Beyond the UNFCCC — Climate Change and International Law
In the previous class+blogpost, we discussed the existing international legal regime on climate change, UNFCCC. Beyond the UNFCCC, many other international legal regimes exist that are, or could be, of relevance in terms of climate change (in fact, we already encountered one: the international legal regime on the protection of the ozone layer). In the upcoming three classes we will look at a number of them.
We will encounter a number of treaty-based international regimes that deal with subjects other than climate change, such as the law of the seas, trade law and human rights. We will explore how these regulatory areas relate to climate change, and in particular whether their rules are or could be mobilized by various state- and non-state actors to further or to stall climate action.
Moreover, we will explore a field of international law that exists beyond written treaties — that of customary international law — and ask whether, in absence of an effective climate agreement, states may nonethless be held responsible for harmful emissions emanating from their territory.
This blogpost guides you through the relevant international law basics, and serves as preparation for the article you are assigned to read and prepare for the upcoming class: Philippe Sands, Climate Change and the Rule of Law: Adjudicating the Future in International Law (2016)
Review: sources of international law
As you will surely remember from your international law course, there are different sources of international law. These sources are listed in Article 38.1 of the Statute of the International Court of Justice (ICJ) as follows:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c ) the general principles of law recognized by civilized nations;
(d) […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
(a) “International conventions”
An “international convention” (or treaty) is an agreement between states, in which they declare themselves to be bound by certain rules. They may also create appropriate institutions, such as a permanent secretariat. There are many international conventions, some of them having broad, “general” application, others being confined to specialized, “particular” subjects. The most important treaty of general reach is the Charter of the United Nations; the UNFCCC could be viewed as an example of a more “particular” treaty.
(b) “International custom”
Can a state avoid being bound by a certain rule, simply by not signing any treaty containing such rule? Not necessarily: international rules develop also in absence of explicit treaty commitments, namely through state practice. More specifically, a rule of international customary law can be assumed to exist if it is 1) “practiced”, i.e., if it shapes actual state behavior, and 2) if it is “accepted as law”, if it is considered to be a legal obligation as opposed to e.g. a moral obligation, or mere convenience or tradition (ICJ, North Sea Continental Shelf cases 1969, para 77). Examples include the “no harm” rule and the rule of state responsibility for internationally wrongful acts that will be discussed further below.
(c ) “General principles of law”
These will not further concern us here, and this paragraph is written only for completeness’ sake. “General principles of law” are broad, open rules that are found in many (national+international) legal systems; in this sense they can be understood as “custom lite” (Klabbers 35). An example is the principle that “no one shall benefit from their own wrong.” While there is no strict hierarchy, treaties and customary law are considered the “stronger sources” (Klabbers 25), and general principles are employed for “gap-filling” (Klabbers 25).
(d) case law and academic writing
Finally, case law (= “judicial decisions”) and academic writings are employed as “subsidiary” sources; they are not considered sources of law by their own right, but may be consulted as means to clarify treaty rules and to identify rules of customary international law. An example is the reference to a judgment by the International Court of Justice (ICJ) that I made two paragraphs earlier (“ICJ, North Sea Continental Shelf cases 1969, para 77”); the judgment itself is not a source of international law; however, the judgment helps to better understand rules of international law (in this case, the judgment defines what, according to the court, customary international law is).
International treaties relevant for climate change
The UNFCCC has been created as a “specialized” international treaty regime, concerned with the subject of climate change. This does not mean, however, that all other international treaties are irrelevant from a climate change perspective; in fact, the opposite is the case: many international treaties are, or could be, of relevance for climate change. This is the case for the following reasons:
- Greenhouse gases are emitted by numerous different human activities, many of which are already regulated in some form on the international level. For example, international shipping and aviation constitute a GHG source of growing relevance; in both areas, international legal regimes are already in existence: the International Civil Aviation Organization (ICAO), a specialized UN agency set up by the Chicago Convention on International Civil Aviation, and the International Maritime Organization (IMO).
- Greenhouse gases may have additional adverse effects, which may have already been regulated on the international level. An example we already encountered is the Montreal Protocol on the protection of the ozone layer. Another example is the Convention on Long-Range Transboundary Air Pollution (CLRTAP): a certain type of emission may fall within the scope of of both the UNFCCC and of a CLRTAP protocol. A third example is the UN Convention on the Law of the Seas (UNCLOS), which lays down a state obligation “to protect and preserve the marine environment” (Article 192), and establishes a legal framework on maritime pollution (Articles 192–222). As CO2 emissions lead to ocean acidification which in turn damages the maritime environment the UNCLOS may be considered to be applicable to greenhouse gas emissions.
- The effects of climate change in practice are far-reaching and varied, some of them falling within the scope of existing international agreements. For example, climate change poses a significant danger for the life, health and the livelihood of many people, which can be viewed as a human rights concern covered by various international human rights treaties, such as the European Convention of Human Rights (ECHR). The damages caused by climate change and the conflicts these damages foster constitute a push factor on people to migrate or to flee, which make the rules on migration and international protection relevant.
- National policies that relate to climate change may be subject to obligations emanating from existing international agreements. For example, national policies designed to support the development of local, renewable energy production may have adverse effects on international trade, which is regulated by the World Trade Organization (WTO) and its numerous agreements, such as the GATT (Global Agreement on Tariffs and Trade).
As we discussed in the first class, potentially any kind of law can be relevant from a climate change perspective, and thus be “climate change law.” The list shows that the same is true on the international plane. Obviously, not all of these agreements should be discussed the same way we discussed the UNFCCC; a different approach is necessary to make sense of them. The approach chosen in this course is to explore how various public and private actors can mobilize different bodies of law in order to pursue their climate change-related objectives. In the upcoming class, we will discuss an article by Philippe Sands, in which he discusses various ways to get an international court to make a meaningful statement about the international legal dimension of climate change. Subsequently, we will probe a number of “specialized” international legal regimes — investment and human rights law — in order to understand how that law is or could be mobilized in the context of climate change. On the basis of these probes, we will be able to make a couple of more general statements on international law and climate change, without having to study every last international legal regime in detail.
International customary law and climate change
Additionally to a variety of international treaty regimes, Philippe Sands’ article discusses international customary law; most notably, the principle of state responsibility for internationally wrongful acts. This section guides you through the international customary law basics necessary to follow Sands’ article. The guiding question is whether states are under an international legal obligation to prevent harmful GHG emissions originating from their territory.
State responsibility
The idea underlying the laws of state responsibility is simple: if a state breaches an international obligation, it is responsible for the damage caused (a student once rephrased this as follows: “you break it, you pay for it”). And, of course, the state is obliged to cease the infringement (i.e., “stop breaking stuff!”)
For an easier understanding of state responsibility, scholars frequently distinguish between primary and secondary rules:
- primary rules define the substantive obligations of states, i.e., what states must and must not do. A “primary” rule, i.e. a substantive obligation of what a state must or must not do, may be established by a treaty, or it may follow from international customary law.
- secondary rules define what happens when states breach those obligations. State responsibility is a secondary rule.
The principle of state responsibility is a secondary rule of very broad application; it applies to any primary rule, i.e., to any international rule that establishes a substantive obligation upon states. This is the case unless the treaty in question lays down a more specific system of secondary rules, in which case the latter have precedence over the general principle of state responsibility. For example, the EU Treaties lay down specific (secondary) rules that apply when EU member states infringe substantive (primary) EU rules: if an EU member state breaches EU law, the Court of Justice of the EU may (upon request by the EU Commission) impose a fine on the state. In this case, the principle of state responsibility does not apply.
The principle of state responsibility itself is a rule of customary international law. Thus, it applies because states actually recognize it as a rule of international law, and because it employed in practice (e.g., states invoke it in international courts such as the ICJ). It has been codified by the International Law Commission (a body of legal experts established by the UN) in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.
“No harm”
The “no harm” rule is a substantive obligation under international customary law (i.e., from a perspective of state responsibility, it is a “primary rule”). In essence, the “no harm” rule holds that, while states are free to do whatever they want on their territory, they cannot do so in a way that would harm other states. The rule found expression, most notably, in the Corfu Channel case (UK v Albania, 1949), the first case decided by the International Court of Justice (ICJ). British warships had run into mines within Albanian waters, and the UK sought to hold Albania responsible for the loss of life and for the damage incurred. Albania denied responsibility for laying the mines, but it could not deny that its military had held the channel under close observation at the very time the minefield had been laid. Consequently, Albania must have been aware of the minefield’s existence, and could have warned the approaching British ships of the impending danger. By not doing so, the IJC held, Albania had violated international customary law, including the “no harm” principle:
The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. (Corfu Channel, para 67)
The “no harm” principle has also found application to cases involving environmental harm, for example in the Trail Smelter case (US v Canada, 1941). The case concerned a smelter in Trail, Canada, located close to the US-Canadian border, which emitted smoke that caused damage to forests and fields in the US. This gave rise to an arbitration case at the International Joint Commission, a binational organization between the US and Canada. In its decision, the commission held 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 of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”
The application of the “no harm” principle to environmental harm was confirmed by the ICJ a number of times, including in the Pulp Mills (Argentina v Uruguay, 2010) decision. Here, the ICJ stated that the “no harm” principle prohibits “significant damage to the environment of another State.”
However, the “no harm” principle is even broader, as the ICJ stated in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996):
“The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” (para 29)
Protected are thus not only the environment in the territory of another state, but also “of areas beyond national control”, such as the oceans.
Sources
Jan Klabbers, International Law, Cambridge University Press 2013
