The discourse on ‘protection of the atmosphere’ in the International Law Commission

• DOI: http://doi.org/10.1111/reel.12212
• Author: Peter H. Sand
• Published date: 01 November 2017
• Date: 01 November 2017

RECIEL. 2017;26:201–209.    

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wileyonlinelibrary.com/journal/reel

DOI: 10.1111/reel.12212

SPECIAL ISSUE ARTICLE

The discourse on ‘protection of the atmosphere’ in the

International Law Commission

Peter H. Sand

© 2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Correspondence

Email: p.sand@jura.uni-muenchen.de At its 65th session in August 2013, the United Nations International Law Commission

included the topic ‘protection of the atmosphere’ in its programme of work, and has

since begun to draft a set of legal guidelines, on the basis of four reports prepared by

its Special Rapporteur on the subject, albeit under a severely restricted mandate. This

article comments on the work so initiated, in light of the deliberations in the Commission

and the draft guidelines provisionally adopted.

1 | INTRODUCTION

Discussions on ‘protection of the atmosphere’ in the United Nations

(UN) International Law Commission (ILC) started in 2009, when

Professor Shinya Murase first proposed to include the topic in the

long- term ILC work programme, in line with the mandate of the

Commission for ‘promotion of the progressive development of inter-

national law and its codification’.1 After endorsement by the

Commission’s Planning Group and the plenary, a syllabus outlining the

proposal was appended to the 2011 ILC report to the Sixth (Legal)

Committee of the UN General Assembly (UNGA).2

The ILC had previously played a significant role in the

development and codification of other norms of international

environmental law,3 particularly through its preparatory work for the

1958 Geneva Conventions on the Law of the Sea, and for the 1997

UN Convention on the Law of the Non- navigational Uses of

International Watercourses; its 2001 and 2006 Draft Articles/

Principles on Transboundary Harm from Hazardous Activities; its 2008

Draft Articles on the Law of Transboundary Aquifers; and its ongoing

work on Draft Principles for Protection of the Environment in Relation

to Armed Conflicts.4

While initial governmental reactions to the proposed new topic in

the 2011–2012 sessions of the UNGA were predominantly positive,5

several delegations recorded their opposition and substantive reserva-

tions. In the view of the United States in particular, ‘the current struc-

ture of law in that area was treaty- based, focused and relatively

effective, and in light of the ongoing negotiations designed to address

evolving and complex circumstances, it would be preferable not to

1As formulated in Article 1 of the ILC Statute annexed to UNGA Res 174(II) (21 November

1947) (as amended), reflecting Article 13(1)(a) of the Charter of the United Nations (adopted

26 June 1945, entered into force 24 October 1945) 1 UNTS XVI. See HW Briggs, The

International Law Commission (Cornell University Press 1965); BG Ramcharan, The International

Law Commission: Its Approach to the Codification and Progressive Development of International

Law (Nijhoff 1977); and D McRae, ‘The Interrelationship of Codification and Progressive

Development in the Work of the International Law Commission’ (2013) 111 Kokusaiho Gaiko

Zasshi/Journal of International Law and Diplomacy 75.

2S Murase, ‘Protection of the Atmosphere’ in ‘Report of the International Law Commission to

the General Assembly on the Work of its 63rd Session’ UN Doc A/66/10 (2011) 315; see also

SMurase,‘Protection oftheAtmosphere andInternationalLawmaking’ inMPogačnik (ed),

Challenges of Contemporary International Law and International Relations: Liber Amicorum in

Honour of Ernest Petrič (European Law Faculty Nova Garica 2011) 279; S Murase, ‘Protection

of the Atmosphere and International Lawmaking’ in Y Daudet (ed), Le 90e anniversaire de

Boutros Boutros-Ghali/The 90th Birthday of Boutros Boutros-Ghali (Brill/Nijhoff 2012) 189; S

Murase, ‘Protection of the Atmosphere and International Law: Rationale for Codification and

Progressive Development’ (2012) 55 Sophia Law Review 1; and S Murase, ‘Scientific

Knowledge and the Progressive Development of International Law: With Reference to the

ILC Topic on the Protection of the Atmosphere’ in J Crawford et al (eds), The International

Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz (Brill/

Nijhoff 2017) 41.

3See BG Ramcharan, ‘The International Law Commission and International Environmental

Law’ (1975) 2 Ocean Management 315; SC McCaffrey, ‘The Work of the International Law

Commission Relating to the Environment’ (1983) 11 Ecology Law Quarterly 189; G Hafner

and HL Pearson, ‘Environmental Issues in the Work of the International Law Commission’

(2001) 11 Yearbook of International Environmental Law 3; and L Barrionuevo Arevalo, ‘The

Work of the International Law Commission in the Field of International Environmental Law’

(2005) 32 Boston College Environmental Affairs Law Review 493.

4On the Commission’s recent methodological move away from ‘draft articles’ to ‘draft prin-

ciples’, ‘draft guidelines’ and ‘draft conclusions’, see SD Murphy, ‘Codification, Progressive

Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in M

Ragazzi (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie

(Brill/Nijhoff 2013) 29.

5See the summary of the Sixth Committee debates in 2011 and 2012 in S Murase, ‘First

Report on the Protection of the Atmosphere’ UN Doc A/CN.4/667 (14 February 2014) para

3; see also S Murase, ‘International Law Commission’ (2014) 25 Yearbook of International

Environmental Law 542.