International Law Commission and the topic ‘Protection of the Atmosphere’: Anything new on the table?

 Posted by: Plakokefalos Ilias

The International Law Commission (ILC), in its sixty-fifth session (2013) decided to include in its programme a topic entitled ‘Protection of the Atmosphere’ (see here para. 168). The ILC appointed as a Special Rapporteur Mr. Shinya Murase.

The inclusion of the topic is a very interesting development. It is the second topic pertaining to environmental law (the other being ‘Protection of the Environment in Relation to Armed Conflicts’) currently under consideration by the ILC. It is also a very difficult topic, given the number of conventions, both successful and unsuccessful ones, that have been so far concluded, the body of academic output on issues of atmospheric pollution and the strong political pull on the issue.

What makes the topic in the programme of the ILC even more interesting is the process of its adoption. In 2011 the current Special Rapporteur submitted his recommendations for the inclusion on of the topic in the programme of work (see here). In this document the Special Rapporteur presented a compelling case for the inclusion of the topic in the programme, and its subsequent codification and progressive development by the ILC.

Mr. Murase observed that there are a large number of instruments that address the problem of atmospheric pollution (e.g. the Convention on Long Range Transboundary Air Pollution and its Protocols, the UN Framework Convention on Climate Change and the Kyoto Protocol etc.). Nevertheless, these instruments are a ‘patchwork’ that comprises of different approaches that focus on geographically limited areas and regulate a limited number of substances or activities. He went on to note that the way forward would be a framework convention. The problem of atmospheric pollution, he noted, warrants by its nature a holistic approach. Mr. Murase pointed to Part XII of the Law of the Sea Convention as an example of such an approach. The work of the ILC would, according to the Special Rapporteur, fill in the gaps of existing treaty regimes, lead to the harmonisation with international treaties outside environmental law, as well as the harmonisation of national laws, rules and regulations with international standards. He also stated that the objective would be to combine the transboundary and global atmospheric problems while working on identifying the legal status of the atmosphere along the lines of the concepts of common heritage, common property, common concern or common natural resources.

Admittedly the Special Rapporteur presented a well rounded, finely argued and forward looking plan for the work that would lie ahead if the topic were accepted by the ILC.

On 9 August 2013, the ILC did in fact include the topic in its programme of work. Between the proposal of the topic by Mr. Murase and its inclusion in the programme there was an intermediate step. Mr. Murase, following informal consultations with a group of ILC members under the direction of the President, presented a new approach (see here at pp. 9-10). According to the new approach the ILC would not interfere with political negotiations and would not seek to fill gaps in the treaty regimes. It would not discuss climate change, the protection of the ozone layer or long-range transboundary pollution. Furthermore, it would not discuss the precautionary principle, the polluter-pays principle, the principle of common but differentiated responsibilities or the transfer of funds and technology from developed to developing states. The ILC would not deal with the regulation of specific substances either. According to the ILC, the outcome would be ‘Draft Guidelines’ that would not seek to impose on treaty regimes legal rules or principles that are not already contained therein.

The contrast between Mr. Murase’s proposal and the result endorsed by the ILC is indeed stark. While the Special Rapporteur had proposed a complete treatment of the topic from all possible angles, the ILC returned with an extremely limited mandate. While it is tempting to get to the political rationale behind this turn, what is important is to see if there is any merit to the adopted approach. If the ILC accepts the premise that the current treaty regimes are not adequate for the protection of the atmosphere because they are indeed a patchwork of uncoordinated approaches on the topic, then it is hard to see how the Draft Guidelines would be of any practical value. Moreover, all possibly ‘difficult’ issues lie outside the mandate of the Special Rapporteur. What remains within the mandate is a matter of speculation. Possibly a definition of the atmosphere, a definition of its legal status, a proposal on coordination and further cooperation among states as well as a reminder – in soft law terms – of the obligations states have already undertook as a matter of treaty or customary law; admittedly not much.

The ILC watered down significantly the initial proposal, offering a mandate to the Special Rapporteur that provides for very little room to produce a meaningful result. If the ILC wanted to avoid any discussion that would touch upon the substance of the problem of atmospheric pollution, it could have adopted an alternative approach. An argument could be made that the existing treaty regimes are adequate, that they are – reasonably – successful and that continued efforts for better coordination do indeed take place (e.g. the synergies process of the Rotterdam, Stockholm and Basel Conventions. Moreover, if the states have not been able to agree on how to address fundamental problems of atmospheric pollution (including climate change), it would be hard to see how the ILC would achieve better results.

This view, however, would mean that there would be no reason to discuss the topic at all. On the other hand, the original proposal of Mr. Murase would open a number of very interesting discussions within the ILC and possibly offer something new on the table.

Either approach (i.e. non inclusion or keeping the original proposal) would be far more plausible than the one adopted. Non-inclusion would not create any expectations and it would not bring forth another soft law instrument on international environmental law, something hardly necessary. Alternatively, the original proposal could lead to a renewed interest in the topic in a meaningful way.

In any case, it is interesting to see how the Special Rapporteur will manoeuvre around his strict mandate so as to produce a meaningful set of guidelines on a topic that touches upon a problem shared by all states.

EU Aviation scheme as a countermeasure against other ICAO member states?

 Posted by: Nollkaemper André

The New York Times recently reported that China, the United States and two dozen other countries are looking at coordinated countermeasures against Europe — including putting pressure on European airlines and other industries — if the EU tries to enforce the EU Aviation Directive, that requires airlines to pay for their greenhouse gas emissions.

Much has been said on the legality of the Aviation Directive. Joshua Melzer just published a good analysis of the Directive and its WTO compatibility in the Journal of International Economic Law. In the ATA case, the ECJ considered its compatibility with customary international law (the principles of territoriality and of sovereignty), the Chicago Convention, and the Open Skies Convention, and eventually upheld the legality of the Directive (case C-366/10, Judgment of 21 December 2011).

One question that appears so far to have received very little attention is whether, even if the Directive would violate international law, it could not be justified as a response to the collective failure of the third states for setting standards for the airline industry.

The European measures are in part a response to the failure of the International Civil Aviation Organization (ICAO) to move quickly enough to establish standards and goals for greenhouse gases from aviation, as required under the Kyoto Protocol. Article 2(2) of the Kyoto Protocol stipulates that Annex I parties ‘shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.’

Attempt to realize such limitations have come to nothing. It is true that the obligation is not formulated in very hard terms (‘shall pursue limitation’), and in the ATA Case the Court found that this provision ‘as regards its content, cannot in any event be considered to be unconditional and sufficiently precise so as to confer on individuals the right to rely on it in legal proceedings in order to contest the validity of Directive 2008/101’ (para 77). However, the fact that a provision does not meet the high criteria for direct effect of EU legislation does not mean that States cannot breach the obligation vis-à-vis each other. At one point, the lack of will and effort to adopt reductions in the framework of ICAO may suggest that states do not pursue such reductions.

Already in the Sixth Community Environment Action Programme (Decision No 1600/2002/EC), it was provided that the Community would identify and undertake specific actions to reduce greenhouse gas emissions from aviation if no such action were agreed within the ICAO by 2002. The EU Member States have consistently strived in the ICAO framework for global regulations — to no avail. Regional action now surely has a political legitimacy. Even if it would be in violation of other state’s rights (a proposition that was questioned by the ECJ) there is some ground in the argument that this is a timely response to a shared responsibility of the defaulting third states, intended to spur these states to action.

It might be argued that this construction encounters the problem that the obligation that would be breached, and that would legitimize the Aviation Directive, is the Kyoto Protocol, yet the intended action eventually would have to come from ICAO, which obviously is not a party to that Protocol. However, we could construe the measures as targeted at the states that are both party to Kyoto and ICAO, and that should fulfill their obligation under Kyoto by taking action in the framework of ICAO.

The construction nonetheless is not entirely without obstacles. One is that the EU measures appear to apply to all states, irrespective of their particular obligations under the Kyoto Protocol, and notably also irrespective of the principle of common and differentiated responsibilities — which may make the proportionality argument more difficult.

Another issue to be considered is whether the EU and its member states are actually injured by the lack of willingness of other states to perform the obligation under article 2(2), in a way that would entitle them to take counter-measures, However, it should be taken into account that the failure by the ICAO member states to adopt necessary measures that complied with article 2(2), in effect made it difficult for the EU member states to comply with their obligations under Kyoto. This point, made by AG Kokott (para 186 of her opinion) opens the door to an argument based on the exception of non-performance.  Whatever the status of this exception as an independent defense to wrongfulness (the ILC eventually left it aside), it does straddle into and support an argument based on countermeasures.

It may well be that eventually the EU has to bend for economic pressure from target states, that may hit European industries hard. But on its face, the EU measure has not only the moral but also the legal high ground.

The Seabed Disputes Chamber clarified the meaning of joint and several liability (but also raised new questions)

 Posted by: Nollkaemper André

The principle of joint liability in undeveloped in international law. Though some treaties refer to it, and several scholarly articles that have recognized its importance for situations where multiple actors cause injury, the scope and contents of the principle remain uncertain. It is therefore of some importance that the Advisory Opinion of the Seabed Disputes Chamber of ITLOS on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (1 February 2011) discussed the principle. In his presentation at the SHARES Seminar on Shared Responsibility in Environmental Law, held at ACIL on 7 November 2011, Judge Treves provided further insight into these, until now somewhat neglected, aspects of the Opinion.

The question of liability for activities on the deep seabed is bound to become of increasing significance. Last July, the Seabed Council approved the plans of work for exploration for polymetallic nodules and polymetallic sulphides in the international deep seabed Area submitted by four entities (see: Press release). In all cases of exploration, more than one actor will be involved (the Authority, the entity carrying out the exploration and the sponsoring state). Liability in case of damage thus also may involve multiple actors.

The Law of the Sea Convention does envisage the possibility of joint and several responsibility in this context. Article 139 stipulates that ‘damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability’.

The Opinion clarifies a few aspects of joint and several liability, while at the same time raising new questions. Three particularly noteworthy issues relate to 1) the requirement of ‘common damage’, 2) the requirement of concerted action, and 3) the possibility of joint liability between states and private parties.

As to the first point, the Seabed Chamber stated that ‘joint and several liability’ arises when the actors involved contribute to the same damage. It said that joint and several liability arises ‘where different entities have contributed to the same damage so that full reparation can be claimed from all or any of them.’ (para 201).

Is it not immediately clear what the source of this definition is. Neither the Law of the Sea Convention nor subsequent instruments adopted by the Seabed Authority expressly include the requirement of ‘common damage’. But, also given the type of activities on which Article 139 sees, it indeed seems to be implicit in Article 139 that when more actors are involved, they only will be jointly liable if they have contributed to a common damage.

The definition of joint liability in terms of common damage conforms to the meaning of the term ‘joint and several liability’ in the domestic law of many states and also otherwise rests on good grounds. It is precisely the fact that two or more actors contribute to a single damage (or injury), and that it cannot be determined who contributed what part, that leads to the need to allow third parties to bring a claim for relief against all responsible actors, and thus to the need for joint responsibility.

It is noteworthy that this definition differs from the International Law Commission’s concept of plurality of responsible states, which is based on the same wrongful act, not on the same damage (cf. Article 47 ILC Draft Articles on Responsibility of States). Even though a wrongful act will involve injury, and even though injury will be the starting point of analysis for any question of reparation, there is a fundamental difference between the approaches. Common damage need not necessarily involve a single wrongful act and, moreover, it is not clear that the very problem that justifies resort to joint liability (impossibility to apportion contribution to damage) applies to the same extent in case of contribution to the same wrongful act. Indeed, Article 47 raises many questions that need to be further explored.

A second point to highlight is that the Law of the Sea Convention envisaged joint liability if states and international organizations are ‘acting together’. It is not immediately clear what this means. Does this require concerted acts (leading, as we phrased it in the SHARES Concept Paper, ‘cooperative responsibility’), or can it also refer to two states or organizations acting independently from each other (leading to what we called ‘cumulative responsibility’)? On the basis of the normal meaning of the words used, the former seems the more plausible interpretation . Yet , the Chamber apparently accepted the possibility that two sponsoring states can be jointly and severally liable, even when they were not involved in a concerted action. The Chamber said that ‘article 139, paragraph 2, of the Convention and related instruments dealing with sponsorship do not differentiate between single and multiple sponsorship. It should be recalled that in principle the liability of a sponsoring state is based on a failure to take all necessary and appropriate measures to secure effective compliance by persons whom they have sponsored. Accordingly, the Chamber takes the position that, in the event of multiple sponsorship, each of these sponsoring states can be liable for failure to take all necessary and appropriate measures. If so, the liability is joint and several unless otherwise provided in the Regulations issued by the Authority.’ (para 192).

From the perspective of protection of victims, this broad approach (joint responsibility also in case of states not acting in concert) may make sense. But it is not immediately clear what the basis of such a principle is. One possibility is to read the words ‘acting together’ in Article 139 broadly, and include cases of non-concerted action. Such interpretation could also be inspired by the use of the term in domestic law (and given the dominant meaning of the term in domestic law, perhaps even as the ordinary meaning of the term). Another possibility is that this meaning of joint liability would reflect a more general principle of (international law), operating outside the express terms of Article 139. This was indeed suggested by Judge Simma in his Separate Opinion in the Oil Platforms Case, who suggested that where two or more states are subjected to identical obligations and cause a common damage, they are jointly and severally liable. However, this latter interpretation would be far reaching, in particular when large numbers of actors are subject to, and fail to comply with, identical obligations. It certainly is not a settled issue that as a matter of general international law if such states fail to comply with such obligations, and contribute to a common damage, joint and several liability is triggered. International law remains based on the principle that states are responsible only for damage caused by their own wrongful acts and omissions. It may be that the specific situation of sponsorship is sui generis and that it is this specific situation that brought the Chamber to its conclusion. But the text of the Advisory Opinion may have opened a door and it requires further thought whether that door should be left open.

A third issue raised by the Advisory Opinion is the possibility of joint liability between states and contractors. Even though (sponsoring) states can be liable (jointly or not), the actual damage will be caused by contractors, not states. The Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable ‘for any damage arising out of wrongful acts in the conduct of its operations’. The question is whether the liability of contractors and states can be joint. This is a matter of broader significance for international environmental law. The SHARES seminar on international environmental law made clear that most cases actual damage will be caused not by states but by private actors, and the question how liability of both actors is linked becomes relevant.

The Chamber said that Article 139 of the Convention does not provide for joint and several liability between the sponsoring state and the contractor. It reasoned that ‘the liability of the sponsoring State arises from its own failure to carry out its responsibilities, whereas the contractor’s liability arises from its own non-compliance. Both forms of liability exist in parallel’ and that while ‘the liability of the sponsoring State depends on the occurrence of damage resulting from the failure of the sponsored contractor, […] this does not make the sponsoring State responsible for the damage caused by the sponsored contractor’ (para 204).

While this construction is not surprising and probably in line with the intention of the drafters, it might be argued that if joint and several liability of two sponsoring states can be based on two independent failures to take appropriate measures, that could also not apply to independent wrongdoing by states and private actors. It is true that the Convention does not provide for this, but neither does it expressly provide for joint and several liability of independently acting multiple sponsoring states (unless we adopt a broad interpretation of ‘acting together’). The interpretative room assumed by the Chamber in interpreting Article 139 may not need to stop there.

The main argument against accepting joint and several liability of sponsoring states and the contractor is that the liability is governed by different legal orders – the liability of the contractor being relegated (as normally is done with international provisions on liability of private actors) to the domestic level. But the situation is not at all clear-cut here.

However, the Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable  ‘for any damage arising out of wrongful acts in the conduct of its operations’. This does not appear to refer to liability under national, but under international law. Moreover, under certain conditions the Seabed Disputes Chamber can have jurisdiction over disputes involving private parties (Article 187). There thus might well be room to consider further the possibility and desirability of joint liability between states and contractors who contribute to the same damage.

A report of the SHARES seminar on Shared Responsibility in International Environmental Law, including a summary of the discussion on the presentation by Judge Treves, will be published on this site shortly.