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

AuthorPeter H. Sand
Published date01 November 2017
Date01 November 2017
RECIEL. 2017;26:201–209.    
DOI: 10.1111/reel.12212
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.
Email: 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.
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.

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