1 November 2013
International Law Commission and the topic ‘Protection of the Atmosphere’: Anything new on the table?
The International Law Commission (ILC), in its sixty-fifth session (2013) decided to include in its programme a topic entitled ‘Protection of the Atmosphere’ (see here para. 168). The ILC appointed as a Special Rapporteur Mr. Shinya Murase.
The inclusion of the topic is a very interesting development. It is the second topic pertaining to environmental law (the other being ‘Protection of the Environment in Relation to Armed Conflicts’) currently under consideration by the ILC. It is also a very difficult topic, given the number of conventions, both successful and unsuccessful ones, that have been so far concluded, the body of academic output on issues of atmospheric pollution and the strong political pull on the issue.
What makes the topic in the programme of the ILC even more interesting is the process of its adoption. In 2011 the current Special Rapporteur submitted his recommendations for the inclusion on of the topic in the programme of work (see here). In this document the Special Rapporteur presented a compelling case for the inclusion of the topic in the programme, and its subsequent codification and progressive development by the ILC.
Mr. Murase observed that there are a large number of instruments that address the problem of atmospheric pollution (e.g. the Convention on Long Range Transboundary Air Pollution and its Protocols, the UN Framework Convention on Climate Change and the Kyoto Protocol etc.). Nevertheless, these instruments are a ‘patchwork’ that comprises of different approaches that focus on geographically limited areas and regulate a limited number of substances or activities. He went on to note that the way forward would be a framework convention. The problem of atmospheric pollution, he noted, warrants by its nature a holistic approach. Mr. Murase pointed to Part XII of the Law of the Sea Convention as an example of such an approach. The work of the ILC would, according to the Special Rapporteur, fill in the gaps of existing treaty regimes, lead to the harmonisation with international treaties outside environmental law, as well as the harmonisation of national laws, rules and regulations with international standards. He also stated that the objective would be to combine the transboundary and global atmospheric problems while working on identifying the legal status of the atmosphere along the lines of the concepts of common heritage, common property, common concern or common natural resources.
Admittedly the Special Rapporteur presented a well rounded, finely argued and forward looking plan for the work that would lie ahead if the topic were accepted by the ILC.
On 9 August 2013, the ILC did in fact include the topic in its programme of work. Between the proposal of the topic by Mr. Murase and its inclusion in the programme there was an intermediate step. Mr. Murase, following informal consultations with a group of ILC members under the direction of the President, presented a new approach (see here at pp. 9-10). According to the new approach the ILC would not interfere with political negotiations and would not seek to fill gaps in the treaty regimes. It would not discuss climate change, the protection of the ozone layer or long-range transboundary pollution. Furthermore, it would not discuss the precautionary principle, the polluter-pays principle, the principle of common but differentiated responsibilities or the transfer of funds and technology from developed to developing states. The ILC would not deal with the regulation of specific substances either. According to the ILC, the outcome would be ‘Draft Guidelines’ that would not seek to impose on treaty regimes legal rules or principles that are not already contained therein.
The contrast between Mr. Murase’s proposal and the result endorsed by the ILC is indeed stark. While the Special Rapporteur had proposed a complete treatment of the topic from all possible angles, the ILC returned with an extremely limited mandate. While it is tempting to get to the political rationale behind this turn, what is important is to see if there is any merit to the adopted approach. If the ILC accepts the premise that the current treaty regimes are not adequate for the protection of the atmosphere because they are indeed a patchwork of uncoordinated approaches on the topic, then it is hard to see how the Draft Guidelines would be of any practical value. Moreover, all possibly ‘difficult’ issues lie outside the mandate of the Special Rapporteur. What remains within the mandate is a matter of speculation. Possibly a definition of the atmosphere, a definition of its legal status, a proposal on coordination and further cooperation among states as well as a reminder – in soft law terms – of the obligations states have already undertook as a matter of treaty or customary law; admittedly not much.
The ILC watered down significantly the initial proposal, offering a mandate to the Special Rapporteur that provides for very little room to produce a meaningful result. If the ILC wanted to avoid any discussion that would touch upon the substance of the problem of atmospheric pollution, it could have adopted an alternative approach. An argument could be made that the existing treaty regimes are adequate, that they are – reasonably – successful and that continued efforts for better coordination do indeed take place (e.g. the synergies process of the Rotterdam, Stockholm and Basel Conventions. Moreover, if the states have not been able to agree on how to address fundamental problems of atmospheric pollution (including climate change), it would be hard to see how the ILC would achieve better results.
This view, however, would mean that there would be no reason to discuss the topic at all. On the other hand, the original proposal of Mr. Murase would open a number of very interesting discussions within the ILC and possibly offer something new on the table.
Either approach (i.e. non inclusion or keeping the original proposal) would be far more plausible than the one adopted. Non-inclusion would not create any expectations and it would not bring forth another soft law instrument on international environmental law, something hardly necessary. Alternatively, the original proposal could lead to a renewed interest in the topic in a meaningful way.
In any case, it is interesting to see how the Special Rapporteur will manoeuvre around his strict mandate so as to produce a meaningful set of guidelines on a topic that touches upon a problem shared by all states.