atmospheric pollution and atmospheric
degradation from proposed activities. The environmental impact assessment
should be conducted in a transparent manner, with broad public participation.
III. Obligations of sustainable and equitable utilization of
the atmosphere
A. Sustainable utilization of the atmosphere
1. The notion of sustainability in international law
62. The atmosphere was long considered to be non-exhaustible and non-exclusive,
since it was assumed that everyone could benefit from it without depriving others.
206
That view is no longer held.
207
It must be borne in mind that the atmosphere is a
limited resource with limited assimilation capacity. Even though the atmosphere is
not exploitable in the traditional sense of the word (such as in the context of mineral
or oil and gas resources), any polluter in fact exploits the atmosphere by reducing
its quality and its capacity to assimilate pollutants, thus necessitating its proper
maintenance for organisms to breathe and enjoy stable climatic conditions. If the
atmosphere is a limited natural resource, it must be used in a sustainable manner.
That is easy to say, but difficult to implement, since the normative character of
sustainable development has not always been clear in international law. Sustainable
development is a concept that seems to be widely supported in theory, but at the same
time, there have been certain disagreements with regard to its actual application.
208
63. The evolution of the notion of sustainable development is well summarized,
for example, by the work of Nico Schrijver on the subject
209
and it will not be
repeated in the present report. It may, however, be noted that the 1893 Bering Sea
__________________
206
As mentioned in A.CN.4/667, para. 84, footnotes 235 and 236, this appears quite similar to the
classic 16th-17th century controversy between Hugo Grotius’ Mare Liberum and John Selden’s
Mare Clausum over whether ocean resources were to be regarded as unlimited or limited.
207
See the commentary to the preamble para. (2), Official Records of the General Assembly,
Seventieth Session, Supplement No. 10 (A/70/10), p. 25. The WTO Panel and Appellate Body
recognized in the Gasoline case of 1996 that clean air was an “exhaustible natural resource” that
could be “depleted”. United States — Standards for Reformulated and Conventional Gasoline
(1996), Report of the Appellate Body: WT/DS2/AB/R (1996).
208
Duncan French, “Sustainable development”, in Malgosia Fitzmaurice, et al., eds., Research
Handbook of International Environmental Law, op. cit., pp. 51-68; Daniel Barstow Magraw and
Lisa D. Hawke, et al., “Sustainable development”, in Daniel Bodansky and David Freestone,
eds., Oxford Handbook of International Environmental Law (Oxford: Oxford University Press,
2007), pp. 613638. See also Winfried Lang, ed., Sustainable Development and International
Law, London: Graham & Trotman (1995), pp. 3-290; Konrad Ginther, et al., eds., Sustainable
Development and Good Governance (Dordrecht: Martinus Nijhoff, 1995), pp. 1-22; Alan Boyle,
et al., eds., International Law and Sustainable Development, op. cit., pp. 1-364.
209
See Nico Schrijver, “The Evolution of sustainable development in international law: inception,
meaning and status”, Recueil des cours, vol. 329 (2007), pp. 217-412. See also, Dire Tladi,
Sustainable Development in International Law: An Analysis of Key Enviro -Economic Instruments
(Pretoria: Pretoria University Law Press, 2007), pp. 11 -38.
16-02241
33/52
A/CN.4/692
Fur Seals arbitration was a precursor of the present-day notion of sustainable
development.
210
The notion of sustainability in international law first appeared in
the high sea fisheries agreements in the form of “maximum sustainable yield” in the
1950s.
211
The maximum sustainable yield was determined in principle by scientific
evidence regarding the level of sustainable existence of a species, so that the total
allowable catch of the species should not exceed that level. It is important to note
that the notion of sustainability was based, in principle, on scientific data. In
article 2 of the 1958 Convention on Fishing and Conservation of the Living
Resources of the High Seas,
212
defined in article 2 the meaning of “conservation of
the living resources of the high seas” is defined as “the aggregate of the measures
rendering possible the optimum sustainable yield from those resources so as to
secure a maximum supply of food and other marine products” (emphasis added). In
the context of fisheries law the standard of maximum sustainable yield has
subsequently been qualified with a view to limiting the total allowable catch. For
example, the Convention on the Law of the Sea provides in article 61 (3) that the
measures for conservation “shall also be designed to maintain or restore populations
of harvested species at levels which can produce the maximum sustainable yield, as
qualified by relevant environmental and economic factors, including the economic
needs of coastal fishing communities and the special requirements of developing
States” (emphasis added).
213
The qualifier is said to reflect the concern of the
international community that the standard of maximum sustainable yield itself
would not effectively ensure appropriate limits to prevent over -catching.
214
Thus, it
can be said that the notion of sustainability, at least in high sea fisheries, is based on
scientific knowledge but also on certain (non-scientific) policy considerations.
2. Treaties and other instruments
64. The first visible use of the term “sustainable development” in an international
document appears to be the 1980 World Conservation Strategy prepared by the
International Union for Conservation of Nature and Natural Resources, which
__________________
210
The arbitral tribunal adopted the “Regulations” for the sustainable conservation of the fur seal
resources. Moore’s International Arbitral Awards, vol. 1, p. 755. See, “Unilateral measures and
the concept of opposability in international law”, in Shinya Murase, International Law: An
Integrative Perspective on Transboundary Issues (Tokyo: Sophia University Press, 2011),
pp. 227-228.
211
Para. 10 (a) of the Schedule to the 1946 International Convention on the Regulation of Whaling;
article IV, paragraph 1 (b) (i) of the 1952 International Convention for the High Seas Fisheries of
the North Pacific Ocean (United Nations Treaty Series, vol. 205, p. 2770); article 2, para. 1 (a) of
the 1957 Interim Convention between the United States of America, Canada, Japan and the
Union of Soviet Socialist Republics on Conservation of North Pacific Fur Seals (ibid., vol. 314,
p. 4546).
212
United Nations Treaty Series, vol. 559, p. 285. Done at Geneva on 29 April 1958, entered into
force on 20 March 1966.
213
Similar provisions can be found in article 119 (1) (a) of the UNCLOS; in article 5 (b) of the 1995
UN Agreement for Implementation of the Provisions of the UNCLOS relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; in Section 7.2.1
of the 1995 FAO Code of Conduct on Responsible Fisheries; and in the 1992 UNCED,
Agenda 21, chapter 17, para. 17 46 (b) concerning sustainable use and conservation of marine
living resources of the high seas.
214
J. F. Caddy and K. L. Cochrane, “A review of fisheries management past and present and some
future perspectives for the third millennium”, Ocean and Coastal Management, vol. 44 (2001),
pp. 653-682; Chusei Yamada, et al., “Regarding the southern bluefin tuna case”, Jurist, No. 1197
(2001), p. 66 (in Japanese).
34/52
16-02241
A/CN.4/692
defined sustainable development as “the integration of conservation an d
development to ensure that modifications to the planet do indeed secure the survival
and wellbeing of all people”.
215
The report by the World Commission on
Environment and Development (Brundtland Commission), entitled Our Common
Future, gave international prominence to the term “sustainable development”.
216
Those two publications led to a significant “paradigm shift” in international
environmental law.
217
The United Nations Conference on Environment and
Development, held in Rio de Janeiro, Brazil, in 1992, was the first occasion on
which Governments officially adopted sustainable development as a global policy,
which was confirmed in the Rio Declaration
218
and in Agenda 21.
219
The two
important conventions adopted in Rio, namely, the United Nations Framework
Convention on Climate Change
220
and the Convention on Biological Diversity
(Biodiversity Convention),
221
provide for sustainable development. Article 3 of the
Convention on Climate Change provides as a “principle” that: “The Parties have a
right to, and should, promote sustainable development”. Article 1 of the Biological
Biodiversity Convention states that: “The objectives of this Convention ... are ... the
conservation of biological diversity [and] the sustainable use of its components”. In
the Non-legally Binding Authoritative Statement of Principles for a Global
Consensus on the Management, Conservation and Sustainable Development of All
Types of Forests,
222
also adopted in Rio, the global consensus on the management,
conservation, and “sustainable development” of the world’s forests is expressed. In
1994, sustainable development was recognized as an objective of the World Trade
Organization (WTO) in the first preambular paragraph to the Marrakesh Agreement
Establishing the WTO.
223
The fact that sustainable development is provided only as
an “objective” or a “principle” in those instruments may imply that the term offers
no more than a policy statement or guidance, rather than an operational code to
determine rights and obligations among States.
3. Judicial decisions
65. In its decision on the case concerning the Gabčíkovo-Nagymaros Project
(Hungary v. Slovakia) in 1997, the International Court of Justice referred to the
“need to reconcile environmental protection and economic development”,
224
which
is, in its opinion, “aptly expressed in the concept of sustainable development”,
although the Court never went further to analyse the normative character and status
of the concept. On that point, Judge Weeramantry in his separate opinion considered
sustainable development “to be more than a mere concept, but as a principle with
__________________
215
IUCN, World Conservation Strategy: Living Resources Conservation for Sustainable
Development (Gland: IUCN, 1980).
216
World Commission on Environment and Development, Our Common Future (Oxford: Oxford
University Press (1987), pp. 43-46.
217
Tladi, Sustainable Development in International Law, op. cit., pp. 34-38.
218
Rio Declaration, para. 14.
219
Agenda 21, report of the UNCED, 1 (1992) A/CONF.151/26/Rev.1 (vol. I), p. 9.
220
United Nations Treaty Series, vol. 1771, p. 107.
221
United Nations Treaty Series, vol. 1760, p. 79.
222
A/CONF.151/26/Rev.1 (vol. I), p. 480.
223
United Nations Treaty Series, vol. 1867, p. 154.
224
I.C.J. Report 1997, para. 140.
16-02241
35/52
A/CN.4/692
normative value which is crucial to the determination of this case”,
225
a view shared
by some with certain qualifications.
226
In the 2006 order of the Pulp Mills Case
(Argentina v. Uruguay), 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”, noting that
“account must be taken of the need to safeguard the continued cons ervation of the
river environment and the rights of economic development of the riparian States”.
227
The judgment of 2010 on the same case reiterated the reference to sustainable
development in the 2006 order cited above
228
and also that of the Gabčíkovo -
Nagymaros Project judgment.
229
66. The WTO Appellate Body decision of 1998 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 GATT 1994 may be read as referring only to the
conservation of exhaustible mineral or other non-living resources”, and that: “As
this preambular language reflects the intentions of negotiators of the WTO
Agreement, we believe that it must add colour, texture and shading to our
interpretation of the agreements annexed to the WTO Agreement, in this case, the
GATT 1994”.
230
67. In the arbitral case of 2005 on the Iron Rhine Railway (Belgium v. The
Netherlands), the tribunal held as follows: “There 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 significant harm to the environment there is a duty to
prevent, or at least mitigate such harm ... This duty, in the opinion of the Tribunal,
has now become a principle of general international law.”
231
In the 2013 partial
award of the Indus Waters Kishenganga Arbitration (Pakistan v. India) the Court of
Arbitration stated as follows: “There is no doubt that States are required under
__________________
225
Separate Opinion of Judge Weeramantry, para. 104. He also stated that “the law necessarily
contains within itself the principle of reconciliation. That principle is the principle of sustainable
development”, further noting that it is “a part of modern international law by reason not only of
its inescapable logical necessity, but also by reason of its wide and general acceptance by the
global community” (ibid.).
226
See, Vaughn Lowe, “Sustainable development and unsustainable arguments” , in Boyle, et al.,
eds., International Law and Sustainable Development, op. cit., pp. 19 et seq, in which sustainable
development is characterized as a “meta-principle”. See also, Dire Tladi, Sustainable Development
in International Law, op. cit., pp. 94-109.
227
Pulp Mills on the River Uruguay, Indication of Provisional Order, I.C.J. Reports 2006 , p. 133,
para. 80.
228
Ibid., para. 75.
229
Ibid., para. 76.
230
Report of the WTO Appellate Body, AB-1998-4, WT/DS58/AB/R (12 October 1998), paras. 129,
131 and 153.
231
PCA, Iron Rhine Arbitration, 2005, paras. 58-60.
36/52
16-02241
A/CN.4/692
contemporary customary international law to take environmental protection into
consideration when planning and developing projects that may cause injury to a
bordering State. 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 Gabčíkovo-Nagymaros, referring to the
‘need to reconcile economic development with protection of the environment.’”
232
68. Thus, with regard to the question of whether the “concept” of sustainable
development has evolved as a “principle”, the trend seems definitely to be leading
to its recognition of its legal character as an “emerging principle” under customary
international law. However, in view of a certain ambiguity remaini ng as to its legal
status, the Commission may wish to opt for the term “should” in referring to
sustainable utilization of the atmosphere, as follows:
Draft guideline 5: Sustainable utilization of the atmosphere
1. Given the finite nature of the atmosphere, its utilization should be
undertaken in a sustainable manner.
2. For sustainable utilization of the atmosphere, it is required under
international law to ensure a proper balance between economic development
and environmental protection.
B. Equitable utilization of the atmosphere
1. The notion of equity in international law
69. Equity and sustainable development are two notions frequently employed as
inherently interrelated concepts in international environmental law, and in the law of
the atmosphere in particular, since equitable use of the atmosphere is a corollary of
its sustainable use.
233
While equity addresses distributive justice in allocating
resources on the one hand, it also refers to distributive justice in allocating burdens
on the other hand,
234
and therefore, the relationship between the two within the
concept of equity should also be taken into account.
70. Equity has been a long-standing concern in general international law, within
which diverse meanings of the concept have been discussed.
235
While it is difficult
__________________
232
PCA, Indus Waters Kishenganga Arbitration, Partial Award of 18 February 2013, para. 449. This
was confirmed by the Final Award of 20 December 2013, para. 111.
233
For example, the Copenhagen Accord of the UNFCCC COP-15 in 2009 stated that those who
associate with the Accord agree “on the basis of equity and in the context of sustainable
development” to enhance long-term cooperative action to combat climate change (Decision 2/CP. 15,
Copenhagen Accord, in FCCC/CP/2009/11/Add.1, 30 March 2010). The Paris Agreement adopted
by the UNFCCC COP-21 on 12 December 2015 emphasized the “intrinsic relationship” of
“equitable access to sustainable development” in its 8th preambular paragraph
(FCCC/CP/2015/L.9).
234
Dinah Shelton, “Equity” in Daniel Bodansky, et al., Oxford Handbook of International
Environmental Law (Oxford: Oxford University Press, 2007), pp. 639-662.
235
Michael Akehust, “Equity and general principles of law”, ICLQ, vol. 25 (1976), pp. 801-825;
Francesco Francioni, “Equity in international law”, in Rüdiger Wolfrum, ed., Encyclopedia of
Public International Law, vol. III (Oxford, Oxford University Press, 2012), pp. 632 -642; M. W.
Janis, “Equity in international law”, in ibid., vol. II (Amsterdam: North-Holland, 1995), p. 109.
16-02241
37/52
A/CN.4/692
to define, equity in international law has been equated by the International Court of
Justice to “a direct emanation of the idea of justice”.
236
The notion conveys
“considerations of fairness and reasonableness often necessary for the application of
settled rules of law”.
237
The International Court of Justice referred to the concept in
its Chamber judgment of 1985 in the Frontier Dispute (Burkina Faso v. Mali)
case,
238
in which the Court recalled that there were three categories o f equity in
international law: (a) equity infra legem (within the law), (b) equity praeter legem
(outside, but close to, the law) and (c) equity contra legem (contrary to law). Equity
infra legem, according to the judgment, is “that form of equity which co nstitutes a
method of interpretation of the law in force, and is one of its attributes”.
239
The
notion of equity praeter legem is particularly important for its function of filling
gaps in existing law.
240
Equity contra legem (contrary to the law) is similar to
settlement ex aequo et bono (see article 38, paragraph 2 of the Statute of the
International Court of Justice), which may, upon agreement of the parties
concerned, serve as a mechanism to correct existing legal rules that might otherwise
lead to an unreasonable or unjust consequence, but it should be distinguished from
the interpretation and application of existing law.
71. In the context of international environmental law, equity has a dual
dimension.
241
On the one hand, it postulates an equitable global “North-South”
balance, reflected in the concept of “common but differentiated responsibilities”
(formulated in principle 7 of the Rio Declaration and in several multilateral
environmental agreements). On the other hand, it calls for an intergenerational
equitable balance between the present generation and future generations of
humankind, highlighted by the seminal definition report of the World Commission
on Environment and Development: “Sustainable development is development that
meets the needs of the present without compromising the ability of future
generations to meet their own needs”.
242
2. Treaties and other instruments
72. Provisions concerning equity and equitable principles are crucial in many
global multilateral treaties. According to its preamble, the Montreal Protocol on
__________________
236
Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 46,
para. 71.
237
James R. Crawford, SC, FBA, Brownlie’s Principles of Public International Law, 8th edition
(Oxford: Oxford University Press, 2012), p. 44. See also Thomas Franck, Fairness in
International Law and Institutions (Oxford: Clarendon Press, 1995).
238
Frontier Dispute (Burkina Faso v. Mali), Judgment, I.C.J. Reports 1986, p. 554.
239
Ibid.
240
See in general Prosper Weil, “L’équité dans la jurisprudence de la Cour Internationale de Justice:
Un mystère en voie de dissipation?”, in Vaughan Lowe and Malgosia Fitzmaurice, eds., Fifty
Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings
(Cambridge: Cambridge University Press, 1996), pp. 121 -144; Juliane Kokott, “Equity in
international law”, in Ferenc L. Toth, ed., Fair Weather? Equity Concerns in Climate Change
(London: Earthscan, 1999), pp. 186-188; Dinah Shelton, “Equity”, in Daniel Bodansky, et al.,
eds., Oxford Handbook of International Environmental Law, op. cit., pp. 639-662, at 642.
241
Shelton, ibid., at pp. 640-645.
242
Our Common Future (Oxford: Oxford University Press, 1987), at p. 43. See also Edith Brown
Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and
Intergenerational Equity (Tokyo: United Nations University Press, 1989); and Claire Molinari,
“Principle 3: From a Right to Development to Intergenerational Equity”, in Duvic -Paoli and
Vinuales, The Rio Declaration on Environment and Development, op. cit., pp. 139-156.
38/52
16-02241
A/CN.4/692
Substances that Deplete the Ozone Layer to the Vienna Convention on the
Protection of the Ozone Layer of 1985, purports to “control equitably total global
emissions”. The United Nations Framework Convention on Climate Cha nge
243
recognizes in article 3 (1) that: “The Parties should protect the climate system for
the benefit of present and future generations of humankind”, and “on the basis of
equity and in accordance with their common but differentiated responsibilities and
respective capabilities”. Article 4 (2) (a) of the Convention provides that: “Each of
these [Annex I] Parties shall adopt national policies and take corresponding
measures on the mitigation of climate change, by limiting its anthropogenic
emissions of greenhouse gases and protecting and enhancing its greenhouse gas
sinks and reservoirs ... taking into account ... the need for equitable and appropriate
contributions by each of these Parties to the global effort regarding that objective”,
and most recently, the Paris Agreement, adopted by the parties to the Convention on
12 December 2015, stipulates in article 2 (2) that it “will be implemented to reflect
equity and the principle of common but differentiated responsibilities and respective
capabilities, in the light of different national circumstances”. The 1992 Convention
on Biological Diversity sets forth, among its objectives in article 1, “the fair and
equitable sharing of the benefits arising out of the utilization of genetic
resources”.
244
Similarly, the 1994 Convention to Combat Desertification in
Countries Experiencing Serious Drought and/or Desertification, Particularly in
Africa (1994)
245
repeatedly emphasizes benefit sharing “on an equitable basis and
on mutually agreed terms” (see article 16 (g), article 17 (1) (c) and article 18 (2) (b)).
73. Explicit reference to equity is contained in the United Nations Convention on
the Law of the Sea: (a) the preamble affirms among the goals of the Convention
“the equitable and efficient utilization” of the ocean’s resources, “Bearing in mind
that the achievement of these goals will contribute to the realization of a just and
equitable international economic order which takes into account the interests and
needs of mankind as a whole and, in particular, the special interests and needs of
developing countries, whether coastal or land-locked”; (b) articles 74 (1) and 83 (1)
provide for an “equitable solution” of disputes; (c) articles 69 (1) and 70 (1) provide
for participation “on an equitable basis”; (d) 82 (4), 140 (2) provide for “equitable
sharing” in the exploitation of resources; and (e) 155 (2) provides for “equitable
exploitation of the resources of the Area for the benefit of all countries”.
74. Similar provisions also exist in regional treaties and instruments. The ECE
Convention on the Protection and Use of Transboundary Watercourses and
International Lakes of 1992 provides that the parties “shall take all appropriate
measures ... to ensure that transboundary waters are used in a reasonable
and equitable way” (article 2 (2) (c)). The Danube River Protection Convention of
1994 sets forth the goals of “sustainable and equitable water management” in
article 2 (1), and provides that the contracting parties “shall take appropriate
measures aiming at the prevention or reduction of transboundary impacts and at a
sustainable and equitable use of water resources as well as at the conservation of
ecological resources” (article 6 (a)).
246
The Agreement on the Cooperation for the
__________________
243
United Nations Treaty Series, vol. 1771, p. 107.
244
Ibid., vol. 1760, p. 79.
245
Ibid., vol. 1954, p. 3.
246
Article 6 (a) Convention on Cooperation for the Protection and Sustaina ble use of the Danube
River, done at Sofia on the 29th day of June 1994. See http://www.icpdr.org/main/icpdr/danube river-protection-convention.
16-02241
39/52
A/CN.4/692
Sustainable Development of the Mekong River Basin of 1995
247
provides for
“reasonable and equitable utilization” of the waters of the Mekong River system
(article 5). The Revised Protocol on Shared Watercourses in the Southern African
Development Community of 2000
248
highlights the equitable utilization of shared
watercourse systems in the region (preamble, articles 2 (a), 3 (7) and 3 (8)). Similar
provisions can also be found in the Framework Convention on the Protection and
Sustainable Development of the Carpathians of 2003, which aims to take measures
for “sustainable, balanced and equitable water use” (article 6 (b)).
249
3. Previous work of the Commission
75. The previous work of the Commission in relation to equity should be noted.
Article 5 (“Equitable and reasonable utilization and participation”) of the Articles
on the Law of the Non-navigational Uses of International Watercourses of 1994
250
(adopted as a convention in 1997), provides that watercourse States “shall in their
respective territories utilize an international watercourse in an equitable and
reasonable manner” and “shall participate in the use, development and protection of
an international watercourse in an equitable and reasonable manner”
251
(emphasis
added). The International Law Commission articles on the law of transboundary
aquifers (2008) have similar provisions in article 4 (“Equitable and reasonable
utilization”) to the effect that: “Aquifer States shall utilize transboundary aquifers or
aquifer systems according to the principle of equitable and reasonable
utilization”.
252
76. The articles on prevention of transboundary harm from hazardous activities of
2001 provide that: “The States concerned shall seek solutions based on an equitable
balance of interests in the light of article 10” (draft article 9 (2)). Article 10
(“Factors involved in an equitable balance of interests”) provides as follows: “In
order to achieve an equitable balance of interests as referred to in paragraph 2 of
article 9, the States concerned shall take into account all relevant factors and
circumstances, including: (a) the degree of risk of significant transboundary harm
and of the availability of means of preventing such harm, or minimizing the risk
thereof or repairing the harm; (b) the importance of the activity, taking into account
its overall advantages of a social, economic and technical character for the State of
origin in relation to the potential harm for the State likely to be affected; (c) the risk
of significant harm to the environment and the availability of means of preventing
such harm, or minimizing the risk thereof or restoring the environment; (d) the
degree to which the State of origin and, as appropriate, the State likely to be
affected are prepared to contribute to the costs of prevention; (e) the economic
viability of the activity in relation to the costs of prevention and to the possibility of
carrying out the activity elsewhere or by other means or replacing it with an
__________________
247
The parties are: Cambodia, Laos and Thailand. See http://www.mrcmekong.org/assets/
Publications/policies/agreement-Apr95.pdf.
248
http://www.sadc.int/files/3413/6698/6218/Revised_Protocol_on_Shared_Watercourses_ -_2000__English.pdf.
249
Article 6 (b) Framework Convention on the Protection and Sustainable Development of the
Carpathians, see http://www.carpathianconvention.org/tl_files/carpathiancon/Downloads/
01%20The%20Convention/1.1.1.1_CarpathianConvention.pdf.
250
Yearbook … 1994, vol. II (Part Two), p. 117.
251
See also article 6 for “factors relevant to equitable and reasonable utilization” , and the
commentaries thereto. Ibid., paras. 218 and 222.
252
Official Records of the General Assembly, Sixty -third Session, Supplement No. 10 (A/63/10),
paras. 53 and 54.
40/52
16-02241
A/CN.4/692
alternative activity; (f) the standards of prevention which the State likely to be
affected applies to the same or comparable activities and the standards applied in
comparable regional or international practice.”
4. Judicial decisions
77. The International Court of Justice has also invoked the rules of equity,
particularly in the context of maritime disputes. In considering Ger many’s concave
coastline, the Court, in the 1969 judgment of the North Sea Continental Shelf cases,
resorted to equity as a principle for the delimitation of continental shelves, rather
than supporting the application of the equidistance rule which would, in its opinion,
lead to a substantively unjust result. The Court stated that: “Whatever the legal
reasoning of a court of justice, its decisions must by definition be just, and therefore
in that sense equitable”; and that it “was not applying equity simply as a matter of
abstract justice, but applying a rule of law which itself requires the application of
equitable principles”.
253
That judgment of the North Sea Continental Shelf cases was
followed by subsequent maritime delimitation or resource allocation cas es. They
include: the Fisheries Jurisdiction cases (United Kingdom of Great Britain and
Northern Ireland v. Iceland and Federal Republic of Germany v. Iceland) of
1974,
254
the arbitration on the delimitation of the continental shelf between the
United Kingdom and France of 1977 and 1978,
255
the Tunisia-Libyan Arab
Jamahiriya continental shelf case of 1982;
256
the Gulf of Maine Area case of
257
1984;
the Libyan Arab Jamahiriya-Malta continental shelf case of 1985;
258
the
__________________
253
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark); (Federal
Republic of Germany v. Netherlands), Judgment, I.C.J. Reports 1969, paras. 85 and 88.
254
Fisheries Jurisdiction Cases (United Kingdom v. Iceland; Federal Republic of Germany v.
Iceland), Judgment, I.C.J. Reports 1974, pp. 3f. The Court stressed that “[n]either right is an
absolute one” and that both parties should take into account the rights of other states and the
needs of conserving the fish stocks (paras. 63, 71). “[B]oth Parties have the obligation to keep
under review the fishery resources in the disputed waters and to examine together, in the light of
scientific and other available information, the measures required for the conservation and
development, and equitable exploitation, of those resources ... ” (paras. 64, 71), the Court
emphasized, restating its similar standpoint expressed in the North Sea Continental Shelf cases,
that “[i]t is not a matter of finding simply an equitable solution, but an equitable solution derived
from the applicable law” (paras. 69, 78).
255
UNRIAA, vol. 18 (2006), p. 57, para. 99.
256
Tunisia-Libya Continental Shelf Case, I.C.J. Reports, 1982. The Court called for not only the
application of equitable principles, but an equitable result derived from the application of equitable
principles. “The equitableness of a principle must be assessed in the light of its usefulness for the
purpose of arriving at an equitable result. It is not every such principle which is in itself equitable; it
may acquire this quality by reference to the equitableness of the solution. The principles to be
indicated by the Court have to be selected according to their appropriateness for reaching an
equitable result” (para. 70). Furthermore, the Court took into account relevant circumstances to
“meet the requirements of the test of proportionality as an aspect of equity” (para. 131).
257
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of
America), Judgment, I.C.J. Reports 1984. After a detailed discussion, the Chamber drew the
conclusion that “the delimitation effected in compliance with the governing principles and rules
of law, applying equitable criteria and appropriate methods accordingly, has produced an
equitable overall result” (para. 241).
258
In the 1985 Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), the Court affirmed the
importance of “[t]he normative character of equitable principles applied as a part of general
international law”, the reason being that “these principles govern not only delimitation by
adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek first a
delimitation by agreement, which is also to seek an equitable result”, Judgment, I.C.J. Reports
1985, para. 46.
16-02241
41/52
A/CN.4/692
Maritime Delimitation and Territorial Questions between Qatar and Bahrain case
of 2001.
259
In an environmental context, the concept of intergenerational equity has
been elaborated, in particular, in the opinions of Judge Cançado -Trindade.
260
78. On the basis of the foregoing, the following draft guideline is proposed:
Draft guideline 6: Equitable utilization of the atmosphere
States should utilize the atmosphere on the basis of the principle of equity and
for the benefit of present and future generations of humankind.
5. Relation of equity with the need for special consideration for
developing countries
79. Equity does not mean equality and usually the truth is that “relevant
dissimilarities warrant adjustment or special treatment”
261
for the sake of a result-
oriented equity. The concept of common but differentiated responsibilities might
have been such an attempt, by adopting an equitable approach, to foster substantive
equality in international environmental law. It entails that “while pursuing a
common goal, States take on different obligations, depending on their
socioeconomic situation and their historical contribution to the environmental
problem at stake” (emphasis added).
262
That phenomenon is not new in international
law. The first such attempt was probably 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.
263
__________________
259
In the 2001 case between Qatar and Bahrain, the Court, after weighing “whether there are special
circumstances which make it necessary to adjust the equidistance line as provisionally drawn in
order to obtain an equitable result”, applied the equidistance rule in view of the special
geographical circumstances as the equitable solution. Maritime Delimitation and Territorial
Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, I.C.J. Reports 2001,
para. 217.
260
See his separate opinions in the cases of Pulp Mills on the River Uruguay (Judgment),
pp. 177-184, paras. 114-131, and Whaling in the Antarctic, I.C.J. Reports 2014, pp. 362-367,
paras. 41-47.
261
Shelton, “Equity” in Daniel Bodansky, et al., Oxford Handbook of International Environmental
Law (2007), op. cit., p. 647.
262
Ellen Hey, “Common but differentiated responsibilities”, in Encyclopedia of Public International
Law, vol. II (Oxford: Oxford University Press, 2012), pp. 444 -448.
263
See Iwao Ayusawa, International Labor Legislation (Studies in History, Economics and Public
Law, vol. XCI, No. 2) (New York: Columbia University, 1920), pp. 149f. He wrote that the third
point of the President Wilson’s Fourteen Points, “[t]he removal of all economic barriers and the
establishment of an equality of trade conditions among all nations” was “an empty phrase”, and
stressed that varied economic conditions require differential treatment in labor legislation
(chapter VI, pp. 149 et seq), which was recognized in the Washington Conference of 1919
concerning the working conditions of workers in Asian and African countries including his own
country Japan (Chapter VII, pp. 173f.). Long before the advent of the CBDR concept, this was in
fact the first attempt in international law-making for asserting differentiated treatment, on the
basis of article 405(3) of the 1919 Versailles Peace Treaty, which became article 19(3) of the ILO
Constitution (labour conventions “shall have due regard” to the special circumstances of
countries where local industrial conditions are “substantially different”). The same pr inciple also
appeared in some of the Conventions approved by ILO in 1919 and in several Conventions
adopted after Dr. Ayusawa’s article. While Ayusawa did not originate the idea of differential
treatment, he was one of the first scholars to take note of the principle as a normative dictate and
to link it more generally to substantive equality of treatment in international economic law. In his
later years in the 1960s, Dr. Ayusawa served as professor at International Christian University in
42/52
16-02241
A/CN.4/692
Another example is the Generalized System of Preferences elaborated under the
United Nations Conference on Trade and Development in the 1970s.
264
80. The need for special consideration for developing countries in the context of
environmental protection has been endorsed by a number of international
instruments, such as the Stockholm and Rio Declarations. Principle 12 of the
Stockholm Declaration attaches importance to “taking into account the
circumstances and particular requirements of developing countries”. Principle 6 of
the Rio Declaration highlights the special needs of developing countries and
particularly the least developed and those most environmentally vulnerable, while
Principle 7 provides that: “In view of the different contributions to global
environmental degradation, States have common but differentiated responsibilitie s”.
81. The concept of common but differentiated responsibilities is reflected in the
provisions of several multilateral environmental agreements, starting with the
United Nations Framework Convention on Climate Change.
265
Article 3 (1) provides
that: “The Parties should protect the climate system ... on the basis of equity and in
accordance with their common but differentiated responsibilities and respective
capabilities.”
266
In the Kyoto Protocol of 1997, the parties adopted a strict dictate of
the concept of common but differentiated responsibilities, imposing obligations to
mitigate or stabilize greenhouse gas emissions only on the developed, industrialized
States (Annex 1 parties), leaving the developing countries without new legally
binding obligations. However, at the seventeenth session of the Conference of the
Parties in 2011, it was decided to launch a process to develop a legal instrument
which would be applicable to all parties. It is noteworthy that there is no longer any
reference here to the concept of common but differentiated responsibilities. Indeed,
the Paris Agreement of 2015 obliges all parties to undertake the commitments made
thereunder (article 3). It should be noted, however, that, the parties are still to be
guided by “equity and common but differentiated responsibilities and respective
capabilities, in the light of different national circumstances” (third preambular
paragraph, article 2 (2) and article 4 (3)).
82. Since there are various situations affecting the allocation of shared or co mmon
resources and the burden of environmental protection, as mentioned before, equal
treatment “may yield extreme outcomes when pre-existing economic or other
__________________
Tokyo where he gave courses on international labour law as well as international relations. The
present writer, then a freshman student, had the privilege to attend one of his courses in which he
lectured with passion and enthusiasm North-South problems, which he considered a top-priority
agenda for the post-war world. (The Special Rapporteur is deeply grateful to Professor Steve
Charnovitz of George Washington University School of Law for drawing his attention to the
contribution made by Dr. Ayusawa.)
264
See article 23 (The most-favoured-nation clause in relation to treatment under a generalized
system of preferences) and article 30 (New rules of international law in favour of developing
countries) of the 1978 ILC draft Articles on the most-favoured-nation clauses, Yearbook … 1978,
vol. II, Part Two, paras. 47-72. Shinya Murase, Economic Basis of International Law, Tokyo:
Yuhikaku (2001), pp. 109-179 (in Japanese). Tuula Honkonen, The Common But Differentiated
Responsibilities Principle in Multilateral Environmental Agreements: Regulatory and Policy
Aspects (Alphen: Kluwer Law International, 2009), at pp. 49 -66. And see the earlier exceptions
for developing countries specified in article XVIII of the 1947 General Agreement on Tariffs and
Trade (GATT), United Nations Treaty Series, vol. 55, p. 194.
265
See Christopher D. Stone, “Common but differentiated responsibilities in international law” ,
AJIL, vol. 98 (2004), pp. 276-301, at p. 279.
266
United Nations Treaty Series, vol. 1771, p. 107.
16-02241
43/52
A/CN.4/692
inequalities exist in society”.
267
Equality of rights “does not necessarily bring about
equality of outcomes”, and therefore, international environmental law has moved
considerably away from “formal equality towards grouping states” to “allocate
burdens and benefits based on responsibility for harm and financial or technological
capacity to respond”.
268
That is the background against which the concept of common
but differentiated responsibilities was considered necessary. It may be noted however
that the concept leaves an inherent ambiguity as to the basis of the proposed
differentiation.
269
Furthermore, in the context of climate change, there has been a
certain regression in the application of the concept, as exemplified by the Durban
Platform for Enhanced Action of 2011 that ultimately led to the adoption of the Paris
Agreement in 2015, recognizing the obligations thereunder as being applicable to all
States (article 3).
83. It may be recalled that, in adopting the present topic in 2013, the Commission
stated its understanding that “the topic will not deal with, but is also without prejudice
to, questions such as ... common but differentiated responsibilities ...” (emphasis
added). While the exact meaning of this “double negative” expression remains
uncertain,
270
it may be noted that the words “but is also without prejudice to” were
inserted with the agreed intention that the concept of common but differentiated
responsibilities should be included in the draft guidelines. However, given that respect
for the needs of developing countries remains significant in international law but not
necessarily in the form of common but differentiated responsibilities, the Special
Rapporteur proposes a guiding principle in the preamble, modelled after the ninth
paragraph of the preamble of the draft articles on the law of transboundary aquifers of
2008, as follows:
Draft preambular paragraph 4
“Emphasizing the need to take into account the special situation of
developing countries”
C. Legal limits on intentional modification of the atmosphere
84. The atmosphere has been used in several ways, most notably in the form of
aerial navigation. Obviously, most of the activities so far are those conducted
__________________
267
Shelton, “Equity” in Daniel Bodansky, et al., eds., Oxford Handbook of International
Environmental Law (2007), op. cit., p. 655.
268
Ibid.
269
There are a variety of views as to the grounds and criteria for differentiated treatment such as the
“contribution theory” (industrialized countries generating the largest share of historical and
current global emissions of greenhouse gases are responsible for the global environmental
degradation and hence should bear the costs of clean up), “entitlement theory” (developing
countries are entitled to fewer and less stringent commitments and financial/technical
assistances, in the light of the history of colonialism and exploitation as well as necessity of
development), “capacities theory” (developed countries having resources and capaciti es to take
responsive measures should lead to the environmental protection) and “promotion theory”
(differentiation tailoring commitments for different situations of each country is necessary to
promote a large participation in international treaties). See, Lavanya Rajamani, Differential
Treatment under International Environmental Law (Oxford: Oxford University Press, 2006),
pp. 2, 118-125. See also, Philippe Cullet, “Common but differentiated responsibilities” , in
Malgosia Fitzmaurice, et al., eds., Research Handbook on International Environmental Law,
op. cit., pp. 161-181.
270
See para. 6 and footnote 18 above.
44/52
16-02241
A/CN.4/692
without a clear or concrete intention to affect atmospheric conditions. There are,
however, certain activities whose very purpose is to alter atmospheric conditions,
for example, weather modification (weather control). Weather modification is an
example of utilization of the atmosphere that has already been practised
domestically. Additionally, ocean fertilization for CO2 absorption has been
conducted on a limited experimental basis. Scientists have suggested various
possible methods for active utilization of the atmosphere. Some of the proposed
geo-engineering technologies (such as carbon dioxide removal and solar radiation
management) are relevant if they become realizable. Thus, it is considered that the
modalities of the use (or utilization) of the atmosphere and their legal implications
should be carefully studied in the present report.
85. Weather modification “in warfare” has been prohibited under the Convention
on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques of 1976 (Environmental Modification Convention,
ENMOD).
271
The Convention does not deal with the question of whether or not a
given use of environmental modification techniques for peaceful purposes is in
accordance with generally recognized principles and applicable rules of international
law. Nonetheless, as the only international instrument to directly regulate deliberate
manipulation of natural processes, which have “widespread, long-lasting or severe
effects” (article 1) of a transboundary nature, the Convention is considered to offer
one possible route towards the prohibition of large-scale geo-engineering practices.
Weather control has been experimented with and practised widely in domestic settings
since the 1940s to produce desirable changes in weather. The General Assembly first
addressed the issue in 1961.
272
The goals of weather control range from preventing
the occurrence of harmful meteorological events, such as hurricanes or tornadoes, to
causing beneficial weather, such as artificial rainfall in an area experiencing
drought; or, conversely, for temporary avoidance of rainfall in a designated area
where an important event is scheduled to take place. Cloud seeding is a common
technique to enhance precipitation; it entails spraying small particles such as dry ice
and silver iodide into the sky in order to trigger cloud formation for eventual
rainfall. Evidence of safety is widely believed to be strong, but dou bts remain as to
its efficacy. The Governing Council of UNEP approved a set of recommendations
for consideration by States and other weather modification operators in 1980.
273
If
__________________
271
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques, adopted at New York on 10 December 1976, United Nations Treaty
Series, vol. 1108, p. 151, entered into force on October 1978.
272
The General Assembly, in resolution 1721 (XVI) on “International co-operation in the peaceful
uses of outer space” (1961), para. C 1 (a), advised Member States and other relevant
organizations: “To advance the state of atmospheric science and technology so as to provide
greater knowledge of basic physical forces affecting climate and the possibility of large -scale
weather modification”.
273
Decision 8/7/A of the UNEP Governing Council, Provisions for Co-operation between States in
Weather Modification, 6th session, 29 April 1980. It may be noted that, as early as 1963, the
World Meteorological Organization (WMO) had called for a prudent approach to weather
modification technologies, stating as follows: “The complexity of the atmospheric processes is
such that a change in the weather induced artificially in one part of the world will necessarily
have repercussions elsewhere. This principle can be affirmed on the basis of present knowledge
of the mechanism of the general circulation of the atmosphere. However, that knowledge is still
far from sufficient to enable us to forecast with confidence the degree, nature or duration of the
secondary effects to which change in weather or climate in one part of the Earth may give rise
elsewhere, nor even in fact to predict whether these effects will be beneficial or detrimental.
Before undertaking an experiment on large-scale weather modification, the possible and
desirable consequences must be carefully evaluated, and satisfactory international arrangements
16-02241
45/52
A/CN.4/692
large-scale weather control were to become feasible in the future, there could be
some harmful consequences. Potential negative implications may include
unintended side effects, damage to existing ecosystems and health risks to humans.
Those effects, if transboundary in nature, could generate international concern for
their injurious consequences.
274
It is suggested that progressive development of
international law in that particular area should be pursued.
275
86. Geo-engineering is commonly understood as the “intentional large -scale
manipulation of the global environment”.
276
In the context of climate change,
geo-engineering refers to “a broad set of methods and technologies that aim to
deliberately alter the climate system in order to alleviate the impacts of climate
change”.
277
To combat global warming, reducing the emission of greenhouse gases is
the primary solution.
278
However, in view of the fact that reducing greenhouse gas
emission has not been fully achieved,
279
extracting existing greenhouse gases,
especially carbon dioxide, is considered to be an alternative solution.
280
Afforestation
is a traditional measure to reduce carbon dioxide and has been incorporated in the
__________________
must be reached.” WMO, Second Report on the Advancement of Atmospheric Sciences and Their
Application in the Light of Developments in Outer Space (Geneva: WMO Secretariat, 1963). See
Rita F. and Howard J. Taubenfeld, “Some international implications of weather modification
activities”, International Organization, vol. 23, No. 4 (1969), pp. 808-833, at 811.
274
Lada L. Roslycky, “Weather modification operations with transboundary effects: the technology,
the activities and the rules”, Hague Yearbook of International Law, vol. 16 (2003), pp. 3-40;
Peter H. Sand, “Internationaler Umweltschutz und neue Rechtsfragen der Atmosphärennutzung” ,
Zeitschrift für Luft -und Weltraumrecht (German Air and Space Law Journal), vol. 20, No. 2
(1971), pp. 109-133. See also, H. J. Taubenfeld, “International environmental law: air and outer
space”, in L. A. Teclaff and A. E. Utton, eds., International Environmental Law (New York:
Praeger, 1974), p. 195; Edith Brown Weiss, “International responses to weather modification”,
International Organization, vol. 29 (1975), pp. 805 -826, at p. 813.
275
It has been suggested that the following points should be considered in the regulation of weather
modification: the duty to benefit the common good of mankind; the duty not to cause significant
transboundary harm; the duty to perform environmental impact assessments; public participation;
the duty to co-operate; exchange of information and notification; consultation; the duty to utilize
international organizations; and State responsibility; Roslycky, op. cit., at 27-40. See also
Ray J. Davis, “The international law of the hydroscopic cycle: atmospheric water resources
development and international law”, Natural Resources Journal vol. 31 (1991), pp. 11-44, at 17.
276
David W. Keith, “Geoengineering”, in Andrew S. Goudie et al., eds., Encyclopedia of Global
Change: Environmental Change and Human Society (Oxford: Oxford University Press, 2001),
p. 495.
277
Intergovernmental Panel on Climate Change, report on the IPCC Expert Meeting on
Geoengineering, June 2011. See also generally the Oxford Geo -engineering Programme,
www.geoengineering.ox.ac.uk/what-is-geoengineering/what-is-geoengineering/;
Parson, Edward A, “Climate Engineering: Challenges to International Law and Potential
Responses”, www.questia.com/library/journal/1G1-326981407/climate-engineering-challengesto-international-law;
Jesse
Reynolds,
“The
International
Legal
Framework
for
Climate
Engineering”,
http://geoengineeringourclimate.com/2015/03/26/the-international-legalframework-for-climate-engineering-working-paper/;
Clive
Hamilton,
Earthmasters:
The
Dawn
of
the
Age
of
Climate
Engineering
(New
Haven,
Yale
University
Press,
2013).
278
www.epa.gov/climatechange/ghgemissions/; John Shepherd et al., “Geoengineering the Climate:
Science, Governance and Uncertainty” (London: Royal Society, 2009), available at
https://royalsociety.org/~/media/Royal_Society_Content/policy/publications/2009/8693.pdf .
279
John Shepherd et al., “Geoengineering the Climate: Science, Governance and Uncertainty”
(London: Royal Society, 2009) at p. 1, available at https://royalsociety.org/~/media/
Royal_Society_Content/policy/publications/2009/8693.pdf.
280
Johannes Urpelainen, “Geoengineering and global warming: a strategic perspectiv e”,
International Environmental Agreements: Politics, Law and Economics, vol. 12, issue 4 (2012),
pp. 375-389.
46/52
16-02241
A/CN.4/692
Kyoto Protocol regime as a valuable climate change mitigation measure.
281
That
measure has been recognized in the decisions adopted at various sessions of the
Conference of the Parties to the United Nations Framework Convention on Climate
Change: in Copenhagen in 2009
282
and Cancun, Mexico, in 2010
283
and in article 5 (2)
of the Paris Agreement. New incentives were created to reduce emissions from
deforestation and forest degradation in developing countries.
284
87. Generally, global warming reduction-oriented geo-engineering can be divided
into two categories: carbon dioxide removal and solar radiation management.
285
The
carbon dioxide removal techniques are designed to remove carbon dio xide from the
atmosphere, directly countering the increased greenhouse effect and ocean
acidification.
286
Those techniques would probably need to be implemented on a
global scale to have a significant impact on carbon dioxide levels in the atmosphere.
The proposed techniques include: (a) “soil-carbon sequestration”, also known as
“biochar”, which is to char biomass and bury it so that its carbon is locked up in the
soil,
287
which, however, was not endorsed in the Kyoto Protocol;
288
and (b) “carbon
capture and storage”, referring to a set of technologies to capture carbon dioxide
(CO2) emissions from large-point sources, such as coal-fired power plants,
289
with
the captured CO2 to be stored in geological reservoirs or in the oceans.
290
(The long-
term advantage of carbon capture and storage is that the sequestration costs can be
partially offset by revenues from oil and gas production,
291
while its disadvantage is also
recognized — since the CO2 stored underground may escape, it could cause
explosions.)
292
Under some international legal instruments, measures have recently been
adopted for regulating carbon capture and storage. For example, the 1996 Protocol to the
1972 London Convention now includes an amended provision and annex, as well as new
guidelines for controlling the dumping of wastes and other matter. Those amendments
created a legal basis in international environmental law for regulating carbon capture
__________________
281
Josep G. Canadell & Michael R. Raupach, “Managing forests for climate change mitigation”,
Science vol. 320 (2008), pp. 1456, 1456-57; Leonard Ornstein et al., “Irrigated afforestation of
the Sahara and Australian outback to end global warming”, Climatic Change, vol. 97 (2009),
pp. 409, 410; Kenneth R. Richards and Carrie Stokes, “A review of forest carbon sequestration
cost strategies: a dozen years of research”, Climatic Change, vol. 63 (2004), pp. 24, 25.
282
Report of the Conference of the Parties on its fifteenth session, Addendum. Part Two: Action
taken by the Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1
(30 March 2010), pp. 11f.
283
Report of the Conference of the Parties on its sixteenth session, Addendum Part Two: Action
taken by the Conference of the Parties at its sixteenth session, FCCC/CP/2010/7/Add.1
(15 March 2011).
284
Ibid.
285
Brian P. Flannery et al., “Geoengineering climate”, in Robert G. Watts, ed., Engineering
Response to Global Climate Change: Planning a Research and Development Agenda
(Boca Raton/Florida: CRC Press, 1997), p. 381; Jason Blackwell and Jane C. S. Long, “The
politics of geoengineering”, Science, vol. 327 (29 January 2010), p. 527.
286
www.geoengineering.ox.ac.uk/what-is-geoengineering/what-is-geoengineering/.
287
Ibid.
288
Karen N. Scott, “International law in the anthropocene: responding to the geoengineering
challenge”, Michigan Journal of International Law, vol. 34, No. 2 (2013), p. 322.
289
Jennie C. Stephens, “Carbon capture and storage”, http://www.eoearth.org/view/article/150922/.
290
Ibid.
291
Ibid.
292
Intergovernmental Panel on Climate Change, “IPCC Special Report on Carbon Dioxide Capture
and Storage”, Working Group III. December 2005, p. 259. (For example the explosions in 2001
in Hutchinson, Kansas (USA), when compressed natural gas escaped from salt cavern storage
facilities.) Available at www.ipcc.ch/pdf/special-reports/srccs/srccs_wholereport.pdf.
16-02241
47/52
A/CN.4/692
and storage in sub-seabed geological formations for permanent isolation.
293
In
accordance with those regulations, CO2 sequestration and export to other States is
conditionally allowed for the purposes of sub-seabed storage.
294
88. Marine geo-engineering, as “a deliberate intervention in the marine environment
to manipulate natural processes”, may be a useful technology for absorption of CO2,
but may also result in deleterious effects.
295
There are several types of marine geo-
296
engineering.
The following two types of activities, namely “ocean iron fertilization”
and “ocean alkalinity enhancement” are related to ocean dumping, and therefore to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, 1972 London Convention and the 1996 Protocol thereto (London Protocol). In
2008, the parties adopted a resolution stating that ocean fertilization activities, apart
from legitimate scientific research, should not be allowed and urging States to use the
“utmost caution and the best available guidance” even for scientific research .
297
Furthermore, in 2008, the Conference of the Parties to the Biodiversity Convention
urged States to ensure that ocean fertilization activities would not take place until
there was an adequate scientific basis on which to justify such activities and a “global
transparent and effective control and regulatory mechanism is in place for these
activities”.
298
Another form of marine geo-engineering is “ocean alkalinity
enhancement”, which involves grinding up, dispersing, and dissolving rocks such as
limestone, silicates, or calcium hydroxide in the ocean to increase its ability to store
carbon and directly ameliorate ocean acidification.
299
The objective is to sequester
CO2 from the atmosphere by increasing the alkalinity (and the pH) of the oceans .
300
It
__________________
293
www.imo.org/en/OurWork/Environment/LCLP/EmergingIssues/CCS/Pages/default.aspx . These
regulations include: 2012 Specific Guidelines for the Assessment of Carbon Dioxide for Disposal
into Sub-seabed Geological Formations, adopted 2 November 2012 (LC 34/15, annex 8),
available at www.imo.org/en/OurWork/Environment/LCLP/EmergingIssues/CCS/Documents/
2012%20SPECIFIC%20GUIDELINES%20FOR%20THE%20ASSESSMENT%20OF%20CARB
ON%20DIOXIDE.pdf; Risk Assessment and Management Framework for CO2 Sequestration in
Sub-Seabed Geological Structures (CS-SSGS) (Source LC/SG-CO2 1/7, annex 3), available at
www.imo.org/en/OurWork/Environment/LCLP/EmergingIssues/CCS/Documents/CO2SEQUEST
RATIONRAMF2006.doc; Resolution LP 3(4) on the Amendment to article 6 of the London
Protocol (adopted on 30 October 2009), available at www.imo.org/en/OurWork/Environment/
LCLP/EmergingIssues/CCS/Documents/Resolution%20LP-3(4).doc; Resolution on the
amendment to include CO2 sequestration in sub-seabed geological formations in Annex 1 to the
London Protocol, available at www.imo.org/en/OurWork/Environment/LCLP/EmergingIssues/
CCS/Documents/LP1_1%20CO2.doc.
294
Article 6, Annex 1, “Specific Guidelines for the Assessment of Carbon Dioxide Streams for
Disposal into Sub-seabed Geological Formations”, in Annex 4 of IMO, “Report of the twentyninth
consultative
meeting
and
the
second
meeting
of
Contracting
Parties”,
14
December
2007,
LC
29/17.
295
Amendment to article 1 of the London Protocol, new para. 5 bis (LC 35/15, annex 4).
296
C. M. G. Vivian, “Brief summary of marine geo-engineering techniques”, available at
www.cefas.defra.gov.uk/publications/files/20120213-Brief-Summary-Marine-Geoeng-Techs.pdf.
297
Resolution LC-LP (2008) on the regulation of ocean fertilization, available from
www.whoi.edu/fileserver.do?id=56339&pt=10&p=39373.
298
Decision IX/16 on biodiversity and climate change, available from www.cbd.int/decision/
cop/?id=11659. An exception was made for small-scale research activities within “coastal
waters” for scientific purposes, without generation or selling carbon offsets or for any other
commercial purposes. Naoya Okuwaki, “The London Dumping Convention and Ocean
Fertilization Experiments: Conflict of Treaties surrounding Technological Development for CO2
Mitigation”, Jurist, No. 1409 (2010), pp. 38-46 (in Japanese).
299
www.geoengineering.ox.ac.uk/what-is-geoengineering/what-is-geoengineering/.
300
Haroon S. Kheshgi, “Sequestering atmospheric carbon dioxide by increasing ocean alkalinity”,
Energy, vol. 20, issue 9 (1995), pp. 915-922.
48/52
16-02241
A/CN.4/692
is geo-chemically equivalent to the natural weathering of rocks, which helps to
buffer the ocean against decreasing pH and is thereby considered to help to counter
ocean acidification.
301
That may pose legal problems similar to those of ocean
fertilization, but has not yet been addressed by competent international bodies.
89. Solar radiation management is another form of geo-engineering. Its techniques
are designed to mitigate the negative impacts of climate change by lowering earth
surface temperatures through increasing the albedo of the planet or by deflecting solar
radiation.
302
It has been estimated that a deflection of approximately 1.8 per cent of
solar radiation would offset the global mean temperature effects of a doubling of
atmospheric concentrations of CO2.
303
There are several proposals in this area, such
as “albedo enhancement” and “stratospheric aerosols”. The former is a method for
increasing the reflectiveness of clouds or the land surface, so that more of the heat of
the sun is reflected back into space. That measure is thought by many to be risk -free,
because it does not change the composition of the atmosphere. It only involves the
utilization of white or reflective materials in urban environments to reflect greater
amounts of solar radiation and therefore to cool global temperatures.
304
However, its
effectiveness as a mitigation measure is not thought to be entirely satisfactory.
305
The
stratospheric aerosols method is to introduce small, reflective particles into the upper
atmosphere to reflect some sunlight before it reaches the surface of the Earth.
However, there are some concerns over the injection of sulphate aerosols into the
stratosphere. First, it is likely to increase the depletion of the ozone layer.
306
Second, it
also has the potential to affect rainfall and monsoon patterns, with consequences for
food and water supplies, especially in Africa and Asia.
307
Third, the option is not
considered to be cost-effective as a climate change mitigation measure.
308
90. Thus, while geo-engineering is a potential response to climate change, it has also
been criticized as a rather deceptively alluring reaction to global warming issues,
because it will reduce the incentive to cut greenhouse gas emissions.
309
It is in part a
consequence of the perceived challenges of the climate change regime and the current
__________________
301
Ibid.
302
Scott, “International law in the anthropocene: responding to the geo -engineering challenge”,
Michigan Journal of International Law, vol. 34, No. 2 (2013), p. 326.
303
Ken Caldeira and Lowell Wood, “Global and Arctic climate engineering: numerical model
studies”, Philosophical Transactions of the Royal Society (Series A), vol. 366 (2008),
pp. 4039, 4040.
304
Hashem Akbari et al., “Global cooling: increasing world-wide urban albedos to offset CO2”,
94 Climatic Change (2009), pp. 275, 277; Robert M. Hamwey, “Active amplification of the
terrestrial albedo to mitigate climate change: an exploratory study”, Mitigation and Adaptation
Strategies for Global Change, vol. 12 (2007), pp. 419-421.
305
The Royal Society, “Geoengineering the Climate: Science, Governance and Uncertainty”, at
34 (London, 2009), available at https://royalsociety.org/~/media/Royal_Society_Content/policy/
publications/2009/8693.pdf.
306
Simone Tilmes, et al., “The sensitivity of polar ozone depletion to proposed geoengineering
schemes”, Science, vol. 320 (2008), pp. 1201, 1204; Paul J. Crutzen, “Albedo enhancement by
stratospheric sulfur injections: a contribution to resolve a policy dilemma?”, Climatic Change,
vol. 77, issues 3-4 (2006), pp. 211-220.
307
Alan Robock et al., “Regional climate responses to geoengineer ing with tropical and Arctic SO2
injections”, J. Geophysical Res. (16 August 16 2008), at 1.
308
Marlos Goes, Nancy Tuana and Klaus Keller, “The economics (or lack thereof) of aerosol
geoengineering”, Climate Change, vol. 109 (2011), pp. 719, 720.
309
Richard Black, “UK Climate Fix Balloon Grounded” (16 May 2012), http://www.bbc.com/
news/science-environment-18086852; Johannes Urpelainen, “Geoengineering and global
warming: a strategic perspective”, International Environmental Agreements: Politics, Law and
Economics, vol. 12, issue 4 (2012), pp. 375-389.
16-02241
49/52
A/CN.4/692
policies of focusing on emissions reductions that has led to geo-engineering becoming
more attractive.
310
Given the imperfect knowledge of both the technologies and the
climatic system, there are concerns about unintended environmental and ecosystem
side effects. Some experts argue that while geo-engineering should remain on the
table, it is important to begin developing international norms and legal rules to govern
its usage in the future.
311
It has also been argued that there should be a thorough
scientific review of geo-engineering by a competent organ, such as the
Intergovernmental Panel on Climate Change, which may lead to the formation of a
new international agreement to govern geo-engineering.
312
As a new law-making
exercise, that is certainly beyond the task of the International Law Commission.
However, among the examples of geo-engineering cited above, afforestation is well
established within the Kyoto Protocol and weather modification is partially regulated
by international law (the Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques), and supplemented by the
relevant General Assembly resolutions and UNEP guidelines. Ocean fertilization, as a
form of marine geo-engineering, is in part under the control of the London
Convention and Protocol, and is permitted only for scientific research. In 2010, the
parties to the Biodiversity Convention also addressed all geo-engineering activities. It
was decided, in line with the above-mentioned decision on ocean fertilization, that
“no climate-related geo-engineering activities that may affect biodiversity take place,
until there is an adequate scientific basis on which to justify such activities and
appropriate consideration of the associated risks for the environment and biodiversity
and associated social, economic and cultural impacts, with the exception of small
scale scientific research studies that would be conducted in a controlled setting ... and
only if they are justified by the need to gather specific scientific data and are subject
to a thorough prior assessment of the potential impacts on the environment.”
313
In
addition, there are several notable non-binding guidelines proposed in the field: the
recommendations of the Asilomar Conference on Climate Intervention Technologies
convened by the United States Climate Institute in 2010;
314
the voluntary standards
formulated in 2011 by the United States Bipartisan Policy Center’s Task Force on
Climate Remediation Research
315
and the Oxford Principles on Climate Geo-
engineering Governance, elaborated by British academics in 2013.
316
Thus, it is clear
__________________
310
Karen N. Scott, “International law in the anthropocene: responding to the geoengineering
challenge”, op. cit., p. 320.
311
Johannes Urpelainen, “Geoengineering and global warming: a strategic perspective”, op. cit., p. 378.
312
Ibid. See also Scott Barrett, “The incredible economics of geoengineering” , Environmental and
Resource Economics, vol. 39 (2008), p. 53.
313
Decision X/33 (2010), available from www.cbd.int/decisions/cop/?m=cop -10.
314
The Asilomar Conference recommendations are: 1. Promoting collective benefit; 2. Establishing
responsibility and liability; 3. Open and cooperative research; 4. Iterative evaluation and
assessment; 5. Public investment and consent. www.climate.org/resources/climate-archives/
conferences/asilomar/report.html.
315
2011-The Bipartisan Policy Center’s Task Force on Climate Remediation Research elaborated the
following principles: Principle 1: Purpose of climate remediation research; Principle 2: Testing
and deploying climate remediation technologies; Principle 3: Oversight issues for research
programs; Principle 4: Importance of transparency; Principle 5: International coordination;
Principle 6: Adaptive management. http://bipartisanpolicy.org/library/task-force-climateremediation-research/.
316
The principles are as follows: 1. Geo-engineering to be regulated as a public good; 2. Public
participation in geo-engineering decision-making; 3. Disclosure of geo-engineering research and
open publication of results; 4. Independent assessment of impacts; 5. Governance before
deployment (the five principles have equal status; numbering does not imply priority). See,
Steve Rayner, et al., “The Oxford principles”, Climate Geoengineering Governance working
paper series No. 1 (University of Oxford, 2013), available from www.geoengineering-
50/52
16-02241
A/CN.4/692
that conducting geo-engineering will require “prudence and caution” (to use the words
of the orders of the International Tribunal for the Law of the Sea),
317
even where such
an activity is permitted, and that, in any event, prior assessment of geo-engineering
activities should be made on a case-by-case basis in respect of each individual project.
It is clearly a requirement of international law that environmental impact assessments
are required for such activities as discussed at length earlier in the present report
(paras. 41-60 above).
91. In view of the above, the following draft guideline is proposed:
Draft Guideline 7: Geo-engineering
Geo-engineering activities intended to modify atmospheric conditions should be
conducted with prudence and caution in a fully disclosed, transparent manner
and in accordance with existing international law. Environmental impact
assessments are required for such activities.
IV. Conclusion
92. Having covered core substantive guidelines on the subject (namely, the
obligations of States to protect the atmosphere and sustainable and equitable
utilization of the atmosphere) in his third report in 2016, the Special Rapporteur
wishes to suggest that the Commission deal in 2017 with the question of the
interrelationship of the law of the atmosphere with other fields of international law
(such as the law of the sea, international trade and investment law and international
human rights law), and in 2018 with the issues of implementation, compliance and
dispute settlement relevant to the protection of the atmosphere, by which time
hopefully the first reading of the topic could be concluded that year, and the second
reading in 2019.
__________________
governance-research.org/perch/resources/workingpaper1rayneretaltheoxfordprinciples.pdf . See
also, Chiara Armani, “Global experimental governance: international law and climate change
technologies”, ICLQ, vol. 64, No. 4 (2015), pp. 875 -904.
317
See the ITLOS orders on the provisional measures in the 1999 case of Southern Blue Fin Tuna
(New Zealand v. Japan; Australia v. Japan) (para. 77), in the 2001 case of the Mox Plant
(Ireland v. United Kingdom) (para. 84) and in the 2003 Case concerning Land Reclamation by
Singapore in and around the Strait of Johor (Malaysia v. Singapore) (para. 99).
16-02241
51/52
A/CN.4/692
Annex
Draft guidelines proposed by the Special Rapporteur
Preamble
...
“Emphasizing the need to take into account the special situations of developing
countries”,
[Some other paragraphs may be added, and the order of paragraphs may be
coordinated, at a later stage.]
Guideline 3: Obligation of States to protect the atmosphere
States have the obligation to protect the atmosphere from atmospheric
pollution and atmospheric degradation.
(a) Appropriate measures of due diligence shall be taken to prevent
atmospheric pollution in accordance with the relevant rules of international law.
(b) Appropriate measures shall be taken to minimize the risk of atmospheric
degradation in accordance with relevant conventions.
Guideline 4: Environmental impact assessment
States have the obligation to take all such measures that are necessary to
ensure an appropriate environmental impact assessment, in order to prevent, reduce
and control the causes and impacts of atmospheric pollution and atmospheric
degradation from proposed activities. Environmental impact assessment should be
conducted in a transparent manner, with broad public participation.
Guideline 5: Sustainable utilization of the atmosphere
1. Given the finite nature of the atmosphere, its utilization shoul d be
undertaken in a sustainable manner.
2. For sustainable utilization of the atmosphere, it is required under
international law to ensure a proper balance between economic development and
environmental protection.
Guideline 6: Equitable utilization of the atmosphere
States should utilize the atmosphere on the basis of the principle of equity and
for the benefit of present and future generations of humankind.
Guideline 7: Geo-engineering
Geo-engineering activities should be conducted with caution and prudence in a
fully disclosed, transparent manner and in accordance with existing international
law. Environmental impact assessments are required for such activities.
Guideline 8 [5]: International cooperation
Draft guideline 8 would be draft guideline 5, as provisionally adopted by the
Commission in 2015.
52/52
16-02241
A/CN.4/705
United Nations
General Assembly
Distr.: General
31 January 2017
Original: English
International Law Commission
Sixty-ninth session
Geneva, 1 May-2 June and 3 July-4 August 2017
Fourth report on the protection of the atmosphere
by Shinya Murase, Special Rapporteur*
Contents
Page
Introduction ................................................................... 3
I. Guiding principles of interrelationship ............................................. 5
A. Fragmentation and interrelationship ........................................... 5
B. Mutual supportiveness ...................................................... 8
II. Interrelationship with international trade and investment law ........................... 11
A. International trade law ...................................................... 12
1. World Trade Organization/General Agreement on Tariffs and Trade ............. 12
2. Free trade agreements ................................................... 13
3. Multilateral environmental agreements .................................... 13
4. Dispute settlement ..................................................... 14
B. International investment law ................................................. 16
1. Treaty practice ........................................................ 17
2. Arbitral cases ......................................................... 22
* The Special Rapporteur wishes to acknowledge the valuable assistance given to him by the
following professors and researchers: Charles Wharton, formerly Assistant Professor, Renmin
University of China Law School; Yuka Fukunaga, Waseda University; Yubing Shi, Xiamen
University; Masayuki Hiromi, Post-doctoral Fellow, Faculty of Law, Sophia University; Deng
Hua, doctoral candidate, Renmin University of China Law School; Zhang Maoli, graduate
student, China Youth University of Political Studies; and Zhou You, Juris Master, Peking
University. Other graduate students at China Youth University of Political Studies, including Qi
Quanmei, Li Yubo, Zhang Yixi, Wang Jing, Wang Kun, Liu Yue and Chen Yue, as well as Wang
Leifan, doctoral candidate, Renmin University of China Law School, were also very helpful. The
Special Rapporteur is deeply grateful to Lin Wei, Vice-President; Wu Yong, Dean; Wang Lijun,
Vice-Dean; and Qin Yihe and Chen Xiaohua, Professors, who helped make his research at China
Youth University of Political Studies so fruitful, and also to Zhu Wenqi, Professor, Renmin
University of China Law School, for his constant support and encouragement during this project.
17-01471 (E) 220317
*1701471*
A/CN.4/705
III. Interrelationship with the law of the sea ............................................ 26
A. Linkages between the sea and the atmosphere ................................... 26
B. Legal relationship between the law of the sea and the law on the protection of the
atmosphere ................................................................ 28
1. United Nations Convention on the Law of the Sea and other instruments ......... 28
2. Judicial decisions ...................................................... 35
C. Sea-level rise and its impact.................................................. 37
IV. Interrelationship with international human rights law ................................. 38
A. Treaties and other instruments ................................................ 39
B. Jurisprudence of international courts and treaty bodies ............................ 41
C. Substantive rights .......................................................... 45
D. Vulnerable people .......................................................... 47
E. Future generations .......................................................... 48
F. Procedural problems: extra-jurisdictional application* ............................ 50
V. Conclusion .................................................................... 52
2/52
17-01471
A/CN.4/705
III. Interrelationship with the law of the sea
A. Linkages between the sea and the atmosphere
46. In physical terms, the sea (oceans) and the atmosphere are closely linked in
specific processes that determine the character of ocean-atmosphere interaction.
126
These include the role of ambient water vapour and clouds, the selective absorption
of radiation by the ocean and the distribution of total heating in the oceanatmosphere
system.
127
Energy, momentum and matter (water, carbon, nitrogen, etc.)
are exchanged between the ocean and the atmosphere.
128
A significant proportion of
pollution of the marine environment from or through the atmosphere generally
originates from land-based sources, that is, from anthropogenic activities on land.
The atmosphere is a significant pathway for the transport of many natural and
pollutant materials from the continents to the oceans.
129
Pollution emanates from
either direct discharges or diffuse sources, including those released into the
atmosphere by fossil-fuel and waste combustion. According to scientific findings,
“[a]lthough chemical contaminants — released as a result of human activities — can
now be found throughout the world’s oceans, most demonstrable effects on living
resources occur in coastal waters and are the result of pollution from land”.
130
Human activities are also responsible for global warming, which causes the
temperature of the oceans to rise, which in turn results in extreme atmospheric
conditions of flood and drought
131
as well as mega typhoons (hurricanes/
__________________
126
R.A. Duce, J.N. Galloway and P.S. Liss, “The impacts of atmospheric deposition to the ocean on
marine ecosystems and climate”, World Meteorological Organization Bulletin, vol. 58, No. 1
(2009), pp. 61-66; E.H.G. Brévière and others, “Surface ocean-lower atmosphere study:
scientific synthesis and contribution to Earth system science”, Anthropocene, vol. 12 (2015),
pp. 54-68; Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection,
The Atmospheric Input of Chemicals to the Ocean, Reports and Studies No. 84, GAW Report
No. 203 (2012), available from www.wmo.int/pages/prog/arep/wwrp/new/documents/
Final_GAW_203_WEB.pdf (accessed 20 February 2017). The Special Rapporteur is grateful to
Ms. Oksana Tarasova, Chief, and Ms. Silvina Carou, Scientific Officer, Atmospheric
Environment Research Division, WMO, for the supply of the relevant scientific information.
127
P.J. Webster, “The role of hydrological processes in ocean-atmosphere interactions”, Reviews of
Geophysics, vol. 32, No. 4 (1994), pp. 427-476; See also E.B. Kraus and J.A. Businger,
Atmosphere-Ocean Interaction, 2nd ed. (Oxford, Oxford University Press, 1994); and W.K.M.
Lau and D.E. Waliser, Intraseasonal variability in the atmosphere-ocean climate system (BerlinHeidelberg,
Springer,
2012).
The
Special
Rapporteur
is
grateful
to
Ms.
Zhou
You,
Juris
Master,
Peking
University
(graduate
of
its
Science
Department),
for
supplying
the
relevant
scientific
information
on
the
linkages
between
the
sea
and
the
atmosphere.
128
See T. Stocker, Introduction to Climate Modelling (Berlin-Heidelberg, Springer, 2011),
pp. 137-150, stating that “[m]ost of the movements in the ocean, particularly the large-scale
flow, are caused by these exchange fluxes” (ibid., p. 137).
129
R.A. Duce and others, “The atmospheric input of trace species to the world ocean”, Global
Biogeochemical Cycles, vol. 5, No. 3 (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.
130
D.F. Boesch and others, Marine pollution in the United States (Arlington, Pew Oceans
Commission, 2001); J.M. Prospero, “The atmospheric transport of particles to the ocean”,
Particle Flux in the Ocean, V. Ittekkot and others, eds., SCOPE Report, vol. 57 (San Francisco,
John Wiley and Sons, 1996), pp. 19-52; S. Cornell, A. Randell and T. Jickells, “Atmospheric
inputs of dissolved organic nitrogen to the oceans”, Nature, vol. 376 (1995), pp. 24-246; R.A.
Duce and others, “Impacts of atmospheric anthropogenic nitrogen on the open ocean”, Science,
vol. 320 (2008), pp. 893-897.
131
According to a scientific study, “human-induced increases in greenhouse gases have contributed
to the observed intensification of heavy precipitation events found over approximately two -thirds
of data-covered parts of Northern Hemisphere land areas” (S.K. Min, and others, “Human
contribution to more-intense precipitation extremes”, Nature, vol. 470 (2011), pp. 378-381).
Many scientific analyses suggest there is a risk of drought in the twenty-first century and severe
26/52
17-01471
A/CN.4/705
132
cyclones).
El Niño phenomena, resulting from unstable interactions between the
tropical Pacific Ocean and the atmosphere,
133
are among the prominent features of
climate variability with a global climatic impact. It has been suggested that: “Such a
massive reorganization of atmospheric convection … [has] severely disrupted global
weather patterns, affecting ecosystems, agriculture, tropical cyclones, drought,
bushfires, floods and other extreme weather events worldwide.”
134
47. Of various human activities, greenhouse gas emissions from ships have been
increasing in recent years at a high rate, and have contributed to global warming and
climate change. The 2000 study by the International Maritime Organization (IMO)
on greenhouse gas emissions classified such emissions from ships into four
categories, namely: emissions of exhaust gases; emissions of refrigerants; cargo
emissions; and other emissions from fire-fighting and other equipment.
135
Not only
carbon dioxide (CO2) emissions but also sulphur oxides (SOx) and nitrogen oxides
(NOx) from shipping are noted.
136
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.
137
__________________
and widespread droughts during the next 30 to 90 years over many land areas, resulting from
either decreased precipitation and/or increased evaporation (see 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).
132
“A large increase was seen in the number and proportion of hurricanes reaching categories 4 and
5. The largest increase occurred in the North Pacific, Indian, and Southwest Pacific Oceans, and
the smallest percentage increase occurred in the North Atlantic Ocean. These increases have
taken place while the number of cyclones and cyclone days has decreased in all basins except the
North Atlantic during the past decade” (see P.J. Webster and others, “Changes in tropical cyclone
number, duration, and intensity in a warming environment”, Science, vol. 309, No. 5742 (2005),
pp. 1844-1846). “[F]or some types of extreme — notably heatwaves, but also precipitation
extremes — there is now strong evidence linking specific events or an increase in their numbers
to the human influence on climate. For other types of extreme, such as storms, the available
evidence is less conclusive, but based on observed trends and basic physical concepts it is
nevertheless plausible to expect an increase” (see D. Coumou and S. Rahmstorf, “A decade of
weather extremes”, Nature Climate Change, vol. 2, No. 7 (2012), pp. 491-496).
133
A.V. Fedorov and S.G. Philander, “Is El Niño changing?”, Science, vol. 288 (5473) (2000),
pp. 1997-2002.
134
W. Cai and others, “Increasing frequency of extreme El Niño events due to greenhouse
warming”, Nature Climate Change, vol. 4 (2014), pp. 111-116.
135
Ø. Buhaug and others, Second IMO GHG Study 2009 (London, IMO, 2009), p. 23. See also
T.W.P. Smith and others, Third IMO GHG Study 2014 (London, IMO, 2014), table 1.
136
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. 633-651.
137
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 and others,
“Transport impacts on atmosphere and climate: shipping”, Atmospheric Environment, vol. 44,
No. 37 (2010), pp. 4735, 4744-4745 and 4752-4753. Greenhouse gas emissions from ships have a
negative impact on the marine environment. The Fifth Assessment Report of the
Intergovernmental Panel on Climate Change asserted that greenhouse gas emissions have led to
global ocean warming, the rise of ocean temperatures and ocean acidification. Intergovernmental
Panel on Climate Change, “Climate change 2014 synthesis report: summary for policymakers”,
available from www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf
(accessed 20 February 2017); 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, No. 4 (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, No. 4 (2009), p. 12; S.R. Cooley
and J.T. Mathis, “Addressing ocean acidification as part of sustainable ocean development”,
Ocean Yearbook, vol. 27, No. 1 (2013), pp. 29-47.
17-01471
27/52
A/CN.4/705
48. One of the most profound impacts of atmospheric degradation on the sea is the
rise in sea level caused by global warming. The Fifth Assessment Report of the
Intergovernmental Panel on Climate Change estimates that the global mean sealevel
rise
is
likely
to be
between 26
cm
and
98
cm
by
the
year
2100.
138
While exact
absolute figures and rates of change still remain uncertain, the report states that it is
virtually certain that the sea level will continue to rise during the 21st century, and
for centuries beyond — even if the concentrations of greenhouse gas emissions are
stabilized. Moreover, the rise in sea level 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”.
139
That degree of change in sea
level may pose a potentially serious, maybe even disastrous, threat to many coastal
States, especially those with large, heavily populated and low-lying coastal areas, as
well as to small, low-lying island States, which will be discussed later in the present
report.
49. 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.
140
In 2015, the first Global Integrated Marine
Assessment (first World Ocean Assessment) was completed as a comprehensive,
in-depth study of the substances polluting the oceans from land-based sources
through the atmosphere.
141
The summary of the report was approved by the General
Assembly in its resolution 70/235 of 23 December 2015. General Assembly
resolution 71/257 of 23 December 2016 has confirmed the effect of climate change
on oceans.
142
B. Legal relationship between the law of the sea and the law on the
protection of the atmosphere***
1. United Nations Convention on the Law of the Sea and other instruments
50. When the United Nations Convention on the Law of the Sea was adopted in
1982, it aimed to address all issues relating to the law of the sea, including the
protection of the marine environment from atmospheric pollution and atmospheric
degradation. To that end, the Convention defines the “pollution of the marine
environment” in article 1, paragraph 1 (4), and regulates all airborne sources of
marine pollution, including atmospheric pollution from land-based sources and
vessels, through articles 192, 194, 207, 211 and 212 of Part XII of the Convention.
Although climate change was not on the international environmental agenda when
__________________
*** The Special Rapporteur is particularly grateful to Yubing Shi, Professor, Xiamen University, for
drafting the relevant parts of the present report concerning the law of the sea and related judicial
decisions.
138
Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis.
Working Group I Contribution of to the Fifth Assessment Report of the Intergovernmental Panel
on Climate Change (Cambridge, United Kingdom, Cambridge University Press, 2013), p. 1180.
139
Ibid., p. 1140.
140
See “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.
141
United Nations Division for Ocean Affairs and the Law of the Sea, “First Global Integrated
Marine Assessment (first World Ocean Assessment)”, available from www.un.org/depts/los/
global_reporting/WOA_RegProcess.htm (accessed 20 February 2017) (see, in particular, chap.
20 on “Coastal, riverine and atmospheric inputs from land”).
142
See paras. 185-196.
28/52
17-01471
A/CN.4/705
the Convention was negotiated,
143
the relevant obligations of States can be inferred
from it, and these obligations interact with the international climate change regime
and the IMO regime in a mutually supportive manner.
51. Article 1, paragraph 1 (4), of the Convention provides that: “‘pollution of the
marine environment’ means 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, hindrance to marine activities, including
fishing and other legitimate uses of the sea, impairment of quality for use of sea
water and reduction of amenities.” Based on this definition, the release of toxic,
harmful or noxious substances (including atmospheric pollutants) from land-based
sources cause marine pollution and harm the marine environment, and this has been
confirmed by articles 194, paragraph 3, and 207 of the Convention. Similarly,
atmospheric pollution from vessels also harms the marine environment, and this has
been regulated by articles 194, paragraph 3, 211 and 212 of the Convention. While
SOx and NOx have been generally accepted as air pollutants,
144
there are debates and
differences in national legislation on whether greenhouse gas emissions from ships,
in particular CO2 emissions from ships, are a type of pollution.
145
Nonetheless, it is
well known that greenhouse gas emissions from ships, as a main factor contributing
to climate change, cause marine pollution and harm the marine environment. The
definition provided in article 1, paragraph 1 (4), of the Convention is significant in
that it provides the criteria for judging whether a type of “substance or energy” is
marine pollution and this may trigger the application of many pollution-related
treaties under the auspices of the IMO and other international fora to the issue of
that particular “substance or energy”.
146
52. Part XII of the Convention covers atmospheric pollution from land-based
sources. While article 192 provides a general obligation for States to protect and
preserve the marine environment, articles 194, paragraph 3 (a), and 207 specify
requirements on pollution of land-based sources. Article 194, paragraph 3 (a), reads
that:
The measures taken pursuant to this Part shall deal with all sources of
pollution of the marine environment. These measures shall include, inter alia,
those designed to minimize to the fullest possible extent:
(a) the release of toxic, harmful or noxious substances, especially those which
are persistent, from land-based sources, from or through the atmosphere or by
dumping.
__________________
143
A. Boyle, “Law of the sea perspectives on climate change”, in The 1982 Law of the Sea
Convention at 30: Successes, Challenges and New Agendas, D. Freestone, ed. (Leiden, Martinus
Nijhoff, 2013), pp. 157-164; See, in general, R.S. Abate, ed., Climate Change Impacts on Ocean
and Coastal Law: U.S. and International Perspectives (Oxford, Oxford University Press, 2015).
144
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, 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 31 December 1988); and annex VI on regulations for the prevention
of air pollution from ships (entry into force 19 May 2005).
145
Y. Shi, “Are greenhouse gas emissions from international shipping a type of marine pollution?”,
Marine Pollution Bulletin, vol. 113, Nos. 1-2 (2016), pp. 187-192.
146
Ibid., p. 187.
17-01471
29/52
A/CN.4/705
Through the above provisions, the Convention requires States to take all necessary
measures to prevent, reduce and control land-based atmospheric pollution. The
source of this atmospheric pollution also covers greenhouse gas emissions due to
their deleterious effects on the marine environment.
147
In this way, the Convention
imposes an obligation of due diligence on States,
148
and serves as a framework
treaty for States to reduce land-based atmospheric pollution and greenhouse gas
emissions. This regulation underpins the subsequent global and regional regulatory
initiatives including the Global Programme of Action for the Protection of the
Marine Environment from Land-based Activities,
149
the United Nations Framework
Convention on Climate Change and its Kyoto Protocol
150
and the Paris
151
Agreement.
53. Article 207, paragraph 4, of the United Nations Convention on the Law of the
Sea highlights that global and regional rules, standards and recommended practices
and procedures to prevent, reduce and control pollution from land-based sources
should be established through competent organizations or diplomatic conference.
The plural term “competent international organizations” in this provision indicates
that IMO is not the sole organization exclusively dealing with land-based sources of
152
marine pollution.
In this way, relevant treaties adopted under the auspices of IMO
and other international forums have thus been incorporated into the Convention by
reference. Meanwhile, this provision underscores that the establishment of global
and regional rules, standards and recommended practices and procedures should
take into account characteristic regional features, the economic capacity of
developing States and their need for economic development. This provision reflects
article 194, paragraph 1, that requires States to take measures “in accordance with
their capabilities”,
153
and underpins the eventual formation of the “common but
differentiated responsibilities and respective capabilities principle” in 1992.
54. The regulation on atmospheric pollution from vessels under the Convention
incorporates “mutual supportiveness” for dealing with the interrelationship between
the Convention and IMO. This has been achieved by two approaches, namely the
so-called rules of reference, and general obligations being supplemented by IMO
instruments.
55. Regarding the rules of reference, parties to the Convention are required to
comply with rules and standards that are stipulated in other international
__________________
147
Boyle, “Law of the sea perspectives on climate change” (see footnote 143 above), p. 158; See
also Intergovernmental Panel on Climate Change, Climate Change 2013 … (footnote 138 above),
pp. 4-5; 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, No. 4 (2009), pp. 387 and 389.
148
Boyle, “Law of the sea perspectives on climate change” (see footnote 143 above), p. 159.
149
The Global Programme of Action is administered by a Coordinating Unit hosted by the United
Nations Environment Programme. The Global Programme of Action was designed around the
relevant provisions of chaps. 17, 33 and 34 of Agenda 21, the Rio Declaration on Environment
and Development, and the Montreal Guidelines for the Protection of the Marine Environment
against Pollution from Land-based Sources. The Global Programme of Action recommends
actions at the international, regional and national levels to address the issue of marine pollution
from land-based activities.
150
Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto,
11 December 1997).
151
Paris Agreement under the United Nations Framework Convention on Climate Change (Paris,
12 December 2015), document FCCC/CP/2015/L.9/Rev.1, annex.
152
M.H. Nordquist and others, eds., United Nations Convention on the Law of the Sea 1982:
A Commentary (Dordrecht, Martinus Nijhoff, 1991), vol. IV, p. 133, para. 207.7(d).
153
The origin of this expression can be traced back to principle 7 of the Declaration of the United
Nations Conference on the Human Environment (Stockholm Declaration), which incorporated
the words “all possible steps”. See Nordquist and others, United Nations Convention on the Law
of the Sea … (footnote above), p. 64, para. 194.10(b).
30/52
17-01471
A/CN.4/705
instruments adopted under the auspices of IMO, even when these parties to the
Convention are not parties to the IMO instruments.
154
Two rules of reference under
the Convention may be relevant for the regulations on atmospheric pollution from
vessels. Article 211 (“Pollution from vessels”), paragraph 2, of the Convention
reads: “States shall adopt laws and regulations for the prevention, reduction and
control of pollution of the marine environment from vessels flying their flag or of
their registry. Such laws and regulations shall at least have the same effect as that of
generally accepted international rules and standards established through the
competent international organization or general diplomatic conference.” The
“competent international organization” in this provision refers to IMO. Indeed, this
provision imposes an obligation on all flag States that their national laws and
regulations for the prevention, reduction and control of vessel-sourced atmospheric
pollution should be consistent with or stricter than generally accepted international
rules and standards established by IMO.
155
In this way, this provision is linked to
relevant IMO instruments on vessel-sourced atmospheric pollution in which
relevant rules and standards are qualified as “generally accepted” for the purpose of
article 211, paragraph 2.
156
An example of such an instrument is annex VI
(“Regulations for the prevention of air pollution from ships”) to the International
Convention for the prevention of pollution from ships. Article 212, paragraph 1, of
the United Nations Convention on the Law of the Sea (“Pollution from or through
the atmosphere”) provides that: “States shall adopt laws and regulations to prevent,
reduce and control pollution of the marine environment from or through the
atmosphere, applicable to the air space under their sovereignty and to vessels flying
their flag or vessels or aircraft of their registry, taking into account internationally
agreed rules, standards and recommended practices and procedures and the safety of
air navigation.” This provision encourages flag States to enforce internationally
agreed IMO rules, standards and recommended practices and procedures so as to
satisfy their obligations under the Convention. Compared with the expression
“generally accepted”, “generally agreed” is a weaker term. However, the United
Nations Division for Ocean Affairs and the Law of the Sea has treated annex VI of
the International Convention for the prevention of pollution from ships as a
complementary instrument that needs to be implemented by States to fulfil their
obligations under article 212.
157
56. Some general obligations of States on vessel-sourced atmospheric pollution
provided by the United Nations Convention on the Law of the Sea are supplemented
by concrete regulations under the auspices of IMO. For instance, article 194,
paragraph 3 (b), of the Convention mentions atmospheric pollution from vessels in a
general manner. It reads as follows:
The measures taken pursuant to this Part shall deal with all sources of
pollution of the marine environment. These measures shall include, inter alia,
those designed to minimize to the fullest possible extent:
__________________
154
See, e.g., J. Harrison, “Recent developments and continuing challenges in the regulation of
greenhouse gas emissions from international shipping”, University of Edinburgh School of Law,
Research Paper Series No. 2012/12, available from: https://ssrn.com/abstract=2037038
(accessed 20 February), p. 20.
155
Nordquist and others, United Nations Convention on the Law of the Sea … (see footnote 152),
p. 203, para. 211.15(f).
156
See, e.g., A.E. Boyle, “Marine pollution under the law of the sea convention”, American Journal
of International Law, vol. 79 (1985), p. 357; and R. Van Reenan, “Rules of references in the new
Convention on the Law of the Sea, in particular in connection with the pollution of the sea by oil
from tankers”, Netherlands Yearbook of International Law, vol. 12 (1981), p. 3.
157
Division for Ocean Affairs and the Law of the Sea, The Law of the Sea: Obligations of States
Parties under the United Nations Convention on the Law of the Sea and Complementary
Instruments (United Nations publication, Sales No. E.04.V.5), p. 52.
17-01471
31/52
A/CN.4/705
…
(b) pollution from vessels, in particular measures for preventing accidents
and dealing with emergencies, ensuring the safety of operations at sea,
preventing intentional and unintentional discharges, and regulating the design,
construction, equipment, operation and manning of vessels.
The standard of conduct set out in this provision is very general. It covers various
sources of air pollution from vessels, including those resulting from the normal
operation of vessels and also from marine casualties following collisions and
groundings. The concrete obligations can be found in relevant IMO instruments
such as the International Convention for the prevention of pollution from ships, the
Convention on the international regulations for preventing collisions at sea, and the
International Convention for the Safety of Life at Sea. Similarly, for the purpose of
preventing, reducing and controlling vessel-sourced marine pollution, article 211,
paragraph 6, allows coastal States to establish special areas in their exclusive
economic zone after appropriate consultations through the competent international
organization. To facilitate the enforcement of this provision, in 2005 IMO adopted
resolution A.982(24) on revised guidelines for the identification and designation of
particularly sensitive sea areas, which provide guidelines on designating such areas.
57. A commentary to article 194 is illuminating in describing the (limited)
interrelationship between the law of the sea and the law relating to the atmosphere:
The word “atmosphere” appears for the first time in this Convention in
paragraph 3 (a), and the question arises of the extent to which the atmosphere
can be considered as part of the marine environment. Several provisions of the
Convention refer to the atmosphere in terms of the superjacent airspace or
some cognate expression … This is sufficient to indicate that the atmosphere
itself can be regarded as a component of the marine environment, at least to
the extent that there is a direct link between the atmosphere in superjacent
airspace and the natural qualities of the subjacent ocean space. Article 194,
paragraph 3 (a), together with articles 212 and 222, thus also constitutes a link
with between the law relating to the marine environment and the law relating
to the atmosphere as such, whether or not over the oceans. At the same time,
the provisions of this Convention, and especially those found in Part XII, do
not themselves prejudge the question whether any part of the atmosphere is
itself part of the marine environment.
158
The scope of application of article 212 is the territorial airspace “under the
sovereignty” of a given State, and it does not relate to airspace above an exclusive
economic zone, not to mention common airspace above the high seas. Article 212
does not address directly the problem of pollution of the atmosphere itself, or any
form of pollution other than that defined in article 1, paragraph 4, namely pollution
of the marine environment.
159
Article 222 (“Enforcement with respect to pollution
from or through the atmosphere”) is the enforcement counterpart of article 212, the
standard-setting article for the prevention, reduction and control of pollution of the
marine environment from or through the atmosphere. Article 222 may to some
extent overlap article 223 on enforcement with regard to the pollution of the marine
environment from land-based sources, since in fact most of the pollution in the
atmosphere derives from sources on land.
160
__________________
158
Nordquist and others, United Nations Convention on the Law of the Sea … (see footnote 152),
p. 67, para. 194.10(k).
159
Ibid., pp. 212-213, para. 212.9(d).
160
Ibid., pp. 315-319.
32/52
17-01471
A/CN.4/705
58. Other relevant instruments include the Convention for the protection of the
marine environment of the North-East Atlantic (art. 1 (e)), the Convention on the
protection of the marine environment of the Baltic Sea Area (art. 2, para. 2), the
Protocol for the protection of the Mediterranean Sea against pollution from landbased
sources
(art. 4,
para. 1
(b)),
161
the Protocol for the protection of South-East
Pacific against pollution from land-based sources (art. II (c)) and the Protocol to the
Kuwait Regional Convention for the Protection of the Marine Environment Against
Pollution from Land-Based Sources (art. III), dealing with pollution through the
atmosphere as a land-based source. The revised Protocol on the Protection of the
Marine Environment of the Black Sea from Land-based Sources and Activities
162
regulates pollution transported through the atmosphere in its annex III. In 1991, the
parties to the Protocol for the protection of the Mediterranean Sea against pollution
from land-based sources adopted a new annex (IV) to the Protocol on land-based
sources of pollution transported through the atmosphere.
163
Prior to the United
Nations Convention on the Law of the Sea, the only international instrument of
significance was the Treaty banning nuclear weapon tests in the atmosphere, in
outer space and under water.
59. Through the rules of reference under the United Nations Convention on the
Law of the Sea, annex VI of the International Convention for the prevention of
pollution from ships can be treated as the “internationally agreed rules [and]
standards” for the purpose of reducing vessel-sourced air pollution such as SOx and
NOx.
164
Regarding greenhouse gas emissions from ships, the interaction between
IMO and the United Nations Convention on the Law of the Sea becomes more
complicated due to their interrelationship with the international climate change
regime. It seems that the interrelationship among IMO, the United Nations
Convention on the Law of the Sea and the United Nations Framework Convention
on Climate Change is somehow conflicted due to the controversial application of
the principle of common but differentiated responsibilities and respective
capabilities to the IMO regulation of greenhouse gas emissions from international
shipping. However, in essence this relationship is still “mutually supportive”, as the
so-called conflict can be addressed through interpretation in good faith.
60. The entire negotiation process regarding greenhouse gas emissions reduction
within IMO has been shaped and bedevilled by tension between developed and
developing States. The conflict centres on the question of whether the principle of
common but differentiated responsibilities and respective capabilities or the
principle of no more favourable treatment should be applied to the regulation of
greenhouse gas emissions from international shipping.
165
While the former principle
__________________
161
The original Protocol was modified by amendments adopted on 7 March 1996 by the Conference
of Plenipotentiaries on the Protocol for the Protection of the Mediterranean Sea against Pollution
from Land-based Sources, held in Syracuse on 6 and 7 March 1996 (UNEP(OCA)/MED IG.7/4).
The amended Protocol, recorded as “Protocol for the Protection of the Mediterranean Sea against
Pollution from Land-Based Sources and Activities”, entered into force on 11 May 2008.
162
The Protocol is not yet in force.
163
D. Bodansky and others, “Oceans”, in Yearbook of International Environmental Law, vol. 1,
G. Handl, ed. (London, Graham and Trotman, 1991), pp. 111-137.
164
United Nations Convention on the Law of the Sea, art. 212, para. 1. Based on the current
literature on the criteria of “generally accepted”, it is less likely, however, that annex VI can be
regarded as constituting generally accepted international rules and standards as stipulated in
art. 211, para. 2, of the Convention. See, e.g., Harrison, “Recent developments and continuing
challenges …” (footnote 154 above), pp. 21-22.
165
The principle of common but differentiated responsibilities and respective capabilities requires
developed and developing States to address environmental issues but underscores that the former
should take primary responsibility. The premise for this arrangement is the different levels of
responsibility developing and developed States have for the causation of environmental
problems. The no more favourable treatment principle refers to “port States enforcing applicable
17-01471
33/52
A/CN.4/705
runs through the United Nations Framework Convention on Climate Change, its
Kyoto Protocol and the Paris Agreement, the latter principle is incorporated into all
IMO regulations, including the International Convention for the prevention of
pollution from ships. Thus, there are strongly held different views regarding which
principle should be applied to the regulatory regime to reduce greenhouse gas
emissions from international shipping. Nonetheless, it is possible that this tension
can be addressed provided that an interpretation based on the Vienna Convention is
made in a mutually supportive manner. Generally speaking, the mandate of IMO as
regards greenhouse gas emissions comes from both the United Nations Convention
on the Law of the Sea and the International Convention for the prevention of
pollution from ships as well as the Kyoto Protocol to the United Nations Framework
Convention on Climate Change,
166
which indicates that both principles mentioned
above can be applied to the issue under discussion and their incorporation into the
regulation can be achieved through a broader and flexible interpretation of the
principle of common but differentiated responsibilities and respective
capabilities.
167
To some extent, this approach has been reflected in the adoption of
the 2011 amendments to annex VI of the International Convention for the
prevention of pollution from ships and the ongoing discussion on market-based
measures within IMO.
168
61. As a package deal, the United Nations Convention on the Law of the Sea does
not provide definitions on various types of marine pollution, and the absence of
certain types of marine pollution has been supplemented by other regional treaties.
For instance, the United Nations Convention on the Law of the Sea regulates
pollution from land-based sources, and a definition of “land-based sources” was
later provided by the Convention for the protection of the marine environment of the
North-East Atlantic. Article 1 (e) of that Convention provides that:
“Land-based sources” means point and diffuse sources on land from which
substances or energy reach the maritime area by water, through the air, or
__________________
standards in a uniform manner to all ships in their ports, regardless of flag”; see Y. Shi, “The
challenge of reducing greenhouse gas emissions from international shipping: assessing the
International Maritime Organization’s regulatory response”, Yearbook of International
Environmental Law, vol. 23, No. 1 (2012), pp. 136-137.
166
Art. 2, para. 2, of the Kyoto Protocol authorizes IMO to regulate greenhouse gas emissions from
international shipping. Meanwhile, IMO receives its competence on greenhouse gas emissions
from arts. 1 (a) and 64 of the Convention on the International Maritime Organization and
arts. 211, para. 1, and 212, para. 3, of the United Nations Convention on the Law of the Sea. Y.
Shi, “Greenhouse gas emissions from international shipping: the response from China’s shipping
industry to the regulatory initiatives of the International Maritime Organization”, International
Journal of Marine and Coastal Law, vol. 29 (2014), pp. 77-115, at pp. 82-84.
167
Ibid., pp. 86-89.
168
The amendments adopted in 2011 to annex VI of the International Convention for the prevention
of pollution from ships (see IMO resolution MEPC.203(62) of 15 July 2011, document
MEPC 62/24/Add.1, annex 19) introduced a mandatory energy efficiency design index for new
ships and a ship energy efficiency management plan for all ships. Furthermore, market-based
measures, as a third type of measure in addition to the technical and operational measures, had
also been discussed and negotiated from 2000 to 2013 within IMO. See IMO, “Main events in
IMO’s work on limitation and reduction of greenhouse gas emissions from international
shipping” (2011), para. 18, available from www.imo.org; Y. Shi, “Reducing greenhouse gas
emissions from international shipping: is it time to consider market-based measures?”, Marine
Policy, vol. 64 (2016), pp. 123-134, at p. 125; and H. Zhang, “Towards global green shipping:
the development of international regulations on reduction of GHG emissions from ships”,
International Environmental Agreements: Politics, Law and Economics, vol. 16, No. 4 (2016),
pp. 561-577. At its seventieth session from 24 to 28 October 2016, the IMO Marine Environment
Protection Committee agreed to cut SOx emissions from ships, starting in 2020 (with an
implementation scheme to be discussed in 2017), but postponed a decision on greenhouse ga s
emissions until after a further review in 2017.
34/52
17-01471
A/CN.4/705
directly from the coast. It includes sources associated with any deliberate
disposal under the sea-bed made accessible from land by tunnel, pipeline or
other means and sources associated with man-made structures placed, in the
maritime area under the jurisdiction of a Contracting Party, other than for the
purpose of offshore activities.
62. Thus, the relevant provisions of the United Nations Convention on the Law of
the Sea and other related instruments address the atmosphere as long as it is within
territorial airspace, and as long as it affects the marine environment. They do not
address the atmosphere itself, nor situations where the oceans may affect the
atmosphere. The interrelationship between the sea and the atmosphere covered by
the United Nations Convention on the Law of the Sea is limited and unilateral (one
way from the atmosphere to the oceans, but not the other way around), requiring
further efforts by the international community to overcome such negative conflicts
within the relevant international law. As recalled, the preamble of the Paris
Agreement notes the importance of ensuring the integrity of all ecosystems,
including oceans. It is therefore considered important that the law of the sea and the
law relating to the atmosphere are interpreted and applied in a mutually supportive
manner.
2 Judicial decisions
63. As was referred to in the second report by the Special Rapporteur,
169
Australia
had asked the International Court of Justice, in its application in the Nuclear Tests
case, “to adjudge and declare that the carrying out of atmospheric nuclear weapon
tests in the South Pacific area is not consistent with obligations imposed on France
by applicable rules of international law”.
170
While the Court had previously
indicated provisional measures on 22 June 1973, it rendered a final judgment on
20 December 1974, holding that the objective pursued by the applicants, namely the
cessation of the nuclear tests, had been achieved by French declarations not to
continue atmospheric tests, and therefore that the Court was not called upon to give
a decision on the claims put forward by the applicants.
171
It may be noted that
Australia filed this case on the grounds of protecting, not only its own legal
interests, but also the interests of other States, since it considered French nuclear
tests a violation of the freedom of the high seas. Its memorial stated, inter alia, that:
__________________
169
A/CN.4/681, para. 44.
170
Memorial on Jurisdiction and Admissibility submitted by the Government of Australia, I.C.J.
Pleadings 1973, para. 430.
171
Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports
1973, p. 99; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253; Nuclear
Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973,
p. 135; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457. See,
H. Thierry, “Les arrêts du 20 décembre 1974 et les relations de la France avec la Cour
internationale de justice”, Annuaire français de droit international, vol. 20 (1974), pp. 286-298;
T.M. Franck, “Word made law: the decision of the ICJ in the Nuclear Test cases”, American
Journal of International Law, vol. 69 (1975), pp. 612-620; P. Lellouche, “The International
Court of Justice: the nuclear tests cases: judicial silence v. atomic blasts”, Harvard International
Law Journal, vol. 16 (1975), pp. 614-637; E. McWhinney, “International law-making and the
judicial process, the world court and the French Nuclear Tests case”, Syracuse Journal of
International law and Commerce, vol. 3 (1975), pp. 9-46; S. Sur, “Les affaires des essais
nucléaires (Australie c. France; Nouvelle-Zélande c. France: C.I.J. — arrêts du 20 décembre
1974)”, Revue générale de droit international public, vol. 79 (1975), pp. 972-1027;
R.S.J. MacDonald and B. Hough, “The Nuclear Tests case revisited”, German Yearbook of
International Law, vol. 20 (1977), pp. 337-357. The Court stated that “the unilateral statements
of the French authorities were made outside the Court, publicly and erga omnes”, implying that
France became bound towards all States (Nuclear Tests (Australia v. France), Judgment, I.C.J.
Reports 1974, p. 253, at p. 269, para. 50).
17-01471
35/52
A/CN.4/705
“The sea is not static; its life systems are complex and closely interrelated. It is
evident, therefore, that no one can say that pollution — especially pollution
involving radioactivity — in one place cannot eventually have consequences in
another. It would, indeed, be quite out of keeping with the function of the Court to
protect by judicial means the interests of the international community, if it were to
disregard considerations of this character.”
172
64. The 2001 decision by the International Tribunal for the Law of the Sea in the
MOX Plant case
173
exemplifies the interrelationship between the United Nations
Convention on the Law of the Sea and the relevant international law regime
regarding the prevention, reduction and control of land-based atmospheric pollution.
Mutual supportiveness between the Convention and the atmospheric pollution
regime was one of the factors being considered by the Tribunal. In this case, Ireland
requested that an arbitral tribunal be constituted under annex VII to adjudge and
declare that the United Kingdom, through its MOX plant, had breached its
obligations under articles 192, 193 and/or article 194 and/or article 207 and/or
articles 211 and 213 of the Convention. Ireland asserted that the United Kingdom
failed to take the necessary measures to prevent, reduce and control marine
pollution in the Irish Sea by means of the intended discharge and/or accidental
release of radioactive materials or wastes from the MOX plant.
174
The reasoning
behind the submission of Ireland was that compliance with agreed standards of
pollution control under relevant international law was not enough to satisfy the
more general duty of due diligence, which was established under the Convention.
175
Based on this consideration, Ireland requested the Tribunal to impose certain
provisional measures, such as the United Kingdom immediately suspending its
authorization to the MOX plant. The Tribunal decided not to impose provisional
measures as requested by Ireland but requested that the two parties cooperate
forthwith. This case can also be seen as a balancing exercise by the Tribunal
between continued economic development and environmental protection.
176
65. The Pulp Mills case
177
before the International Court of Justice was another
example addressing the interrelationship between the duty of due diligence provided
under the Convention and the duty to protect the environment stipulated in other
agreements. Mutual supportiveness between the Convention and other instruments
was again one of the factors being considered by the Court. In this case, Argentina
alleged that Uruguay had breached its obligations under the Statute of the River
Uruguay
178
by authorizing one pulp mill and constructing another on the River
Uruguay. Argentina asserted that Uruguay had breached international law, including
the obligation to prevent pollution, a duty of diligence established under the
Convention. To that end, Argentina submitted a request for provisional measures.
However, that request was rejected by the Court. The Court held that Uruguay had
only breached a procedural obligation rather than substantive obligations under the
__________________
172
Memorial on Jurisdiction and Admissibility submitted by the Government of Australia, I.C.J.
Pleadings 1973, para. 459.
173
The MOX Plant case (Ireland v. United Kingdom), provisional measures, order of 3 December,
International Tribunal for the Law of the Sea, Case No. 10.
174
Request for provisional measures and statement of case submitted on behalf of Ireland,
9 November 2001, available from www.itlos.org/fileadmin/itlos/documents/cases/case_no_10/
request_ireland_e.pdf (accessed 20 February 2017). In its request for provisional measures,
Ireland stated that “the consequences for human health and environment of an accidental
atmospheric release of the high-level radioactive waste tanks at Sellafield would be far greater
than the Chernobyl accident in April 1986” (para. 11).
175
Boyle, “Law of the sea perspectives on climate change” (see footnote 143 above), p. 162.
176
Ibid.
177
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14.
178
Statute of the River Uruguay, United Nations, Treaty Series, vol. 1295, p. 340.
36/52
17-01471
A/CN.4/705
Statute, for the protection of the environment.
179
In this way, the interrelationship of
mutual supportiveness between the duty of due diligence under the Convention and
substantial obligations provided in other agreements has been identified by the Court.
C. Sea-level rise and its impact
66. As described in paragraph 48 above, sea-level rise as a result of global
warming was predicted by the Intergovernmental Panel on Climate Change as the
most likely scenario. One of the well-known consequences of sea-level rise is the
significant global regression of coastlines, leading to changes of baselines to
measure territorial waters and other maritime zones including archipelagic lines, as
the baselines are intended to be “ambulatory”.
180
As sea levels rise, the low water
line along the coast, which marks the “normal baseline” for the purposes of article 5
of the Convention, will usually move inland and some key geographical features
used as base points may be inundated and lost. Some authors, however, hold the
view that “a substantial rise in sea level, whatever the cause, should not entail the
loss of States’ ocean space and their rights over maritime resources, already
recognized by the 1982 Convention”.
181
The International Law Association
Committee on Baselines under the International Law of the Sea has suggested that
there may be two options: first, a new rule freezing the existing baselines in their
current positions, using the “large-scale charts officially recognised by the coastal
State”; or, second, a new rule freezing the existing defined outer limits of maritime
zones measured from the baselines established in accordance with the
Convention.
182
These options do appear to be contrary to the established rule of
international law, since the fundamental change of circumstances cannot be applied
to boundaries.
183
Nonetheless, there is a strong need for the international community
to consider the problem de lege ferenda to overcome the difficulty facing the States
concerned with baseline issues.
184
67. Another set of problems caused by sea-level rise, which is of direct relevance
to the protection of the atmosphere, relates to the issues of forced migration and
human rights. Sea-level rise is threatening partial or complete inundation of State
territory, or depopulation thereof, in particular of small island and low-lying States,
__________________
179
The Court held that there was “no conclusive evidence in the record to show that Uruguay has
not acted with the requisite degree of due diligence or that the discharges of effluent from the
Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the
quality of the water or the ecological balance of the river since it started its operations in
November 2007” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
Reports 2010, p. 14, at p. 101, para. 265).
180
A.H.A. Soons, “The effects of a rising sea level on maritime limits and boundaries”, Netherlands
International Law Review, vol. 37, No. 2 (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, Martinus Nijhoff, 2011), p. 188 et seq. The VCLT provides in article 62 (2) that: “A
fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty: (a) if the treaty establishes a boundary.”
181
J.L. Jesus, “Rocks, new-born islands, sea level rise and maritime space”, in Negotiating For
Peace — Liber Amicorum Tono Eitel, J. Frowein and others, eds. (Berlin/Heidelberg, Springer,
2003), pp. 599 and 602.
182
See International Law Association, Report of the Seventy-Fifth Conference held in Sofia, August
2012 (London, 2012), pp. 385-428.
183
The International Court of Justice also confirmed this exclusion of a boundary from the
application of fundamental change of circumstances in Aegean Sea Continental, Judgment, I.C.J.
Reports 1978, p. 3, at pp. 35-36, para. 85.
184
International Law Association, Johannesburg Conference (2016): International Law and Sea
Level Rise (interim report), pp. 13-18.
17-01471
37/52
A/CN.4/705
and the relevant implications under international law are enormous, requiring
serious, in-depth study of the issues. The combined and cumulative impacts of
relative sea-level rise and other effects of climate change present a range of direct
and indirect negative consequences for human lives and living conditions in coastal
and low-lying areas.
185
These questions of human rights and migration should,
however, be better considered in the context of human rights law rather than the law
of the sea, and will therefore be discussed in section IV.
68. In view of the above, the following draft guideline is proposed:
Draft guideline 11: Interrelationship of law on the protection of the atmosphere
with the law of the sea
1. States should take appropriate measures in the field of the law of the
sea, taking into account the relevant provisions of the United Nations
Convention on the Law of the Sea and related international instruments,
to protect the atmosphere from atmospheric pollution and atmospheric
degradation and to deal with questions of maritime pollution from or
through the atmosphere. In order to avoid any conflict, States should
ensure that development, interpretation and application of relevant rules
of international law conform to the principle of mutual supportiveness.
2. States and competent international organizations should consider the
situations of small island States and low-lying States with regard to the
baselines for the delimitation of their maritime zones under the law of the
sea.
IV. Interrelationship with international human rights law
69. International law related to the protection of the atmosphere can only
coordinate appropriately with international human rights law to the extent that
elements of the law of protection of the atmosphere are considered
“anthropocentric” (human-centric) rather than eco-centric in character,
186
that is,
that environmental protection is primarily considered as a means of protecting
humans rather than an end in itself.
187
Thus, for instance, the European Court of
Human Rights, in a case concerning the protection of marshland, stated that:
“Neither article 8 nor any of the other Articles of the Convention are specifically
designed to provide general protection of the environment as such; other
international instruments … are more pertinent in dealing with this particular
188
aspect.”
In order for human rights instruments to contribute to the protection of the
environment in general and to the protection of the atmosphere in particular, the
__________________
185
Ibid., pp. 18-28. See also Intergovernmental Panel on Climate Change, “Climate change 2014
synthesis report …” (footnote 137 above).
186
See C.D. Stone, “Ethics and international environmental law”, in The Oxford Handbook of
International Environmental Law, D. Bodansky, J. Brunée and E. Hey, eds. (Oxford, Oxford
University Press, 2007), pp. 291-301. The Special Rapporteur is particularly grateful to
Masayuki Hiromi, Sophia University, for supplying relevant material and drafting parts of the
present report on human rights law.
187
Boyle, “Relationship between international environmental law …” (see footnote 36 above), p. 141.
188
Kyrtatos v. Greece, no. 41666/98, ECHR 2003-VI, para. 52. The Court went on to say that “even
assuming that the environment has been severely damaged by the urban development of the area,
the applicants have not brought forward any convincing arguments showing that the alleged
damage to the birds and other protected species living in the swamp was of such a nature as to
directly affect their own rights under Article 8 § 1 of the Convention” (ibid., para. 53).
38/52
17-01471
A/CN.4/705
direct link between atmospheric pollution or degradation and an impairment of a
protected human right must be established.
189
In this sense, international human
rights law can be pertinent only in the context of atmospheric pollution and
atmospheric degradation affecting the human and natural environments, since they
are protected ultimately for humans. Thus, international human rights law does not
necessarily overlap with international environmental law, but may do so to some
extent.
190
A. Treaties and other instruments
70. With regard to human rights references in environmental texts, the Declaration
of the United Nations Conference on the Human Environment (Stockholm
Declaration)
191
recognized for the first time the interrelationship between
international environmental law and international human rights law: its principle 1
focused on the rights granted to individuals rather than the obligations imposed on
States, providing that: “Man 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.”
192
The Rio Declaration on Environment and
193
Development
of 1992 also outlined 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”. Although the second clause
did not refer specifically to the term “human right”,
194
principle 1 has helped the
development of international human rights law to incorporate concerns for
sustainability and environmental protection. While these declarations are not legally
binding instruments, they provided the basis for subsequent development of a
human right to a healthy environment.
195
71. It is important to note that international law relating to the protection of the
atmosphere does significantly reflect an anthropocentric approach so that human
rights law does have a great potential to contribute to this field, since, after all,
clean air is indispensable for human survival. 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” (article 1) and obliges the parties “to protect man and his environment
against air pollution” (article 2). 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”
(article 2), and the United Nations Framework Convention on Climate Change deals
__________________
189
P. -M. Dupuy and J.E. Viñuales, International Environmental Law (Cambridge, United Kingdom,
Cambridge University Press, 2015), pp. 308-309 and 319.
190
Certain environmental norms, such as conventions concerning the protection of biodiversity,
“reflect a greater environmental consciousness and suggest that the protection of the environment
is often recognised on its own terms, and not simply a means of protecting humans” (Sands and
Peel, Principles of International Environmental Law (see footnote 106 above), p. 776). In such
an area, there is no room for international human rights norms to be taken into consideration.
191
See Report of the United Nations Conference of the Human Environment, Stockholm 5 -16 June
1971 (United Nations publication, Sales No. E.73.II.A.14), chap. I.
192
L.B. Sohn, “The Stockholm Declaration on the Human Environment”, Harvard International
Law Journal, vol. 14 (1973), pp. 423-515, at pp. 451-452.
193
Report of the United Nations Conference on Environment and Development … (see footnote 41
above), resolution 1, annex I.
194
D. Shelton, “What happened in Rio to human rights?”, Yearbook of International Environmental
Law, vol. 3 (1992), pp. 75-93, at p. 75.
195
F. Francioni, “Principle 1: human beings and the environment”, in The Rio Declaration on
Environment and Development: A Commentary, J.E. Viñuales, ed. (Oxford, Oxford University
Press, 2015), pp. 93-106, at pp. 97-98.
17-01471
39/52
A/CN.4/705
with the adverse effects of climate change including significant deleterious effects
“on human health and welfare” (article 1). As noted in a recent analytical study on
the relationship between human rights and the environment undertaken by the
Office of the High Commissioner for Human Rights,
196
environmental degradation
including air pollution, climate change and ozone layer depletion “has the potential
to affect the realization of human rights”.
197
72. As regards environmental considerations in human rights instruments, it is after
the 1972 United Nations Conference on the Human Environment that human rights
treaties have included the specific right to the environment. So far, there are two
instruments that expressly provide such a right: the African Charter on Human and
Peoples’ Rights of 1981, which provides in its article 24 that “[a]ll peoples shall
have the right to a general satisfactory environment favourable to their development”
and the Additional Protocol to the American Convention on Human Rights in the
area of economic, social and cultural rights, which stipulates in its article 11,
paragraph 1, that “[e]veryone shall have the right to live in a healthy environment”.
In contrast, treaties and other instruments concluded before the Stockholm
Conference in 1972 did not explicitly refer to any specific right to the environment,
among these the Universal Declaration of Human Rights, the Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinafter, “European
Convention on Human Rights”), the International Covenants on Civil and Political
Rights and on Economic, Social and Cultural Rights and the American Convention
on Human Rights. However, human rights courts and bodies established under those
conventions have subsequently incorporated environmental considerations into the
existing provisions on certain general rights through an evolutionary interpretation of
respective treaties in order to afford human protection from environmental pollution
or degradation.
198
Thus, the European Court of Human Rights, for instance, stated
that: “There is no explicit right in the Convention to a clean and quiet environment,
but where an individual is directly and seriously affected by noise or other pollution,
an issue may arise under Article 8.”
199
The Inter-American Commission on Human
Rights also expressly recognized the link between the protection of the environment
and the enjoyment of human rights guaranteed under the American Convention on
Human Rights, stating that:
although neither the American Declaration of the Rights and Duties of Man
nor the American Convention on Human Rights includes any express reference
to the protection of the environment, it is clear that several fundamental rights
enshrined therein require, as a precondition for their proper exercise, a
minimal environmental quality, and suffer a profound detrimental impact from
the degradation of the natural resource base. The IACHR [Inter-American
Commission on Human Rights] has emphasized in this regard that there is a
direct relationship between the physical environment in which persons live and
the rights of life, security, and physical integrity. These rights are directly
__________________
196
Human Rights Council resolution 19/10 of 19 April 2012 on human rights and the environment
(A/HRC/RES/19/10).
197
“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), paras. 15-16 (this report
was undertaken by an independent expert, John Knox, for the Office of the High Commissioner
for Human Rights).
198
R. Desgagné, “Integrating environmental values into the European Convention on Human
Rights”, American Journal of International Law, vol. 89 (1995), pp. 263-294. See draft
conclusion 8 adopted by the Commission on first reading on the topic “Subsequent agreements
and subsequent practice in relation to the interpretation of treaties” (Official Records of the
General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), pp. 180-188).
199
Hatton and Others v. the United Kingdom [GC], no. 36022/97, ECHR, 2003-VIII, para. 96.
40/52
17-01471
A/CN.4/705
affected when there are episodes or situations of deforestation, contamination
of the water, pollution, or other types of environmental harm.
200
B. Jurisprudence of international courts and treaty bodies
73. There may be a difficulty, however, in analysing the protection of the
atmosphere through application of human rights norms within the framework of
general international law, because the specific circumstances and priorities in
respective societies lead regional courts and human rights treaty bodies to interpret
such norms differently.
201
Indeed, their focus and interpretation of the rights relating
to environmental protection are slightly different. Generally speaking, the
environmental jurisprudence of the European Court of Human Rights has been
mainly concerned with individual rights relating to human health and private and
family life, while it appears that the Inter-American Court of Human Rights and the
African Commission on Human and Peoples’ Rights have focused more on the
collective rights of indigenous or tribal peoples,
202
though admittedly, based on the
commonality of environmental jurisprudence, the relevant treaty provisions ma y in
the long run come to be interpreted and applied in a harmonious manner.
203
Human Rights Committee
74. At the global level, it was after 1990 that certain complaints relevant to
environmental concerns were communicated to the Human Rights Committee,
though such complaints had limited success on the merits.
204
In the context of the
protection of the atmosphere, the Bordes and Temeharo v. France
205
case is of
particular relevance, although the Committee found the case inadmissible. The case
concerned underground nuclear tests in the South Pacific carried out by France in
1995 and 1996, which led New Zealand to bring the Nuclear Tests II case to the
International Court of Justice.
206
In the Bordes and Temeharo case, French citizens
residing in the islands of the South Pacific contended that the French tests violated
their rights to life (article 6) and to privacy and family life (article 17) guaranteed
under the International Covenant on Civil and Political Rights. According to them,
the nuclear tests fractured the geological structure of the atolls, and radioactive
particles that leaked from fissures contaminated the atmosphere and exposed the
population surrounding the testing area to an increased risk of radiation. The
Committee stated that “for a person to claim to be a victim of a violation of a right
protected by the Covenant, he or she must show either that an act or omission of a
__________________
200
Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and Their
Members v. Panama, merits of 13 November 2012, Report No. 125/12, Case 12.354, para. 233.
201
R. Higgins, “Human rights: some questions of integrity”, Modern Law Review, vol. 52 (1989),
pp. 1-21; and B. Simma, “International human rights and general international law: a
comparative analysis”, Collected Courses of the Academy of European Law, vol. IV-2 (The
Hague, Martinus Nijhoff, 1995), pp. 153-236.
202
Dupuy and Viñuales, International Environmental Law (see footnote 189 above), pp. 307-311.
203
That does not mean the jurisprudence of the European Court of Human Rights on the matter has
to be followed by other courts and bodies of human rights. See Higgins, “Human rights: some
questions of integrity” (footnote 201 above), p. 7. Cf. L. Lixinski, “Treaty interpretation by the
Inter-American Court of Human Rights: expansionism at the service of the unity of international
law”, European Journal of International Law, vol. 21, No. 3 (2010), pp. 585-604, at pp. 594-596.
204
Dupuy and Viñuales, International Environmental Law (see footnote 189 above), p. 306.
205
Bordes and Temeharo v. France, Communication No. 645/1995, Decision adopted on 22 July
1996, Official Records of the General Assembly, Fifty-first Session, Supplement No. 40
(A/51/40), vol. II, annex IX, sect. G.
206
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J.
Reports 1995, p. 288.
17-01471
41/52
A/CN.4/705
State party has already adversely affected his or her enjoyment of such right, or that
there is a real threat of such result”,
207
finding that the applicants did not qualify as
“victims” of violation due to the remoteness of the harm, and that the case was
inadmissible. It should be noted, however, that the Committee did not deny the
possibility that atmospheric pollution by a State infringes the right to life and the
right to family life guaranteed under the Covenant, if the direct link between such
pollution and the impairment of their rights is established.
European Court of Human Rights
75. It was in the 1994 López Ostra v. Spain case that the European Court of
Human Rights for the first time clearly recognized environmental issues within the
European Convention on Human Rights, even in the absence of an explicit
environmental right.
208
In this case, the applicant, a Spanish national and resident of
the city of Lorca, in Spain, claimed that fumes from a waste treatment plant, which
was built by a private company in the vicinity of the applicant’s residence, polluted
the atmosphere in that city and caused health problems and nuisance to the applicant
and her family, which resulted in a violation of article 8 (“Right to private and
family life”) of the Convention. The Court endorsed the preceding Commission’s
findings that “there could be a causal link between … emissions and the applicant’s
daughter’s ailments”.
209
The Court went on to say that “[a]dmittedly, the Spanish
authorities, and in particular the Lorca municipality, were theoretically not directly
responsible for the emissions in question”,
210
because the plant concerned was
owned, controlled and operated by a private company. According to the Court,
however, the Spanish authorities incurred “a positive duty … to take reasonable and
appropriate measures to secure the applicant’s rights” guaranteed under the
Convention,
211
because the town allowed the plant to be built on its land and
subsidized the plant’s construction.
212
The Court finally concluded that Spain was
responsible for violating article 8 due to its failure to take steps to that end.
76. The subject matter of the 1995 case Noel Narvii Tauira and 18 others v.
France
213
before the then European Commission on Human Rights was the same as
that of the Bordes and Temeharo v. France case before the Human Rights
Committee above (see paragraph 74 above). In that case, the applicants claimed that
the decision of France to resume nuclear tests in the South Pacific would result in a
violation of, among other rights, articles 2 (“Right to life”) and 8 (“Right to respect
for private and family life”) of the European Convention on Human Rights and
article 1 (“Protection of property”) of its Protocol No. 1. As the Committee
concluded, the Commission stated that: “[i]n order for an applicant to claim to be a
victim of a violation of the Convention, there must be a sufficiently direct link
between the applicant and the loss which he considers he has suffered as a result of
the alleged violation”,
214
and that “[m]erely invoking risks inherent in the use of
nuclear power … is insufficient to enable the applicants to claim to be victims of a
violation of the Convention, as many human activities generate risks”.
215
Eventually,
the Commission reached the same conclusion as the Committee, namely that the
__________________
207
Bordes and Temehero v. France, Communication No. 645/1995, para. 5.4.
208
M. Fitzmaurice, Contemporary Issues in International Environmental Law (Cheltenham, Edward
Elgar, 2009), p. 186. López Ostra v. Spain, 9 December 1994, Series A no. 303-C.
209
Ibid., para. 49.
210
Ibid., para. 52.
211
Ibid., para. 51.
212
Ibid., para. 52.
213
Noel Narvii Tauira and 18 others v. France, no. 28204/95, Commission decision of 4 December
1995, Decisions and Reports No. 83-B, p. 112.
214
Ibid., p. 130.
215
Ibid., p. 131.
42/52
17-01471
A/CN.4/705
application was inadmissible due to the applicants’ failure to substantiate their
allegations. But, unlike the Committee, the Commission clearly recognized the
admissibility of the application against the risk of a future violation, stating that
“[i]t is only in highly exceptional circumstances that an applicant may nevertheless
claim to be a victim of a violation of the Convention owing to the risk of a future
violation”, since the applicants alleged the potential risk to their lives, health and
family lives of a leakage of radioactivity from ruptured atolls.
216
The Commission
went on to say that: “In order for an applicant to claim to be a victim in such a
situation, he must ... produce reasonable and convincing evidence of the likelihood
that a violation affecting him personally will occur; mere suspicion or conjecture is
insufficient in this respect.”
217
77. The jurisprudence of the European Court of Human Rights relevant to the
protection of atmosphere developed further in the case of Fadeyeva v. Russia
218
in
2005. This case concerned intra-boundary air pollution from the Severstal steel
plant in the town of Cherepovets in the Russian Federation, privatized in 1993,
which was argued by the applicants who lived in a flat near the plant to have
infringed their right to health and well-being, as guaranteed under article 8 of the
European Convention on Human Rights. The Court pointed out that, for the
applicant to raise an issue under article 8 (“Right to respect for private and family
life”), he or she has to establish (a) the causal link between environmental pollution
or degradation and an impairment of a protected human right and (b) a certain
minimum level of the adverse effect sufficient to bring it within the scope of
article 8 of the Convention.
219
After the Court found that those two requirements
were fulfilled, it noted that in the instant case the Severstal steel plant was not
owned, controlled or operated by the Russian Federation at the material time.
220
The
Court pointed out, however, that “the State’s responsibility in environmental cases
may arise from a failure to regulate private industry” and considered whether the
State incurred a positive duty to take reasonable and appropriate measures to secure
the applicant’s right under article 8, paragraph 1, of the Convention.
221
The Court
finally concluded that there exists “a sufficient nexus between the pollutant
emissions and the State”, because the authorities were in a position to evaluate the
pollution hazards and to take adequate measures to prevent or reduce them,
222
thus
affirming that there had been a violation of article 8 of the Convention by the
Russian Federation.
African Commission on Human and Peoples’ Rights
78. The 2001 Ogoni case
223
concerned environmental degradation and health
problems among the Ogoni people in Nigeria resulting from the contamination of
__________________
216
Ibid., p. 130.
217
Ibid., p. 131 (emphasis added).
218
Fadeyeva v. Russia, no. 55723/00, ECHR 2005-IV.
219
Ibid., paras. 68-69.
220
Ibid., para. 89. Although the plant had released toxic substances into the air of the town before
its privatization in 1993, the Court took into consideration only the period after 5 May 1998
when the European Convention on Human Rights came into force with respect to the Russian
Federation.
221
Ibid., para. 89.
222
Ibid., para. 92.
223
Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights
(CESR)/Nigeria, decision of 27 October 2001, African Commission on Human and Peoples’ Rights,
Communication No. 155/96. The case was also concerned with the direct conduct of the Nigerian
military and security forces against the Ogoni people, such as attacks, and burning and destruction
of several Ogoni villages and homes. The present report, however, focuses only on environmental
questions. See, F. Coomans, “The Ogoni case before the African Commission on Human and
Peoples’ Rights”, International and Comparative Law Quarterly, vol. 52 (2003), pp. 749-760.
17-01471
43/52
A/CN.4/705
water, soil and air from resource exploitation by an oil consortium in which the
Government of Nigeria was involved. The complainants invoked, among other
rights, articles 4 (“Right to life”), 16 (“Right to health”), and 24 (“Right to a general
satisfactory environment”) of the African Charter on Human and Peoples’ Rights as
substantial rights infringed by the acts and omissions of Nigeria. In that case, the
African Commission on Human and Peoples’ Rights first of all mentioned the
necessary condition for the complaint to be admissible, that is, the link between
environmental pollution or degradation and the infringement of human rights, stating
that: “These rights recognise the importance of a clean and safe environment … in so
far as the environment affects the quality of life and safety of the individual.”
224
Then, the Commission suggested that violation of the human rights that the applicant
had invoked entailed both negative and positive obligations.
225
In concluding its
opinion, the Commission referred to certain precedents of the European Court of
Human Rights and the Inter-American Court of Human Rights,
226
and emphasized
that: “As a human rights instrument, the African Charter is not alien to these
concepts”.
227
According to the Commission, the right to health (article 16) imposes
on States a negative obligation “to desist from directly threatening the health and
environment of their citizens”
228
and the right to a general satisfactory environment
(article 24) imposes on States a positive obligation “to take reasonable and other
measures to prevent pollution and ecological degradation, to promote conservation,
and to secure an ecologically sustainable development and use of natural
resources”,
229
including environmental impact assessments, appropriate monitoring
and provision of information. Finally, the African Commission, after examining the
conduct of the Government of Nigeria, found a violation of articles 16 and 24 of the
Charter. As for the right to life, the Commission found a violation of article 4, since
“[t]he pollution and environmental degradation to a level humanly unacceptable has
made living in the Ogoni land a nightmare”.
230
Inter-American Commission on Human Rights
79. The Community of La Oroya v. Peru petition concerned air, soil and water
pollution from the metallurgical complex operated by the United States firm Doe
Run in the community of La Oroya, Peru.
231
The petitioners alleged that Peru had
been liable by act and omission, especially in its failure to control the complex, its
lack of supervision, and its failure to adopt measures to mitigate ill effects. In its
preliminary remarks, the Inter-American Commission found that: “the alleged
deaths and/or health problems of alleged victims resulting from actions and
omissions by the State in the face of environmental pollution generated by the
metallurgical complex operating at La Oroya, if proven, could represent violations
of the rights enshrined in Articles 4 [“Right to life”] and 5 [“Right to humane
treatment”] of the American Convention [on Human Rights]”.
232
Since the environmental contamination was caused by a complex operated by a
private enterprise, the Commission asserted the positive obligation of a State to take
measures to avert risks to life and health by third parties.
__________________
224
African Commission on Human and Peoples’ Rights, Communication No. 155/96, para. 51.
225
Ibid., para. 44.
226
Ibid., para. 57.
227
Ibid., para. 44.
228
Ibid., para. 52.
229
Ibid.
230
Ibid., para. 67.
231
Community of Law Oroya v. Peru, decision on admissibility of 5 August 2009, Report No. 76/09,
Petition 1473-06. The complex was nationalized in 1974 and then purchased by the United States
firm in 1997.
232
Ibid., para. 74.
44/52
17-01471
A/CN.4/705
80. Climate change has specific identifiable effects on polar regions and
populations living in the area. Two indigenous groups independently presented
petitions to the Inter-American Commission on issues related to such climate
change.
233
In 2005, a Chair of the Inuit Circumpolar Conference, on behalf of the
Inuit of the Arctic regions of the United States and Canada, filed a petition against
the United States with the Commission, alleging that the impact of climate change
in the Arctic, caused by the greenhouse gas emissions of the United States, violated
the Inuit’s fundamental human rights protected by the American Declaration of the
Rights and Duties of Man and other international instruments.
234
These included
their rights to the benefits of culture, to property, to the preservation of health, life,
physical integrity, security, and a means of subsistence, and to residence, movement,
and inviolability of the home. In 2006, the Commission, however, dismissed the
petition, concluding that the petitioners failed to establish “whether the alleged facts
would tend to characterize a violation of rights protected by the American
Declaration”.
235
In 2013, the Arctic Athabaskan Council, on behalf of all the
Athabaskan Peoples of the Arctic regions of Canada and the United States, in turn,
filed a petition against Canada with the Commission, claiming that Arctic warming,
caused by Canada’s inaction and a lack of effective regulations for black carbon
emissions, violated the human rights of Arctic Athabaskan peoples, including the
right to the benefits of their culture, the right to property and the right to health
enshrined in the American Declaration of the Rights and Duties of Man.
236
A review
of the admissibility of the Athabaskan petition is still pending.
C. Substantive rights
81. A comparative analysis of environmental jurisprudence and the decisions of
human rights courts and bodies suggests that the most commonly used “general”
substantive rights in environmental claims are “the right to life” (article 6 of the
International Covenant on Civil and Political Rights; article 6 of the Convention on
the Rights of the Child; article 10 of the Convention on the Rights of Persons with
Disabilities; article 2 of the European Convention on Human Rights; article 4 of the
American Convention on Human Rights; and article 4 of the African Charter on
Human and Peoples’ Rights), “the right to private and family life” (article 17 of the
Covenant; article 8 of the European Convention on Human Rights; and article 11,
paragraph 2, of the American Convention on Human Rights), and “the right to
property” (article 1 of Protocol No. 1 to the European Convention on Human
Rights; article 21 of the American Convention on Human Rights; and article 14 of
the African Charter on Human and Peoples’ Rights).
237
Where a “specific” right to
__________________
233
V. de la Rosa Jaimes, “Climate change and human rights litigation in Europe and the Americas”,
Seattle Journal of Environmental Law, vol. 5, No. 1 (2015), pp. 165-196, at pp. 191-195.
234
Inuit Circumpolar Conference, Petition to the Inter-American Commission on Human Rights
Seeking Relief from Violations resulting from Global Warming caused by Acts and Omissions of
the United States, 7 December 2005, available from www.inuitcircumpolar.com/uploads/3/0/
5/4/30542564/finalpetitionicc.pdf (accessed 20 February 2017).
235
See letter from Ariel E. Dulitzky, Assistance Executive Secretary, Organization of American
States, to Paul Crowley, ref. Sheila Watt-Cloutier, et al., Petition No. P-1413-05, United States,
16 November 2006, available from http://graphics8.nytimes.com/packages/pdf/science/
16commissionletter.pdf (accessed 20 February 2017).
236
Arctic Athabaskan Council, Petition to the Inter-American Commission on Human Rights
Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples resulting from Rapid
Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, 23 April 2013,
available from http://earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf
(accessed 20 February 2017).
237
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 and 269-278.
17-01471
45/52
A/CN.4/705
environment is not explicitly provided for under human rights instruments, human
rights courts and treaty bodies interpret those general rights to cover the content of
the right to environment and the right to health.
238
In addition, even where there
exist specific rights to environment in human rights conventions such as the African
Charter on Human and Peoples’ Rights, relevant courts and treaty bodies apply
general rights, such as the right to life, as well as the specific right to environment
and the right to health, as indicated in the Ogoni and the Inuit cases above. Those
general rights are common to all human rights instruments, whether global or
regional, and thus may be universally applicable, if jurisprudence continues in such
a direction in this field.
82. In order for international human rights law to contribute to the protection of
the atmosphere, however, certain core requirements must be fulfilled.
239
First,
international human rights law remains “a personal-injury-based legal system”
240
and, as a result, the direct link between atmospheric pollution or degradation and an
impairment of a protected right must be established. Second, the adverse effects of
atmospheric pollution or degradation must attain a certain minimum level if they are
to fall within the scope of international human rights law. The assessment of that
minimum standard is relative and depends on the content of the right to be invoked
and all the relevant circumstances of the case, such as the intensity and duration of
the nuisance, and its physical or mental effects. Third, and most importantly, it is
necessary to establish a causal link between the action or omission of a State, on the
one hand, and atmospheric pollution or degradation, on the other hand.
83. The obligations of States engendered from relevant rights are of two
dimensions. In principle, States incur the negative obligation — or obligation to
respect — to refrain from any interference directly or indirectly with the enjoyment
of fundamental rights. However, as the above jurisprudence and decisions of human
rights courts and bodies have suggested, this duty of abstention is accompanied by
the positive obligation — or obligation to protect — to take all appropriate
measures to protect human rights.
241
It requires States to take positive measures to
protect one’s rights against any interference by third parties, such as individuals or
private industries. The latter obligation includes, inter alia, adopting the necessary
and effective legislative and other measures to prevent third parties from infringing
upon guaranteed rights. As the Human Rights Committee rightly stated, the
obligations under international human rights law “do not … have direct horizontal
effect as a matter of international law”, but there may be circumstances in which
State responsibility arises as a result of States’ “permitting or failing to take
appropriate measures or to exercise due diligence to prevent … the harm caused by
such acts by private persons or entities”.
242
__________________
238
R.R. Churchill, “Environmental rights in existing human rights treaties”, in Human Rights
Approaches to Environmental Protection, A.E. Boyle and M.R. Anderson, eds. (Oxford,
Clarendon Press, 1996), pp. 89-108, at pp. 89-98.
239
Dupuy and Viñuales, International Environmental Law (see footnote 189 above), pp. 320-329.
240
Ibid., pp. 308-309.
241
A.A. Cançado Trindade, “The contribution of international human rights law to environmental
protection, with special reference to global environmental change”, in Environmental Change
and International Law: New Challenges and Dimensions, E. Brown Weiss, ed. (Tokyo, United
Nations University Press, 1992), pp. 244-314, at pp. 272 and 280.
242
Report of the Human Rights Committee, Official Records of the General Assembly, Fifty-ninth
Session, Supplement No. 40 (A/59/40), vol. I, annex III, general comment No. 31 (2004) on the
nature of the general legal obligation imposed on States parties to the Covenant, para. 8.
46/52
17-01471
A/CN.4/705
D. Vulnerable people
84. Certain groups of people deserve special attention under international law
because of their vulnerability to the impact of atmospheric pollution and
degradation. These include indigenous people, those living in small island and
low-lying developing countries, women, children and the elderly as well as persons
with disabilities. According to the most recent data published by the World Health
Organization (WHO) in September 2016, an estimated 6.5 million deaths annually
(11.6 per cent of all global deaths) are attributable to air pollution, with the highest
increases recorded in urban areas of low-income countries.
243
In response therefore,
the Sustainable Development Goals adopted by the General Assembly in its
2030 Agenda for Sustainable Development address atmospheric pollution in Goals
3.9 and 11.6, calling, in particular, for a substantial reduction of the number of
deaths and illnesses from air pollution, and for special attention to ambient air
quality in cities.
244
85. WHO has also noted that: “All populations will be affected by a changing
climate, but the initial health risks vary greatly, depending on where and how people
live. People living in small island developing states and other coastal regions,
megacities, and mountainous and polar regions are all particularly vulnerable in
different ways. Health effects are expected to be more severe for elderly people and
people with infirmities or pre-existing medical conditions.” Persons with disabilities
should also be included here. WHO further noted that: “The groups who are likely
to bear most of significant cost of the resulting disease burden are children and the
poor, especially women.
245
The major diseases that are most sensitive to climate
change — diarrhoea, vector-borne diseases like malaria, and infections associated
with undernutrition — are most serious in children living in poverty.”
246
Thus, for instance, the World Bank Group has in recent years focused on policy
development to support the people most vulnerable to climate change. According to
its Climate Change Action Plan, extremely vulnerable groups include the very
poor — those without access to basic infrastructure services and social protection —
children, women and the elderly, persons with disabilities, indigenous populations,
refugees and migrants, and people living in extremely vulnerable areas such as
small islands and deltas.
247
__________________
243
WHO, Ambient Air Pollution: A Global Assessment of Exposure and Burden of Disease (Geneva,
2016). See also WHO, “Burden of disease from the joint effects of household and ambient air
pollution for 2012” (Geneva, 2014); United Nations Environment Assembly resolution 1/7
(2014) on strengthening the role of the United Nations Environment Programme in promoting air
quality, UNEP/EA.1/10, annex I; World Health Assembly resolution WHA68.8 of 26 May 2015
on health and the environment: addressing the health impact of air pollution; and J. Lelieveld and
others, “The contribution of outdoor air pollution sources to premature mortality on a global
scale”, Nature, vol. 525, No. 765 (2015), pp. 367-371.
244
General Assembly resolution 70/1 of 25 September 2015; see B. Lode, P. Schönberger and
P. Toussaint, “Clean air for all by 2030? Air quality in the 2030 Agenda and in international
law”, Review of European, Community and International Environmental Law, vol. 25, No. 1
(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).
245
Footnote added. The Committee on the Elimination of Discrimination against Women has an
agenda on “gender-related dimensions of disaster risk reduction and climate change”; see
www.ohchr.org/EN/HRBodies/CEDAW/Pages/ClimateChange.aspx (accessed 20 February 2017).
246
WHO, Protecting Health from Climate Change: Connecting Science, Policy and People (Geneva,
2009), p. 2.
247
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 20 February 2017).
17-01471
47/52
A/CN.4/705
86. Apart from limited treaty practice and soft-law instruments, the legal status of
indigenous people is not yet sufficiently settled in international law.
248
Nonetheless,
as was declared in the Report of the Indigenous Peoples’ Global Summit on Climate
Change, “[i]ndigenous people are the most vulnerable to the impacts of climate
change because they live in the areas most affected by climate change and are
usually the most socio-economically disadvantaged”,
249
and therefore they should
certainly be included in those categories of people to be especially protected against
the effects of atmospheric degradation.
E. Future generations
87. As previously emphasized in draft guideline 6 provisionally adopted in 2016,
and in the Special Rapporteur’s third report,
250
equitable and reasonable utilization
of the atmosphere should also take into account the interests of future generations of
humankind. It is considered necessary to emphasize the interests of future
generations in the context of human rights protection. This intergenerational
obligation was already expressed in principle 1 of the Stockholm Declaration
(“solemn responsibility to protect and improve the environment for present and
future generations”), and in the very concept of sustainable development as
formulated in the 1987 Brundtland Report (“development that meets the needs of
the present without compromising the ability of future generations”)
251
as well as in
the Preamble to the 2030 Agenda for Sustainable Development (“to support the
needs of present and future generations”). It is also reflected in article 4 of the
Convention for the protection of the world cultural and natural heritage (recognizing
the “duty of ensuring the identification, protection, conservation, presentation and
transmission to future generations” of cultural and natural heritage); in article 3,
paragraph 1, of the United Nations Framework Convention on Climate Change
(“Parties should protect the climate system for the benefit of present and future
generations of humankind”), in the Preamble to the Convention on biological
diversity, and in other subsequent treaties, such as article 4 (vi) of the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of
Radioactive Waste Management (parties shall “strive to avoid actions that impose
reasonably predictable impacts on future generations greater than those permitted
for the current generation”). The International Court of Justice, in its 1996 advisory
opinion on Nuclear Weapons, noted that “it is imperative … to take account of the
unique characteristics of nuclear weapons, and in particular their … ability to cause
__________________
248
General Assembly resolution 61/295 of 13 September 2007 entitled “United Nations Declaration
on the Rights of Indigenous Peoples” does not define “indigenous people”, leaving the matter to
future development. The group’s self-identification is considered as an essential element in
determining its status and scope. See R.L. Barsh, “Indigenous peoples”, in The Oxford Handbook
of International Environmental Law, D. Bodansky, J. Brunée and E. Hey, eds. (Oxford, Oxford
University Press, 2007), 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; 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. 455-461.
249
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 20 February 2017).
250
A/CN.4/692, paras. 69-78. See also the suggestion by Malaysia, during the debate on the topic in
the Sixth Committee in October 2016, for further examination of factors to be assessed in
balancing the interests of current and future generations (Official Records of the General
Assembly, Seventy-first Session, Sixth Committee, 26th meeting (A/C.6/71/SR.26), para. 67).
251
“Report of the World Commission on Environment and Development: note by the Secretary-
General” (A/42/427), annex, chap. 2, para. 1.
48/52
17-01471
A/CN.4/705
damage to generations to come”;
252
and Judge Weeramantry, in his dissenting
opinion, considered that “the rights of future generations have passed the stage
when they are merely an embryonic right struggling for recognition. They have
woven themselves into international law”.
253
88. While there are no rights-holders present with legal standing to invoke the
obligations so incurred, it has been suggested in the literature that the rights
involved could be enforced by a “guardian” or representative of future
generations.
254
Regarding protection of the atmosphere in particular, there have
indeed been recent domestic court decisions in a number of countries upholding the
human rights of minors, represented by guardians, to challenge governmental action
(or inaction) in this field.
255
Standing to sue in some of those proceedings was
granted on the basis of what is referred to as the “public trust doctrine”,
256
holding
Governments accountable as trustees for the management of common environmental
resources.
257
Given, however, that there are as yet no decisions by international
tribunals conferring customary intergenerational rights of this kind,
258
the Drafting
Committee, at the sixty-eighth session of the Commission, opted for the term
“interests” rather than “benefit” in draft guideline 6.
259
Accordingly, paragraph 4 of
the proposed new draft guideline 12 below uses similar language.
__________________
252
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
at p. 244, para. 36.
253
Ibid., at p. 455.
254
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 and others, eds. (Malta, UNESCO and Foundation for
International Studies, University of Malta, 1990), pp. 127-131; 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), pp. 173-206.
255
On the “children’s atmospheric trust” cases decided or currently pending in several United States
state and federal courts, 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. 634-684. For a similar case now
pending in the Pakistan Supreme Court, see Rabab Ali v. Federation of Pakistan, summary
available from http://www.ourchildrenstrust.org/pakistan (accessed 20 February 2017).
256
See 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); K. Bosselmann, Earth Governance: Trusteeship of the Global
Commons (Cheltenham, Edward Elgar Publishing, 2015).
257
In a landmark 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 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, No. 2 (2001), pp. 221-234.
258
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.
259
Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10),
p. 293, commentary on draft guideline 6, para. (3).
**** The term “extra-jurisdictional” application of a treaty is employed here in order to differentiate it
from “extra-territorial” application of a domestic law.
17-01471
49/52
A/CN.4/705
F. Procedural problems: extra-jurisdictional application****
89. The most intriguing problem in the interrelationship between the law relating
to the atmosphere and human rights law is the disconnect in their application. While
the law on the atmosphere is to be applied not only to the States of victims but also
to the States of origin of the harm, the scope of application of human rights treaties
is limited to the persons subject to a State’s jurisdiction (article 2 of the
International Covenant on Civil and Political Rights; article 1 of the European
Convention on Human Rights; and article 1 of the American Convention on Human
Rights).
260
Since most jurisprudence and decisions examined above concerned
intra-boundary air pollution cases in which applicants lodged their complaints
against their own States, there was no problem of recognizing the States’ positive
obligations to deal with atmospheric pollution and atmospheric degradation in the
context of the relevant human rights treaties. However, where an environmentally
harmful activity in one State infringes a right of persons in another State, the case
becomes a matter of extra-jurisdictional application, and thus a situation that human
rights treaties cannot normally cope with. In other words, human rights treaties
cannot be applied extra-jurisdictionally to the State of origin of the alleged
environmental harm. This is the most fundamental difficulty in dealing with
environmental problems via human rights treaties.
90. How would it be possible to overcome this difficulty? One way may be to
resort to the object and purpose of human rights treaties. It should be noted that the
International Court of Justice in its advisory opinion on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory pronounced:
“while the jurisdiction of States is primarily territorial, it may sometimes be
exercised outside the national territory. Considering the object and purpose of the
International Covenant on Civil and Political Rights, it would seem natural that,
even when such is the case, State parties to the Covenant should be bound to
comply with its provisions”.
261
If the fundamental object and purpose of human
rights treaties is to protect human rights on the basis of the principle of nondiscrimination,
it
is
unreasonable
to
conclude
that
international
human
rights
law
has no
application
to
transboundary
atmospheric
pollution or
global
degradation
and
that
the
law
can
extend
protection
only
to
the
victims
of
intra-boundary
pollution.
The
non-discrimination
principle
requires
the
responsible
State
to
treat
such
pollution
or
degradation
no
differently
from
domestic
pollution.
262
In the same vein,
another possible way to address the challenge would be to resort to the test of
“necessary and foreseeable consequence”. The Human Rights Committee
considered the jurisdictional scope of application of respective human rights
instruments in cases concerning extradition by one State to another jurisdiction
where a fugitive faced the death penalty (Joseph Kindler v. Canada case). The
Human Rights Committee stated, however, that: “if a State party takes a decision
relating to a person within its jurisdiction, and the necessary and foreseeable
consequence is that that person’s rights under the Covenant will be violated in
another jurisdiction, the State party itself may be in violation of the Covenant”.
263
__________________
260
A. Boyle, “Human rights and the environment: where next?”, European Journal of International
Law, vol. 23, No. 3 (2012), pp. 613-642, at pp. 633-641.
261
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.
262
Boyle, “Human rights and the environment …” (see footnote 260 above), pp. 639-640.
263
Kindler v. Canada, Communication No. 470/1991, Views adopted on 30 July 1993, Official
Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII,
sect. U, para. 6.2. The author was a fugitive who was convicted of murder and kidnapping and
sentenced to the death penalty in the United States in 1983. He escaped to Canada in 1984.
Canada arrested and detained him in 1985 and extradited him to the United States, by which he
50/52
17-01471
A/CN.4/705
This could be conceived of as a form of non-discrimination in human rights law.
The same principle has been confirmed by the European Court of Human Rights in
an effort to overcome the difficulty of the extra-jurisdictional application of human
rights treaties.
264
91. Another avenue to overcome the jurisdictional difficulty of human rights
treaties may be to recognize that those substantive human rights norms relevant to
the protection of the atmosphere, such as the rights to life and to property, are now
crystallized as customary international law. Since customary international law can
be applied without jurisdictional limitation, the relevant human rights norms can be
equally applied to any State, including the author and victim States. Indeed, many
human rights norms are today recognized as established or emergent rules of
customary international law.
265
If the relevant human rights norms are recognized as
such, they will be considered as overlapping with environmental norms, such as due
diligence (draft guideline 3), environmental impact assessment (draft guideline 4),
sustainable utilization (draft guideline 5) and equitable and reasonable utilization
(draft guideline 6), among others, which would enable interpretation and application
of both norms in a harmonious manner.
92. Based on the foregoing considerations, draft guideline 12 is proposed as
follows:
Draft guideline 12: Interrelationship of law on the protection of the atmosphere
with human rights law
1. States should make best efforts to develop, interpret and apply
international human rights norms in a mutually supportive manner with
rules of international law relating to the protection of the atmosphere,
with a view to effectively protecting the atmosphere from atmospheric
pollution and atmospheric degradation.
__________________
alleged a violation by Canada of certain rights guaranteed under the Covenant. Canada contented
that the author could not be considered a victim within the jurisdiction of Canada, since he had
already been extradited to the United States, falling therefore outside the former’s jurisdiction.
The tests of “necessary and foreseeable” or “real risk” or “reasonably anticipate” have been
employed in turns by the Human Rights Committee when extra-jurisdictionally applying the
Covenant facing extradition: Kindler v. Canada, ibid., paras. 6.2 and 13.2; Chitat Ng v. Canada,
Communication No. 469/1991, Views adopted on 5 November 1993, ibid., Forty-ninth Session
(A/49/40), annex IX, sect. CC, para. 7; Cox v. Canada, Communication No. 539/1993, Views
adopted on 31 October 1994, ibid., Fiftieth Session, annex X, sect. M, para. 16.1; A.R.J. v.
Australia, Communication No. 692/1996, Views adopted on 28 July 1997, ibid., Fifty-second
Session (A/52/40), annex VI, sect. T, para. 4.1; Judge v. Canada, Communication No. 829/1998,
Views adopted on 5 August 2003, ibid., Fifty-eighth Session (A/58/40), annex V, sect. G,
para. 10.4; Esposito v. Spain, Communication No. 1359/2005, Decision adopted on 20 March
2007, ibid., Sixty-second Session (A/62/40), annex VIII, sect. P, para. 7.5; Munaf v. Romania,
Communication No. 1539/2006, Views adopted on 30 July 2009, ibid., Sixty-fourth Session
(A/64/40), annex VII, sect. LL, para. 4.14.
264
The test of “real risk” is used by the European Court of Human Rights in its extra-jurisdictional
application of the Convention facing extradition. See Soering v. the United Kingdom, 7 July
1989, Series A no. 161, para. 4; Chahal v. the United Kingdom, 15 November 1996, Reports of
Judgments and Decisions 1996-V, para. 68; Saadi v. Italy [GC], no. 37201/06, ECHR 2008.
265
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); 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 and others, eds. (Leiden, Martinus Nijhoff, 2014), pp. 711-737; 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.
17-01471
51/52
A/CN.4/705
2. States should make best efforts to comply with international human
rights norms in developing, interpreting and applying the rules and
recommendations relevant to the protection of the atmosphere from
atmospheric pollution and atmospheric degradation, particularly with
regard to the human rights of vulnerable groups of people, including
indigenous people, people of the least developed developing countries, and
women, children and the elderly as well as persons with disabilities.
3. States should consider, in developing and interpreting and applying
the relevant rules of international law, the impact of sea-level rise on small
island and low-lying States, particularly in matters relating to human
rights and migration.
4. States should also take into account the interests of future
generations of humankind in the long-term conservation of the quality of
the atmosphere.
V. Conclusion
93. The present report has attempted to demonstrate that the law relating to the
protection of the atmosphere exists and functions in the interrelationship with other
relevant fields of international law, most notably, international trade and investment
law, the law of the sea and human rights law. These are the fields that have intrinsic
links with the law on the atmosphere and, as such, it is clear that they need to be
treated in an integrated manner within the scope of the present topic.
94. The next report, in 2018, will deal with: (a) implementation (on the level of
domestic law); (b) compliance (on the level of international law); and (c) specific
features of dispute settlement relating to the law on the protection of the
atmosphere, which will hopefully conclude the first reading of the topic.
52/52
17-01471
A/CN.4/705/Corr.1
United Nations
General Assembly
Distr.: General
10 May 2017
Original: English
International Law Commission
Sixty-ninth session
Geneva, 1 May-2 June and 3 July-4 August 2017
Fourth report on the protection of the atmosphere
by Shinya Murase, Special Rapporteur
Corrigendum
1. Paragraph 28
For As mentioned earlier (paragraph 20 above) read As mentioned earlier
(paragraph 18 above)
2. Paragraph 65
Delete the paragraph
17-07497 (E) 110517
*1707497*
A/76/10
Chapter IV
Protection of the atmosphere
A. Introduction
29. 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.
6
30. The Commission 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); the fourth report at its sixty-ninth session (2017) and the fifth
report at its seventieth session (2018).
7
At its seventieth session, on the basis of the draft
guidelines proposed by the Special Rapporteur in the second, third, fourth and fifth reports,
the Commission provisionally adopted 12 draft guidelines and a preamble, together with
commentaries thereto, on first reading.
8
B. Consideration of the topic at the present session
31. At the present session, the Commission had before it the sixth report of the Special
Rapporteur (A/CN.4/736), as well as comments and observations received from
Governments and international organizations (A/CN.4/735). The Special Rapporteur, in his
report, examined the comments and observations received from governments and
international organizations on the draft preamble and guidelines, as adopted on first reading.
He considered proposals for consideration on second reading, in the light of the comments
and observations, and proposed a recommendation to the General Assembly.
32. The Commission considered the sixth report of the Special Rapporteur at its 3508th
to 3510th and 3512th to 3515th meetings, from 26 to 28 April, and on 30 April and 3 and 4
May 2021.
33. Following its debate on the report, the Commission, at its 3515th meeting, held on 4
May 2021, decided to refer draft guidelines 1 to 12, together with the preamble, as contained
in the Special Rapporteur’s sixth report, to the Drafting Committee, taking into account the
debate in the Commission.
At its 3197th meeting, on 9 August 2013 (Yearbook … 2013, vol. II (Part Two), 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
(Yearbook … 2011, vol. II (Part Two), para. 365), on the basis of the proposal contained in annex II to
the report of the Commission on its work at that session (ibid., p. 189).
6
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,
A/CN.4/711, respectively.
7
8
Official Records of the General Assembly, Seventieth Session, Supplement No. 10 (A/70/10), paras.
53–54; ibid., Seventy-first Session, Supplement No. 10 (A/71/10), paras. 95–96; ibid., Seventy-second
Session, Supplement No. 10 (A/72/10), paras. 66–67; and ibid., Seventy-third Session, Supplement No.
10 (A/73/10), paras. 77–78.
GE.21-11083
9
A/76/10
34. At its 3529th meeting, held on 27 May 2021, the Commission considered the report
of the Drafting Committee (A/CN.4/L.951), and adopted the draft guidelines, together with
a preamble, on the protection of the atmosphere on second reading (see sect. E.1 below).
35. At its 3549th to 3554th meetings, held from 26 to 29 July 2021, the Commission
adopted the commentaries to the draft guidelines and the preamble (see sect. E.2 below).
36.
In accordance with its statute, the Commission submits the draft guidelines, together
with the preamble, to the General Assembly, with the recommendation set out below (see
sect. C below).
C. Recommendation of the Commission
37. At its 3554th meeting, held on 29 July 2021, the Commission decided, in accordance
with article 23 of its statute, to recommend that the General Assembly:
(a) take note in a resolution of the draft preamble and guidelines on the protection
of the atmosphere, annex the draft guidelines to the resolution, and ensure their widest
possible dissemination;
(b) commend the draft preamble and guidelines, together with the commentaries
thereto, to the attention of States, international organizations and all who may be called upon
to deal with the subject.
D. Tribute to the Special Rapporteur
38. At its 3554th meeting, held on 29 July 2021, the Commission, after adopting the draft
guidelines on the protection of the atmosphere, adopted the following resolution by
acclamation:
“The International Law Commission,
Having adopted the draft guidelines on the protection of the atmosphere,
Expresses to the Special Rapporteur, Mr. Shinya Murase, its deep appreciation and
warm congratulations for the outstanding contribution he has made to the preparation
of the draft guidelines through his tireless efforts and devoted work, and for the results
achieved in the elaboration of the draft guidelines on the protection of the atmosphere.”
E. Text of the draft guidelines on the protection of the atmosphere
1. Text of the draft guidelines
39. The text of the draft guidelines, adopted by the Commission on second reading, at the
seventy-second session is reproduced below.
Protection of the atmosphere
Preamble
Acknowledging that the atmosphere is a natural resource, with a limited assimilation
capacity, 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,
Considering that atmospheric pollution and atmospheric degradation are a common
concern of humankind,
Aware of the special situation and needs of developing countries,
Noting the close interaction between the atmosphere and the oceans,
10
GE.21-11083
A/76/10
Noting in particular the special situation of low-lying coastal areas and small island
developing States due to sea-level rise,
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,
Recalling 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,
Guideline 1
Use of terms
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 or energy contributing to significant
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.
Guideline 2
Scope
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 and are without prejudice to questions
concerning the polluter-pays principle, the precautionary principle and the common but
differentiated responsibilities principle.
3. 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.
Guideline 4
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.
Guideline 5
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 the protection of the atmosphere.
Guideline 6
Equitable and reasonable utilization of the atmosphere
The atmosphere should be utilized in an equitable and reasonable manner, taking fully
into account the interests of present and future generations.
GE.21-11083
11
A/76/10
Guideline 7
Intentional large-scale modification of the atmosphere
Activities aimed at intentional large-scale modification of the atmosphere should only
be conducted with prudence and caution, and subject to any applicable rules of international
law, including those relating to environmental impact assessment.
Guideline 8
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 and technical knowledge
relating to the causes and impacts of atmospheric pollution and atmospheric degradation.
Cooperation could include exchange of information and joint monitoring.
Guideline 9
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, 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 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.
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;
12
GE.21-11083
A/76/10
(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.
Guideline 12
Dispute settlement
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.
Since 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.
2. Text of the draft guidelines and commentaries thereto
40. The text of the draft guidelines and commentaries thereto, adopted by the Commission
on second reading, is reproduced below.
Protection of the atmosphere
General commentary
(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 or energy, 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, based on the 2013
understanding,
9
does not desire to interfere with relevant political negotiations or to impose
on current treaty regimes rules or principles not already contained therein.
Preamble
Acknowledging that the atmosphere is a natural resource, with a limited
assimilation capacity, 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,
Considering that atmospheric pollution and atmospheric degradation are a
common concern of humankind,
Aware of the special situation and needs of developing countries,
Noting the close interaction between the atmosphere and the oceans,
Noting in particular the special situation of low-lying coastal areas and small
island developing States due to sea-level rise,
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,
Recalling 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,
9
See footnote 6 above.
GE.21-11083
13
A/76/10
Commentary
(1) The preamble seeks to provide a contextual framework for the draft guidelines. The
first preambular paragraph is overarching in acknowledging the essential importance of the
atmosphere for sustaining life on Earth, human health and welfare, and aquatic and terrestrial
ecosystems. The atmosphere is the Earth’s largest single natural resource and one of its most
important. It was listed as a natural resource – along with mineral, energy and water resources
– by the former Committee on Natural Resources of the Economic and Social Council,
10
as
well as in the 1972 Declaration of the United Nations Conference on the Human Environment
(hereinafter, “Stockholm Declaration”)
11
and in the 1982 World Charter for Nature.
12
The
World Charter recognizes that humankind is part of nature and life depends on the
uninterrupted functioning of natural systems which ensure the supply of energy and
nutrients.
13
The atmosphere provides renewable “flow resources” essential for human, plant
and animal survival on the planet, and it serves as a medium for transportation and
communication. As a natural resource, the atmosphere was long considered to be nonexhaustible
and
non-exclusive.
That
view
is
no
longer
held.
14
It must be borne in mind that
the atmosphere is a natural resource with a limited assimilation capacity, also referred to in
draft guideline 5.
(2) The second preambular paragraph addresses the functional aspect of the atmosphere
as a medium through which transport and dispersion of polluting and degrading substances
occurs, involving the large-scale movement of air. The atmospheric movement has a dynamic
and fluctuating feature. Long-range transboundary movement of polluting and degrading
substances is recognized as one of the major problems of the present-day atmospheric
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.
10
“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).
11
“[A]tmospheric resources that are utilized by [humankind], 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).
12
13
Ibid., second preambular paragraph, subpara. (a).
14
See, for example, the World Trade Organization (WTO) Panel and Appellate Body, which 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.
14
GE.21-11083
A/76/10
environment,
15
with the Arctic region being identified as one of the areas seriously affected
by the worldwide spread of deleterious pollutants.
16
(3) The third preambular paragraph states that atmospheric pollution and atmospheric
degradation are a “common concern of humankind”. This expression first appeared in
General Assembly resolution 43/53 of 6 December 1988 on the protection of global climate
for present and future generations of mankind, recognizing that climate change was a
“common concern of [human]kind”, since the climate was an essential condition sustaining
life on Earth. The first paragraph of the preamble to the 1992 United Nations Framework
Convention on Climate Change
17
acknowledges that “change in the Earth’s climate and its
adverse effects are a common concern of humankind” (emphasis added),
18
which was
reiterated in the preamble of the 2015 Paris Agreement on climate change.
19
Likewise, other
conventions use this expression or similar language.
20
The phrase as used in this preambular
paragraph reflects a concern of the entire international community that all may be affected
by atmospheric pollution and atmospheric degradation, as defined in the draft guidelines. It
is recalled that the expression has commonly been used in the field of environmental law,
even though doctrine is divided on its scope, content and consequences.
21
It is understood
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, ibid., vol. 3013, No. 54669 (volume number has yet to be determined), available from
https://treaties.un.org) 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. 4648–4677; 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).
15
See T. Koivurova, P. Kankaanpää and A. Stepien, “Innovative environmental protection: lessons from
the Arctic,” Journal of Environmental Law, vol. 27 (2015), pp. 285–311, at p. 297.
16
17
New York, 9 May 1992, United Nations, Treaty Series, vol. 1771, No. 30822, p. 107.
18
United Nations Framework Convention on Climate Change, first preambular para.
Paris Agreement (Paris, 12 December 2015), United Nations, Treaty Series, No. 54113 (volume
number has yet to be determined), available from https://treaties.un.org, eleventh preambular para.
19
Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, United Nations, Treaty Series, vol.
1790, No. 30619, p. 79: the third preambular paragraph: “common concern of humankind”);
Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (Paris, 14 October 1994, ibid., vol. 1954, No. 33480, p. 3: the
first preambular paragraph: “centre of concerns”; second preambular paragraph: “urgent concern of
the international community”; fourth preambular paragraph: “problems of global dimension”);
Minamata Convention on Mercury (the first preambular paragraph: mercury as “a chemical of global
concern”).
20
21
M. Bowman, “Environmental protection and the concept of common concern of mankind,” in M.
Fitzmaurice, D.M. Ong and P. Merkouris, eds., Research Handbook on International Environmental
Law (Cheltenham, Edward Elgar, 2010), pp. 493–518, at p. 501; D. French, “Common concern,
common heritage and other global(-ising) concepts: rhetorical devices, legal principles or a
fundamental challenge?” in M.J. Bowman, P.G.G. Davies and E.J. Goodwin, eds., Research
Handbook on Biodiversity and Law (Cheltenham, Edward Elgar, 2016), pp. 334–360, at pp. 349 ff.; J.
Brunnée, “Common areas, common heritage, and common concern,” in D. Bodansky, J. Brunnée and
E. Hey, eds., The Oxford Handbook of International Environmental Law (Oxford, Oxford University
Press, 2007), pp. 550–573, at p. 565; A. Boyle and C. Redgwell, International Law and the
Environment, 4th ed. (Oxford, Oxford University Press, 2009), pp. 143–145; D. Shelton, “Common
concern of humanity,” Environmental Policy and Law, vol. 39 (2009), pp. 83–96; D. Shelton,
“Equitable utilization of the atmosphere: rights-based approach to climate change?”, in S.
GE.21-11083
15
A/76/10
that the expression identifies a problem that requires cooperation from the entire international
community, while at the same time that its inclusion does not create, as such, rights and
obligations, and, in particular, that it does not entail erga omnes obligations in the context of
the draft guidelines.
(4) The fourth preambular paragraph, having regard to considerations of equity, concerns
the special situation and needs of developing countries.
22
The need for special consideration
for developing countries in the context of environmental protection has been endorsed by a
number of international instruments, such as the 1972 Stockholm Declaration,
23
the 1992 Rio
Declaration on Environment and Development (hereinafter, “Rio Declaration”),
24
and the
2002 Johannesburg Declaration on Sustainable Development.
25
Principle 12 of the
Stockholm Declaration attaches importance to “taking into account the circumstances and
particular requirements of developing countries”. Principle 6 of the Rio Declaration
highlights “the special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable”. The Johannesburg Declaration
expresses resolve to pay attention to “the developmental needs of small island developing
States and least developed countries”.
26
The principle is similarly reflected in article 3 of the
United Nations Framework Convention on Climate Change and article 2 of the Paris
Agreement under the United Nations Framework Convention on Climate Change. The
formulation of the preambular paragraph is based on the seventh paragraph of the preamble
Humphreys, ed., Human Rights and Climate Change (Cambridge, Cambridge University Press,
2010), pp. 91–125; S. Stec, “Humanitarian limits to sovereignty: common concern and common
heritage approaches to natural resources and environment,” International Community Law Review,
vol. 12 (2010), pp. 361–389; T. Cottier, ed., The Prospects of the Common Concern of Humankind in
International Law (Cambridge, Cambridge University Press, 2021).
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, on the basis of article 405, paragraph 3, of the
1919 Treaty of Versailles (Treaty of Peace between the Allied and Associated Powers and Germany,
28 June 1919, British and Foreign State Papers, 1919, vol. CXII, London, HM Stationery Office,
1922, p. 1), which became article 19, paragraph 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. Another example is the Generalized System of Preferences elaborated under the United
Nations Conference on Trade and Development in the 1970s, as reflected in draft article 23 of the
Commission’s 1978 draft articles on most-favoured-nation clauses. See article 23 (The mostfavoured-nation
clause
in
relation
to
treatment
under
a
generalized
system
of
preferences)
and
article
30
(New
rules
of
international
law
in
favour
of
developing
countries)
of
the
draft
articles
on
the
mostfavoured-nation
clauses
adopted
by
the
Commission
at
its
thirtieth
session
in
1978,
Yearbook
…
1978,
vol.
II
(Part
Two),
para.
74,
see
also
paras.
47–72.
See
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.
22
Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972
(A/CONF.48/14/Rev.1), Part One, chap. 1. 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.
23
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.
24
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.
25
26
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.
16
GE.21-11083
A/76/10
of the 1997 Convention on the Law of the Non-navigational Uses of International
Watercourses.
27
(5) The fifth preambular paragraph acknowledges the “close interaction” that arises, as a
factual matter, from the physical relationship between the atmosphere and the oceans.
According to scientists, 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.
28
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 that can lead to flood and drought.
29
The General
Assembly has confirmed the effect of climate change on oceans and stressed the importance
of increasing the scientific understanding of the oceans-atmosphere interface.
30
Although not
mentioned in the preambular paragraph, there are also close interactions between the
atmosphere and other biospheres, as well as forests, lakes and rivers.
31
(6) The First Global Integrated Marine Assessment (first World Ocean Assessment), as a
comprehensive, in-depth study on the state of the marine environment, refers to substances
polluting the oceans from land-based sources through the atmosphere, which bear on seasurface
temperature, sea-level rise, ocean acidification, salinity, stratification, ocean
circulation, storms and other extreme weather events, and ultraviolet radiation and the ozone
layer.
32
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.
33
Among other
human activities that have an impact on the oceans, are greenhouse gas emissions from ships
Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, 21
May 1997), Official Records of the General Assembly, Fifty-first session, Supplement No. 49
(A/51/49), vol. III, resolution 51/229, annex. The Convention entered into force on 17 August 2014.
27
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.
28
See Intergovernmental Panel on Climate Change (IPCC), “Climate change 2014 synthesis report:
summary for policymakers”, p. 4. 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
Ø. 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.
29
General Assembly resolution 75/239 of 31 December 2020 on oceans and the law of the sea, parts IX
and XI. See also General Assembly resolutions 71/257 of 23 December 2016; 72/73 of 5 December
2017; 73/124 of 11 December 2018; 74/19 of 10 December 2019.
30
IPCC, Climate Change and Land: An IPCC Special Report on Climate Change, Desertification, Land
Degradation, Sustainable Land Management, Food Security, and Greenhouse Gas Fluxes in
Terrestrial Ecosystems (2019). Available at www.ipcc.ch/srccl/.
31
United Nations Division for Ocean Affairs and the Law of the Sea, “First Global Integrated Marine
Assessment (first World Ocean Assessment)”. Available from
www.un.org/depts/los/global_reporting/WOA_RegProcess.htm (see, in particular, chap. 20 on
“Coastal, riverine and atmospheric inputs from land”). The summary of the report was approved by
the General Assembly at its seventieth session: see General Assembly resolution 70/235 of 23
December 2015 on oceans and the law of the sea.
32
33
General Assembly resolution 70/1 of 25 September 2015, Transforming our world: the 2030 Agenda
for Sustainable Development, para. 14. 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.
GE.21-11083
17
A/76/10
that contribute to global warming and climate change, including exhaust gases, cargo
emissions, emissions of refrigerants and other emissions.
34
(7) 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 (IPCC) estimates that the global mean sea-level
rise is likely to be between 26 cm and 98 cm by the year 2100.
35
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”.
36
Such degree of change
in sea levels may pose a potentially serious, maybe even disastrous, threat to many coastal
areas, especially those with large, heavily populated and low-lying coastal areas, as well as
to small island developing States.
37
(8) 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.
38
Special consideration to be given to
persons and groups in vulnerable situations are referred to in paragraph 3 of draft guideline
9.
39
The words “in particular” are intended to acknowledge specific areas without necessarily
limiting the list of potentially affected areas.
(9) The seventh preambular paragraph emphasizes the interests of future generations,
including with a view to human rights protection, as well as intergenerational equity. 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 fully take into account the long-term
conservation of the quality of the atmosphere. The 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.
40
It also underpins the concept of sustainable development,
The 2009 study by the International Maritime Organization (IMO) on greenhouse gas emissions, Ø.
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. 633–651.
34
IPCC, Climate Change 2013: The Physical Science Basis. Working Group I Contribution to the Fifth
Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge
University Press, 2013), p. 1180. See also chapter IX on sea-level rise in relation to international law.
35
Ibid., p. 1140. See also IPCC, IPCC Special Report on the Ocean and Cryosphere in a Changing
Climate (2019). Available at www.ipcc.ch/srocc/.
36
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 D. Vidas and P.J. Schei, eds., The World Ocean in Globalisation: Climate
Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (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 also International Law Association, Sydney Conference (2018): International
Law and Sea Level Rise (report), Part II, p. 866.
37
38
See para. (9) of the commentary to draft guideline 9 below.
39
See paras. (16) to (18) of the commentary to draft guideline 9 below.
40
Principle 1 of the Declaration refers to the “solemn responsibility to protect and improve the
environment for present and future generations”.
18
GE.21-11083
A/76/10
as formulated in the 1987 Brundtland Report, Our Common Future,
41
and informs the 2030
Agenda for Sustainable Development.
42
It is also reflected in the preamble of the 1992
Convention on Biological Diversity,
43
and in other treaties.
44
Article 3, paragraph 1, of the
United Nations Framework Convention on Climate Change, for example, 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”.
45
The term “interests”
is employed rather than “benefit” in the 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”.
46
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).
41
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”.
42
The preamble of the Convention provides for the “benefit of present and future generations” in
conservation and sustainable use of biological diversity.
43
Article 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”.
44
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at
p. 244, para. 36.
45
46
There have been national court decisions that recognize intergenerational equity, see 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
C. Redgwell, “Intra- and inter-generational equity”, in C.P. Carlarne, K.R. Gray and R.G. Tarasofsky,
eds., The Oxford Handbook of International Climate Change Law (Oxford, Oxford University Press,
2016), pp. 185–201, at p. 198. See also, 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 S. Busuttil et al., eds., Our Responsibilities Towards Future Generations (Valetta,
UNESCO and Foundation for International Studies, University of Malta, 1990), pp. 127–131; 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. 634–
684; 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.
GE.21-11083
19
A/76/10
(10) The eighth preambular paragraph is based on the 2013 understanding of the
Commission according to which the topic was included in the programme of work at its sixtyfifth
session.
47
This preambular paragraph was considered important to reflect certain
elements of the 2013 understanding, as the latter resulted in a significant limitation on both
the scope of the topic and the outcome of the work of the Commission. This preambular
paragraph should be read in conjunction with paragraph 2 of draft guideline 2 on scope.
Guideline 1
Use of terms
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 or energy contributing to
significant 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.
Commentary
(1) The present draft guideline on the “Use of terms” seeks to provide a common
understanding of what is covered by the present draft guidelines. The terms used are provided
only “for the 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 of the term “atmosphere” in the relevant international
instruments. A working definition for the present draft guidelines is provided in subparagraph
(a). It is inspired by the definition given by IPCC.
48
(3) The definition provided is consistent with the approach of scientists. According to
scientists, the atmosphere exists in what is called the atmospheric shell.
49
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.
50
The atmosphere
also contains clouds and aerosols.
51
The atmosphere is divided vertically into five spheres on
the basis of temperature characteristics. From the lower to upper layers, the 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
47
Yearbook … 2013, vol. II (Part Two), para. 168.
Fifth Assessment Report, Working Group III, annex I. IPCC, Climate Change 2014: Mitigation of
Climate Change, O. Edenhofer et al., eds. (Cambridge, Cambridge University Press, 2014), p. 1252,
available at www.ipcc.ch/report/ar5/wg3/.
48
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).
49
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.
50
51
Ibid.
20
GE.21-11083
A/76/10
are grouped together as the “lower atmosphere”, which extends to an average altitude of 50
km, and can be distinguished from the “upper atmosphere”.
52
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.
53
In contrast, in the stratosphere (up to
the stratopause, at a height of nearly 50 km), temperature gradually increases with height
54
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 X-ray and ultraviolet radiation
from the sun. The atmosphere “has no well-defined upper limit”.
55
(4) Aside from its physical characteristics, it is 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 (see the
second preambular paragraph). 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.
(5) Subparagraph (b) defines “atmospheric pollution” and addresses transboundary air
pollution, whereas subparagraph (c) defines “atmospheric degradation” and refers to global
atmospheric problems. By stating “by humans”, both subparagraphs (b) and (c) make it clear
that the draft guidelines concern “anthropogenic” atmospheric pollution and atmospheric
degradation. The focus on human activity, whether direct or indirect, is a deliberate one, as
the present draft guidelines seek to provide guidance to States and the international
community.
(6) 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,
56
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.
(7)
In defining “atmospheric pollution”, subparagraph (b) uses the language that is
essentially based on article 1 (a) of the 1979 Convention on Long-Range Transboundary Air
Pollution,
57
which provides that:
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).
52
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.
53
Strictly, the temperature of the stratosphere remains constant to a height of about 20–35 km and then
begins a gradual increase.
54
55
See Tarbuck, Lutgens and Tasa, Earth Science (footnote 53 above), p. 467.
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 purposes of
this Resolution, ‘transboundary air pollution’ means any physical, chemical or biological alteration in
the composition or quality of the atmosphere which results directly or indirectly from human acts or
omissions 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.
56
57
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
GE.21-11083
21
A/76/10
“[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
or interfere with amenities and other legitimate uses of the environment, and ‘air
pollutants’ shall be construed accordingly.”
(8) However, in departing from the language of the 1979 Convention, the words
“contributing to” were used instead of “resulting in” in order to safeguard the overall balance
in ensuring international cooperation. The change was made for this particular “use of terms”
and “for the purpose of the present draft guidelines”, which are not intended to give a
“definition” for international law in general, as noted in paragraph (1) of the present
commentary.
(9) Another departure from the 1979 Convention is the addition the word “significant”
before “deleterious”. This is intended, for the purposes of consistency, to align the wording
of subparagraphs (b) and (c). The term “significant deleterious effects” is intended to qualify
the range of human activities to be covered by the draft guidelines. The Commission has
further employed the term “significant” in its previous work.
58
In doing so, 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 a real detrimental effect [and]… such
detrimental effects must be susceptible of being measured by factual and objective
standards”.
59
Moreover, the term “significant”, while determined by factual and objective
standards, 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.
60
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.
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 Boyle and Redgwell, International Law and the Environment,
(see footnote 21 above) pp. 364–371; A. Kiss and D. Shelton, International Environmental Law, 3rd
ed. (New York, Transnational Publishers, 2004), p. 99 (definition of pollution: “also forms of energy
such as noise, vibrations, heat, and radiation are included”).
See, for example, art. 7 of the Convention on the Law of the Non-navigational Uses of International
Watercourses (General Assembly resolution 51/229 of 21 May 1997, annex); art. 1 of the articles on
prevention of transboundary harm from hazardous activities (2001) (General Assembly resolution
62/68 of 6 December 2007, annex); principle 2 of the principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities (2006) (General Assembly resolution 61/36 of
4 December 2006, annex); art. 6 of the articles on the law of transboundary aquifers (2008) (General
Assembly resolution 63/124 of 11 December 2008, annex). It was also underlined that the term
“significant” has been used in the jurisprudence of the International Court of Justice, including in its
2015 judgment in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica) (Judgment, I.C.J. Reports 2015, p. 665, at paras. 104–105 and 108; see also paras. 153, 155,
156, 159, 161, 168, 173, 196 and 217).
58
Para. (4) of the commentary to article 2 of the articles on prevention of transboundary harm from
hazardous activities, 2001, Yearbook … 2001, Vol. II (Part Two) and corrigendum, p. 152, at para. 98.
59
60
See, for example, the commentary to the articles on prevention of transboundary harm from
hazardous activities (paras. (4) and (7) of the commentary to article 2), ibid. See also the commentary
to the 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 principle 2), Yearbook … 2006, vol. II (Part Two),
para. 67.
22
GE.21-11083
A/76/10
(10) 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”.
61
The reference
to “energy” in the present subparagraph (b) is understood to include heat, light, noise and
radioactivity introduced and released into the atmosphere through human activities.
62
The
reference to radioactivity as energy is without prejudice to peaceful uses of nuclear energy in
relation to climate change in particular.
63
(11) The expression “effects extending beyond the State of origin” in subparagraph (b)
clarifies that the draft guidelines address the transboundary effects, excluding as a matter of
general orientation regarding scope, domestic or local pollution, and the expression is
understood in the sense provided in article 1 (b) of the 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
such a distance that it is not generally possible to distinguish the contribution of
individual emission sources or groups of sources.”
(12) As is evident from draft guideline 2 below, on scope, the present draft guidelines are
concerned with the protection of the atmosphere from both atmospheric pollution and
atmospheric degradation. Since subparagraph (b) covers “atmospheric pollution” only, 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, subparagraph (c) provides a
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.
See also the Protocol concerning Pollution from Land-Based Sources and Activities to the
Convention for the Protection and Development of the Marine Environment of the Wider Caribbean
Region (Oranjestad, 6 October 1999), Treaties and Other International Acts Series, 10-813, art. 1 (c).
61
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. 123–
135. 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.
62
63
International Atomic Energy Agency, Climate Change and Nuclear Power 2014 (Vienna, 2014), p. 7.
GE.21-11083
23
A/76/10
(13) The 1985 Vienna Convention for the Protection of the Ozone Layer
64
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 Change 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”.
Guideline 2
Scope
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 and are without prejudice to
questions concerning the polluter-pays principle, the precautionary principle and the
common but differentiated responsibilities principle.
3. Nothing in the present draft guidelines affects the status of airspace under
international law nor questions related to outer space, including its delimitation.
Commentary
(1) Draft guideline 2 sets out the scope of the draft guidelines on the protection of the
atmosphere. Under paragraph 1, the draft guidelines deal with the protection of the
atmosphere from atmospheric pollution and atmospheric degradation. Paragraphs 2 and 3
contain saving clauses.
(2) Paragraph 1 deals with 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 current realities.
65
(3)
In Agenda 21, it was recognized that transboundary air pollution has adverse health
impacts on humans and other detrimental environmental impacts, such as tree and forest loss
and the acidification of water bodies.
66
Moreover, according to IPCC, 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.
67
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.
68
(4) The guidelines do not deal with domestic or local pollution as such. 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
Vienna Convention for the Protection of the Ozone Layer (Vienna, 22 March 1985), United
Nations, Treaty Series, vol. 1513, No. 26164, p. 293.
64
See, generally, IPCC, Climate Change 2013: The Physical Science Basis, Summary for Policy
makers, available at www.ipcc.ch/pdf/assessment-report/ar5/wg1/WG1AR5_SPM_FINAL.pdf.
65
Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14
June 1992, vol. I, Resolutions Adopted by the Conference (A/CONF.151/26/Rev.1(Vol. I); United
Nations publication, Sales No. E.93.I.8 and corrigendum), resolution 1, annex II, para. 9.25.
66
67
IPCC, Climate Change 2013: The Physical Science Basis, Summary for Policy makers.
68
Ibid. IPCC, Global Warming of 1.5 ºC. An IPCC Special Report, Summary for Policymakers (2018),
pp. 4–5. Available at www.ipcc.ch/sr15/chapter/spm/.
24
GE.21-11083
A/76/10
human action, taken individually or collectively, may need to take into account the totality
of the atmosphere, hydrosphere, biosphere and geosphere and their interactions.
(5) Sulphur dioxide and nitrogen oxides are the main sources of transboundary
atmospheric pollution,
69
while climate change and depletion of the ozone layer are the two
principal concerns leading to atmospheric degradation.
70
Certain ozone depleting substances
also contribute to global warming.
71
(6) Paragraph 2 reflects what is not covered by the present draft guidelines. It is based on
the 2013 understanding of the Commission. It should be read in conjunction with the eighth
preambular paragraph. In order to provide greater clarity to the formula of the understanding
which stated “do not deal with, but without prejudice to”, the paragraph has been
reformulated to combine the two phrases with “and” instead of “but”. Paragraph 2 further
explains that questions concerning the polluter-pays principle, the precautionary principle
and the common but differentiated responsibilities principle are excluded from the present
draft guidelines. It should be noted that, in not dealing with these three specified principles,
this paragraph does not in any way imply the legal irrelevance of those principles. Also
excluded in the 2013 understanding from the scope of this topic were questions concerning
liability of States and their nationals, and the transfer of funds and technology to developing
countries, including intellectual property rights.
(7) The 2013 understanding also had a clause stating that “[t]he present draft guidelines
would not deal with specific substances, such as black carbon, tropospheric ozone and other
dual-impact substances, which are the subject of negotiations among States”. This has also
not been reflected in the text of the draft guideline.
(8) Paragraph 3 is a saving clause that the draft guidelines do not affect the status of
airspace under international law. The atmosphere and airspace are two different concepts,
which should be distinguished. The regimes covering the atmosphere and outer space are also
separate. Accordingly, the draft guidelines do not affect the legal status of airspace nor
address questions related to outer space.
(9) The atmosphere, as an envelope of gases surrounding the Earth, is dynamic and
fluctuating, with gases that constantly move without regard to territorial boundaries.
72
The
atmosphere is invisible, intangible and non-separable. Airspace, on the other hand, 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”.
73
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 sea is
not under the sovereignty of any State and is open for use by all States, like the high seas.
(10) 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.
74
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
69
Boyle and Redgwell, International Law and the Environment (see footnote 21 above), pp. 378–379.
Ibid., p. 379. 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.
70
71
Ibid.
See generally Boyle and Redgwell, International Law and the Environment (footnote 21 above), pp.
359–361.
72
Convention on International Civil Aviation (Chicago, 7 December 1944), United Nations, Treaty
Series, vol. 15, No. 102, p. 295. See also article 2, paragraph 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”.
73
74
Tarbuck, Lutgens and Tasa, Earth Science (see footnote 53 above), pp. 465 and 466.
GE.21-11083
25
A/76/10
space”.
75
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 functional approaches to the questions of delimitation.
76
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.
Commentary
(1) Draft guideline 3 restates the obligation to protect the atmosphere. It is central to the
present draft guidelines. In particular, draft guidelines 4, 5 and 6, below, which seek to apply
various principles of international environmental law to the specific situation of the
protection of the atmosphere, flow from the present guideline.
(2) The draft guideline concerns 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 or energy contributing to significant 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).
(3) The present draft guideline delimits the obligation to protect the atmosphere to
preventing, reducing or controlling atmospheric pollution and atmospheric degradation. The
formulation of the present draft guideline finds its genesis in principle 21 of the 1972
Stockholm Declaration, which reflected the finding in the Trail Smelter arbitration.
77
According to principle 21, “States have the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction”. This principle is further reflected in
principle 2 of the 1992 Rio Declaration.
(4) The reference to “States” for the purposes of the draft guideline denotes both the
possibility of States acting individually and jointly, as appropriate.
(5) 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,
78
a matter on which
there are different views.
Moscow, London and Washington, D.C., 27 January 1967, United Nations, Treaty Series, vol. 610,
No. 8843, p. 205.
75
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.
76
See UNRIAA, vol. III (Sales No. 1949.V.2), pp. 1905–1982 (Award of 11 March 1941), 1907, at p.
1965 et seq. (“under the principles of international law … no State has the right to use or permit the
use of territory in such a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious consequence and the injury is established by
clear and convincing evidence”) 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.
77
78
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
26
GE.21-11083
A/76/10
(6) Significant adverse effects on the atmosphere are caused, in large part, by the activities
of individuals and private industries, which are not normally attributable to a State. In this
respect, due diligence requires States to “ensure” that such activities within their jurisdiction
or control do not cause significant adverse effects. This does not mean, however, that due
diligence applies solely to private activities since a State’s own activities are also subject to
the due diligence rule.
79
It is an obligation which entails not only the adoption of appropriate
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
necessarily 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 good faith efforts so as not to cause
significant adverse effects (obligation of conduct).
(7) The obligation to “prevent, reduce or control” denotes a variety of measures to be
taken by States, whether individually or jointly, in accordance with applicable rules 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 article 194,
paragraph 1, of the United Nations Convention on the Law of the Sea, which uses “and”
80
and article 3, paragraph 3, of the United Nations Framework Convention on Climate Change,
which uses “or”.
81
Important in the consideration of the draft guideline is the obligation to
ensure that “appropriate measures” are taken. 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”.
82
(8) Even though the appropriate measures to “prevent, reduce or control” apply to both
atmospheric pollution and atmospheric degradation, the reference to “applicable rules of
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; Certain Activities Carried Out by Nicaragua in the Border area
(Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica) (see footnote 58 above), 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 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); Société française pour le droit international, Le standard
de due diligence et la responsabilité internationale, Paris, Pedone, 2018; S. Besson, “La due diligence
en droit international”, Collected Courses of the Hague Academy of International Law, vol. 409
(2020), pp. 153–398.
79
M.H. Nordquist et al., eds., United Nations Convention on the Law of the Sea 1982: A Commentary,
vol. IV (Dordrecht, Martinus Nijhoff, 1991), p. 50.
80
Article 3, paragraph 3, states that “[t]he Parties should take precautionary measures to anticipate,
prevent or minimize the causes of climate change and mitigate its adverse effect”. See, for example,
United Nations Convention on the Law of the Sea (Montego Bay), United Nations, Treaty Series, vol.
1833, No. 31363, p. 3, art. 212; Vienna Convention for the Protection of the Ozone Layer, art. 2, para.
2 (b); United Nations Framework Convention on Climate Change, art. 4; Stockholm Convention on
Persistent Organic Pollutants, first preambular paragraph and art. 3; and Minamata Convention on
Mercury, arts. 2 and 8–9.
81
82
Eleventh and thirteenth preambular paragraphs.
GE.21-11083
27
A/76/10
international law” signals a distinction between measures taken, bearing in mind the
transboundary nature of atmospheric pollution and global nature of atmospheric degradation
and the different rules that are applicable in relation thereto. In the context of transboundary
atmospheric pollution, the obligation of States to prevent significant adverse effects is firmly
established as customary international law, as confirmed, for example, in the Commission’s
articles on prevention of transboundary harm from hazardous activities
83
and by the
jurisprudence of international courts and tribunals.
84
However, the existence of this
obligation in customary international law is still somewhat unsettled for global atmospheric
degradation.
(9) The International Court of Justice has stated that “the existence of the general
obligation of States to ensure that activities within their jurisdiction and control respect the
environment … of areas beyond national control is now part of the corpus of international
law”,
85
and has attached great significance to respect for the environment “not only for States
but also for the whole of mankind”.
86
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”.
87
These pronouncements are instructive and
relevant to the protection of the atmosphere.
Guideline 4
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.
Commentary
(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. The draft guideline is
formulated in the passive in order to signal that this is an obligation of conduct and because,
given the variety of economic actors, the obligation does not necessarily require the State
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.).
83
The International Court of Justice has emphasized prevention as well. In the Gabčíkovo-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” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at
p. 78, para. 140). See also Certain Activities Carried Out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua) and Construction of a Road along the San Juan River (Nicaragua v. Costa Rica)
(see footnote 58 above), para. 104. 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).
84
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at
pp. 241–242, para. 29.
85
Gabčíkovo-Nagymaros Project (see footnote 84 above), p. 41, para. 53; the Court cited the same
paragraph in Pulp Mills on the River Uruguay (see footnote 79 above), p. 78, para. 193.
86
87
Iron Rhine Railway (see footnote 84 above), pp. 66–67, para. 59.
28
GE.21-11083
A/76/10
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. Procedural safeguards such as notification and
consultations are also key to such an assessment. It may be noted that 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 other factors.
88
(2) The International Court of Justice in the Gabčíkovo-Nagymaros Project case alluded
to the importance of environmental impact assessment.
89
In Certain Activities Carried Out
by Nicaragua in the Border area (Costa Rica v. Nicaragua) and Construction of a Road
along the San Juan River (Nicaragua v. Costa Rica) in the context of due diligence
obligations, the Court 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”.
90
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”.
91
In a separate
opinion, Judge Hisashi 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”.
92
In the earlier 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”.
93
Moreover, 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 United
Nations Convention on the Law of the Sea, but is also a “general obligation under customary
international law”.
94
(3) The phrase “of proposed activities under their jurisdiction or control” is intended to
indicate that the obligation of States to ensure an environment impact assessment 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) The phrase “which are likely to cause significant adverse impact” establishes a
threshold considered necessary to trigger an environmental impact assessment. It is drawn
from the language of principle 17 of the Rio Declaration. Moreover, there are other
instruments, such as the 1991 Espoo Convention on Environmental Impact Assessment in a
Transboundary Context,
95
that use a similar threshold. In the 2010 Pulp Mills case, the Court
indicated that an environmental impact assessment had to be undertaken where there was a
Protocol on Strategic Environmental Assessment to the Convention on the Environmental Impact in
the Transboundary Context (Kiev, 21 May 2003), United Nations, Treaty Series, vol. 2685, No.
34028, p. 140, art. 2, paras. 6–7.
88
89
Gabčíkovo-Nagymaros Project (see footnote 84 above), para. 140.
90
I.C.J. Reports 2015 (see footnote 58 above), para. 153.
91
Ibid., para. 168.
92
Ibid., Separate Opinion of Judge Hisashi Owada, para. 18.
93
Pulp Mills on the River Uruguay (see footnote 79 above), para. 204.
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. 145.
94
95
Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February
1991), United Nations, Treaty Series, vol. 1989, No. 34028, p. 309.
GE.21-11083
29
A/76/10
risk that the proposed industrial activity may have a “significant adverse impact in a
transboundary context, in particular, on a shared resource”.
96
(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”. The phrase “significant deleterious effects” has
been used both in subparagraphs (b) and (c) of draft guideline 1 and, as mentioned in the
commentary thereto, what constitutes “significant” requires a factual rather than a legal,
determination.
97
(6) The phrase “in terms of atmospheric pollution or atmospheric degradation” relates the
draft guideline once more to the two main issues of concern to the protection of the
atmosphere under the present draft guidelines, 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.
98
In the context of atmospheric degradation, such activities
may carry a more extensive risk of severe damage than even those causing transboundary
harm, and therefore the same considerations should apply a fortiori to those activities
potentially causing global atmospheric degradation.
(7) Even though procedural aspects are not dealt with in text of the draft guideline,
transparency and public participation are important components in ensuring access to
information and representation in undertaking an environmental impact assessment. 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. Participation includes access to
information, the opportunity to participate in decision-making 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 Matters
99
also
addresses these issues. The above-mentioned 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.
100
Guideline 5
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 the protection of the atmosphere.
96
Pulp Mills on the River Uruguay (see footnote 79 above), para. 204.
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 principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities (commentary to principle 2, paras. (1)–(3),
Yearbook … 2006, vol. II (Part Two), chap. V, sect. E).
97
98
See draft guideline 7 below.
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.
99
100
Art. 2, paras. 6–7.
30
GE.21-11083
A/76/10
Commentary
(1) The atmosphere is a natural resource with limited assimilation capacity. 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 natural 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 the atmosphere
as a natural resource subject to the principles of conservation and sustainable use.
(2) Paragraph 1 acknowledges 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 Nonnavigational
Uses of International Watercourses,
101
and the articles on the law of
transboundary aquifers.
102
(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 atmosphere
103
are examples of the utilization of the atmosphere.
(4) The phrase “its utilization should be undertaken in a sustainable manner” in paragraph
1 is intended to be simple and reflects a paradigmatic shift towards viewing the atmosphere
as a natural resource that ought to be utilized in a sustainable manner.
(5) Paragraph 2 builds upon the language of the International Court of Justice in its
judgment in the Gabčíkovo-Nagymaros Project case, in which it referred to the “need to
reconcile environmental protection and economic development”.
104
There are other relevant
cases.
105
The reference to “protection of the atmosphere” as opposed to “environmental
Arts. 5–6. For the articles and commentaries thereto adopted by the Commission, see Yearbook …
1994, vol. II (Part Two), chap. III, sect. E.
101
General Assembly resolution 63/124 of 11 December 2008, annex, arts. 4–5. For the articles and
commentaries thereto adopted by the Commission, see Yearbook … 2008, vol. II (Part Two), chap.
IV, sect. E.
102
103
See draft guideline 7 below.
104
Gabčíkovo-Nagymaros Project (see footnote 84 above), p. 78, para. 140.
105
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” (Pulp Mills 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
GE.21-11083
31
A/76/10
protection” seeks to focus the paragraph on the subject matter of the present topic, which is
the protection of the atmosphere.
Guideline 6
Equitable and reasonable utilization of the atmosphere
The atmosphere should be utilized in an equitable and reasonable manner,
taking fully into account the interests of present and future generations.
Commentary
(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 draft guideline is formulated
at a broad level of abstraction and generality.
(2) The draft guideline is stated in general terms so as to apply the principle of equity
106
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 the articles on the law of transboundary aquifers. It indicates
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 draft guideline addresses aspects of intra- and intergenerational
equity.
107
In order to draw out the link between these two aspects, the phrase “taking fully
into account the interests of” has been preferred to “for the benefit of” present and future
generations of humankind. The words “the interests of”, and not “the benefit of”, have been
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. … This duty, in the
opinion of the Tribunal, has now become a principle of general international law”, Iron Rhine
Railway (see footnote 84 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. 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 Gabčíkovo-Nagymaros, 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 Final Award of 20
December 2013, para. 111.
See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18, at
para. 71. On equity and its use in international law generally, see Frontier Dispute (Burkina Faso v.
Mali), Judgment, I.C.J. Reports 1986, p. 554, at paras. 27–28 and 149; North Sea Continental Shelf,
Judgment, I.C.J. Reports 1969, p. 3, at para. 85; J. Kokott, “Equity in international law”, in F.L. Toth,
ed., Fair Weather? Equity Concerns in Climate Change (Abingdon and New York, Routledge, 2014),
pp. 173–192; P. Weil, “L’équité dans la jurisprudence de la Cour internationale de Justice: Un
mystère en voie de dissipation?”, in V. Lowe and M. Fitzmaurice, eds., Fifty Years of the
International Court of Justice: Essays in Honour of Sir Robert Jennings, (Cambridge, Cambridge
University Press, 1996), pp. 121–144; F. Francioni, “Equity in international law,” in R. Wolfrum, ed.,
Max Plank Encyclopedia of Public International Law, vol. III (Oxford, Oxford University Press,
2013), pp. 632–642.
106
107
C. Redgwell, “Principles and emerging norms in international law: intra- and inter-generational
equity”, in C.P. Carlarne et al., eds., The Oxford Handbook on International Climate Change Law,
(Oxford, Oxford University Press, 2016), pp. 185–201; D. Shelton, “Equity” in Bodansky et al., eds.
Oxford Handbook of International Environmental Law (footnote 21 above), pp. 639–662; and E.
Brown Weiss, “Intergenerational equity” in Max Planck Encyclopaedias of Public International Law
(updated 2021), available at https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e1421.
32
GE.21-11083
A/76/10
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. The word “fully” seeks to demonstrate the importance of taking various factors
and considerations into account, and it should be read with the seventh preambular paragraph,
which recognizes 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.
Guideline 7
Intentional large-scale modification of the atmosphere
Activities aimed at intentional large-scale modification of the atmosphere
should only be conducted with prudence and caution, and subject to any applicable
rules of international law, including those relating to environmental impact
assessment.
Commentary
(1) Draft guideline 7 deals with activities the 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” in the
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques,
108
which refers to techniques for changing – through the 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.
109
Activities related to carbon dioxide removal 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.
(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) 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 Other
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques (New York, 10 December 1976), United Nations, Treaty Series, vol. 1108, No. 17119, p.
151.
108
109
IPCC, IPCC Expert Meeting on Geoengineering, Lima, Peru, 20–22 June 2011, Meeting Report. See,
generally, the Oxford Geo-engineering Programme, “What is geoengineering?”, available at
www.geoengineering.ox.ac.uk/what-is-geoengineering/what-is-geoengineering/; K.N. Scott,
“International law in the anthropocene: responding to the geoengineering challenge”, Michigan
Journal of International Law, vol. 34, No. 2 (2013), pp. 309–358, at p. 322; Steve Rayner, et al., “The
Oxford principles”, Climate Geoengineering Governance Working Paper No. 1 (University of
Oxford, 2013), available from www.geoengineering-governanceresearch.org/perch/resources/workingpaper1rayneretaltheoxfordprinciples.pdf.
See
also,
C.
Armani,
“Global
experimental
governance,
international
law
and
climate
change
technologies”,
International
and
Comparative
Law
Quarterly,
vol.
64,
No.
4
(2015),
pp.
875–904.
GE.21-11083
33
A/76/10
Hostile Use of Environmental Modification Techniques
110
and Protocol I to the Geneva
Conventions of 1949.
111
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 draft guideline.
(6) Likewise, other activities are governed by various regimes. For example, afforestation
has been incorporated in the Kyoto Protocol to the United Nations Framework Convention
on Climate Change
112
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)
113
to the 1972 Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter
114
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
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.”
115
(8)
It is 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 only be conducted with
prudence and caution. The word “only” is intended to further enhance the prudent and
cautious manner in which activities aimed at intentional large-scale modification may be
undertaken, while the latter part of the draft guideline makes it clear that such activities are
conducted subject to any applicable rules of international law.
110
See art. 1.
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).
111
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.
112
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.
113
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.
114
115
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.
34
GE.21-11083
A/76/10
(10) The reference to “prudence and caution” is inspired by the language of the
International Tribunal for the Law of the Sea in the Southern Blue Fin Tuna Case,
116
the MOX
Plant Case,
117
and the Case concerning Land Reclamation by Singapore in and around the
Straits of Johor.
118
The Tribunal stated in the Land Reclamation 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.
(11) The phrase “including those relating to environmental impact assessment” at the end
of the draft guideline adds emphasis, to acknowledge the importance of an environmental
impact assessment, as reflected in draft guideline 4. Activities aimed at intentional largescale
modification of the atmosphere should be conducted with full disclosure and in a
transparent manner, and an environmental impact assessment provided for in draft guideline
4 may be required for that purpose. It is considered that a project involving intentional largescale
modification
of
the
atmosphere
may
cause
significant
adverse
impact,
in
which
case
an
assessment is
necessary
for
such
an
activity.
Guideline 8
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 and technical
knowledge relating to the causes and impacts of atmospheric pollution and
atmospheric degradation. Cooperation could include exchange of information and
joint monitoring.
Commentary
(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,
119
and today is to a large extent built on the notion of common interests of the
international community as a whole.
120
In this connection, it is recalled that the third
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”.
116
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”).
117
Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v.
Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p. 10, at para. 99.
118
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.
119
120
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; Naoya Okuwaki, “On
compliance with the obligation to cooperate: new developments of ‘international law for
GE.21-11083
35
A/76/10
preambular paragraph of the present draft guidelines considers that atmospheric pollution
and atmospheric degradation are a common concern of humankind.
(2) 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, and on the applicable rules of international law. The forms
in which such cooperation may occur may also vary depending on the situation and allow for
the exercise of a certain margin of appreciation of States in accordance with the applicable
rules of international law. 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 cooperate 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”.
121
(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.
122
In addition, among some of the existing treaties, the
Vienna Convention for the Protection of the Ozone Layer 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
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”.
123
Under article 7 of the Paris
Agreement, parties “recognize the importance and support and international cooperation on
adaptation efforts and the importance of taking into account the needs of developing country
Parties, especially those that are particularly vulnerable to the adverse effects of climate
cooperation’”, in J. Eto, ed., Aspects of International Law Studies (Festschrift for Shinya Murase),
(Tokyo, Shinzansha, 2015), pp. 5–46, at pp. 16–17 (in Japanese).
121
Pulp Mills on the River Uruguay (see footnote 79 above), p. 49, para. 77.
122
Principle 24 of the Stockholm Declaration states:
“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 11 above).
Principle 27 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.
123
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 a 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).
36
GE.21-11083
A/76/10
change”.
124
The preamble of the Paris Agreement in turn affirms the importance of education,
training, public awareness, public participation, public access to information and cooperation
at all levels on the matters addressed in the Agreement.
125
(5)
In its work, the Commission has also recognized the importance of cooperation.
126
Cooperation could take a variety of forms. Paragraph 2 of the draft guideline stresses, in
particular, the importance of cooperation in enhancing scientific and technical knowledge
relating to the causes and impacts of atmospheric pollution and atmospheric degradation.
Paragraph 2 also highlights the exchange of information and joint monitoring.
(6) 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.
(7) 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
124
See art. 7, para. 6. See also arts. 6, para. 1, 7, para. 7, 8, para. 4, and 14, para. 3.
125
Preamble, fourteenth para. See also paragraph 1 of article 8 of the Convention on the Law of the Nonnavigational
Uses
of
International
Watercourses,
on
the
general
obligation
to
cooperate,
which
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.”
126
The articles on prevention of transboundary harm from hazardous activities (2001) provide in 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 articles on the law of transboundary aquifers (2008) provide in article 7, entitled “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.”
Moreover, the draft articles on the protection of persons in the event of disasters (2016) provide, in
draft article 7, a duty to cooperate. 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.”
GE.21-11083
37
A/76/10
education, training and public awareness related to climate change and encourage the
widest participation in this process, including that of non-governmental organizations.
(8)
In this context, the obligation to cooperate includes, inter alia and as appropriate,
exchange of information. In this respect, it may also be noted that article 9 of the Convention
on the Law of the Non-navigational 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,
at the regional level, the Eastern Africa Regional Framework Agreement on Air Pollution
(Nairobi Agreement, 2008)
127
and the West and Central Africa Regional Framework
Agreement on Air Pollution (Abidjan Agreement, 2009)
128
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.
(9)
In its work, the Commission has also recognized the importance of scientific and
technical knowledge.
129
In the context of protecting the atmosphere, enhancing scientific and
technical knowledge relating to the causes and impacts of atmospheric pollution and
atmospheric degradation is key. For addressing the adverse effects of climate change, the
Paris Agreement recognizes the importance of averting, minimizing and addressing loss and
damage associated with the adverse effects of climate change and envisages cooperation in
such areas as (a) early warning systems; (b) emergency preparedness; (c) slow onset events;
(d) events that may involve irreversible and permanent loss and damage; (e) comprehensive
risk assessment and management; (f) risk insurance facilities, climate risk pooling and other
insurance solutions; (g) non-economic losses; and (h) resilience of communities, livelihoods
and ecosystems.
130
Available at
https://web.archive.org/web/20111226174901/http:/www.unep.org/urban_environment/PDFs/EABA
Q2008-AirPollutionAgreement.pdf.
127
Available at
https://web.archive.org/web/20111224143143/http://www.unep.org/urban_environment/PDFs/BAQ0
9_AgreementEn.Pdf.
128
The second sentence of article 17, paragraph 4, of the 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”.
129
130
Art. 8.
38
GE.21-11083
A/76/10
Guideline 9
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, 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.
Commentary
(1) Draft guideline 9 addresses “interrelationship among relevant rules”
131
and seeks to
reflect the relationship between rules of international law relating to the protection of the
atmosphere and other relevant rules of international law. Paragraphs 1 and 2 are general in
nature, while paragraph 3 places emphasis on the protection of groups that are particularly
vulnerable to atmospheric pollution and atmospheric degradation. Atmospheric pollution and
atmospheric degradation are defined in draft guideline 1 on the use of terms. Those terms
focus on pollution and degradation caused “by humans”. That necessarily means that human
activities governed by other fields of law have a bearing on the atmosphere and its protection.
It is therefore important that conflicts and tensions between rules relating to the protection of
the atmosphere and rules relating to other fields of international law are to the extent possible
avoided. Accordingly, draft guideline 9 highlights the various techniques in international law
for addressing tensions between legal rules and principles, whether they relate to a matter of
interpretation or a matter of conflict. The formulation of draft guideline 9 draws upon the
conclusions reached by the Commission’s Study Group on fragmentation of international law:
difficulties arising from the diversification and expansion of international law.
132
(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 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 others including 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
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, p. 26; S. Murase (Chair) and L. Rajamani
(Rapporteur), Report of the Committee on the Legal Principles Relating to Climate Change, ibid., pp.
330–378, at pp. 368–377.
131
132
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
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).
GE.21-11083
39
A/76/10
relation to rules arising from treaty obligations and other sources of international law. In
coordinating rules, certain preliminary steps need to be taken that pertain to identification,
for example, a determination of whether two rules address “the same subject matter”, and
which rule should be considered lex generalis or lex specialis and lex anterior or lex posterior,
and whether the pacta tertiis rule applies.
(4) The first sentence 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 on fragmentation. 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 to 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 taking into account 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 1969 Vienna Convention on the Law of Treaties,
133
including articles 30
and 31, paragraph 3 (c), and the principles and rules of customary international law. Article
31, paragraph 3 (c), of the 1969 Convention, 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.
134
In other words, article 31, paragraph 3 (c),
emphasizes both the “unity of international law” and “the sense in which rules should not be
considered in isolation of general international law”.
135
Article 30 of the 1969 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).
136
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.
137
While the last sentence of paragraph 1
refers to “principles” as well as “rules” of customary international law, it is without prejudice
to the relevance that “general principles of law” might have in relation to the draft guidelines.
(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.
138
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
133
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.
134
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.
135
136
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
[covered] agreements in accordance with customary rules of interpretation of public international
law” (emphasis added).
137
138
See International Law Association, resolution 2/2014 on the declaration of legal principles relating to
climate change, draft article 10 (on interrelationship) (footnote 131 above); A. Boyle, “Relationship
between international environmental law and other branches of international law”, in Bodansky et al.,
The Oxford Handbook of International Environmental Law (footnote 21 above), pp. 126–146.
40
GE.21-11083
A/76/10
9 should be interpreted as subordinating rules of international law in the listed fields to rules
relating to the protection of the atmosphere or 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 the protection of the atmosphere. The 1994 Marrakesh Agreement establishing the World
Trade Organization
139
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”.
140
The WTO Committee on Trade and Environment began pursuing its
activities “with the aim of making international trade and environmental policies mutually
supportive”,
141
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”.
142
As the concept of “mutual supportiveness” has become
gradually regarded as “a legal standard internal to the WTO”,
143
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”.
144
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).
145
(8) Similar trends and approaches appear in international investment law. Free trade
agreements, which contain a number of investment clauses,
146
and numerous bilateral
investment treaties
147
also contain standards relating to the environment, which have been
139
United Nations, Treaty Series, vols. 1867–1869, No. 31874.
140
Ibid., vol. 1867, No. 31874, p. 154.
141
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.
142
J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules
of International Law (Cambridge, Cambridge University Press, 2003); R. Pavoni, “Mutual
supportiveness as a principle of interpretation and law-making: a watershed for the ‘WTO-andcompeting
regimes’
debate?”,
European
Journal
of
International
Law,
vol.
21
(2010),
pp.
651–652.
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.
143
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).
144
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 S.C. Tay and D.C. Esty, eds., Asian Dragons and
Green Trade: Environment, Economics and International Law (Singapore, Times Academic Press,
1996), pp. 137–144.
145
See, for example, Agreement Between Canada, the United Mexican States, and the United States of
America, 1 July 2020, art. 1.3 and chap. 14 (“Investment”), available from the website of the Office
of the United States Trade Representative, https://ustr.gov/trade-agreements/free-tradeagreements/united-states-mexico-canada-agreement/agreement-between.
146
147
There are various model bilateral investment treaties (BITs), such as: Canada Model BIT of 2004,
available from www.italaw.com; Colombia Model BIT of 2007, available from www.italaw.com;
United States Model BIT of 2012, available from www.italaw.com; 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
GE.21-11083
41
A/76/10
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”.
148
(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,
149
which defines the
“pollution of the marine environment”, in article 1, paragraph 1 (4), in such a way as to
include all sources of marine pollution, including atmospheric pollution from land-based
sources and vessels.
150
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.
151
IMO has sought to regulate vessel-source pollution in its efforts to supplement the provisions
of the Convention
152
and to combat climate change.
153
The effective implementation of the
applicable rules of the law of the sea could help to protect the atmosphere. Similarly, the
for Sustainable Development, 2nd ed. (Winnipeg, 2005), art. 34. 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 developmentoriented
initiatives”,
in
S.
Hindelang
and
M.
Krajewski,
eds.,
Shifting
Paradigms
in
International
Investment
Law:
More
Balanced,
Less
Isolated,
Increasingly
Diversified,
(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.
148
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).
149
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.
150
For example, the Convention for the Protection of the Marine Environment of the North-East Atlantic
(United Nations, Treaty Series, vol. 2354, 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).
151
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).
152
153
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/abstract=2037038.
42
GE.21-11083
A/76/10
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”.
154
The link between human rights and the environment,
including the atmosphere, is acknowledged in 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”.
155
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”.
156
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.
157
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.
158
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”.
159
(11) In this regard, relevant human rights include “the right to life”,
160
“the right to private
and family life”
161
and “the right to property”,
162
as well as the other rights listed in the
eleventh preambular paragraph of the Paris Agreement:
[C]limate change is a common concern of humankind, Parties should, when taking
action to address climate change, respect, promote and consider their respective
obligations on human rights, the right to health, the rights of indigenous peoples, local
communities, migrants, children, persons with disabilities and people in vulnerable
situations and the right to development, as well as gender equality, empowerment of
women and intergenerational equity.
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.
154
See L.B. Sohn, “The Stockholm Declaration on the Human Environment” (footnote 23 above), pp.
451–455.
155
F. Francioni, “Principle 1: human beings and the environment”, in J.E. Viñuales, ed., The Rio
Declaration on Environment and Development: A Commentary (Oxford, Oxford University Press,
2015), pp. 93–106, at pp. 97–98.
156
157
United Nations, Treaty Series, vol. 1302, No. 21623, p. 217, at p. 219, arts. 1 and 2.
158
Ibid., vol. 1513, No. 26164, p. 293, at p. 326, art. 2.
159
Art. 1.
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).
160
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.
161
162
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 Fitzmaurice, Ong and Merkouris, eds., Research Handbook on International Environmental Law,
(footnote 21 above), pp. 265–283, at pp. 265, 269–278.
GE.21-11083
43
A/76/10
(12) Where a specific right to environment exists in human rights conventions, the relevant
courts and treaty bodies apply them, including the right to health. In order for international
human rights law to contribute to the protection of the atmosphere, however, certain core
requirements must be fulfilled.
163
First, as international human rights law remains “a
personal-injury-based legal system”,
164
a direct link between atmospheric pollution or
degradation that impairs the protected right and an impairment of a protected right must be
established. Second, the adverse effects of atmospheric pollution or degradation must attain
a certain threshold if they are to fall within the scope of international human rights law. The
assessment of such minimum standards is relative and depends on the content of the right to
be invoked and all the relevant circumstances of the case, such as the intensity and duration
of the nuisance and its physical or mental effects. Third, and most importantly, it is necessary
to establish the causal link between an action or omission of a State, on the one hand, and
atmospheric pollution or degradation, on the other hand.
(13) One of the difficulties in the relationship between the rules of international law
relating to the atmosphere and human rights law is the “disconnect” in their application
ratione personae. While the rules of international law relating to the atmosphere apply not
only to the States of victims but also to the States of origin of the harm, the scope of
application of human rights treaties is limited to the persons subject to a State’s jurisdiction.
165
Thus, where an environmentally harmful activity in one State affects persons in another State,
the question of the interpretation of “jurisdiction” in the context of human rights obligations
arises. In interpreting and applying the notion, regard may be had to the object and purpose
of human rights treaties. In its Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the International Court of
Justice said, when addressing the issue of extraterritorial jurisdiction, “while the jurisdiction
of States is primarily territorial, it may sometimes be exercised outside the national territory.
Considering the object and purpose of the International Covenant on Civil and Political
Rights, it would seem natural that, even when such is the case, State parties to the Covenant
should be bound to comply with its provisions”.
166
(14) One possible consideration is the relevance of the principle of non-discrimination.
Some authors maintain that it may be considered unreasonable that international human rights
law would have no application to atmospheric pollution or global degradation and that the
law can extend protection only to the victims of intra-boundary pollution. They maintain that
the non-discrimination principle requires the responsible State to treat transboundary
atmospheric pollution or global atmospheric degradation no differently from domestic
pollution.
167
Furthermore, if and insofar as the relevant human rights norms have
extraterritorial effect,
168
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
P.-M. Dupuy and J.E. Viñuales, International Environmental Law (Cambridge, Cambridge University
Press, 2015), pp. 320–329.
163
164
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.
165
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.
166
167
Boyle, “Human rights and the environment” (see footnote 165 above), pp. 639–640.
168
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 D. Alland et al., eds., Unity and
Diversity of International Law: Essays in Honour of Professor Pierre-Marie Dupuy (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.
44
GE.21-11083
A/76/10
8), among others, which would enable interpretation and application of both norms in a
harmonious manner.
(15) 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.
(16) 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 persons and 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 interests”.
(17) The second sentence of paragraph 3 gives examples of groups that may be found in
vulnerable situations in the context of atmospheric pollution and atmospheric degradation.
The World Health Organization has noted that: “[a]ll populations will be affected by a
changing climate, but the initial health risks vary greatly, depending on where and how
people live. People living in small island developing States and other coastal regions,
megacities, and mountainous and polar regions are all particularly vulnerable in different
ways.”
169
In the Sustainable Development Goals adopted by the General Assembly in its 2030
Agenda for Sustainable Development, atmospheric pollution is addressed in Goals 3.9 and
11.6, which call, in particular, for a substantial reduction in the number of deaths and illnesses
from air pollution, and for special attention to ambient air quality in cities.
170
(18) The phrase in the second sentence of paragraph 3 “may include, inter alia” denotes
that the examples given 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
by climate change and are usually the most socio-economically disadvantaged”.
171
People of
the least developed countries are also placed in a particularly vulnerable situation as they
often live in extreme poverty, without access to basic infrastructure services and to adequate
medical and social protection.
172
People of low-lying areas and small-island developing
States affected by sea-level rise are subject to the potential loss of land, leading to
displacement and, in some cases, forced migration. Inspired by the preamble of the Paris
Agreement, in addition to the groups specifically indicated in paragraph 3 of draft guideline
9, other groups of potentially particularly vulnerable people include local communities,
World Health Organization, Protecting Health from Climate Change: Connecting Science, Policy and
People (Geneva, 2009), p. 2.
169
See B. Lode, P. Schönberger 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).
170
“Report of the Indigenous Peoples’ Global Summit on Climate Change, 20–24 April 2009,
Anchorage, Alaska”, p. 12. See R.L. Barsh, “Indigenous peoples”, in Bodansky et al., The Oxford
Handbook of International Environmental Law, (footnote 21 above), pp. 829–852; B. Kingsbury,
“Indigenous peoples”, in R. Wolfrum, ed., The Max Planck Encyclopedia of Public International Law
(Oxford, Oxford University Press, 2012), vol. V, pp. 116–133; and H.A. Strydom, “Environment and
indigenous peoples”, in ibid., vol. III, pp. 455–461.
171
172
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-publicversion.pdf.
GE.21-11083
45
A/76/10
migrants, women, children, persons with disabilities and also the elderly, who are often
seriously affected by atmospheric pollution and atmospheric degradation.
173
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.
Commentary
(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. These two draft guidelines are interrelated. 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.
174
(2) The two paragraphs of the draft guideline address, on one hand, existing obligations
under international law and, on the other hand, recommendations contained in the draft
guidelines.
(3) The term “[n]ational implementation” denotes the measures that parties may take to
make international obligations operative at the national level, pursuant to the national
constitution and legal system of each State.
175
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.
176
The Committee on the Elimination of Discrimination against Women has a general recommendation
on “gender-related dimensions of disaster risk reduction and climate change”; see
http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/ClimateChange.aspx. 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 169 above) and the
World Bank Group Climate Change Action Plan (footnote 172 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/XLVO.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.”
173
See generally, P. Sands and J. Peel, with A. Fabra and R. MacKenzie, Principles of International
Environmental Law, 4th ed. (Cambridge, Cambridge University Press, 2018), pp. 144–196; 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.
174
C. Redgwell, “National implementation”, in Bodansky et al., The Oxford Handbook of International
Environmental Law (footnote 21 above), pp. 923–947.
175
176
See L. Krämer, “Regional economic integration organizations: the European Union as an example”,
in Bodansky et al., The Oxford Handbook of International Environmental Law (footnote 21 above),
pp. 854–877 (on implementation, pp. 868–870).
46
GE.21-11083
A/76/10
(4) 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.
(5) The draft guidelines refer to 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).
177
Given that States have these obligations, it is clear that
they need to be faithfully implemented.
(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”.
178
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 recommended
practices contained in the draft guidelines.
(7) Moreover, even though States sometimes resort to extraterritorial application of
national law to the extent permissible under international law,
179
it was not considered
necessary to address the matter for the purposes of the present draft guidelines.
180
It was
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.
Guideline 11
Compliance
1.
States 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.
2. To achieve compliance, facilitative or enforcement procedures may be used as
appropriate, in accordance with the relevant agreements:
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.
177
178
See, for example, draft guidelines 5, 6, 7, 9, and 12, para. 2.
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
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 (Tuna
Dolphin 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 143 above), pp. 349–
372.
179
180
See the Special Rapporteur’s fifth report (A/CN.4/711), para. 31.
GE.21-11083
47
A/76/10
(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.
Commentary
(1) Draft guideline 11, which complements draft guideline 10 on national implementation,
refers to compliance at the international level. The use of the term “compliance” is not
necessarily uniform in agreements, or in the literature. The term “compliance” is used in the
present draft guideline to refer to mechanisms or procedures at the international level that
verify whether States in fact adhere to the obligations of an agreement or other rules of
international law.
(2) 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 codify or lead to the crystallization of rules of international
law, or give rise to a general practice that is accepted as law,
181
thus generating a new rule 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.
182
The general character of paragraph 1 also appropriately
serves as an introduction to paragraph 2.
(3) Paragraph 2 deals with the facilitative or enforcement procedures that may be used by
compliance mechanisms.
183
The wording of the opening phrase of the chapeau “[t]o achieve
compliance” is aligned with formulations in existing agreements addressing compliance
mechanisms. The phrase “may be used as appropriate” emphasizes the differing
circumstances and contexts in which facilitative or enforcement procedures could be
See conclusion 11 of the conclusions on the identification of customary international law and
commentary thereto, Official Records of the General Assembly, Seventy-third Session, Supplement
No. 10 (A/73/10), chap. V, pp. 143–146.
181
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
environmental “side agreements”, such as the North American Agreement on Environmental
Cooperation.
182
183
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: see E. Milano, “Procedures and
mechanisms for review of compliance under the 1979 Long-Range Transboundary Air Pollution
Convention and its Protocols”, in T. Treves et al., eds., Non-Compliance Procedures and Mechanisms
and the Effectiveness of International Environmental Agreements (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 non-compliance mechanisms”, in Fitzmaurice, Ong and
Merkouris, eds., Research Handbook on International Environmental Law (footnote 21 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. 290–320; (e) the Paris Agreement; D. Bodansky, “The Paris
Climate Change Agreement: a new hope?”, American Journal of International Law, vol. 110 (2016),
pp. 288–319.
48
GE.21-11083
A/76/10
deployed to help foster compliance. The disjunctive word “or” indicates that facilitative or
enforcement procedures may be considered as alternatives by the competent organ
established under the agreement concerned. The phrase “in accordance with the relevant
agreements” is used at the end of the chapeau, so as to emphasize that facilitative or
enforcement procedures are those provided for under agreements to which States are parties,
and that these procedures will operate in accordance with such agreements.
(4) 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.
(5) Subparagraph (a) employs the phrase “in cases of non-compliance”
184
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.
185
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.
(6) 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.
186
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 possible 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.
187
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).
184
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 Viñuales,
International Environmental Law (footnote 163 above), p. 285 et seq.
185
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 Treves et al., Non-Compliance Procedures and
Mechanisms and the Effectiveness of International Environmental Agreements (footnote 183 above),
pp. 63–84; S. Murase, “International lawmaking for the future framework on climate change: a
WTO/GATT Model”, in Murase, International Law: An Integrative Perspective on Transboundary
Issues (footnote 143 above), pp. 173–174.
186
187
G. Loibl, “Compliance procedures and mechanisms”, in Fitzmaurice, Ong and Merkouris, eds.,
Research Handbook on International Environmental Law (footnote 21 above), pp. 426–449, at pp.
437–439.
GE.21-11083
49
A/76/10
Guideline 12
Dispute settlement
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. Since 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.
Commentary
(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.
188
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 disputes
189
and to serve as a basis for paragraph 2.
(2) The first part of paragraph 2 recognizes that disputes relating to the protection of the
atmosphere from atmospheric pollution and atmospheric degradation would be “factintensive”
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,
190
likewise, more complicated scientific and technical issues have been raised in
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.
191
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.
C. Tomuschat, “Article 33”, in B. Simma et al., eds., The Charter of the United Nations: A
Commentary, 3rd ed., vol. 1 (Oxford, Oxford University Press, 2012), pp. 1069–1085; H. Ascensio,
“Article 33”, in J.-P. Cot, A. Pellet, M. Forteau, eds., La Charte des Nations Unies, 3rd ed.
(Economica, 2005), pp. 1047–1060.
188
N. Klein, “Settlement of international environmental law disputes”, in Fitzmaurice, Ong and
Merkouris, eds., Research Handbook on International Environmental Law (footnote 21 above), pp.
379–400; C.P.R. Romano, “International dispute settlement”, in Bodansky et al., The Oxford
Handbook of International Environmental Law (footnote 21 above), pp. 1037–1056.
189
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 J. Crawford et al., eds., The
International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid
Momtaz (Leiden, Brill Nijhoff, 2017), pp. 41–52.
190
191
See the speech of the President of the International Court of Justice, Judge Abraham, before the Sixth
Committee on 28 October 2016 (on international environmental law cases before the International
Court of Justice) (available from www.icj-cij.org/en/statements-by-the-president); and President Peter
Tomka, “The ICJ in the service of peace and justice – words of welcome by President Tomka”, 27
September 2013 (available from https://www.icj-cij.org/en/statements-by-the-president). 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; G. Niyungeko, La preuve devant les juridictions internationales
(Brussels, Bruylant, 2005).
50
GE.21-11083
A/76/10
(3) Recent cases before the International Court of Justice involving the science-dependent
issues of international environmental law
192
illustrate, directly or indirectly, specific features
of the settlement of disputes relating to the protection of the atmosphere. For this reason, it
is necessary that, as underlined in paragraph 2, “due consideration” be given to the use of
technical and scientific experts.
193
The essential aspect in this paragraph is to emphasize the
use of technical and scientific experts in the settlement of inter-State disputes whether by
judicial or other means.
194
(4) The Commission decided to maintain a simple formulation for this draft guideline and
not to address other issues that may be relevant, such as jura novit curia (the court knows the
law) and non ultra petita (not beyond the parties’ request).
195
In the 1997 Gabčíkovo-Nagymaros Project (see footnote 84 above) and the 2010 Pulp Mills (see
footnote 79 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 some of the individual judges of the
Court (Pulp Mills on the River Uruguay, Judgment, separate opinion of Judge Greenwood, paras. 27–
28, and joint dissenting opinion of Judges Al-Khasawneh and Simma, para. 6), as well as by
commentators. 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), in 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 in the 2015 Construction of a Road (see footnote 58
above) cases, the parties appointed independent experts, who were, in the latter two cases, crossexamined
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
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)
and
Land
Boundary
in
the
Northern
Part
of
Isla
Portillos
(Costa
Rica
v.
Nicaragua),
Judgment,
I.C.J.
Reports
2018,
p.
139).
With
regard
to
the
issue
of
the
standard
of
proof,
the
International
Court
of
Justice
tends
to
avoid
extensive
elaboration
on
the
question,
though
the
Court
occasionally
refers
to
it
in
abstract
terms,
leaving
the
matter
for
the
discretion
of
the
Court.
In
case
of
fact-intensive/technical
cases
such
as
environmental
disputes,
the
Court
might
be
viewed
as
lowering
the
standard
of
proof
if
needed,
and
simply
weigh
the
respective
evidence
submitted
by
the
parties
in
order
to
reach
a
conclusion.
See,
for
example,
Judge
Greenwood’s
separate
opinion
in
the
Pulp
Mills
on
the
River
Uruguay
case
judgment
(para.
26),
concluding
that,
in
such
cases,
the
party
that
bears
the
burden
of
proof
needs
to
establish
the
facts
only
“on
the
balance
of
probabilities
(or,
the
balance
of
the
evidence)”.
See
also
K.
Del
Mar,
“The
International
Court
of
Justice
and
standards
of
proof”,
in
K.
Bannelier,
T.
Christakis
and
S.
Heathcote,
eds.,
The
ICJ
and
the
Evolution
of
International
Law:
the
enduring
impact
of
the
Corfu
Channel
case
(Abingdon,
Routledge,
2012),
pp.
98–123,
at
pp.
99–100;
A.
Rajput,
“Standard
of
proof”
in
Max
Planck
Encylopedia
of
Public
International
Law
(updated
in
2021).
192
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 A. Zimmermann et al., eds., The Statute of
the International Court of Justice: A Commentary (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.
Viñuales, “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.
193
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.
194
195
Based on jura novit curia, the Court can in principle apply any applicable law to any fact. In addition,
it can evaluate evidence and draw conclusions as it sees appropriate (as long as it complies with the
GE.21-11083
51
A/RES/76/112
United Nations
General Assembly
Distr.: General
17 December 2021
Seventy-sixth session
Agenda item 82
Report of the International Law Commission on the work of
its seventy-second session
Resolution adopted by the General Assembly
on 9 December 2021
[on the report of the Sixth Committee (A/76/473, para. 12)]
76/112. Protection of the atmosphere
The General Assembly,
Having considered chapter IV of the report of the International Law
Commission on the work of its seventy-second session,
1
which contains the draft
preamble and guidelines on the protection of the atmosphere,
Taking note of the recommendation of the International Law Commission
contained in paragraph 37 of its report,
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1 (a), of the
Charter of the United Nations,
Noting that the subject of protection of the atmosphere is of major importance
in international relations,
1. Welcomes the conclusion of the work of the International Law Commission
on the protection of the atmosphere and its adoption of the draft preamble and
guidelines on the protection of the atmosphere and commentaries thereto;
2
2. Expresses its appreciation to the International Law Commission for its
continuing contribution to the codification and progressive development of
international law;
3. Takes note of the views and comments expressed in the debates of the Sixth
Committee on the subject, including those made at the seventy-sixth session of the
__________________
1
Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10).
2
Ibid., paras. 39 and 40.
21-18668 (E) 271221
Il
.[!]
*2118668*
Please recycle@ r:,
•
L!J :.-t •
.::
A/RES/76/112
Protection of the atmosphere
General Assembly,
3
after the International Law Commission had completed its
consideration of this topic in accordance with its statute;
4. Also takes note of the preamble and guidelines on the protection of the
atmosphere, the text of which is annexed to the present resolution, with the
commentaries thereto, brings them to the attention of States, international
organizations and all who may be called upon to deal with the subject, and encourages
their widest possible dissemination.
49th plenary meeting
9 December 2021
Annex
Guidelines on the protection of the atmosphere
Preamble
Acknowledging that the atmosphere is a natural resource, with a limited
assimilation capacity, 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,
Considering that atmospheric pollution and atmospheric degradation are a
common concern of humankind,
Aware of the special situation and needs of developing countries,
Noting the close interaction between the atmosphere and the oceans,
Noting in particular the special situation of low-lying coastal areas and small
island developing States due to sea-level rise,
Recognizing that the interests of future generations of humankind in the longterm
conservation
of
the
quality
of
the
atmosphere
should
be
fully
taken
into
account,
Recalling that the present 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,
Guideline 1
Use of terms
For the purposes of the present 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 or energy contributing to
significant 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;
__________________
3
See A/C.6/76/SR.16, A/C.6/76/SR.17, A/C.6/76/SR.18, A/C.6/76/SR.19, A/C.6/76/SR.20,
A/C.6/76/SR.21, A/C.6/76/SR.22, A/C.6/76/SR.23, A/C.6/76/SR.24, A/C.6/76/SR.25 and
A/C.6/76/SR.29. The statements made in the Sixth Committee are available in full (in the
original languages) on the website of the Sixth Committee, at www.un.org/en/ga/sixth/.
21-18668
2/5
Protection of the atmosphere
A/RES/76/112
(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.
Guideline 2
Scope
1. The present guidelines concern the protection of the atmosphere from
atmospheric pollution and atmospheric degradation.
2. The present 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.
3. Nothing in the present 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.
Guideline 4
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.
Guideline 5
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 the protection of the atmosphere.
Guideline 6
Equitable and reasonable utilization of the atmosphere
The atmosphere should be utilized in an equitable and reasonable manner, taking
fully into account the interests of present and future generations.
Guideline 7
Intentional large-scale modification of the atmosphere
Activities aimed at intentional large-scale modification of the atmosphere
should only be conducted with prudence and caution, and subject to any applicable
rules of international law, including those relating to environmental impact
assessment.
21-18668
3/5
A/RES/76/112
Protection of the atmosphere
Guideline 8
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 and technical knowledge
relating to the causes and impacts of atmospheric pollution and atmospheric
degradation. Cooperation could include exchange of information and joint
monitoring.
Guideline 9
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, 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 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 guidelines.
Guideline 11
Compliance
1. States 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.
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
21-18668
4/5
Protection of the atmosphere
A/RES/76/112
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.
Guideline 12
Dispute settlement
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. Since 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.
21-18668
5/5
PART IV (B): Protection of the atmosphere