The dissertation is submitted for the award of LLM, International and European Union Law: Public International Law at Universiteit Van Amsterdam in the academic year 2016/2017.
FALL OR MARGINALISATION ?
CONSIDERATIONS ON THE ROLE OF STATE RESPONSIBILITY WITHIN THE PARIS AGREEMENT
Candidate
Simona Aloisio
Supervisor Dr. Markos Karavias
I. INTRODUCTION: WHO IS CAUSING EARTH’S CLIMATE TO CHANGE? 3 II. THE PARIS AGREEEMENT AS THE RULER IN THE PANDEMONIUM 6
A. The Legal Form of the Paris Agreement 7
B. The Legal Character of the Paris Agreement Provisions 8
1. ‘Hard Obligations’ of the Paris Agreement 10
2. ‘Soft Obligations of the Paris Agreement 12
i. Arts 3 & 4(3): Non-Regression or Progression? 13
ii. Art 4(4): Type of Target 15
iii. Art 8: Loss & Damages vs. Adaptation 16
C. Art 15: The Creation of Non- Compliance Procedure (NCP) 17
1. The Design and the Role of NCP 18
2. The Reasons for the Establishment of an NCP 20
D. Concluding Remarks 22
III. TOO MUCH ADO ABOUT A FICTIONAL FALL? 24
A. Non-Compliance and State Responsibility: Two Solitudes? 25 1. Defining the Relationship between State Responsibility and Non-Compliance 26 i. Non-Compliance as a Violation of the Due Diligence Obligation 27
ii. Legal Consequences of Non-Compliance as IWA 33
B. Concluding Remarks 37
I. INTRODUCTION: WHO IS CAUSING EARTH’S CLIMATE TO CHANGE? Close to Pilbara coast, in Western Australia (WA), the Barrow Island is an A class natural reserve that has been preserved as a source of biodiversity since 1910. In 2009 Chevron, in joint venture with Shell and Exxon Mobil, starts to drill the island through the Gorgon Gas Development Foundation Project (Foundation Project) project, a $54 billion gas infrastructure.
Later on in 2014, in order to increase the production of liquefied natural gases (LNG) from the approved 15 million tones per annum (MTPA) to 20 MTPA, Chevron submits the Gorgon Gas Development Fourth Train Expansion Proposal (Fourth Train Proposal). The new project involves drilling additional subsea wells; installing subsea gas gathering systems in gas fields within the Gorgon Area; constructing a feed gas pipeline system to connect these gas gathering systems to the Gas treatment Plant on Barrow Island and adding a fourth LNG train at the Gas treatment Plant.1
As required, the proposal with the additional environmental impact assessment (EIA) is made object of public disclosure and comments. As such, the Department of Fisheries of WA states that, in addition to the ‘[s]ignificant environmental change in the project in the area resulting from extreme events (e.g. marine heat wave or coral bleaching) and Chevron operations (e.g. dredging) since 2005’,2 the company itself has identified some fisheries’ species that would be potentially affected by the new project.
Furthermore, the attested vulnerability of the spawning grounds and the nursery area of key fish species would be put at risk by the impacts of spills, discharges and other marine development activities.
Additionally, the Department of Parks and Wildlife of WA affirms that the proposal directly affects the Barrow Island Nature Reserve and its marine environment especially due to ‘[t]here is high uncertainty remaining in the drilling fluid and cutting dispersion modeling
1 Chevron Australia, Gorgon Gas Development Fourth Train Expansion Proposal, Public
Environmental Review/ Draft Environmental Impact Statement (PER/Draft EIS) found at www.chevronaustralia.com
2 Chevron Australia, Ibid., Response to Submissions/ Final Environmental Impact Statement
(2014) EPA Assessment No. 1889, EPBC Referral 2011/5942, p 13, found at www.chevronaustralia.com
with regards to the likely extent of environmental impact originating from the horizontal Directional Drilling (HDD) and well drilling’3.
The direct harmful effects of the new activities are further increased by considering that, as affirmed by Chevron itself, the Fourth Train Proposal ‘[w]ill result in an incremental increase in emissions and volumes of discharges and wastes.’4
Notwithstanding the unequivocal impact of the project, on March 2015 the Environmental Protection Authority approved the construction of $10 billion network of pipelines and the fourth train for the transport of the extracted LNG.
Whenever asking who is causing climate change, many factors drive the Earth’s climate to transform, a change in the quantity of energy that derives from the sun, sand storms or explosion of volcanoes.
However, human activities- i.e. drilling operations, as the Gorgon Project, or fracking- must be assumed as central causes of Earth’s climate change as well.
The global warming as caused by the anthropogenic greenhouse gases emissions (GHGs) has been recognized at the international level since the United Nations Framework Convention on Climate Change (UNFCCC) and lastly restated in the Paris Agreement.5
The acknowledgment of the human activities as a primary cause in the global warming asks the States to undertake any action that would be necessary to manage the global response to climate change. Namely, States aim at undertake a reduction of the GHGs’ emission and achieve a balance between such emissions and their removals.6
However, whether the States Parties to the Paris Agreement are bound by obligations rather then being mere recipients of expectations has to be clarified. In fact, considering the legal
3 Chevron Australia, Ibid., p. 16. 4 Chevron Australia, fn. 1, p. 40.
5 United Nations Framework Convention on Climate Change [hereinafter UNFCCC]
‘Adoption of the Paris Agreement’ (2015) FCCC/CP/ 2015/ L.9, art 2 & 4 [hereinafter Paris Agreement]. In the thesis the terms Treaty and Agreement will be used interchangeably with Paris Agreement.
6 Paris Agreement, Ibid. art 4.1.
character of the Paris Agreement’s provisions would be the first step towards identifying which is the pool of primary obligations within the Treaty that would be breached and give rise to the State Responsibility vis-à-vis climate change damages.
Hence, a closer look to the Conference of the Parties (COP) 21 product shows two orders of problems. First, it may wonder whether the prevalence of norms of soft legal character attenuates the normativity of the Agreement itself and impacts on the actual role the State Responsibility has vis-à-vis climate change damages. Second, whether the Non-Compliance mechanism, as envisaged by art. 15, would work as lex specialis to the law of State Responsibility generates more doubts concerning the latter’s function.
By assuming the actual scenario reported above, would the approval of the project and consequently the incremental amount of GHGs emissions be considered as a violation of the principle of progression as envisaged by the Paris Agreement? The fact that the up-front costs of the Fourth Train Proposal and the Foundation Project would be amortized only whether the company will keep extracting for the next forty years undoubtedly are a ‘promise’ of no progression in the abetment of GHGs emissions. Hence, by looking to the Treaty, the first step is to clarify the legal character of the rule that provides for the progressive achievement of the global stocktake. As such, would the soft nature of the specific norm determine the fall or better the marginalization of the law of State Responsibility? The State would be better considered responsible for the violation of the due diligence obligation not to cause harm via the activities carried on its territory but would it be held responsible or merely non-compliant with a soft commitment? Would the Non-Compliance marginalize or completely displace the application of the State Responsibility?
Hence, the thesis intends to clarify what is the role of State Responsibility in the context of the Paris Agreement. Specifically, the thesis will explore and interpret the constitutive norms of the treaty, by defining their legal character and their impact on the enforceability of the Agreement itself. The first part will define what means soft character of the Agreement’s norms and will analyze whether such character impacts on the role of the State Responsibility (Part I). Once acknowledged the relationship between State Responsibility and the soft law of the Paris Agreement, the second part will take into consideration the due diligence as guiding principle in the implementation of the Paris Agreement’s norms. Furthermore it will deal with the non-compliance mechanism and its impact vis-à-vis the applicability of the law of
State Responsibility within the Paris Agreement (Part II). The third part will drive on some conclusions (Part III).
II. THE PARIS AGREEMENT AS THE RULER IN THE PANDEMONIUM
The legal scenario that had been regulating so far the Climate Change has dragged States into inaction for a long time. However, the swerve happened, after the failure of the fifteenth Conference of the Parties (COP) in Copenhagen, with the Paris Agreement that resulted in the realization of an unachievable objective: the regulation of a global commons’ feature like climate change.
The reasons why the latter had such success are crystal clear by paying attention to the structure and to the history of progressive failures that characterized the road to Paris.7 Since the beginning, the discussion inherent to the legal character of the Agreement and consequently of its obligations was central.8 As affirmed ‘making a provision legally binding may provide a greater signal of commitment and greater assurance of compliance but (…) legal bindingness can be a double-edged sword, if it leads States not to participate or to make less ambitious commitments.’9
Hereunder, the Paris outcome appears, at first glance, a success due to its interaction of hard and soft law obligations; however the ‘cascading levels of treaty obligations’10 is of remarkable importance for understanding also their function vis-à-vis a treaty’s key contour about the enforcement of the Agreement itself.
7 UNFCCC ‘Bali Action Plan’ (2008) FCCC/CP/2007/6/Add.1; UNFCCC, Draft Decision
CP-19 ‘Copenhagen Accord’ (2009) FCCC/CP/ 2009/ L.7; UNFCCC ‘ Report of the Conference of the Parties on its Sixteenth Session held in Cancun from 29 November to 10 December 2010’ FCCC/CP/2010/7/Add. 1; UNFCCC, Decision 2/CP.18 ‘Advancing the Durban Platform’ (2012) FCCC/CP/2012/8/Add.1.
8 D. Bodansky ‘ The Legal Character of the Paris Agreement’ Review of European,
Comparative, and International Environmental Law (2016) p 1, found at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2735252
9 Ibid. p 14
10 L. Rajamani ‘ The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-
Additionally, the choice of a Non-Compliance mechanism, as provided for the purpose of facilitating and promoting the implementation of the Treaty, not only softens an hard law regime but also it plays a central function in delineating the role of State Responsibility.
As follow, a brief analysis of the Treaty’s legal form (A) will be followed by a normative narrative of the main provisions of the Agreement (B & C).
A. The Legal Form of the Paris Agreement
The intent to be bound by an agreement and, therefore, the reliance the other Parties to the agreement demonstrate on such intent is a catalyst also of a set of transparency and accountability procedures that are peculiar to any kind of contract. Hence, the binding nature is a key element not only for the purpose of strengthening domestic legislations inherent to the object of the agreement itself but also for securing a reaction whenever a breach of the obligations occurs.
However, whether some pros are widely recognized, it would be necessary to admit that the bindigness has some cons too – and the Paris Agreement canvases such duality. Namely, binding instruments generate trustworthy commitments by crystallizing the political will, consequentially, into domestic legislative actions. However, the ‘compliance pull’11 and accountability that the binding nature entails is counter balanced by the lost of States’ autonomy in decision-making process12 while implementing the obligations.
Additionally, the potential constraints to the development that would have been derived from the creation of a binding legal instrument could have been discouraged the adoption of Paris Agreement. Nevertheless, the discourse as to the legal form, has been influenced by three major factors: the struggle of more vulnerable countries for the making of a binding instrument; the embracement of the national determined contributions (NDCs) as escaping
11 D. Shelton ‘Introduction’ in D. Shelton (ed.) Commitment and Compliance: The Role of
Non-Binding Norms in the International Legal System (OUP 2000) p 8.
12 Hague District Court ‘Urgenda Foundation v. The State of the Netherlands’
C/09/456689/HA ZA 13-1396 (24 June 2015) [hereinafter Urgenda Foundation case]. The case is a pertinent example of how much the climate international regulations may determine a sovereignty cost. In fact, the scrutiny of the Dutch Court has been extended over the consistency of the National Determined Contributions (NDCs). A detailed analysis will be addressed in the later.
door from a too sovereign- constraint mechanism that does not allow any ad hoc tailoring of the obligations to the specific circumstances of a State; the non-binding character of the NDCs.13
Hence, the Paris Agreement landed on a ‘middle heart’ between the too-undefined United Nations Framework Convention on Climate Change (UNFCCC)14 and the too- strict Kyoto Protocol15. Despite the reasons that lead COP 21 to craft an internationally binding agreement made up by provisions of different legal character – namely, its inclusive power and the ability to put roots in the domestic legal systems of each State party- some considerations about the nature of the provisions in the Agreement shall deserve attention.
B. The legal character of the Paris Agreement provisions
The specific legal character of each norm is the ruler for the Parties’ behavior. In fact, the legal nature of a provision influences not only whether rights or duties are addressed to the Parties but also the kind of reaction to any eventual breach of treaty’s provisions.
The categorization of a legal instrument as an international treaty or engagement would not be considered enough to determine whether its rules create rights and obligations.16 As affirmed by Virally ‘the legal character of a text does not determine as natural consequence rights and duties.’17 Reasonably, it would be matter of interpretation defining whether a specific disposition in a treaty would be considered as having legal effects or not.
The interpretation shall take into consideration ‘the degree of accuracy that has been used in the choice of the language and the scope of the provisions adopted to limit the action of the
13 L. Rajamani, Ibid. p 341.
14 UN General Assembly ‘ United Nations Framework Convention on Climate Change:
resolution/adopted by the General Assembly’ (1994) A/RES/487189.
15 UN General Assembly ‘ Kyoto Protocol to the UNited Nations Framework Convention on
Climate Change’ (1998) UN Doc FCCC/CP/1997/7/Add.1; 37 ILM 22.
16 H. Lauterpacht ‘Law of Treaties’ Yearbook of the International Law Commission(1953) II,
A/CN.4/63, p 98.
17 M. Virally ‘La distinction entre textes internationaux ayant une portée juridique, entre leur
acteurs et textes qui en sont dépourvus’ Annuaire de l’Institute de droit international (1983) 60-I, p 247. Original text : ‘[u]n texte de portée juridique ne crée pas nécessairement et toujours des droits et des obligations.’
parties.’18 For example, in the context of the Paris Agreement, the mandatory or hortatory nature of the provisions would be acknowledged by considering the choice of verb – i.e. ‘shall’, ‘should’, ‘will’- the location of the provisions in the agreement – i.e. area of ‘goals’, ‘ action’, ‘implementation’- the normative content- i.e. setting standards for the behavior of the States or create rights and obligations- the specificity and precision- i.e. the extent of discretion that is left to the parties as to the way to carry out obligations and guarantee consistency- the addressee – i.e. ‘each Party’, ‘all Parties’, ‘developing countries’, ‘developed countries’19- the oversight – i.e. the mechanism to secure the fulfillment of the objectives such as ‘global stock take’, ‘transparency’ ‘compliance’.20
As result, such inquiry into the real legal effect of the provisions states that on the one side there are those obligations which are ‘well defined’21 and those that are called obligations
with discretionary content or ‘ good faith commitment’22 which give rise to certain obligations that ‘ leave to the parties a great discretion’23 In those cases ‘the fulfillment or the compliance with the obligations depends only on the good faith of the parties, that means on its willingness to fulfill with its commitments’24 Consequently, it would be impossible to move any claim for the breach of those engagements by sustaining that the State has not adopted a sufficient degree of precaution or has acted without a sufficient effort in order to meet its obligations.
The generic terms used in the formulation of such norms and the discretionary determination of their content make them open to divergent interpretations. For clarity’s sake I may consider hard law those provisions that ‘refer to legal binding obligations that are precise (…) and that delegate authority for interpreting and implementing the law’25; and soft law
18 M. Virally, Ibid., p.184. Original text: [l]e degré de précision des termes employés et le
degré des restrictions apportées en conséquence à la liberté d’action des parties.’
19 The Paris Agreement in this sense overcomes the distinction between ‘developing
countries’ and ‘developed countries’ peculiar of the Kyoto Protocol.
20 L. Rajamani, Ibid. p 343.
21 M. Virally, fn 17, p 120. Original text: ‘[f]ermes et bien définies’ 22 M.Virally, Ibid., p 120. Original text : ‘engagements de bonne volonté’
23 M.Virally, Ibid., p 121. Original text: ‘[l]aissent à celui qui les a assumés une part
considérable d’appréciation subjective.’
24 M.Virally, Ibid., p 12. Original text: ‘[l]e respect ou la bonne exécution de l’obligation
dépend exclusivement (…) de la bonne volonté de celui qui en est tenu, c’est-à- dire de sa volonté d’exécuter correctement ses engagement.’
25 K.W.Abbot & D. Snidal ‘Hard and Soft Law in International Governance’ 54 Int’l Org.
those legal arrangements that are weakened due to they lack of precision and do not delegate the interpretation. Consequently, they do not have the capacity to produce binding obligations even if part of a binding treaty.
Hence, bearing in mind that within a binding treaty not all the provisions have the capacity to produce obligations and consequently give rise to responsibility if breached, this section tries to cluster the Paris Agreement’s norms according to their legal effects under two major categories – i.e. hard and soft law.
The allocation of the obligations will be done following the legal architecture of the Paris Agreement, namely per each action area – i.e. mitigation (arts. 3-6); adaptation (art. 7); loss and damages (art. 8) and enforcement (art. 15).
1. ‘Hard Obligations’ of the Paris Agreement
A basic premise shall be made about the object within the scope of hard obligations, namely whether a specific conduct instead of the achievement of a result would be considered as necessary to fulfill the obligations.
Put it differently, within the cluster of ‘hard obligations’ the identification of the provisions as stating engagements of conduct or of result is indispensable.
Specifically, the obligations in arts 4(2), 4(8), 4(9), 4(13) and 13 (7) are said to be obligations of results because they ask for a set of actions or omissions- i.e. prepare, communicate, maintain, provide information, communicate, promote. 26 Contrarily to such view the obligations are of conduct rather then of result due to they lack any enforcement verb – i.e. enhance- vis-à-vis the NDCs. Only art. 4 (13) provide for the accountability for the NDCs and would be considered an ‘indirect’ obligation of result. In fact, by holding the Parties accountable for their NDCs the Agreement imposes the obligation to achieve their determined contributions.27
26 C. Voigt ‘The Paris Agreement: What is the standard of conduct for parties?’ QIL 26
(2016) p 18.
By assuming the obligations as of conduct means that each Party to the Treaty would be considered responsible whether it will not act as prescribed as far as the designated actions or omissions are considered crucial to the achievement of the primary goal of the Agreement.
In light of such clarification, the analysis of the norms follows. The ‘mitigation’ section has been defined as the ‘soft belly’ of the Agreement28 based on the system of NDCs (arts. 3-4). However, both the core provisions addressing the matter of NDCs present a dual legal character as result of the combination of soft and hard law.
Art. 3 provides that ‘…all Parties are to undertake and communicate ambitious efforts (…) with the view to achieving the purpose of this Agreement (…)’ however this procedural obligation is softened when it provides that ‘ The efforts of all Parties will represent a progression over time (…)’.29 The same cross- cutting nature is presented in the art. 4 that whether provide that the Parties ‘shall’ communicate and regularly updating their NDCs (art. 4. 2), fulfill the transparency and clarity while communicating them (art. 4. 8), enhance support to developing countries (art. 4.5) report every five years their NDCs (art. 4.9) account for their NDCs (art. 4.13) be held responsible for the level of GHGs emission (art. 4. 16 & 18);30 at the same time provides that ‘Each Party’s successive nationally determined
contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition (…).’31 Furthermore, it states that ‘ Developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets’32 instead ‘ Developing country Parties should continue enhancing their mitigation efforts (…)’33
The ‘stick and carrot’ approach that has been clearly adopted in such provisions underlines the felt need to make the major emitters to come under the umbrella of the Paris Agreement and actually it succeeded in the challenge. In the ‘adaptation’ section too the twofold tactic
28 J. E. Vinuales ‘ The Paris Climate Agreement: An Initial Examination’ C-‐ EENRG
Working Papers 6 (2015).
29 The principle of progression will be analyzed later in this section because of its relevance
for the enforcement of the Paris Agreement’s obligations.
30 C. Voigt ’On the Paris Agreement Imminent Entry into Force’ found at:
https://www.ejiltalk.org
31 Paris Agreement, art 4.3. 32 Paris Agreement, art 4.4. 33 Ibid.
has been adopted when the treaty states that ‘Each Party shall, as appropriate, engage in adaptation planning processes and the implementation of actions’ (art. 7.9); immediately afterwards it provides that ‘Each Party should, as appropriate, submit and update periodically an adaptation communication (…)’ (art. 7.10) and immediately before it declares that ‘Parties should strengthen their cooperation on enhancing action on adaptation’ (art.7.7).34 Progressively on this wave the ‘loss and damages’ section does establish a complete ‘soft’ structure but for the functioning of the Warsaw International Mechanism for Loss and Damage (art. 8.2).
An overall view of the hard law obligations leaves the observer of the Paris Agreement to realize not only the ‘cascading’ nature of the provisions but also their normative content, namely the lack of any binding commitment upon the Parties to achieve their contributions. There is more a good faith expectation rather then a request to achieve the objective of their actions- i.e. the fulfillment of the NDCs. The result is a treaty with ‘binding obligations of conduct coupled with a good faith expectation of results’35 as reaffirmed by the softening approach to the codification of the emission’s progressive reduction that is examined below.
2. ‘Soft obligations’ of the Paris Agreement
Generally speaking, in the context of environmental protection, ‘ soft law is a potent weapon to balance the system established by the hard law and plays a vital role in attaining a stable aim in terms of implementation of international environmental law.’36 In the negotiating context of the Paris Agreement, which aimed at overcoming the Kyoto Protocol’s differentiation between developed and developing countries and securing a wide entrance in the binding legal agreement, soft law might have been appeared as offering practical advantages- i.e. facilitate the development of climate regulation while reducing contracting costs and threats to sovereignty.37
34 Paris Agreement, arts 7.4, 7.5, 7.6. 35 L. Rajamani, Ibid. p 354.
36 A. Ahmed, Md. J. Mustafa ‘The Role of Soft Law in Environmental Protection: An
Overview’ Global Journal of Politics and Law Research 4 (2016) p 1, found at:
http://www.eajournals.org
37 P. M. Dupuy ‘ Soft Law and the International Law of the Environment’ Michigan Journal
As pointed out by Shelton, two basic reasons supported the choice for soft law provisions. First, whenever a rapid response to a global crisis – like anthropogenic climate change- is needed and there is a lack of political consensus or scientific uncertainty upon the matter, the adoption of soft obligations prevents any kind of inaction. Second, the inhibition of ‘free rider’ States those, while benefiting from legal regulation accepted by others, continue to run their own interests. In this circumstance, non-binding commitments overcome the unwillingness of ‘free riders’ and push towards a change in behavior.38 Undoubtedly, the behavior that soft law provisions require, is expected not mandatory – it might be considered as a social rule backed by reputation losses rather then sanctions- but it initiates to create consensus.
However, in the context of Paris Agreement, whether is undisputable that soft law provisions may lead the Parties to adopt an adequate climate action, equally is not undisputed whether they are or not part of the Paris Agreement’s backbone. At first glance, despite some authors consider soft law as a ‘perfect absurdities’39, a sort of residue of hard law, its normative force can influence the actors on the international scene. Thus, soft law provisions are fully part of the Agreement’s structure even if some implications regarding their effects upon responsibility or non- compliance may not be disguised.40 They provide guidance, a sort of
road map towards the progressive achievement of the objectives.
The following subsections will explore the main soft law provisions of the Paris Agreement that set out standard of conduct for the Parties.
i. Arts 3 & 4(3): Non- Regression or Progression?
If were asked at what time environmental law obligations should be combined, perhaps the answer would be at future because it is the only temporary dimension that lasts forever and suits better the need to address global crises of such magnitude, like climate change. The auxiliary verb ‘will’ as used in art. 4(3) of the Paris Agreement appears to be a promise, a
38 D. L. Shelton ‘Soft Law’ in Handbook of International Law (Routledge Press 2008) GWU
Legal Studies Research Paper No.322, p.15 found at: https://papers.ssrn.com
39 J. Klabbers ‘The Redundancy of Soft Law’ Nordic Journal of International Law 65 (1996)
p 172
40 Following in the dissertation, the effects of soft law provisions vis-à-vis State
political commitment that guarantees to last forever but for, it makes the ‘progression’ of NDCs as non mandatory obligations. It sets ambition but not secure any undertaking.
Per art 4(3), ‘ Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then nationally determined contributions, and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in light of different national circumstances.’41
The notion the provision deals with, has a double significance, namely it states for a binding non-regression which is soften by a mere expectation of progression in the determination of NDCs.42 The concept of durable development43 is achievable only if the Parties to the Paris
Agreement do not backtrack from their initial emissions’ targets and improves their contributions. By interpreting the article in accordance to the purpose of the agreement44- i.e. holding the global average temperature below 2°C45- any change in circumstances will not justify a decrease in the level of ambition rather it requires the Parties to go beyond any previous NDCs.
However, the particular way the Paris Agreement addresses the two sides of the same coin, is extremely interesting. Actually, whether the non- regression principle is of mandatory nature (art.4.2 & 13.7), the principle of progression is soft in character (art.4.3). Whether were asked why do not address to both – the obligation of non-regression and the standard of progression- the same treatment, as in other agreements is done,46 the answer would be that the choice is a product of necessity. Precisely: the need to secure the highest acceptance by the Parties to the COP 21 of the Paris Agreement. The draft history of the art. 3 too points to an evolution from a binding form to a gradual softening of the provision on progression.47
41 Paris Agreement art 4(3) 42 Paris Agreement art. 4(2)
43 United Nations Conference on Sustainable Development ‘Rio +20, The Future We Want’
(2012) A/CONF.216/L.1, paras 19, 20.
44 United Nations ‘Vienna Convention on the Law of the Treaties’ (1969) art. 31. 45 Paris Agreement art2 (a)
46 North American Agreement on Environmental Cooperation, U.S.- Can.- Mex., Sep. 14,
1993, 32 I.L.M. 1480 (1930) art. 3. ‘(…) each Party shall ensure that its laws and regulations provide for high levels of environmental protection and shall strive to continue to improve those laws and regulations.’
Even if the soft character of the norms would not secure a binding enforcement, it generates a powerful outcome – i.e. a standard of due diligence conduct- backed by the art. 14. The latter provision states that the COP ‘(…) shall periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving (…) the global stock-take (…).
The outcome of the global stock-take shall inform Parties in updating and enhancing, in a nationally determined manner, their actions and support in accordance with the relevant provisions of this Agreement.’48
Hence, according to this provision the Parties ‘shall’ regularly prepare the successive NDCs in harmony to the guiding standards of ‘highest possible ambition’ (art.4.3) and ‘progression’ (art.3 & 4.3) in a manner that reflects their common responsibilities, respective capabilities and national circumstances but without regressing from the original NDCs (art.4.2).
To sum up, the provisions set out a standard49 that ask to the Parties to act by conducting a risk assessment and an evaluation of their individual capacities. Consequently, the Parties are asked to plan long-term low greenhouse gas emissions’ strategies50 at the ‘highest level of
ambition’.
ii. Art 4(4): Type of Target
Jointly to the definition of the normative parameters (arts 3 & 4.3), art. 4 (4) set up substantive parameter – i.e. type of targets- that the Parties should comply with in order to act diligently. Their duty of care requires the States to ‘(…) continue taking the lead by undertaking economy- wide absolute emissions reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstance’s.’51
48 Paris Agreement art 14 (1) & (3).
49 P.M. Dupuy, J.E. Vinuales ‘International Environmental Law’ (CUP 2016) p 257. 50 Paris Agreement art 14 (19).
The norm consolidates a trend towards a vaguely recognition of the historic emissions as ground for claiming developed States for being leaders in the road to the zero-carbon economy and the progressive reduction of the GHG emissions. However, the choice of crafting such provision as of soft character still represents a compromise due to it crystallizes a political opinion on an issue while trying to foster consensus that could lead to further negotiation.
Thus, while eliminating a distinction between the Annex I and Annex II Parties, the Paris Agreement acknowledges that, the notion of historical contributions to climate change, and consequently of historical responsibility, is a parameter of crucial importance for securing equity in the establishment of reciprocal and personalized efforts.52
iii. Art. 8: Loss & Damages vs. Adaptation
The differentiation between loss & damages and adaptation has been marked by some difficulties. Namely, both cope with existing or anticipated climate impacts; they both pursue the aim of diminishing the risk whether the loss or damage is already occurred or there is a high probability that it will. In fact, the adaptation aims at reducing the potential risk to become a reality, rather the loss & damages mechanism intends to lower the potential negative effects of an harm already occurred.
What differs in the two is the time each of them is triggered according to the risk assessment. Assumed the three different layers of risk – i.e. acceptable, tolerable and intolerable- the loos & damages and the adaptation would be considered as moving in a continuum on a sliding scale of risk’s magnitude. Specifically, the limits to adaptation and the operation of loss & damages comes whenever the risk becomes intolerable that is to say, when the adaptation is no longer able to keep the risk of climate impacts in an acceptable and tolerable range.
Consequently, loss & damages intervenes to minimize the negative effects. The distinction of goals that they intend to achieve – create resilience in the case of adaptation, diminish the
52 For further Knowledge on the historical responsibility for climate change see C.
Ellermann, N. Hohne, B. Muller ‘Differentiating historical responsibilities for climate
change’ found at:
negative effects of actual risk in the case of loss & damages- has some implications in terms of justice.53
For now, what matters is the treatment the Paris Agreement gives to them. By exploring art. 8 (3) and art. 7(9) a different treatment is given to the loss & damages and adaptation provisions- despite the art. 7, as said before, figure more a mixture of soft and hard law. Art. 8(3) states that ‘Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change’54 rather art. 7(9) establishes that the Parties ‘shall (…) engage in adaptation planning processes (…).55
Overall, the principle of prevention (art. 7.9) as reflected in the adaptation obligation becomes mandatory for the Parties rather, the loss & damages soft provision seems to assume a residual function- i.e. responding to a lack of efficiency of the mitigation and adaptation.
C. Art 15: the Creation of the Non-Compliance Procedure (NCP)
As Mitchell states ‘the aspects of international environmental agreements (IEA) that ‘do work’ (…) are not the threats of sanctions for violation or promises of reward for compliance but rather, the desire of actor to do what is right, what is legally required or what others expect of them.’56
The behavior of States parties to any Agreement is undoubtedly an indicator of influence and effectiveness of the agreement itself. Namely, despite endogenous factors may influence the success of an IEA- i.e. economic crisis that could lead to a good-faith Non-Compliance- the logic that influences the action of the Parties the most is that of identity’s preservation rather of interests’ protection.
53 The issue is of relevance for the purpose of addressing responsibility- remedial
responsibility depending on whether the damage is recoverable or not because if the damage is irrecoverable compensation will be the only remedy - or non-compliance.
54 Paris Agreement art 8(3). 55 Ibid. art.7(9).
56 R.B. Mitchell ‘ Compliance Theory’ in D.Bodansky, J. Brunnée, E. Hey ‘ The Oxford
Clearly, the regulators may not correspond to the targets of the regulations but, whenever a negotiation process is activated and brings to an end, the set of prescriptions and proscriptions it provides set Parties’ behaviors in a spectrum built upon the dichotomy of compliance/violation.
Such codification pursues the aim of pushing the action of States toward compliance. In fact, by looking to the art. 15 of the Paris Agreement, the establishment of an in-house compliance arrangement57 tries to ‘facilitate implementation of an promote compliance with the provisions of [Paris] Agreement58.’ The institution of a mechanism that would have facilitative nature and exercise its functions in a ‘transparent, adversarial and non-punitive manner’ (art. 15.2), testifies the nature of the Paris Agreement as a ‘treaty inducer of behavioral changes.’ In fact, no provision speaks about sanctions for violation or non- compliance of the obligations.
Hence, less stringent rules – soft-norm law- and Non- Compliance mechanism would create a system the poor or well performance of which is determined by a progressive and voluntary achievement of the global stocktake.
However, assuming the Paris Agreement’s goal as a comparator for its implementation and success, it would be crystal clear that something is missing. Specifically, the architecture and functions of the NCP is totally absent. Thus, as logical consequence, no enforcement mechanism is provided and no goal could be achieved. Put it clearly, if the Paris Agreement’s goal is assumed as measure of its success and effectiveness, if the goal can be achieved only through an enforcement mechanism and if the latter is absent, consequently the success and effectiveness of the Paris Agreement could not be secured. It is clear that the NCP creates trust and confidence so, it might be considered as guarantee for effectiveness however it need to be wove into the convoluted Paris agreement’s architecture of hard and soft law norms and take in consideration the reluctance of the Parties to commit themselves when strict sanctions are provided for Non- Compliance.
57 C. Voigt ‘ The Compliance and Implementation Mechanism of the Paris Agreement’
RECIEL 25 (2016) p 161.
Assumed such premises, it might be useful to understand first, which would be its architecture and functions (1); second, why establish a NCP (2).
1. The Design and the Role of the NCP
The institutional backbone of the NCP of the Paris Agreement is constituted by a Compliance Implementation Committee that ‘shall consist of twelve members with recognized competence in relevant scientific, technical, socio-economic or legal fields, to be elected by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the basis of equitable geographical representation (…).’ Additionally, an ‘Ad Hoc Working Group on the Paris Agreement to develop the modalities and procedures for the effective operation of the committee referred to in Article 15, paragraph 2, of the Agreement (…)’ could be required.59 The Committee shall facilitate the implementation of the Agreement but it would not be ‘equipped’ of any punitive enforcement power rather it would act in full transparency and without establishing adversarial procedures. Furthermore, it shall consider the respective national capabilities and circumstances of the parties.
As response to the shortcomings of responsibility for environmental damages, the mechanism of Non- Compliance in the Paris Agreement, like any other60, is facilitative in nature. The formulation of the provision draws an informal system of soft character that would be supported by the institution of a fund- i.e. the Green Climate Fund (art. 9.8)- in order to sustain the Parties, especially the developing ones, in the implementation of their obligations.
However, the soft character of many of the Paris Agreement’s provisions could clash with the proper functioning of the Implementation Committee and also on its design. In fact, the compliance could be required only vis-à-vis legally binding provisions but not in relation to those rules that do not have normative quality.
59 UNFCCC ‘Adoption of the Paris Agreement’ Decision 1/CP.21, UN Doc.
FCCC/CP/2015/10 (2016) paras 103, 104.
60 For an analogy with other NCPs see United Nations Environment Programme ‘ Minamata
Convention on Mercury’ (2013) UNEP (DTIE)/Hg/INC.5/3 art. 15; Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 1522 UNTS 3; 26 ILM 1550; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) 1673 UNTS 126; 28 ILM 657.
For example 61 whether State A does comply with the art. 4.2 – prepare, communicate and maintain successive NDCs- but the content of such NDCs is not fulfilling the highest possible ambition, States B, C, D also Parties to the Treaty would not be able to trigger the NCP, as provided by art. 15, neither to invoke the State Responsibility because the provision is not of hard law nature.62
In order to overcome the shortcoming of such differentiation, the architecture of the Paris Agreement’s Implementation Committee would promote the compliance with binding obligations and facilitate the implementation of soft law provisions. Hence, two different branches- compliance branch and implementation branch- might be established.63 The former will address, in a non-punitive manner and without imposing sanctions, all the cases of Non-Compliance with the legally binding obligations by taking in consideration the common but differentiated responsibilities and the respective capabilities of each Party; the latter would provide recommendations and advice on the best practices to adopt in order to implement the soft law obligations.
However, the bifurcated structure of the Implementation Committee still seems that leaves the success of the Agreement relying on the good faith of the Parties. It establishes a Mechanism that more then enforcing the Treaty tends to guide in its implementation and to perform the functions of a technical advisory body.
2. The Reasons for the Establishment of a NCP
The reasons why NCP has been preferred within the Paris Agreement are elucidated as follows.
61 The right to trigger the Mechanism is one of the aspects that shall be defined. In order to
provide an example useful for the elucidation of the problems deriving from the different legal effect of the Paris Agreement’s provisions, it will be assumed that each State Party to the Treaty will be able to trigger the Mechanism whenever a case of non-compliance with the obligations will occur.
62 The possibility to invoke State Responsibility despite the soft law character of the
obligations would be triggered whether the breach of the due diligence/duty of care standard- i.e. the responsibility to prevent transboundary harm- would be assumed as the ground for Responsibility, as in the Urgenda Foundation case. The point will be analyzed later in the thesis.
As to the practical motives, the main features of NCP – i.e. no need to recur to external adjudication institutions, guarantee a broader access to the mechanism then the one pledged by the traditional dispute settlement mechanism, no consent-based nature, no need for the Party that triggers the NCP to be the ‘injured State’- make it a more striking and efficient way of solving cases of Non-Compliance while not sanctioning the failing Party.
Furthermore, State’s behaviors induced either intent of maximizing profits by taking advantage from restrictive regulations on peers – i.e. free rider- or by a lack of technology or expertise- i.e. good-faith non-compliance cases – attribute to NCP certain palatability values. In fact, the absence of punitive measures conceived as enforcer of the Treaty and the flexibility of the mechanism to the specific circumstances of each Party reduce the risk of ab origine non-commitment by the States.
Additionally, considerations related to the normative qualities of environmental obligations – i.e. non-reciprocity64- and limitations inherent to traditional international law– i.e. the treaty law and the law of State Responsibility- might be considered as one of the factors why the COP 21 preferred a NCP as answer to any breach of Paris Agreement’s obligations. However, neither the nature of the obligations nor the provisions of the NCP do prevent the application of the law of State Responsibility. In fact, the erga omnes partes nature of the obligations does change those who are entitled to invoke the responsibility- i.e. all the Parties to the Treaty instead of the only the victim State. In addition, the art.15 does not work as lex specialis to the general rules provided by the ARSIWA; rather it operates in a residual way whether it were considered that art. 15 does not exclude explicitly the law of State Responsibility rather it provides just for facilitating the compliance to the Agreement without addressing neither any special consequence which could derive from the breach of the obligations nor any circumstance when a breach could take place.
64 The non-reciprocity of the international environmental obligations preempt any potential
application of the exception non adimplementi – inadimplementi non est adimplementum- according to which whenever a Party does not fulfill its own obligations allows the other Parties to the Treaty to disown the obligations stemming from it. The nature of the contractual object of international environmental treaties as of erga omnes or erga omnes partes character, does not tolerate any access to such clause. Hence, each State is bound by its own obligations regardless of the compliance by the other Party. For further reference see International Court of Justice [ICJ] ‘Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia’ (1971); L. A. Sicilianos ‘ The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ 13 Eur. J. Int’L 1127 (2002) pp 1132-1138.
Lastly, the nature of Climate Change does not accept any endless delay in the implementation of the regulations that aim to prevent the collapse of humanity’s use of resources. Due to the type of the regulatory matter, any non-compliance could be cumulative to the extent that the effects would verify over a substantial time span.
Hence, the NCP promises to be a more suitable mechanism to the need of Paris Agreement, specifically, guarantees the highest level of acceptance and continuing commitment to non-reciprocal obligations in order to ensure the achievement of the global stocktake. The NCP pursues two primary objectives first, it encourages the States to comply with their obligations and second, in the event of non-compliance, to ‘provide a ‘softer’ system- i.e. an amicable solution backed by assistance rather then sanctions- to address Non-Compliance than that afforded by traditional dispute settlement procedure under international law.’65 The development of a collective response to the breach of the Paris Agreement that favors a reciprocal assistance in the implementation of the Parties’ obligations clearly aims at preventing any confrontational settlement of inter- States’ potential disputes. In fact, the art 15 of the Paris Agreement is designed to manage Non-Compliance rather enforce the Treaty’s obligations trough sanctions and deterrence.66 The lack of any reference to the
enforcement of compliance67 reflects this intent to promote without coercing the fulfillment of the Paris Agreement’s obligations.
D. Concluding Remarks
Climate change’s regulation is a pandemonium that reflects the magnitude of its convoluted nature and, without discussion, the Paris Agreement is the only ruler on the scene. However, it is questionable whether the recipe for success of a ruler is coercion rather then the ability to find a way of influencing States’ behaviors.
65 M.A. Fitzmaurice, C. Redgwell ‘ Environmental non-compliance procedures’ Netherlands
Yearbook of International Law 31 (2000) p 39.
66 K. Danish ‘ Management v. Enforcement: The New Debate on Promoting Treaty
Compliance’ Virginia Journal of International Law 37 (1997) p 789.
67 Joint Working Group on Compliance ‘ Procedures and Mechanisms Relating to
Compliance Under the Kyoto Protocol’ UNFCCC/SB/2000/11, Section I (§1), Section II (§2). The Kyoto Protocol states instead the facilitation, promotion and enforcement of compliance with the commitments that provides.
The issue of the enforcement of the Paris Agreement is strictly connected to the atlas of different rules that it provides. By analyzing the Agreement’s body of primary norms, two questions could be raised: namely whether soft law rules impact on the role of State Responsibility within the context of climate change and what is the relation between State Responsibility and the Non-Compliance procedure.
Considering the Paris Agreement as a road map to follow in the achievement of the global stocktake, undoubtedly its enforcement is necessitated. Whilst the COP 21 product provides for the establishment of a facilitative apparatus, the lack of an enforcement mechanism that should secure the implementation of the Agreement might be reductive of the latter efficiency.
Certainly, the ratcheting mechanism68- i.e. the common deal on a long-term temperature goal; the bottom-up approach to be adopted in the formulation of NDCs and the progressive clause- that has been drawn in Paris does not appear to be well ‘equipped’ when its accomplishment shall be guaranteed.
The Paris Agreement anchors itself to a constant review of the goals through an ‘enhanced transparency framework’ (art. 13), to a review of the overall ambition in order to assess the collective progress (art.14), to a promotion of compliance (art.15); however the way the review and the promotion of compliance ought to take place remains in question. The architecture of ‘pledge and review’ that is typical of the Paris Agreement is built on two pillars: a set of hard and soft commitment and a review process of undefined design.
Still, the monumental character of the Treaty in the climate change’s scenario will not save us from a break of illusions. The expectations of Paris success might be compromised due to a lack of ambition or merely of consensus about the way through which the Treaty has to be enforced.
The enforcement gap created by the undefined design of the Non-Compliance procedure raises doubts concerning the Non- Compliance and State Responsibility. The next section of the thesis aims at addressing such relationship (A) and to draw some conclusions (B).
68 H. van Asselt ‘ International Climate Change Law in a Bottom-up World’ QIL 26 (2016) p
III. TOO MUCH ADO ABOUT A FICTIONAL FALL?
The choice of NCP in the Paris Agreement might be justified by the interplay of several factors.
First, State Responsibility might be ‘bilateral minded’69 hence, it would be hardly suitable
within the context of multilateral treaties embodying community interests, like the Paris Agreement. Several problems may arise from the application of the rule of State Responsibility whenever a breach of multilateral environmental obligations may occur. Among the others, the identification of who has the right to invoke State Responsibility, who is entitled to access to legal remedies, which kind of legal remedies are available.
Second, both the choice of softening some provisions of the Paris Agreement and the consensus about the Non- Compliance mechanism (art.15) suggest the higher negotiation costs that would have been occurred whether hard law provisions and the introduction of sanctions had codified.
Third, compliance in the context of international environmental law testifies an attempt to change behaviors of the different actors- i.e. commercial entities- that, by carrying out certain kind of activities, that imply anthropogenic interference with the atmosphere, play a pivotal role in the fight to climate change. Consequently, the proactivity and informality of the NCP have always had a con namely, the ‘reluctance of states to accept any form of international
69 B. Simma ‘ From Bilateralism to Community Interest in International Law’ Vi Recueil des
cours (1994) p 230 in J. Peel ‘ New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ RECIEL 10 (2001) p 82.
adjudication’70 and to prefer capacity building approach to environmental issue to the strict enforcement of the dichotomy right-obligation.
Bearing in mind such assumptions, whether the role of State Responsibility in the law of climate change would have been reduced or even absent and if so what kind of consequences might derive has to be clarified.
A. Non-Compliance and State Responsibility: Two solitudes?
Several criticisms could be moved against State Responsibility within the context of Climate Change.
First, physical characteristics of global warming related events would make the attribution of responsibility extremely hard due to the interplay of different actors that potentially would be held responsible.
Second, the ground for State Responsibility would be an international wrongful act (IWA) that means a conduct which results in a breach of an international obligations (art. 2 ARSIWA). However, the ex-hypothesis wrongfulness of the activity that caused the breach can not be identified easily in the context of Climate Change, as the majority of the activities that causes anthropogenic emissions are not wrongful per se.
Third, State Responsibility is not flexible to the extent to take in consideration the peculiar conditions of the developing countries. This lack of adaptability is further increased whether the punitive, as opposed to the preventive scope of the NCP, aim of State Responsibility would be considered. The nature of State Responsibility is to intervene when the breach is already occurred in order to provide a layer of protection to those that had been experienced the consequences of such violation.71 Furthermore, the legal remedies provided by the law of
70 K. K. Peiry ‘ The Practice of Shared Responsibility in Relation to Transboundary
Movement of Hazardous Waste and Chemicals’ in A. Nollkaemper, I. Plakokefalos ‘ The Practice of Shared Responsibility in International Law’ (CUP 2016) p 955.
71 Factory at Chorzow, Germany v Poland, Order, Indemnity (1928) PCUJ Series A No 17,
State Responsibility might be ineffective vis-à-vis Climate Change related events’ irreparability.
Lastly, the aforementioned development of environmental law by way of soft law creates expectations rather then obligations binding upon the Parties.
Consequently, a ‘softening’ of responsibility- as inducing compliance rather then enforcing primary obligations- has been contemplated in the Paris Agreement.72
What seems evident is that State Responsibility and Non- Compliance might be individual player: the setting-up of the former excludes the function of the other and vice versa. Considered in a holistic way, the Paris Agreement creates a non-synallagmatic set of norms that do push to induce Parties in compliance but whether any breaches occur they do not clarify whether State Responsibility could be invoked and whether the establishment of an autonomous institutional arrangement, like the one provided by the art.15, creates a self-contained regime73 that impose to the States to address the environmental issues away from the outlines of the law of State Responsibility.74
The discourse inherent to the potential nature of the Paris Agreement as self-contained regime falls outside the scope of the thesis, however, art 15 is without prejudice the application of the traditional international law on State Responsibility rather, it figures as an addition to an existing framework. Consequently, due to the exclusivity of the non-compliance mechanism, the relationship between Non-Compliance and State Responsibility shall be defined.
1. Defining the Relationship Between State Responsibility and Non-Compliance
Having established that art. 15 of the Paris Agreement has no exclusionary effect vis-à-vis the law of State Responsibility, the relationship between the latter and non-compliance must
72 M.Koskenniemi ‘Breach of Treaty or Non-Compliance? Reflection on the Enforcement of
the Montreal Protocol’ Yearbook of International Environmental Law 3 (1993) p 125, 128.
73 R. Verheyen ‘ Climate Change Damage and International Law, Prevention Duties and
State Responsibility’ (Martinus Nijhoff Publishers 2005) p 138- 142.
74 R.R. Churcill, G.Ulfstein ‘ Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little Notice Phenomenon in International Law’ The Am. J. Int’l Law 94 (2000) 4, pp. 623-659.
to be explored as to reveal whether latter in itself shall be considered as an international wrongful act (IWA) and whether the potential measures that the NCP would adopt might be thought as countermeasures under the law of State Responsibility.
As to the first issue, the definition of a Party’s behavior as a breach of an obligation is capable to be resolved only by looking to the nature and content of the obligations of the Paris Agreement. Hence, the canvas of legal effects of the primary norms, as the thesis provides in the first part, becomes extremely useful to understand which is the role the State Responsibility has in the context of Climate Change. Put differently, the soft character of the majority of the Paris Agreement norms, definitely reduce the scope of the traditional international law’s role, but for the non-compliance might be seen as a violation, not directly of the Treaty in itself, rather as a breach of due diligence obligation of no harm.
As to the second issue, the uncertainty related to the lack of a design in the autonomous institutional mechanism of the committee (art.15.2) is extended also to the nature of the measures that it would take to reestablish compliance. However, a speculative analysis will be conducted on the potential legal classification of the NCPs’ measures.
i. Non- Compliance as violation of the ‘due diligence’ obligation
A first step towards defining non-compliance as a violation of the ‘due diligence’ standard is to recall what is the origins of due diligence not to cause harm; the constitutive elements; the parameter to consider for the finding of violation or compliance.
This standard of conduct flows from the principle of prevention and substantiates any activity carried out to implement certain obligations of conduct. However the exact content of the obligation is not clear. If it was not for a reference to the duty of the States to exercise their sovereign power vis-à-vis the activities carried out on their territory – as stated in Corfù Channel that every State has ‘[t]he obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’75; the scope of the obligation of due diligence is vague.
75 Corfu Channel Case ‘ United Kingdom of Great Britain and Northern Ireland v Albania’
(1949) ICJ Rep 4 p 22; R.P. Barnidge ‘ The Due Diligence Principle Under International Law’ International Community Law Review 8 (2006) pp 81-121.
