Amsterdam Law School
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AWSathiabama Sathiamoorthy sathia1096@gmail.com
12704318
Public International Law
Supervised by Dr Nataša Nedeski Submitted on 13 July 2020
ii TABLE OF CONTENTS Abstract………iii Acknowledgements………...iv List of Abbreviations……….v Table of Cases………...v
Table of Statutes & Conventions………..vi
United Nations Documents………..vii
I. Introduction ... 1
II. Obligation to Prevent Dangerous Climate Change as a Norm of General International Law ... 4
A. Standard of Due Diligence ... 7
B. Threshold of Damage ... 10
III. Acceptance and Recognition of the Obligation to Prevent Dangerous Climate Change as a Peremptory Norm of General International Law ... 11
A. Peremptory nature of the ‘no harm’ rule in the context of climate change ... 13
B. Acceptance and recognition by the international community of States as a whole ... 17
IV. Serious Breach of a Peremptory Norm of International Law ... 21
A. Serious breach of the no harm rule preventing dangerous climate change ... 22
B. Additional Consequences to achieve climate justice ... 25
V. Conclusion ... 27
iii
ABSTRACT
In the search for better ways to combat dangerous climate change and its drastic consequences, this thesis seeks to answer the question whether climate change is a serious breach of an obligation arising under a peremptory norm of general international law. The method used is to analyse and evaluate the existing literature available in the relevant case laws, scholarly opinions, ILC’s work and the United Nations Documents for identifying the no harm principle in the context of climate change as the primary obligation and assessing its nature. The ILC’s Draft Conclusions on Peremptory norms of general international law (jus
cogens) providing two criteria primarily serves as a skeleton for the identification of the
relevant primary norm and its character as peremptory. The reason behind evaluating the nature of the climate change obligation as peremptory is to demonstrate its seriousness in violating a condition essential for the survival of living beings. Such a serious breach can attract additional consequences under ARSIWA from all the States to combat dangerous climate change.
Following the opinions of legal scholars, the customary no harm rule identified as the primary obligation satisfies the first criteria as a norm of general international law. Although the International Court of Justice has not explicitly accepted and recognised the norm as peremptory, it has opened a leeway for the emergence of such a peremptory environmental norm in the future. Although there is no explicit acceptance and recognition of the no harm rule preventing dangerous climate change as peremptory by the States, there is a high potential for this norm to become peremptory in the future. Such acceptance and recognition will also mean that the norm cannot be derogated and cannot be modified unless by a subsequent norm of general international law having the same character. Therefore, the essential condition to maintain the earth’s mean temperature from exceeding a certain level is non-derogatory, as it is indispensable for survival and to prevent the dangerous consequences envisioned by the IPCC Reports.
When there are both major and minor contributors to climate change, the cooperative effort by all of them is necessary to combat more than two centuries of greenhouse gases in the atmosphere. So, the seriousness of violating the no harm rule preventing dangerous climate change is evident and necessary for the common good of all. Further, the duties of non-recognition and abstention from rendering aid or assistance as a part of the specific consequences is also imperative. Only such an effort will protect the overriding interests of the international community as a whole to live in this world.
iv
ACKNOWLEDGEMENTS
I firstly owe a special thanks to my thesis supervisor Dr Nataša Nedeski for her feedback and guidance in writing my thesis. It was only with her valuable comments I could structure and articulate my thoughts in order. Her one on one discussion on the thesis draft helped me in clarifying exploding doubts in my mind. Many thanks to Dean and Professor of Public International Law André Nollkaemper for a discussion on the initial thoughts of writing this thesis. I am also grateful to Dr León Castellanos-Jankiewicz for his priceless mentorship and support that guided me to shape my career in the area of international law. Finally, I wish to thank my family for their love and support. Their inspiration stood as pillars in all aspects of my life and encouraged me throughout the study programme.
v
List of Abbreviations
ARSIWA Draft Articles on Responsibility of States for Internationally Wrongful Acts
CSD Commission on Sustainable Development
Draft Conclusions ILC’s Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens)
GHGs greenhouse gases
ICAO The International Civil Aviation Organization ILC International Law Commission
ILC Articles on the Prevention of Transboundary Harm
Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities
IMO International Maritime Organisation
IPCC Intergovernmental Panel on Climate Change
Kyoto Protocol Kyoto Protocol to the United Nations Framework Convention on Climate Change
MARPOL Protocol of 1978 relating to the International Convention for the prevention of pollution from ships, 1973
MEPC Marine Environment Protection Committee
Rio Declaration Rio Declaration on Environment and Development Stockholm
Declaration
Declaration of the United Nations Conference on the Human Environment
UNCLOS United Nations Convention on the Law of the Sea UNESCO WHC UNESCO World Heritage Centre
UNFCCC United Nations Framework Convention on Climate Change
Table of Cases
Alabamaî Arbitration (US v UK) (1872) International Arbitrations Vol. IV, 4144 (Arbitral Tribunal) ... 7 Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 ... 17
vi Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010]
ICJ Rep 14 ... 7, 9, 10 Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Judgment)
[1997] ICJ Rep 7 ... 19 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) [2015] ICJ Rep 665 ... 9 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4 ... 6 Lake Lanoux Arbitration (France v Spain) (1957) XII RIAA 281 (Arbitral Tribunal) ... 10 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16 ... 25 Legality of the Threat or use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 .. 6,
11, 19
North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 ... 4 Order of the German Federal Constitutional Court, 2 BvR 955/00 [2004] DVBL 2005 ... 19 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15... 17 Trail Smelter case (United States v Canada) (1938 & 1941) III RIAA 1905 (Arbitral
Tribunal) ... 6, 10
Table of Statutes & Conventions
Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 ... 5 Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 ... 5 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December
1993) 1760 UNTS 79 ... 5 Convention on Environmental Impact Assessment in a Transboundary Context (25 February
1991, entered into force 10 September 1997) 1989 UNTS 309 ... 9 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted
11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto
vii Protocol of 1978 relating to the International Convention for the prevention of pollution from
ships, 1973 (adopted 17 February 1978, entered into force 2 October 1983) 1340 UNTS 61 ... 5 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24
October 1945), 993 USTS 21 ... 4 The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016)
TIAS 1104 ... 5, 8 United Nations Convention on the Law of the Non-Navigational Uses of International
Watercourses (adopted 21 May 1997, entered into force 17 August 2014) 36 ILM 700 .... 10 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into
force 16 November 1994) 1833 UNTS 3 (UNCLOS) ... 5, 9 Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered
into force 22 September 1988) 1513 UNTS 293 ... 5 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 ... 12
United Nations Documents
CSD, ‘Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development’ (26-28 September 1995) ... 9 Declaration of the United Nations Conference on the Human Environment (16 June 1972)
Stockholm UN Doc A/CONF 48/14/Rev.1, 3 ... 6 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, UNGA Res 56/83 (12 Dec. 2001) UN Doc Supp No 49 (adopted without votes) ... passim Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, UNGA
Res 56/82 (12 December 2001) UN Doc A/RES/56/82 (ILC Articles on Prevention of Transboundary Harm) ... 7, 10 ILC, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’ (31 January 2019) UN Doc A/CN.4/727 ... 12 ILC, ‘Fourth report on State responsibility by Mr. James Crawford, Special Rapporteur’
(2001) 53rd Session UN Doc A/CN.4/517, para 49 ... 20 ILC, ‘Report on the Work of its 70th Session’ (2018) UN Doc A/73/10, 123 ... 4 ILC, ‘Report on the Work of its 71st Session’ (2019) UN Doc A/74/10 [Ch V, Peremptory
viii ILC, ‘Second report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’ (16 March 2017) UN Doc A/CN.4/706 ... 12 ILC, Statement of the Chair of the Drafting Committee, ‘Peremptory Norms of General
International Law (Jus Cogens)’ 71st Session (2019) ... 20 ILC, Yearbook Vol II (1958) UN Doc A/CN.4/SER.A/1958/Add.1... 14, 25 ILC, Yearbook Vol II (Part 2) (1976) UN Doc A/CN.4/SER.A/1976/Add.l (Part 2) ... 20, 23 IPCC, ‘Special Report on Global Warming of 1.5°C’ (October 2018) ... 1, 2, 10 IPCC, ‘Special Report on Managing the Risks of Extreme Events and Disasters to Advance
Climate Change Adaptation’ (March 2012) ... 1 IPCC, ‘Working Group Report on Climate Change 2014: Mitigation of Climate Change’
(April 2014) ... 22 IPCC, ‘Working Group Report on the Physical Science Basis’ (September 2013) ... 1 María Fernanda Espinosa Garcés (Ecuador), President of the General Assembly, ‘High-level
meeting on the theme “Climate and Sustainable Development for All”’ (28 March 2019) UN Doc GA/12131... 1 Nicholas A Robinson, ‘Environmental Law: Is an Obligation Erga Omnes Emerging?’ (2018) Permanent Mission of Colombia to the United Nations, Panel Discussion ... 20 Rio Declaration on Environment and Development (12 August 1992) Rio de Janeiro UN Doc
A/CONF.151/26/Rev. 1, 3 (Vol. l) ... 6, 9 UN Conference on the Law of Treaties (1969) UN Doc A/CONF.39/11/Add.2, Second
Session ... 14 UNESCO WHC, 16th General Assembly of States Parties to the World Heritage Convention,
‘Policy document on the impacts of climate change on World Heritage properties’ (28 September 2007) Doc WHC-07/16.GA/10 ... 5 UNGA Res 1803(XVII) (14 December 1962) GAOR 17th Session UN Doc A/5344/Add.1 .... 6
UNGA Res 2625(XXV) (26 October 1970) GAOR 25th Session UN Doc A/8082 ... 9 UNGA Res 2995(XXVII) (15 December 1972) GAOR 27th Session UN Doc A/8901 ... 10
UNGA Res 43/53 (6 December 1988) GAOR 43rd Session UN Doc A/43/905 ... 1
United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC)... passim
1
I. INTRODUCTION
“We are the last generation that can prevent irreparable damage to our planet.”1 Every living creature, not only human beings, in this world, deserves a peaceful existence throughout its life on the earth. The balance of temperature at a particular degree is indispensable for the survival of all the living organisms.2 Climate, as defined by the
Intergovernmental Panel on Climate Change (IPCC), is “the average weather, or more
rigorously, as the statistical description in terms of the mean and variability of relevant quantities over a period of time ranging from months to thousands or millions of years.”3 The combination of greenhouse gases (GHGs)4 maintains the earth’s mean temperature.5 Anthropogenic influence on GHG emissions6, arisen for the past fifty years7, increasing the emissions to peak levels not observed in three million years8 that contributes to 95% of the global warming9 is the well-accepted primary cause for climate change.10 ‘Climate change’ includes not only the increasing global average temperature, but also the effects in climate resulting due to the increased temperature.11
IPCC’s Special Report pictures the dreadful risks for survival of lives on a warmer earth and why it is vital to maintain the global temperature below 1.5°C.12 The global risks include – risks associated with natural systems (water stress rising sea levels, fluvial flood, drought, loss of species, loss of habitats, ecosystem functioning and services, biomes shift, disruption of marine food webs, changes to physiology and ecology of marine species, increased
1 María Fernanda Espinosa Garcés (Ecuador), President of the General Assembly, ‘High-level meeting on the
theme “Climate and Sustainable Development for All”’ (28 March 2019) UN Doc GA/12131.
2 Benoît Mayer, The International Law on Climate Change (CUP 2018) 2; UNGA Res 43/53 (6 December
1988) GAOR 43rd Session UN Doc A/43/905.
3 IPCC, ‘Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change
Adaptation’ (March 2012) 557.
4 See United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21
March 1994) 1771 UNTS 107 (UNFCCC) art 1(5); See also ibid 560.
5 Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility
(Martinus Nijhoff Publishers 2005) 13.
6 UNFCCC, art 1(4).
7 United Nations Framework Convention on Climate Change Handbook (UNFCCC Climate Change Secretariat
2006) 16.
8 ‘Climate Change’ (United Nations, 11 January 2016) <
https://www.un.org/en/sections/issues-depth/climate-change/> accessed 24 March 2020.
9 See IPCC, ‘Special Report on Global Warming of 1.5°C’ (October 2018) 51.
10 IPCC, ‘Working Group Report on the Physical Science Basis’ (September 2013) v; Ariranga G Pillay,
‘Economic, Social and Cultural Rights and Climate Change’ in Oliver C Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting (eds), Climate Change: International Law and Global Governance (1st edn, Nomos Verlagsgesellschaft mbH 2013) 243.
11 ‘What is climate change? The definition, causes and effects’ (Wired, 15 May 2018)
<https://www.wired.co.uk/article/what-is-climate-change-definition-causes-effects> accessed 24 March 2020.
2 hypoxic dead zones, changes to upwelling productivity, inundation and destruction of human/coastal infrastructure and livelihoods) and risks associated with human systems (heat-related and ozone-(heat-related morbidity and mortality, occupational heat stress, undernutrition, risks in food security and production).13 While the catastrophic impacts are enormous, the human-induced climate change will reach 1.5°C by 2040 as expected by scientific evidence.14
We might want to question ourselves for being a part in developing the risk of endangering our existence.
Hence, the thesis examines the nature of the climate change obligation in the no harm principle and questions whether dangerous climate change could amount to a serious breach of an obligation arising under a peremptory norm of international law under the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)15. Although GHG emissions, considerably, are due to human activities, States, at an international level, have a leading role to play and bear responsibilities, including taking collective decisions.16 International Law is the key player to handle the issue of climate change, as its impacts are global in scope.17 It is high time to establish the responsibility of States under the ARSIWA for the changes caused to the climate system18 awakening deadly consequences for the international community. These are grave and serious, threatening the very existence of lives on the earth. The ‘adverse effects’ of climate change are a ‘common concern of humankind’19, as the climate system is a global
resource transcending the territory of all States.20 Presently, the States are obliged to protect the climate system for the benefit of present and future generations of humankind by their common but differentiated responsibilities.21 Nevertheless, it is not strict enough to reduce the risks posed at 1.5°C. There is a requirement of a superior and a stringent norm of peremptory character for maintaining the essential condition for survival on the earth.
For that purpose, the thesis uses the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens) (Draft Conclusions)22 as the identification criteria to evaluate
13 IPCC Special Report (n 9) 245–50. 14 ibid 51, 81.
15 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, UNGA Res
56/83 (12 Dec. 2001) UN Doc Supp No 49 (adopted without votes) (ARSIWA).
16 Mayer (n 2) 83. 17 (n 8).
18 UNFCCC, art 1(3).
19 UNFCCC, Preamble, para 1.
20 Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law (2nd edn, CUP 2018) 98. 21 UNFCCC, art 3(1).
22 ILC, ‘Report on the Work of its 71st Session’ (2019) UN Doc A/74/10 [Ch V, Peremptory Norms of General
3 the present obligation in question as a peremptory norm of general international law. As mentioned in its commentary, the Draft Conclusions provide the general method to be used for the identification of peremptory norms of general international law and their legal consequences.23 It provides two requirements for a peremptory norm of general international law.24 First, it should be a norm of general international law. Second, the norm should be
accepted and recognised by the international community of States as a whole from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character. Chapter II, dealing with the first requirement, involves an analysis of the underlying obligation of a State not to cause harm, that would be breached in case of dangerous climate change. Most legal scholars try to encompass climate change obligations within this principle, and hence it is useful for the thesis. Chapter III, dealing with the second requirement, assesses the nature of the obligation in question with the help of the identification criteria provided by the Draft Conclusions. The assessment will include the opinions of legal scholars, courts and the ILC to identify the peremptory character of breaching a climate change obligation. Such a peremptory norm of general international law (jus cogens) give rise to an obligation owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest.25 The violation of this obligation triggers the responsibility of a State following ARSIWA.26
After assessing the nature of the obligation in question, Chapter IV discusses the seriousness of the breach of the no harm rule preventing climate change and the specific consequences of such a serious breach arising from a peremptory norm of international law. An internationally wrongful act of a State entails its international responsibility under the Articles of ARSIWA.27 Assessing the serious nature of breaching the concerned peremptory
norm is significant, as lives on the earth might come to a standstill if this situation persists. A breach of an obligation is serious if it involves a gross or systematic failure by the responsible State(s).28 A serious breach would invite States to cooperate, not recognise and not to aid or
assist the wrongful act (dangerous climate change). As the impacts are global, all the States needs to come together to reduce the risks of dangerous climate change. Finally, Chapter V provides the concluding remarks and the necessary suggestions derived from the analysis of the previous Chapters. Overall, the main argument of the thesis lies in the well-established
23 Draft Conclusions, Commentary to Conclusion 1, para 2, 4. 24 Draft Conclusions, Conclusion 4.
25 Draft Conclusions, Conclusion 17(1). 26 Draft Conclusions, Conclusion 17(2). 27 ARSIWA, art 1.
4 happening around us that poses a significant risk to the survival of living beings in the world. This evaluation of the serious nature of an obligation to mitigate a precedential catastrophic climate change is indispensable for lives to continue existing peacefully on the earth. Therefore, this thesis presents a yardstick for underpinning the likelihood of emerging State responsibility for dangerous climate change as a peremptory norm of general international law inviting particular consequences under Article 41 of ARSIWA similar to Conclusion 19 of the Draft Conclusions.
II. OBLIGATION TO PREVENT DANGEROUS CLIMATE CHANGE AS A NORM OF GENERAL INTERNATIONAL LAW
This chapter discusses the first requirement that the obligation in question should be a norm of general international law before evaluating its peremptory character.29 While there is no accepted definition of ‘general international law’, its meaning has been understood to be context-specific.30 However, the International Court of Justice (ICJ) has observed that a norm of general international law “must have equal force for all members of the international community”.31 It need not include only customary norms, as the ILC never used them
synonymously. 32 Due to the progressive development of international law, general multilateral treaties are also becoming a part of general international law.33 Conclusion 5 addresses this criterion, providing the bases for a norm of general international law that may become peremptory, which is broad and flexible, as it may arise from various sources of general international law.34 Although customary international law is considered as the most common basis, the second paragraph of Conclusion 5, addressing the other sources of international law35, also included treaty provisions and the general principles of law as the other bases for the emergence of a peremptory norm of general international law.36 Hence, all sources of international law in the context of climate change are relevant for identifying the primary obligation in this chapter. For the present thesis, only the no harm principle will be analysed with climate change, as the existing literature mainly focused on this principle to
29 Draft Conclusions, Conclusion 4(a).
30 ILC, ‘Report on the Work of its 70th Session’ (2018) UN Doc A/73/10, 123, footnote 667.
31 See North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [63]; Draft Conclusions, Commentary to
Conclusion 5, para 2.
32 Grigory Tunkin, ‘Is General International Law Customary Law Only?’ (1993) 4 EJIL 534, 538. 33 ibid.
34 Draft Conclusions, Commentary to Conclusion 5, para 1, 3.
35 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945), 993
USTS 21, art 38(1).
5 establish the responsibility of States for significant damage done to the environment. Further, this principle, which is a cornerstone of international environmental law, favour international cooperation than the relevance of climate change to effective enjoyment of human rights.37
The ‘environment’ is “the complete range of external conditions, physical and
biological, in which an organism lives. Environment includes social, cultural, and (for humans) economic and political considerations, as well as the more usually understood features such as soil, climate and food supply”.38 This definition provides a clear understanding that the environment includes ‘climate’. Hence, any duty imposed on the State to protect the environment or any obligation owed to the environment would also mean that the same obligation is for the climate system and that States should take all measures to enjoy a stable climate in the environment. The obligation to mitigate climate change has been developing under multiple subject areas of the environmental regime like the UNFCCC39, law of the sea40, ozone layer protection41, transportation42, maritime43, aviation44, heritage45 and biological diversity46. The environmental norms may take the form of principles, concepts and rules based on their degree of generality or particularity.47 Also, the given scholarship differs in characterising the norms.
37 Benoit Mayer, ‘The Relevance of the No-Harm Principle to Climate Change Law and Politics’ (2016) 19 Asia
Pac J Envtl L 79, 79, 81, 83.
38 Michael Allaby, ‘Environment’, A Dictionary of Ecology (4th edn, OUP 2010)
< https://www.oxfordreference.com/view/10.1093/acref/9780199567669.001.0001/acref-9780199567669-e-1894> accessed 17 April 2020.
39 See UNFCCC, para. 8 of the Preamble; Kyoto Protocol to the United Nations Framework Convention on
Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol) art 17 and Annex I; The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) TIAS 1104, art 3-7.
40 See United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
November 1994) 1833 UNTS 3 (UNCLOS) art 194(2), 235; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3, art 35.
41 See Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22
September 1988) 1513 UNTS 293, art 2(1); Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3, art 2, 5 and Annex A.
42 See Kyoto Protocol art 2(2); Protocol of 1978 relating to the International Convention for the prevention of
pollution from ships, 1973 (adopted 17 February 1978, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL).
43 See Resolution MEPC.203(62), Amendments to MARPOL Annex VI (adopted 15 July 2011, entered into
force 1 January 2013) IMO Doc MEPC 62/24/Add.1.
44 See ICAO Assembly Resolution A29-12, Environmental Impact of Civil Aviation on the Upper Atmosphere,
22 September-8 October 1992, Doc 9602, I-35, recital 1.
45 See UNESCO WHC, 16th General Assembly of States Parties to the World Heritage Convention, ‘Policy
document on the impacts of climate change on World Heritage properties’ (28 September 2007) Doc WHC-07/16.GA/10.
46 See Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760
UNTS 79, art 3.
6 However, the identified norm here applies to all States in the same way, without any formal differentiation among States or the sectors of human activity.48 The “no harm” principle, traced back to the Trail Smelter case (United States v Canada)49, states that ‘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’.
Later, the ICJ recognised the customary nature of this principle by mentioning the existence of ‘certain general and well-recognised principles, namely every State’s obligation not to allow its territory knowingly to be used for acts contrary to the rights of other States’.50 It is also a corollary to the principle of permanent sovereignty over natural resources.51 Therefore, the sovereign right of a State to exploit its own natural resources was limited by the duty not cause significant damage to other States. 52 Its later codification in the Stockholm Declaration53 and the Rio Declaration54 added to its customary recognition.55
This principle concerns the protection of the environment per se in other States and areas beyond national jurisdiction.56 Hence, the principle’s scope extends to the world’s common spaces or parts of the environment in which all the States have an interest.57 The climate system is a shared global resource transcending to the territory of all the States in which all the States have an interest. Therefore, the function of this principle to protect the environment includes ensuring a safe climate system to live. This principle has a specific reference in paragraph 8 of the preamble in the UNFCCC. Also, it aims to stabilize GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.58 Two constant questions are relevant with determining a breach of this obligation – the standard of due diligence required (Part A) and the threshold of damage if the required care is not taken (Part B). Only when these two are not taken care
48 ibid 61.
49 (1938 & 1941) III RIAA 1905 (Arbitral Tribunal) 1965.
50 See Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.
51 UNGA Res 1803(XVII) (14 December 1962) GAOR 17th Session UN Doc A/5344/Add.1. 52 Dupuy and Viñuales (n 20) 64.
53 Declaration of the United Nations Conference on the Human Environment (16 June 1972) Stockholm UN
Doc A/CONF 48/14/Rev.1, 3 (Stockholm Declaration) Principle 21.
54 See Rio Declaration on Environment and Development (12 August 1992) Rio de Janeiro UN Doc
A/CONF.151/26/Rev. 1, 3 (Vol. l) (Rio Declaration) Principle 2.
55 See Legality of the Threat or use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [27]-[30]. 56 See Stockholm Declaration, Principle 21; Dupuy and Viñuales (n 20) 59.
57 Jonathan I Charney, ‘Third State Remedies for Environmental Damage to the World’s Common Spaces’ in
Francesco Francioni and Tullio Scovazzi (eds), International Responsibility for Environmental Harm (London, Graham & Trotman 1991) 149; Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart Publishing 2019) 56.
7 of by a State, the breach of the no harm rule can be established, which would subsequently entail the international responsibility of the State under the Articles of ARSIWA.
A. Standard of Due Diligence
The no harm principle remains as a primary due diligence obligation on the States or an obligation of conduct to prevent transboundary harm to others.59 This notion originated in the
Alabama case, where due diligence was as an international objective standard that imposed
obligations on the State to prevent causing damage to another State.60 The ILC noted it as a
means of risk prevention by stating that ‘the duty of due diligence…is not intended to guarantee that significant harm be totally prevented, if it is not possible to do so. In that eventuality, the State of origin, is required, as noted above, to exert its best possible efforts to minimise the risk’.61 Also, the ICJ confirmed that the due diligence obligation must be understood as ‘best effort’ obligations and it ‘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’.62 Similar suggestions by the ILC also noted that
‘States must formulate policies designed to prevent significant transboundary harm or to minimise the risk thereof and implement those policies’.63 The ILC has also interpreted that a
State’s economic level cannot be a reason to dispense this obligation.64 However, the
UNFCCC requires the States to take measures according to their capabilities and pushes the developed countries to lead in combating climate change and its adverse effects.65 At the same time, the ILC also mentions that the precise standard of care should be assessed based on appropriateness and proportionality to the degree of risk in a particular situation considering the economic level of States.66
Similarly, Roda Verheyen mentioned three criteria from the opinions of commentators to ascertain the content of due diligence obligation to prevent climate change
59 Verheyen (n 5) 64.
60 Alabamaî Arbitration (US v UK) (1872) International Arbitrations vol. IV, 4144 (Arbitral Tribunal) 4156–57
[10].
61 See Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, UNGA Res 56/82
(12 December 2001) UN Doc A/RES/56/82 (ILC Articles on the Prevention of Transboundary Harm), Commentary to art 3, para 7.
62 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14
[197].
63 ILC Articles on the Prevention of Transboundary Harm, para 10. 64 ibid para 11.
65 UNFCCC, art 3(1).
8 damage and minimise its risks. First, a State that has an opportunity to act can only fail to exercise this duty if it does not act where it otherwise could have.67 More significant industrialised nations, like the United States, are capable of substantially reducing the risk of GHG concentrations rising to levels of dangerous changes in the climate system.68 Hence, the standard of due diligence cannot create an obligation on a State that is incapable of complying.69 However, almost every State has an opportunity to act, considering the possibility of doing its best to reduce or minimise the risks than doing its best to prevent any climate change damage efficiently.70 Hence, asking a State to do its best to minimise the risks
is different from asking a State to do its best to prevent the risks of climate change effectively.71 Even if a State cannot contribute to the latter, it will (most of the times) be able to minimise the risks. Second, a State might be able to foresee that its behaviour will increase some risk, but not be able to foresee any specific damage.72 Although the standard of foreseeability is subjective, and the required degree is unknown, international law does not require a State to have definite knowledge in this regard.73 It refers to the point in time when the State would have foreseen climate change.74 Whatsoever the standard may be for foreseeability, as already mentioned above there is ample scientific knowledge in the present case, and the States are well aware of the dangerous impacts of climate change since 1990 when the IPCC published the first assessment report.75 Third, a State having the opportunity to act and have foreseen the damage should take proportionate measures to prevent the harm or minimise the risk.76 The risk minimisation must be proportionate and appropriate to the technical and economic abilities of the responsible State(s).77
Similarly, the ILC and the ICJ mentioned to take appropriate and proportionate measures following the capabilities of the State. In the present case, mitigation measures78
qualify as proportionate to effectively reduce the risk of climate change damage, while adaptation measures can only prevent actual damage.79 Hence, the objective standard of due
diligence that should be exercised to prevent transboundary harm through climate change or 67 Verheyen (n 5) 177. 68 ibid. 69 ibid. 70 ibid 178. 71 ibid. 72 ibid 179. 73 ibid. 74 ibid 187. 75 ibid 181. 76 ibid 183. 77 ibid.
78 Paris Agreement, art 3–6. 79 Verheyen (n 5) 187.
9 minimise its risks thereof differs for every State by their capacity to take measures.80 We cannot differentiate between the significant and minor contributing States to GHGs based on their historical emissions. However, the contributing States possess different capabilities to prevent the risks and impacts of climate change effectively. There is no precise definition of the standard of due diligence, as the States differ in their capacities to act. Hence, all the States should exercise its best possible means, irrespective of its minor or significant contribution, to effectively prevent, if not, at least to reduce the emissions. Whatsoever the standard of due diligence be, the States, having known the risks of climate change since 1990, have not acted with the reasonably available means to reduce the GHG emissions. The IPCC Report evinced a definite increase in the GHG emissions and the subsequent risks thereof.
To exercise the required standard of due diligence, the States, in addition to the primary no harm obligation, may be required to follow the well-established primary procedural obligations concerning the climate-related activities. 81 These procedural obligations impose a duty to cooperate82 and a duty to conduct an environmental impact assessment (EIA)83. However, the latter duty is a part of the former as envisioned by the report submitted by an Expert Group convened by the Commission on Sustainable Development (CSD), which distinguished between a duty to cooperate ‘in a spirit of global partnership’84 and a duty to cooperate in ‘a transboundary context’85 encompassing different
principles and obligations.86 In the present case, the mentioned procedural obligations should be adopted with respect to the primary substantive obligations which aim to prevent dangerous climate change or the adverse effects of climate change. From the above discussion, the obligation to mitigate climate change, through the no harm principle along with its procedural obligations, is a norm of general international law.
80 ibid 176, 185.
81 Dupuy and Viñuales (n 20) 295.
82 See UNGA Res 2625(XXV) (26 October 1970) GAOR 25th Session UN Doc A/8082, Principle 4.
83 See Rio Declaration, Principle 17; UNCLOS, art 206; Convention on Environmental Impact Assessment in a
Transboundary Context (25 February 1991, entered into force 10 September 1997) 1989 UNTS 309; See also Pulp Mills (n 62) [204]; See also 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) [2015] ICJ Rep 665 [104], [168].
84 It includes the concepts namely, ‘common concern of humankind’, ‘common heritage of mankind’ and
‘common but differentiated responsibilities’ of States; For a detailed understanding, see Dupuy and Viñuales (n 20) 74.
85 This duty covers the minimal requirements of cooperation in a transboundary context through norms and
principles such as the ‘principle of reasonable and equitable use of shared resources’, ‘duty of notification and consultation’, ‘duty to conduct EIA’, ‘principle of prior informed consent’ and duty to avoid the relocation of activities harmful to the environment’; For a detailed understanding, see ibid.
86 CSD, ‘Report of the Expert Group Meeting on Identification of Principles of International Law for
10
B. Threshold of Damage
The gravity of damage that must be prevented or required to breach this principle should be ‘significant harm’87, ‘serious injury’88, ‘serious consequence’89 or ‘significant damage to the
environment of another State’90. However, there is no qualification for the term ‘damage’
with any adjective in Principle 21 of the Stockholm Declaration. The term ‘harm’ should be understood in the context of preventing risk.91 The expected damage must be massive to
invoke the prevention duty.92 The ILC understood the threshold of harm as ‘something more
than detectable but not at the level of serious or substantial’.93 The ILC also added that ‘the
harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States’.94 However, legal scholars argue that a general duty of due diligence exists on the States to take preventive measures, even if the damage was not significant.95 Such an argument may not arise in the context of climate change, as the IPCC has established with high certainty that its catastrophic impacts are expected to occur. Historical GHG emissions already saturated the atmosphere limiting the capacity of terrestrial biospheres to absorb and store carbon. Hence, every tonne of GHG emitted today is more dangerous relative to the emissions in the past.96
The impacts of a dangerous climate change is not just local to individuals, societies, economies and ecosystems, but also extends to planetary systems, which threatens the very existence of human civilisations, amplifying to the higher risk of global civilisational collapse.97 The IPCC Report showed that climate change marked an urgent and potentially irreversible threat to human societies and the earth.98 The robust scientific data reflects significant damage to occur in the territory of various States with utmost certainty.99 The predictable significant impacts include extreme weather events, sea-level rise, droughts,
87 See United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses
(adopted 21 May 1997, entered into force 17 August 2014) 36 ILM 700, art 7(1); See also ILC Articles on Prevention of Transboundary Harm, art 2(a); UNGA Res 2995(XXVII) (15 December 1972) GAOR 27th
Session UN Doc A/8901.
88 See Lake Lanoux Arbitration (France v Spain) (1957) XII RIAA 281 (Arbitral Tribunal) 306.
89 See Trail Smelter (n 49); Franz Xaver Perrez, ‘The Relationship between “Permanent Sovereignty” and the
obligation not to cause transboundary environmental damage’ (1996) 26 Environmental Law 1187, 1202
90 See Pulp Mills (n 62) [101]. 91 Wewerinke-Singh (n 57) 57. 92 Verheyen (n 5) 152.
93 ILC Articles on the Prevention of Transboundary Harm, Commentary to art 2, para 4. 94 ibid.
95 Dupuy and Viñuales (n 20) 65, 66. 96 Verheyen (n 5) 184.
97 Mayer (n 2) 69.
98 IPCC Special Report (n 9) 79. 99 Verheyen (n 5) 152.
11 flooding, heatwaves, the disappearance of all the natural land territory of small-island developing States under a rising sea level, as well as impacts affecting, especially the low-lying, arid or tropical developing States.100 It will undoubtedly affect the prosperity, development and the enjoyment of human rights of people in all nations.101
Further, the environmental impacts have resulted from the cumulative effect of GHG emissions over the years in multiple places.102 The ICJ has also applied this principle to environmental damages of such a cumulative nature in the Nuclear Weapons Advisory
Opinion.103 Benoît Mayer argued that the climate change damage does not have any material
difference from the nuclear winter resulted from the cataclysmic atomic war in this case.104 Considering its interference with human rights, Wewerinke-Singh assumed significant damage based on the moral and legal importance attached to human rights.105 In addition to that, several legal scholars have tried to provide science-based insight into the loss and damage arising from climate change.106 These impacts are more than de minimis or insignificant and hence meets the threshold of damage requirement.107 Climate change would undoubtedly be the enormous environmental damage ever caused to humankind.108 Hence, the above discussion on the evidence for the expected or already occurred damage as a result of climate change through anthropogenic GHG emissions, proved with high certainty, establishes a breach of the customary no harm principle.
III. ACCEPTANCE AND RECOGNITION OF THE OBLIGATION TO PREVENT DANGEROUS CLIMATE CHANGE AS A PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW
After identifying the concerned obligation to mitigate climate change from the customary no harm rule, this chapter evaluates the nature of the obligation using the identification criteria provided by the Draft Conclusions. Breach of the identified primary rule results in responsibility, as it is not the function of the secondary rules, ARSIWA, to define the content of the obligation.109 On the other hand, it is also significant to assess the nature of the
identified primary obligation as peremptory for its superior nature. The character of the
100 Mayer (n 2) 70; Verheyen (n 5) 152. 101 ibid Mayer.
102 ibid.
103 Nuclear Weapons Advisory Opinion (n 55) [29], [35]. 104 Mayer (n 2) 71.
105 Wewerinke-Singh (n 57) 57.
106 Reinhard Mechler and others (eds), Loss and Damage from Climate Change: Concepts, Methods and Policy
Options (Springer International Publishing 2019).
107 Verheyen (n 5) 152. 108 Mayer (n 2) 69.
12 concerned obligation is significant for the dreadful impacts that would be caused and already caused by climate change. These impacts transcending borders call for actions from all the States. Hence it is necessary to evaluate the nature of the obligation in question to invite such consequences under the ARSIWA.
The ILC’s work was successful through the significant contributions by the proposal of the Special Rapporteur, Mr Dire Tladi in his reports.110 As proposed by the Special Rapporteur, the name of the topic in the Draft Conclusions was changed from “jus cogens” to “peremptory norms of general international law (jus cogens)”.111 The concept of jus cogens is
a part of general international law.112 The proposals were based on the provisions of the Vienna Convention on the Law of Treaties (VCLT) which enshrined that a conflict existing with the peremptory norm of general international law is one of the grounds for voidability of a treaty.113 Such a ground for voidability does not mean that there exist set rules of peremptory nature in international law. Article 64 of the VCLT leaves room for the emergence of a new peremptory norm of general international law. Although the ILC provided an illustrative list of norms in the Draft Conclusions, these norms are non-exhaustive.114 Thus, the glaring message conveyed to the international community is that there are all probabilities of accepting new norms of peremptory character in the future.115
The present chapter contemplates and verifies the peremptory character offered by the second criteria to the identified norm of general international law qualifying as an obligation to mitigate climate change. A multiple-level analysis is required for the identification of the peremptory nature of a norm in international law.116 The second criterion is the subject of Draft Conclusions 6 to 9.117 This single criterion, enhancing ‘acceptance and recognition’, is composed of different elements. First, the identified norm in the second chapter should be accepted and recognised as one from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character;
110 Draft Conclusions, Conclusion 1.
111 ILC, ‘Second report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special
Rapporteur’ (16 March 2017) UN Doc A/CN.4/706, 45; For a historical background, see Draft Conclusions, Commentary to art 1, para 6; The phrase “peremptory norm of general international law” and “jus cogens” shall be understood to mean “peremptory norm of general international law (jus cogens)”.
112 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (OUP 2000) 47.
113See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980)
1155 UNTS 331 (VCLT) art 53; ‘Sixty-ninth Session (2017)’ (International Law Commission, 8 July 2019) <https://legal.un.org/ilc/sessions/69/> accessed 2 April 2020.
114 ILC, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special
Rapporteur’ (31 January 2019) UN Doc A/CN.4/727, 55.
115 ibid.
116 Alexander Orakhelashvili, Peremptory Norms in International Law (OUP 2008) 36. 117 Draft Conclusions, Commentary to Conclusion 4, para 3.
13 Second, the same should be accepted and recognised by the international community as a whole.118 As proving the non-derogatory nature and the further modification of a peremptory norm are considered more of a consequence by the ILC, the second criteria is generally considered for the norm to be ‘accepted and recognized by the international community of States as a whole as having a peremptory character’.119
In addition to that, the Commentary to Conclusion 6 mentions that it is sufficient to prove general acceptance and recognition of the norm as having a peremptory character.120 Hence,
this chapter evaluates the peremptory nature of the identified norm (Part A) and its acceptance and recognition by the international community as a whole (Part B). In addition to these elements of the second criterion, this chapter would also take into account the three characteristics of peremptory norms of general international law - to reflect and protect fundamental values of the international community; hierarchical superiority to other rules of international law; and universal applicability.121 Although these are not criteria, they help as indicators for identifying the peremptory character of the concerned norm in question.122
A. Peremptory nature of the ‘no harm’ rule in the context of climate change
Before evaluating the acceptance and recognition of the no harm rule as peremptory by the international community of States, this part would assess the norm’s peremptory nature. This first element ‘indicate what must be accepted and recognized, namely that the norm is one from which no derogation is permitted and that it can only be modified by a norm having the same character’.123 While this part will deal with what should be accepted and recognised, the next part will discuss about who should accept and recognise. These two are interrelated and cannot be separated strictly. The elements of ‘non-derogation’ and ‘subsequent modification’ are not themselves criteria but rather form an integral part of the ‘acceptance and recognition criterion’.124 While the former is a consequence of the peremptory character of a norm, the
latter is a description of how the peremptory norm can be modified subsequently.125 The ILC commentaries stress the peremptory nature of the norm rather than its modification for the identifying process. Hence, this part concentrates on the character of the norm in question
118 ibid Conclusion 4(b); Commentaries to Conclusion 4, para 4, Conclusion 6, para 1. 119 ibid Commentary to Conclusion 4, para 6.
120 ibid Commentary to Conclusion 6, para 3. 121 ibid Conclusion 3.
122 ibid Commentary to Conclusion 3, para 16. 123 ibid Commentary to Conclusion 6, para 1. 124 ibid Commentary to Conclusion 4, para 4. 125 ibid Commentary to Conclusion 4, para 5.
14 alone for identification. The peremptory character of a norm is relevant for its substance, as well as for its consequential operation.126 For the peremptory character a norm holds, it is also known as the international public order, and it restricts acts that are harmful to the community.127 According to McNair, ‘in every civilised community, there are some rules of
law and some principles of morality which individuals are not permitted by law to ignore or to modify by their agreements’, which the States obey.128 So there should be an apparent reason for why the norm should be non-derogatory.129 The peremptory character is derived
from the substantive importance of the interests protected by the norm in question.130 The
substantive value that a peremptory norm holds should be independent of the will of the individual States.131
The purpose of the norm should be to safeguard the overriding interests and values of the community as a whole.132 This character is rightly mentioned under Conclusion 3 by the ILC that a peremptory norm of general international law “reflect and protect fundamental values of the international community”. The norm should be of such a nature that gives effect to particular values, and also protect such values.133 If derogation from such a norm would seriously offend the community interests that the norm aims to protect, the peremptory character of the norm must be presumed.134 Morality and international good order are some of the factors that make a legal interest as concerns of the community and should be protected by a peremptory norm.135 Hence, the key factor in determining the peremptory character of the norm in question is the link to the community interests that it tries to protect through compliance, as distinct from the interests of the individual States.136 There is no precise
126 Orakhelashvili (n 116) 1. 127 ibid 2.
128 Arnold Duncan McNair, The Law of Treaties (OUP 1961) 213–214; Alfred Verdross, ‘Forbidden Treaties in
International Law: Comments on Professor Garner’s Report on “The Law of Treaties”’ (1937) 31 AJIL 571, 572; T. Minagawa, ‘Jus Cogens in Public International Law’ (1968) 6 HJLP 16, 18; UN Conference on the Law of Treaties (1969) UN Doc A/CONF.39/11/Add.2, Second Session, 97.
129 Orakhelashvili (n 116) 44.
130 Bruno Simma, From Bilateralism to Community Interest (250 RdC VI-1994) 288.
131 Karl Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’ (2000) 4 Max Planck YB UN L
1, 8.
132 Alfred Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) 60 AJIL 55, 58;
Christopher L. Rozakis, The Concept of Jus Cogens in the Law of Treaties (North-Holland Publishing Company 1976) 2.
133 Draft Conclusions, Commentary to art 3, para 2.
134 Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status (Lakimiesliiton Kustannus 1988) 20; Joost Pauwelyn, Conflict of Norms in Public International Law (CUP 2003) 98.
135 Orakhelashvili (n 116) 48; ILC, Yearbook Vol II (1958) UN Doc A/CN.4/SER.A/1958/Add.1, 41. 136 ibid Orakhelashvili 47.
15 content for a peremptory norm in international law.137 The objective standard is independent of the will of States or judicial practice as a sole factor for its determination.138 At the same time, obligations erga omnes also protect the moral values of the community.139 In this regard, the position of States (discussed in Part B) and the special effects brought about help determine peremptoriness.140 Although, it is more controversial whether the concerned norm
is peremptory, there is relevant evidence in the existing scholarship that supports its peremptory nature.
Concerning the special effects sort by the no harm rule, besides protecting the overriding interests of the community by preventing the significant risks and impacts of climate change, it also balances the sovereign rights of States, through its intricate relation with the principle of permanent sovereignty of natural resources. Further, the norm’s purpose of protecting the collective interests, in compliance with which all States have a legal interest, while being a customary international law could be characterised as peremptory.141 In this sense, the no harm rule could become peremptory when applied as a multilateral obligation protecting the collective interests under general international law. 142 Alexander Orakhelashvili suggests that certain environmental norms, like those prohibiting the large-scale pollution of the human environment, should be considered as peremptory, despite the lack of evidence.143 He also specifically mentioned the no harm principle in this regard, as it aims to prevent not only the significant harm that affects ‘another State’ but also that affecting all the States in common.144 As elaborated in the previous chapter, the catastrophic impacts of climate change transcends borders affecting everybody in the community. This disaster is not merely an environmental problem, but it is the greatest threat to peace and security.145 The French consider it as the “number one threat to mankind”.146 The amplified
137 Daniel Costelloe, Legal Consequences of Peremptory Norms in International Law (CUP 2017) 2. 138 Orakhelashvili (n 116) 47. 139 Ragazzi (n 112) 189. 140 Costelloe (n 137) 15. 141 ibid 40. 142 ibid 42. 143 Orakhelashvili (n 116) 65. 144 ibid.
145 ‘Statement at the Security Council Debate on Energy, Security and Climate’ (United Nations
Secretary-General, 17 April 2007) < https://www.un.org/sg/en/content/sg/speeches/2007-04-17/statement-security-council-debate-energy-security-and-climate> accessed 25 March 2020.
146 United Nations, ‘The Greatest Threat to Global Security: Climate Change is not merely an Environmental
Problem’ (United Nations) < https://www.un.org/en/chronicle/article/greatest-threat-global-security-climate-change-not-merely-environmental-problem> accessed 25 March 2020.
16 threats caused by climate change are a dead ringer to the threats created by guns and bombs.147 Climate change is a frequently identified threat multiplier.148
No aspect of life, including viruses, is unscathed of climate change.149 By altering the environment at a faster pace than any other incidents in the geological history, scientists proved that the human-induced emission of GHGs had created ample chances for viruses to evolve.150 As climate change increased the contact of human beings with wildlife, the COVID-19 pandemic is evinced to have spread from a closely-related virus found in bats.151
The World Health Organisation declared that there is a firm link between climate change and infectious diseases.152 This pandemic is a personal nightmare that has affected everything in a human’s life, thereby disrupting various regimes of international law.153 Dr Aaron Bernstein,
at the Harvard School of Public Health in the US, noted that “our health entirely depends on
the climate and the other organisms we share the planet with”.154 This impact proves that climate change does not just change the global mean temperature, but it is a problem that affects the lives in large-scale. This pandemic which has brought lives to a standstill all over the earth confirms that the terrible imbalance of the ecosystems caused by climate change, can infect and affect lives worldwide.155 The current pandemic is just one example out of the many more dreadful impacts of a dangerous climate change.
These deadly impacts are comparable to the description of the peremptory nature of the prohibition of genocide. In the Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, the ICJ linked the prohibition of
genocide as a peremptory norm to fundamental values, by noting that the prohibition was
147 Robert G. Aisi, ‘Security Council holds First-Ever Debate on Impact of Climate Change on Peace, Security,
Hearing over 50 Speakers’ (United Nations, 17 April 2007)
<https://www.un.org/press/en/2007/sc9000.doc.htm> accessed 25 March 2020.
148 Sarah Kaplan, ‘Climate Change Affects Everything — Even the Coronavirus’ (Washington Post, 15 April
2020) < https://www.washingtonpost.com/climate-solutions/2020/04/15/climate-change-affects-everything-even-coronavirus/> accessed 31 May 2020.
149 ibid.
150 ibid; Manolya Adan, Basil Mahfouz, ‘Climate Change Helped Coronavirus Spread — and Your AC Means
It Probably Won’t Die in Summer’ (The Independent, 18 March 2020) < https://www.independent.co.uk/voices/coronavirus-spread-climate-change-summer-trump-air-pandemic-sars-a9409171.html> accessed 31 May 2020.
151 ibid.
152 AJ McMichael and others (eds), Climate Change and Human Health: Risks and Responses (WHO 2003)
105.
153 Meehan Crist, ‘What the Coronavirus Means for Climate Change’ (The New York Times, 27 March 2020)
<https://www.nytimes.com/2020/03/27/opinion/sunday/coronavirus-climate-change.html> accessed 31 May 2020.
154‘Coronavirus and Climate Change’ (Harvard T.H. Chan School of Public Health, 19 May 2020)
<https://www.hsph.harvard.edu/c-change/subtopics/coronavirus-and-climate-change/> accessed 1 June 2020.
155 Vijay Kolinjivadi, ‘The Coronavirus Outbreak is part of the Climate Change Crisis’ (Al Jazeera, 30 March
2020) < https://www.aljazeera.com/indepth/opinion/coronavirus-outbreak-part-climate-change-emergency-200325135058077.html> accessed 31 May 2020.
17 inspired by the commitment “to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations”.156 The ‘conscience of
mankind’ and ‘moral law’ referred to in this case evoked fundamental values shared by the international community. Likewise, there is high confidence, from the above discussion, that the no harm principle in the context of climate change seeks to prohibit denial of the right of existence of entire human community and great losses to humanity, which may result because of dangerous climate change. In addition to losses to humanity, the adverse impacts that are a common concern of humankind also include imbalance and loss of varied species in the ecosystems, which in turn affects the human beings. However, it is undecided whether the obligation to prevent genocide that is one of due diligence (obligation of conduct) is peremptory.157 It is beyond the scope of this thesis to enquire that problem. Notwithstanding those arguments, if the ICJ had intended a due diligence obligation in the Bosnian Genocide
case158, then the present due diligence obligation prohibiting denial of the right of existence should also have a peremptory nature in it.
In the present case, like the prohibition of genocide, the deadly impacts elaborated above shocks the conscience of humankind and the public morals of the community.159 The no harm rule aims to protect and reflect the fundamental values relating to the survival of the international community. Thereby the prohibition of dangerous climate change protects the overriding interests of the international community as a whole to exist on this earth. It is indispensable to maintain the earth temperature well below 1.5°C, and it is non-derogatory (unconditional) for the very survival of all the living beings. Hence there is sufficient evidence to argue that the no harm principle prohibiting dangerous climate change is peremptory.
B. Acceptance and recognition by the international community of States as a whole
This acceptance and recognition differ from the acceptance and recognition of the norm in question as a norm of general international law dealt with under the second chapter. Here the
156 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23.
157 Larissa van den Herik and Emma Irving, ‘Due Diligence and the Obligation to Prevent Genocide and Crimes
Against Humanity’ (2018) Grotius Centre Working Paper Series 2018/082.
158 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 [430]–[31].
159 Mark Byrne, ‘Climate Crime: Can Responsibility for Climate Change Damage Be Criminalised?’ (2010)
