Procedure and Substance in International Environmental Law [1 ed.] 9789004444386, 9789004444379

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© The Hague Academy of International Law, 2020 All rights reserved

ISBN 978-90-04-44437-9 Full text of the General Course published in March 2020 in the Recueil des cours, Vol. 405.

Cover photograph : Multi-colored tidal waters transforming sandbanks, iStock by Getty Images.

THE HAGUE ACADEMY OF INTERNATIONAL LAW

A collection of law lectures in pocketbook form

2020

Procedure and Substance in International Environmental Law

Procedure and Substance in International Environmental Law JUTTA BRUNNÉE

TABLE OF CONTENTS Chapter I.  Introduction. . . . . . . . . . . . . . . . . A. Context. . . . . . . . . . . . . . . . . . . . . . B.  Procedure and substance in law. . . . . . . . . C. Procedure and substance in public international law. . . . . . . . . . . . . . . . . . . . . 1.  International adjudication . . . . . . . . . . 2.  Procedural versus substantive rules. . . . . D. Procedure and substance in international environmental law. . . . . . . . . . . . . . . . 1.  Procedural and substantive obligations.. . . 1.1.  Customary law. . . . . . . . . . . . . . 1.2.  Treaty law. . . . . . . . . . . . . . . . 2. Procedures in international environmental law. . . . . . . . . . . . . . . . . . . . . . . 2.1. Adjudication. . . . . . . . . . . . . . . 2.2. Procedural aspects of treaty-based regimes. . . . . . . . . . . . . . . . . . 3.  The proceduralization of international environmental law.. . . . . . . . . . . . . . 3.1.  Practical considerations. . . . . . . . . 3.2.  Theoretical considerations.. . . . . . . Chapter II.  The harm prevention rule. . . . . . . . . A. Overview. . . . . . . . . . . . . . . . . . . . . B.  The origins of international environmental law and the no harm rule. . . . . . . . . . . . . . . 1. The Trail Smelter case. . . . . . . . . . . . 2. General principles concerning territorial sovereignty. . . . . . . . . . . . . . . . . . 3.  The evolution and crystallization of the no harm rule. . . . . . . . . . . . . . . . . . . 3.1.  Due diligence. . . . . . . . . . . . . . 3.2. Prevention. . . . . . . . . . . . . . . . 3.3.  Substantive and procedural obligations. 3.4.  Environmental harm, including beyond national jurisdiction. . . . . . . . . . .

13 13 20 25 26 29 31 31 32 34 36 37 38 40 42 44 52 52 54 56 59 62 64 72 74 81

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C. From no harm to harm prevention : implications for procedure and substance. . . . . . . . 1.  Taking stock.. . . . . . . . . . . . . . . . . 2.  The harm prevention rule as conceived by the ICJ. . . . . . . . . . . . . . . . . . . . . 2.1. What is procedure, and what is substance ?. . . . . . . . . . . . . . . . . . 2.2.  What is the relationship between procedure and substance ?.. . . . . . . . . (a)  Conceptual/terminological relationship.. . . . . . . . . . . . . . . . . (b)  Practical/functional relationship .. . (c)  Legal relationship. . . . . . . . . . 2.3.  When is the harm prevention rule violated ? .. . . . . . . . . . . . . . . . . . 2.4.  Is there one rule or are there two ?. . . 3.  The harm prevention rule revisited.. . . . . 3.1.  The case for a single harm prevention rule. . . . . . . . . . . . . . . . . . . . 3.2.  The case for a conduct-focused harm prevention rule. . . . . . . . . . . . . . (a)  Due diligence links procedure and substance.. . . . . . . . . . . . . . (b)  Violation without harm. . . . . . . (c)  The law of State responsibility. . . 3.3.  Why it matters. . . . . . . . . . . . . . 3.4.  The framework in a nutshell. . . . . .

82 82 82 83 85 85 86 87 88 90 96 97 98 99 101 105 112 117

Chapter III. Harm prevention beyond the “neighbourhood”. . . . . . . . . . . . . . . . . . . . . . 120 A. Context. . . . . . . . . . . . . . . . . . . . . . B.  Long-range transboundary impacts. . . . . . . 1.  Applying the harm prevention rule.. . . . . 2.  Adjudicating harm prevention. . . . . . . . C.  Concerns beyond national jurisdiction.. . . . . 1.  Applying the harm prevention rule.. . . . . 2.  Adjudicating harm prevention. . . . . . . . D.  Harm prevention and human rights. . . . . . . E. Harm prevention beyond the neighbourhood in a nutshell. . . . . . . . . . . . . . . . . . .

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Chapter IV. Complex harm prevention  : multilateral environmental agreements. . . . . . . . . . . A. Context. . . . . . . . . . . . . . . . . . . . . . B.  Treaty-based approaches : an overview. . . . . 1. Scope. . . . . . . . . . . . . . . . . . . . . 2.  Towards agreement. . . . . . . . . . . . . . 2.1.  Process-oriented, dynamic and adaptable. . . . . . . . . . . . . . . . . . . . 2.2.  The framework-protocol model. . . . . C.  The climate regime . . . . . . . . . . . . . . . 1.  Substantive aspects.. . . . . . . . . . . . . 1.1.  The UNFCCC. . . . . . . . . . . . . . 1.2. The Kyoto Protocol  : from obligations of conduct to obligations of result . . . . . . . . . . . . . . . . . . 1.3.  The Paris Agreement : a return to obligations of conduct. . . . . . . . . . . . 2.  Procedural aspects. . . . . . . . . . . . . . 2.1.  Information and scientific assessment. (a)  Procedural requirements.. . . . . . (b)  Notable features. . . . . . . . . . . 2.2.  Lawmaking and standard-setting. . . . (a)  Conferences of the Parties. . . . . (b)  Lawmaking processes. . . . . . . . (c)  The Paris Agreement. . . . . . . . 2.3.  Performance and compliance. . . . . . (a)  Judicial dispute settlement. . . . . (b)  Non-compliance procedures.. . . . (i)  Goals and features.. . . . . . . (ii)  Paris Agreement. . . . . . . . . D. Treaty-based procedure and substance in a nutshell. . . . . . . . . . . . . . . . . . . . . .

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Chapter V.  Conclusion . . . . . . . . . . . . . . . . 205 Bibliography. . . . . . . . . . . . . . . . . . . . . . 214 List of abbreviations. . . . . . . . . . . . . . . . . . 230 About the author. . . . . . . . . . . . . . . . . . . . 231 Biographical note.. . . . . . . . . . . . . . . . . . 231 Principal publications. . . . . . . . . . . . . . . . 232

CHAPTER I

INTRODUCTION * A. Context In the last decade, the International Court of Justice (ICJ) twice had occasion to engage with the relationship between the procedural and substantive aspects of States’ transboundary harm prevention obligations. In 2010, in its decision in the Pulp Mills case, the ICJ affirmed that procedural and substantive obligations “complement one another perfectly” 1, and that there is a “functional link, in regard to prevention, between the two categories of obligation” 2. However, according to the ICJ, “that link does not prevent . . . States . . . from being required to answer for those obligations separately” 3, and “a breach of procedural obligations [does not] automatically [entail] the breach of substantive ones” 4. Indeed, in 2015, in the context of interrelated disputes concerning various activities along the border between Costa Rica and Nicaragua, the Court concluded that, in the absence of transboundary environmental harm, Costa Rica’s failure to undertake a required environmental impact * I am grateful to Daniel Bodansky, Christopher CampbellDuruflé, Ellen Hey and Karen Knop for their incisive comments on different parts of the manuscript, and to Cristin Hunt (J.D. Tor., 2022) for her superb background research and invaluable assistance in the finalization of the manuscript. 1   Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, p. 14 at p. 49, para. 77 (hereinafter Pulp Mills). 2   Ibid., para. 79. 3   Ibid. 4   Ibid., para. 78.

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assessment (EIA) breached a procedural obligation, but not the (substantive) harm prevention rule as such 5. In both cases, separate opinions expressed sharply different views. In Pulp Mills, Judges Al-Khasawneh and Simma noted that the Court had missed an opportunity to clarify the relationship between procedural and substantive obligations and challenged “the conclusion whereby non-compliance with the pertinent procedural obligations has . . . no effect on compliance with the 6 substantive obligation”  . Judge Donoghue took a similar stance in Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, adding that it was “not . . . useful to draw distinctions between ‘procedural’ and ‘substantive’ obligations, as the Court has done” 7. The international environmental law literature, by and large, echoed these concerns, with many commentators arguing that a failure to exercise due diligence in harm prevention, including a procedural failure, should give rise to a violation of the harm prevention rule, whether transboundary harm had been caused or not 8.   Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment of 16 December 2015, ICJ Reports 2015, p. 665 at pp. 731, 734, 736-737, paras. 196, 207, 213, 216217 (hereinafter Costa Rica v. Nicaragua/Nicaragua v. Costa Rica). 6   Pulp Mills, supra footnote 1, joint dissenting opinion Al-Khasawneh and Simma, p. 120 (Sec. III), para. 26. 7   Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, at p. 3, para. 9. 8  See e.g. Kerryn Anne Brent, “The Certain Activities Case : What Implications for the No-Harm Rule ?”, Asia Pacific Journal of Environmental Law, Vol. 20 (2017), p. 28 at pp. 3334 ; Leslie-Anne Duvic-Paoli, The Prevention Principle in International Environmental Law, Cambridge, Cambridge University Press, 2018, pp. 336-339 ; Yann Kerbrat, “Obligations procédurales et obligations de fond en droit international des dommages transfrontières”, in Ioannis Prezas (ed.), 5

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Meanwhile, although customary law continues to play an important conceptual and practical role in international environmental law, most of the lawmaking and implementation activity in the field occurs in the context of treaty-based regimes. In these multilateral environmental agreements (MEAs) too, procedural and substantive elements operate alongside one another. Indeed, procedural obligations and procedures of various kinds play central parts in preparing the ground for substantive agreement and standard-setting, in expanding and adjusting substantive standards over time, in realizing a treaty’s protective goals, and in ensuring transparency and accountability with respect to parties’ performance of their commitments 9. This approach has had widespread support, but it also has had its critics. Almost 30 years ago, Martti Koskenniemi expressed misgivings about what he perceived as the “proceduralization” of international environmental law and queried “whether recourse to procedure rather Substance et procédure en droit international public  : dialectique et influences croisées, Paris, Editions Pédone, 2016, p. 7 ; Stephen C. McCaffrey, The Law of International Watercourses  : Non-Navigational Uses, Oxford, Oxford University Press, 2001, p. 379 ; Sandrine Maljean-Dubois and Vanessa Richard, “The International Court of Justice’s Judgment of 20 April 2010 in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) Case”, in Paula Almeida and Jean-Marc Sorel (eds.), Latin America and the International Court of Justice  : Contributions to International Law, London and New York, Routledge, 2017, p. 309 at pp. 311313 ; Alexander Proelβ, “Prinzipien des Internationalen Umweltrechts”, in Alexander Proelβ (ed.), Internationales Umweltrecht, Berlin, Boston, De Gruyter, 2017, p. 69 at p. 83. 9  See generally Jutta Brunnée, “International Environmental Law and Community Interests – Procedural Aspects”, in Eyal Benvenisti and Georg Nolte (eds.), Community Interests across International Law, Cambridge, Cambridge University Press, 2018, p. 151.

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provides a substitute for [substantive] agreement than a forum to attain it” 10. This question certainly remains live today, notably in the context of climate change. Some 30 years after its inception through the adoption of the UN Framework Convention on Climate Change (UNFCCC) in 1992 11, the UN climate regime has yet to galvanize the ambitious transformations that would be required to address this existential global challenge. The 2007 Kyoto Protocol to the UNFCCC enshrined binding emission reduction targets for industrialized and transition countries and sought to reinforce these substantive obligations through robust procedural elements, including detailed inventory and reporting requirements and an automatic compliance assessment procedure 12. However, it proved impossible to turn the protocol into a long-term emissions regime for all countries. The 2015 Paris Agreement is the result of the search for an alternative approach 13. It marks a shift from the Kyoto Protocol’s “top-down” approach to a “bottom-up” architecture, built around national pledges that are not internationally binding 14. The very point of the Paris Agreement is to galvanize and guide –  Martti Koskenniemi, “Peaceful Settlement of Environmental Disputes”, Nordic Journal of International Law, Vol. 60 (1991), p. 73 at pp. 74, 85. 11  United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, United Nations, Treaty Series, Vol. 1771, p. 107 (hereinafter UNFCCC). 12  Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 10 December 1997, United Nations, Treaty Series, Vol. 2303, p. 162 (hereinafter Kyoto Protocol). 13  Paris Agreement to the United Nations Framework Convention on Climate Change, done at Paris on 12 December 2015, International Legal Materials, Vol. 55 (2016), p. 740. 14   See Gabriela Iacobuta et al., “National Climate Change Mitigation Legislation, Strategy and Targets : A Global Update”, Climate Policy, Vol. 18 (2018), p. 1114 at p. 1115. 10

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rather than ordain – genuinely global, long-term climate action. To these ends, the agreement relies upon nonbinding substantive parameters to frame an obligation to undertake domestic mitigation measures, along with binding procedural obligations, and a set of transparency and performance review procedures. The interplay between procedure and substance has not been a major point of contention for international environmental lawyers over the years. Arguably, the topic’s “sleeper” profile is due to the mostly uncontroversial nature of the distinction between procedural and substantive obligations in the field. Furthermore, the vast majority of environmental law scholars and practitioners have tended to welcome the procedural features of MEAs and their potential to promote regime evolution and effectiveness. Enter the ICJ’s Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica judgments and the Paris Agreement. The judgments revealed ambiguity concerning aspects of the customary law framework that the field had taken for granted as largely settled. In turn, the Paris Agreement’s retreat from binding emission targets and its decisive turn towards procedure reignited concerns over proceduralization 15. In short, the two developments invite a closer look at the respective roles of, and the relationship between, procedure and substance in international environmental law. As regards customary law, this volume aims to bring some clarity to the conceptual questions raised by the ICJ decisions. With respect to MEAs and the Paris Agreement, its goal 15

 For example, in August 2019, the Helsinki Faculty of Law’s Erik Castrén Institute hosted a summer seminar entitled “International Environmental Law : Process as Decline” and focused in part on the Paris Agreement, available at https :// www.helsinki.fi/en/erik-castren-institute/helsinki-summerseminar-on-international-law-2019 (hereinafter “Process as Decline”).

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is to tease out the key traits of the interplay between procedure and substance. Since the procedure-substance terrain in international environmental law is vast, the volume takes its cues from the above-mentioned developments and focuses on how international environmental law deploys procedure and substance in the context of harm prevention. The harm prevention rule remains the field’s central customary rule. It also raises the complexities and challenges of the procedure-substance interplay more pointedly than perhaps any other norm. Moreover, the substantive and procedural constraints that attach to the rule, notably when applied to long-range or commons impacts, help account for the emergence of MEAs aimed at complex harm prevention in a global context, such as the Paris Agreement. The harm prevention focus also lends itself to showing that the procedure-substance categories, and the questions concerning their relationship, operate at two different levels. First, as noted, international environmental law enshrines obligations that can be classified, respectively, as substantive and procedural. Second, these obligations are complemented by procedures (and rules governing these procedures) that are designed to enable norm creation, modification, and implementation or enforcement. In the second respect, then, the distinction between substance and procedure maps onto Hart’s distinction between primary and secondary rules 16. In the first respect, however, international environmental law underscores that primary rules themselves can be procedural or substantive in nature. As already indicated and as the analysis will illustrate, in the context of the harm prevention rule at custom, the procedure-substance debate revolves largely around 16

 See H. L. A. Hart, The Concept of Law, Oxford, Clarendon Press, 1961, pp. 89-96. I am grateful to Dan Bodansky for reminding me of this parallel.

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the relationship between the two categories of primary obligation, and the ICJ’s treatment of procedure as legally distinct from substance. To the extent that secondary rules enter the equation at all, they are mainly rules pertaining to the international adjudication of environmental disputes. The implications of these rules become most evident when the harm prevention rule is applied to instances of long-range impacts or impacts on resources beyond State jurisdiction. In turn, in the context of MEAs, the legal relationship between substantive and procedural primary rules has been largely unproblematic. The key feature of treatybased proceduralization has been that MEAs provide for an array of secondary rules, establishing information exchange, lawmaking and oversight procedures. Indeed, the bifocal lens suggested here for assessing proceduresubstance relationships – between primary rules, and between primary and secondary rules – helps illuminate why the Paris Agreement seems to have revived concerns about proceduralization. After all, the agreement is characterized by a significant shift in the balance between substantive and procedural obligations, rather than simply by strong reliance on secondary procedural features. What is more, most of the agreement’s substantive elements are non-binding. The remainder of this introductory chapter develops the terrain sketched above. It situates the proceduresubstance topic in a slightly broader context, taking a closer look at how the notions are understood in domestic law, in public international law, and in international environmental law, respectively. Chapter II considers the evolution of the harm prevention rule in customary international environmental law, in the context of transboundary impacts between neighbouring States. It teases out the implications of this evolution for the interplay between the harm prevention framework’s substantive and procedural obligations.

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Using climate change as the main example, Chapter III examines the operation of the harm prevention rule in relation to potential transboundary impacts beyond the neighbourhood setting narrowly conceived. In the context of longer-range and global impacts, as well as impacts on human rights, the chapter also considers the implications of secondary rules pertaining to recourse to international courts. Chapter IV explores the emergence of treaty-based approaches to complex harm prevention. The chapter canvasses the main features of substantive and procedural obligations in MEAs, and the role of procedures for information exchange, lawmaking and oversight. It focuses on the evolution of the climate change regime and examines the carefully calibrated procedure-substance framework established by the Paris Agreement. Chapter V offers concluding observations on the respective roles of procedure and substance in the law of environmental harm prevention, and on the “proceduralization” of international environmental law. B.  Procedure and Substance in Law While the distinction between procedure and substance may appear to be self-evident at first glance, a closer look quickly reveals that it is difficult to draw a bright line between the two categories and that, in many respects, they are in a symbiotic relationship with one another. This state of affairs is not unique to international environmental law. Commentators on the topic of procedure and substance in domestic and international law alike routinely observe that the two cannot be neatly separated 17. 17

  See e.g. Hart, supra footnote 16, p. 773  ; Thomas O. Main, “The Procedural Foundation of Substantive Law”, Washington University Law Review, Vol. 87 (2009), p. 801 ; Koskenniemi, supra footnote 10, at 74 ; Matina Papadaki, “Substantive and Procedural Rules in International Adjudication : Exploring Their Interaction in Intervention

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In one of the more detailed explorations of the topic from a domestic law standpoint, Main suggests that the distinction between substance and procedure is a product of Enlightenment efforts to understand the world through “binarist categorizing, such as subject/object, culture/ nature, mind/matter, and rational/irrational” 18. In law, the procedure-substance dichotomy quickly established itself as “foundational infrastructure” 19, entailing a perception of the two as “opposites” 20, with procedure prone to being perceived as inferior 21, or at least ancillary 22, to substance. The dichotomous thinking notwithstanding, in the literature, “[t]he line between substance and procedure is often described with unflattering adjectives such as ‘vague’, ‘unpredictable’ ‘imprecise’, ‘amorphous’, ‘unresolvable’, ‘unclear’, ‘chameleon-like’, ‘murky’, ‘blurry’, ‘hazy’, and ‘superbly fuzzy’ ” 23. Leaving aside the challenges of the line-drawing exercise for the moment, what does each category encompass, roughly speaking ? The usage of the terms before the International Court of Justice”, in Hélène Ruiz Fabri (ed.), International Law and Litigation : A Look into Procedure, Baden-Baden, Nomos Verlagsgesellschaft, 2019, p. 37 at p. 39. 18  Main, supra footnote 17, p. 809. See also D. Michael Risinger, “ ‘Substance’ and ‘Procedure’ Revisited with Some Afterthoughts on the Constitutional Problems of Irrebuttable Presumptions”, UCLA Law Review, Vol. 30 (1982), p. 189 at p.191 (tracing the “procedure-substance dichotomy to Bentham’s distinction between “substantive law and adjectival law”). 19  Main, supra footnote 17, p. 809. 20   Ibid., p. 810. 21   Ibid., p. 811. See also Kerbrat, supra footnote 8, p. 15. 22  See Gernot Biehler, Procedures in International Law, Berlin, Heidelberg, Springer Verlag, 2008, p. 1. 23  Main, supra footnote 17, p. 815. For international law, see also Papadaki, supra footnote 17, pp. 38, 39, 42 (using the terms “permeable,” “elusive,” and “hazy”).

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outside of the legal context provides a starting point for an answer. According to a basic dictionary definition, a procedure is “a particular way of accomplishing something or of acting” 24. In turn, substance is “a fundamental or characteristic part or quality” 25. These general definitions capture the widespread perception of substance as something foundational and procedure as something practical or technical, a perception that finds a particularized articulation in law 26. A common line of definition is that : “[p]rocedural law encompasses legal rules governing the process for settlement of disputes . . . In contrast, substantive law sets out the rights and obligations of members of society. Procedural and substantive law are complementary. Procedural law brings substantive law to life and enables rights and duties to be enforced and defended. Because procedural law qualifies substantive law it is sometimes referred to as ‘adjectival’ law.” 27   Merriam Webster, “Procedure”, available at https ://www. merriam-webster.com/dictionary/procedure. See also Collins Dictionary, “Procedure”, available at https ://www.collins dictionary.com/dictionary/english/procedure (defining procedure as “a way of doing something, especially the usual or correct way”). 25   Merriam Webster, “Substance”, available at https ://www. merriam-webster.com/dictionary/substance. 26  See also Biehler, supra footnote 22, p. 2. 27   The Canadian Encyclopedia, “Procedural Law”, available at https ://www.thecanadianencyclopedia.ca/en/article/proce dural-law. See also Sutt v. Sutt (1968), 2 DLR (3rd) 33 at p. 39, 1968 CarswellOnt 289 at para. 8, 1968 CanLII 221 (Ontario Court of Appeal), available at http ://canlii.ca/t/ g1dzm stating that “It is vitally important to keep in mind the essential distinction between substantive and procedural law. Substantive law creates rights and obligations and is concerned with the ends which the administration of justice seeks to attain, whereas procedural law is the vehicle providing the 24

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In other words, the notion of procedure tends to be associated with the rules governing processes and remedies that allow for substantive law to be determined and enforced in practice 28. Perhaps unconsciously, the definition tracks Hart’s distinction between “primary rules of obligation” 29, which apply directly to the conduct of actors, and “secondary rules” 30, which govern how primary rules are made, changed, or adjudicated. Whether or not one adopts Hart’s account of legal systems as requiring a “rule of recognition” 31, the distinction between primary and secondary rules provides a useful lens for this study’s exploration of the proceduresubstance terrain 32. As already noted, it serves to highlight that procedure-substance questions can arise at two levels : as between primary rules, and as between primary and secondary rules. Much of the literature on the procedure-substance topic has been preoccupied with the latter context. Indeed, as the above definition also illustrates, in the domestic law context, procedural law is predominantly understood as concerned with adjudication 33. This narrow conception, means and instruments by which those ends are attained. It regulates the conduct of Courts and litigants in respect of the litigation itself whereas substantive law determines their conduct and relations in respect of the matters litigated.” 28  See Biehler, supra footnote 22, pp. 1-2. 29  Hart, supra footnote 16, p. 89. 30   Ibid., p. 91. 31   Ibid., p. 92. The absence of a rule of recognition led Hart, famously, to conclude that international law may provide a set of (primary) rules, but could not be a legal system. Hart also deemed international law to lack developed secondary rules of lawmaking and adjudication. 32  See also Mark Raymond, Social Practices of Rule-Making in World Politics, Oxford, Oxford University Press, 2019 (using the typology even more broadly, to analyse various kinds of rulemaking in international society). 33  See also Biehler, supra footnote 22, p. 35 ; Main, supra footnote 17.

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of course, neglects the fact that secondary rules serve a much wider range of functions than those related to judicial determination and enforcement of existing law 34. After all, legal systems need rules and procedures that govern lawmaking and determine how substance comes to be enshrined, and changed, in law ; that guide implementation of substantive rules and specify how performance is to be monitored and assessed  ; and that govern other processes than adjudication through which substantive rules are given meaning and effect. Furthermore, and reaching beyond Hart’s conception of secondary rules, procedure is not only about the determination and enforcement of substantive law, but also about the shaping of opportunities for involvement, engagement, learning, communication, deliberation, justification, legitimation of decisions, and so on 35. But what about the above-mentioned “line-drawing” question ? This question has figured prominently in the private international law literature 36. In that context, the distinction between procedure and substance has mattered because, traditionally, the classification of a given rule determined which law applies. The law of the forum State would apply in relation to procedural issues, whereas substantive issues were governed by the law to which the salient choice of law rule directs the court 37. Interestingly, however, the soundness of the substance-procedure dichotomy has been questioned in the private international law literature for some time 38. More recently, courts deciding conflict of laws cases also   See also Niklas Luhman, Legitimation durch Verfahren, Berlin, Suhrkamp Verlag, 1983, p. 1. 35   Ibid., pp. 23-37. 36  I thank Karen Knop for directing my attention to this literature. 37  Biehler, supra footnote 22, p. 7. 38  See Risinger, supra footnote 18, pp. 190-203 (discussing the origins of the confusion between the “procedure-substance dichotomy” and the “right-remedy distinction”). 34

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have shown themselves increasingly wary of bright line distinctions between the two sets of rules. For example, the Supreme Court of Canada has embraced a more “pragmatic approach”, building on the observation that “the ‘substantive’ shades off by imperceptible degrees into the ‘procedural’, and that the ‘line’ between them does not ‘exist’, to be discovered merely by logic and analysis” 39. In short, it is exceedingly difficult, if not impossible, to provide a general definition of what counts as substantive and procedural, in part because many rules have elements of both 40. C.  Procedure and Substance in Public International Law The public international law literature has paid comparably little close attention to the boundaries, let alone interplay, between procedure and substance 41. Broadly speaking, procedure-substance issues come up in two contexts that can be mapped onto the primary/secondary rule matrix. The first tracks the distinction between 42 primary rules of obligation and secondary rules  ,   Tolofson v. Jensen  ; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 SCR 1022 at p. 1068, 1994 CarswellBC 1 at para. 79, 1994 CanLII 44 (Supreme Court of Canada), available at http ://canlii.ca/t/1frp2) (quoting the US legal realist scholar Walter W. Cook, The Logical and Legal Bases of the Conflict of Laws, Cambridge, Harvard University Press, 1942, p. 166). 40  See also André Nollkaemper, “International Adjudication of Global Public Goods : The Intersection of Substance and Procedure”, European Journal of International Law, Vol. 23 (2012), p. 769 at p. 773. 41   Ibid., p. 771. But see Ioannis Prezas (ed.), Substance et procédure en droit international public  : dialectique et influences croisées, Paris, Editions Pédone, 2016. 42  See Papadaki, supra footnote 17, p. 38 ; Biehler, supra footnote 22, pp. 1-4 ; Michel Cosnard, “Les immunités internationales entre procédure et substance”, in Ioannis Prezas 39

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with the relevant literature revolving mostly around procedural issues pertaining to adjudication. The second context flows from the categorization of primary rules by virtue of their nature as either substantive or procedural. 1.  International adjudication There probably is a range of intersecting reasons for the international law literature’s inclination to conceive of procedure-substance issues as focused on international adjudication. It is likely that the domestic law conception of procedure-substance issues, with its predominant focus on adjudication, has influenced international legal scholarship. Historically speaking, this influence may have been amplified by the view of international law that scholar-practitioners in the English and French traditions helped shape 43. Kingsbury notes that these authors’ careers encompassed both scholarship and representation of clients in international litigation  ; some might eventually become international arbitrators or judges. As a result, their writing served to tilt much European international law scholarship towards an emphasis on “legal doctrines and materials related to disputes” 44. Finally, given the proliferation of international courts and tribunals in more recent times, international law scholars have been increasingly interested in exploring (ed.), Substance et procédure en droit international public : dialectique et influences croisées, Paris, Editions Pedone, 2016, p. 123. 43  See Benedict Kingsbury, “The International Legal Order”, in Mark Tushnet and Peter Cane (eds.), The Oxford Handbook of Legal Studies, Oxford, Oxford University Press, 2005, p. 271. See also Martti Koskenniemi, “Global Governance and Public International Law”, Kritische Justiz, Vol. 37 (2004), p. 241 (observing that the “international, we Europeans think, is fundamentally just another domestic”). 44  Kingsbury, supra footnote 43.

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the procedural dimensions of this phenomenon in more depth 45. For example, contributors to a recent volume on international litigation explore whether an overarching international procedural law can be discerned notwithstanding the diverse fields in which international dispute settlement operates today 46. Other commentators have challenged the preoccupation with the rules and practices of “courts, tribunals, panels and other bodies . . . which work in a seemingly similar way to national courts” 47. Thus, in his study of procedures in international law, Biehler proposes “to identify procedures by way of reference to their function in determining international law” 48, and to take account of “the indefinite variety of procedures” that serve this function in international law 49. Nonetheless, Biehler’s study ultimately remains anchored in a court-centric conception, given its focus on the authoritative and effective determination of law in a contentious case as the defining function of procedure 50. In turn, Nollkaemper explores the role of procedural law in the international adjudication of global public  For an early example, see John Collier and Vaughn Lowe, The Settlement of Disputes in International Law : Institutions and Procedures, Oxford, Oxford University Press, 2000. 46  See Hélène Ruiz Fabri (ed.), International Law and Litigation : A Look into Procedure, Baden-Baden, Nomos Verlagsgesellschaft, 2019. Under the auspices of the Max Planck Institute for Comparative Public and International Law in Heidelberg a broader range of research on international procedure is being conducted by the “Max Planck Fellowship Group on the Proceduralization of International Law”, available at http ://www.mpil.de/de/pub/ forschung/nach-rechtsgebieten/voelkerrecht/towards-aproceduralization-of.cfm. 47  Biehler, supra footnote 22, p. 36. 48   Ibid., p. 37. 49   Ibid., p. 49. 50   Ibid., p. 37. 45

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goods, illustrating that many apparently procedural issues, such as questions of standing, jurisdiction, or State responsibility have important substantive dimensions 51. Indeed, Nollkaemper’s study stands out in that its primary focus is on interrogating the nature of the relationship between procedure and substance. He too is interested in identifying the functions of procedure, but his lens is broader than Biehler’s. Is procedure but the “handmaiden of substance,” he asks, or does it serve independent values, including values that may be in tension with “the efficient application of substantive laws” 52 ? As already suggested, the functions of procedure ought to be broadly conceived, encompassing lawmaking and law development, implementation and ascertainment of performance, as well as giving substantive rules meaning 53 and effect  . In each of these permutations, international procedures serve to structure interactions between States and other actors 54, including at times by limiting participation in relevant processes and/or by conditioning the implementation of substantive rules 55. Nollkaemper highlights a further crucial dimension of procedures and procedural law. Whatever the substancerelated functions of procedure, woven across them are its intrinsic functions 56. Due process is a value in and of itself. But equally important is the aforementioned capacity of procedure to facilitate communication, deliberation, justification, engagement, trust-building,  Nollkaemper, supra footnote 40, at pp. 772-775. See also Papadaki, supra footnote 17, at p. 40. 52  Nollkaemper, supra footnote 40, p. 771. 53  See Chap. I, Sec. B. 54  See Neil Craik, The International Law of Environmental Impact Assessment : Process, Substance, and Integration, Cambridge, Cambridge University Press, 2008, p. 19. 55  Nollkaemper, supra footnote 40, at pp. 784-787 ; Biehler, supra footnote 22, p. 59. 56  Nollkaemper, supra footnote 40, pp. 782-784 (referring to “procedure-as-substance”). 51

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thereby promoting the legitimacy of rules, regimes and outcomes 57. 2.  Procedural versus substantive rules While most of the procedure-substance literature in international law is focused on adjudication, there is some writing that considers the relationship between rules that are substantive and rules that are procedural in nature. The example that has received most attention in the general international law literature is that of the distinction between jus cogens norms and the rules governing immunity of States or State officials 58. Thus, in response to the argument that jus cogens should displace immunity rules that prevent accountability in a domestic court, the ICJ held that there was no conflict between the two sets of rules because they belonged to separate categories. According to the ICJ, jus cogens norms are substantive rules, whereas immunity rules are procedural in nature. As such, neither do they automatically share a substantive norm’s jus cogens status, nor can they conflict with the substantive norm. They merely govern the circumstances under which an actor could be held accountable for a jus cogens violation 59.  See also Luhman, supra footnote 34, pp. 23-37.  See Al-Adsani v. United Kingdom [GC], No. 35763/97, Judgment of 21 November 2001, ECHR 2001-XI, p. 79 at p. 98, para. 48 ; Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, p. 3 at p. 25, para. 60 ; Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, p. 99 at p. 124, para. 58 (hereinafter Jurisdictional Immunities). 59  See Jurisdictional Immunities, supra footnote 58. For a detailed assessment, see Stefan Talmon, “Jus Cogens after Germany v. Italy : Substantive and Procedural Rules Distinguished”, Leiden Journal of International Law, Vol. 25 (2012), p. 979 at p. 986. 57 58

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Many commentators have been critical of the ICJ’s (and other courts’) approach to the jus cogens/immunity relationship and its effect of limiting accountability for grave breaches of international law 60. Others have examined it as a device to keep the notion of jus cogens and its centrality in the international legal order intact in a world of sovereign States. Specifically, the fact that a given jus cogens norm cannot be enforced in domestic courts does not diminish its existence in international law 61. At the same time, States can largely keep jus cogens out of domestic courts and away from non-State litigants, preserving the realm of sovereign immunity 62. The example is instructive, as it serves to illustrate how procedural rules can operate to constrain, or channel, the practical impact of substantive rules. Ultimately, although the jus cogens/immunity example revolves around a distinction between categories of legal rules, it also maps onto the common understanding of procedural law as encompassing “legal rules governing the process for settlement of disputes” and substantive law as concerned with “the rights and obligations of members of society” 63. Put differently, although jus cogens rules and the rules of State immunity, in creating rights and obligations, might both be classified as primary rules, the ICJ and much of the literature arguably have treated the former as primary and the latter as secondary rules.  See e.g. Lorna McGregor, “Torture and State Immunity : Deflecting Impunity, Distorting Sovereignty”, European Journal of International Law, Vol. 18 (2007), p. 903 at p. 911. 61  See Mark P. Hanna, “The Substantive/Procedural Distinction : Law’s Solution to the Problem of Jus Cogens in a World of Sovereign States”, German Law Journal, Vol. 19 (2018), p. 21, available at https ://germanlawjournal.com/ volume-19-no-01/. 62   Ibid. 63   The Canadian Encyclopedia, supra footnote 27. 60

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D.  Procedure and Substance in International Environmental Law In the international environmental law literature, the first major site of engagement with procedure and substance is the distinction between procedural and substantive obligations, which operates in customary and treaty-based law alike. Hence, although the discussion is not framed in those terms, the distinction between the two categories of primary rules is a prominent feature of the field. Second, whereas adjudication has played a relatively limited role in the field to date, questions about potential tensions between substantive rules and secondary rules that condition access to judicial dispute settlement procedures do arise. While, as the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica decisions illustrate, transboundary issues between neighbouring States have been before the ICJ, situations involving long-range or commons impacts, or impacts on human rights, face significant obstacles. Third, other types of secondary rules and procedures than adjudication, serving a wider range of functions than determination and enforcement of law, assume far greater significance in international environmental law, especially under the auspices of treaty-based regimes. 1.  Procedural and substantive obligations As already suggested, the distinction between substantive and procedural obligations is ubiquitous in international environmental law 64. Substantive rules set 64

  See e.g. Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law, Cambridge, Cambridge University Press, 2015, p. 54 ; Kerbrat, supra footnote 8 ; Ulrich Beyerlin and Thilo Marauhn, International Environmental Law, Oxford, Hart Publishing, 2011, pp. 4145 ; Laurence Boisson de Chazournes and Sandrine MaljeanDubois, “Principes du droit international de l’environnement”, Jurisclasseur environnement et developpement durable

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out standards that must be met through States’ actions or conduct, such as harm prevention goals or emissions targets 65. Procedural obligations, in turn, include the duties to notify, warn, inform, or consult States potentially affected by transboundary impacts, and to undertake (transboundary) environmental impact assessments (EIA) 66. While different in focus, both types of obligations are primary rules. 1.1.  Customary law The obligation to prevent significant transboundary environmental harm, considered in detail in the next chapter, remains the core rule of customary international environmental law. It raises the complexities of the procedure-substance interplay amongst primary rules more squarely than perhaps any other norm, in large part because procedural obligations are both an element and independent of the substantive harm prevention rule 67. States do not owe an absolute obligation to prevent transboundary environmental harm, but rather have a duty to take diligent measures to avoid such harm 68. Hence, in addition to appropriate regulatory and policy measures (i.e. substantive steps) to avoid cross-border harm, States must undertake EIAs and notify, inform or consult (2011), p. 1 at pp. 2-6, paras. 11-18 ; Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment, Oxford, Oxford University Press, 2009, pp. 137, 164-184. 65  See e.g. Dupuy and Viñuales, supra footnote 64, pp. 55-60 ; Beyerlin and Marauhn, supra footnote 64, pp. 39-43. 66  See e.g. Dupuy and Viñuales, supra footnote 64, pp. 64-70 ; Beyerlin and Marauhn, supra footnote 64, pp. 44-45. 67  For an overview, see Jutta Brunnée, “Procedure and Substance in International Environmental Law : Confused at a Higher Level ?”, ESIL Reflections, Vol. 5 (2016), available at https ://esil-sedi.eu/post_name-123/. 68  See Birnie et al., supra footnote 64, p. 143.

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with potentially affected States, as the case may be 69. Depending on the circumstances, a failure to do so can amount to a lack of due diligence. At the same time, the procedural obligations surrounding the harm prevention rule also have a separate existence in customary law, such that they can be violated independently of the substantive duty 70. Where the boundaries between procedure and substance run is a matter of perspective, however. Indeed, the harm prevention rule exemplifies the proposition that rules may have both substantive and procedural aspects 71. Conceptually, procedural obligations do not exist in a vacuum – they are necessarily connected to a substantive criterion. For example, whether and when one State must notify another depends in part on a substantive goal – the prevention of significant transboundary harm. In this respect, substance provides the parameters for procedure. In turn, practically speaking, substance, or rather the achievement of the substantive goal in question, is typically dependent upon procedure 72. For example, it will often be difficult, if not impossible, to prevent transboundary harm without first understanding the attendant risks (i.e. without an EIA) 73. As Chapter II will demonstrate, there is also a distinctive legal connection between procedure and substance. Since the harm  See Pulp Mills, supra footnote 1, pp. 79-89, 82-83, paras. 197, 204. 70   Ibid., p. 49, para. 79. But see Phoebe Okowa, “Procedural Obligations in International Environmental Agreements”, British Yearbook of International Law, Vol. 67 (1997), p. 275 at p. 317. 71  See Chap. I, Sec. B. 72   See also Tamar Meshel, “The Dual Role of Procedure in International Water Law”, in Hélène Ruiz Fabri (ed.), International Law and Litigation : A Look into Procedure, Baden-Baden, Nomos Verlagsgesellschaft, 2019, p. 65 at pp. 66-67. 73  See also Okowa, supra footnote 70, p. 277. 69

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prevention obligation is one of due diligence, procedure is actually an aspect of its substance : procedural duties help define what it takes to meet the rule’s substantive requirements 74. However self-evident this proposition may be, its legal implications seem less than settled. The ICJ’s Pulp Mills and Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica decisions laid bare the confusion surrounding these issues. For the moment, suffice it to note that the harm prevention rule is an obligation of conduct, the relevant standard of conduct being that of due diligence 75. Yet, although the very point of the rule is to require appropriate steps to prevent significant transboundary harm, the ICJ has not treated a failure to take the requisite steps, notably procedural steps, as sufficient to give rise to a violation of the substantive duty. Instead, so long as no transboundary harm is actually caused, the ICJ treats such due diligence failures as violations of only the relevant procedural rules 76. One goal of the next chapter will be to show that the proposition “no harm = no violation of the harm prevention rule” is not as selfevident as it might seem. 1.2.  Treaty law The bulk of international environmental lawmaking today occurs under the auspices of MEAs. These treatybased regimes, explored in Chapter IV, provide a setting in which substantive and procedural provisions can be tailored to the issue at hand, and in which their interplay can be calibrated in deliberate fashion.  See also Okowa, supra footnote 70, p. 332.  See e.g. Pierre-Marie Dupuy, “Reviewing the Difficulties of Codification : On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility”, European Journal of International Law, Vol. 10 (1999), p. 375 at pp. 379, 380, 382. 76  See text accompanying supra footnotes 1-8. 74 75

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Most treaty-based procedural requirements map onto, or elaborate on, the basic procedural duties at customary law, such as risk and impact assessment, notification, information exchange, or consultation 77. All in all, MEA commitments tend to be robustly procedural in nature, especially in the earlier stages of regime development, when parties are least willing to make substantive commitments 78. Often, more demanding substantive requirements are agreed only as a regime evolves 79. At that point, MEAs often frame substantive standards as obligations of result, like obligations to phase out certain substances, or to reduce certain emissions by a specified amount 80. Such standards avoid the ambiguity that has taken hold in customary international law concerning the legal relationship between procedural and substantive obligations. Whether or not States make diligent efforts to achieve these results is immaterial in assessing compliance with substantive commitments, although capacity limitations, notably of developing countries, will factor into the consideration of responses to noncompliance. This pattern of treaty development towards substantive obligations of result can be found in particular in the context of MEAs on atmospheric pollution. The aforementioned Paris Agreement, however, breaks with the pattern. It relies on a set of binding procedural  See also Okowa, supra footnote 70, pp. 279-308.  See Brunnée, supra footnote 9, p. 167. 79  In some circumstances, it has been possible to adopt MEAs that contain detailed substantive requirements from the outset. See e.g. the Stockholm Convention on Persistent Organic Pollutants, done at Stockholm on 22 May 2001, United Nations, Treaty Series, Vol. 2256, p. 119 ; and the Minamata Convention on Mercury, done at Kumamoto on 10 October 2013, International Legal Materials, Vol. 55 (2016), p. 582. 80  See e.g. Kyoto Protocol, supra footnote 12, Art. 3.1. 77 78

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obligations 81, which are meant to drive substantive steps by the parties. Meanwhile, the substance of the agreement is supplied largely by non-binding commitments and normative expectations 82. Parties do have a substantive obligation to pursue domestic emissions mitigation measures 83, but it is an obligation of conduct. Hence, some of the ambiguity that results from the due diligence nature of the harm prevention duty at custom may have found its way into the Paris Agreement. This question will be explored in Chapter IV. 2.  Procedures in international environmental law Procedural mechanisms complement international environmental law’s primary rules in a number of respects. The customary rule framework of the harm prevention rule, for example, connects to domestic procedures meant to integrate the international obligation into States’ practices. Domestic EIA procedures that account for potential transboundary impacts are a good illustration 84. Sometimes States establish international procedural mechanisms, watercourse agreements that set up institutions and procedures for transboundary cooperation being one example 85. For the present purposes, however, the focus will be on the role that adjudication plays in international environmental law, and on the array of procedures that have come to be distinctive of treatybased environmental regimes. The former permits an exploration of how rules pertaining to adjudication serve to shine a spotlight on constraints and ambiguities in the primary rule, the harm prevention rule. The latter allows  See Paris Agreement, supra footnote 13, Arts. 4.2, 4.8, 4.9, 4.13. 82  See ibid., Arts. 3, 4.2, 4.3. 83  See ibid., Art. 4.2. 84  See Craik, supra footnote 54, pp. 45-51. 85  See e.g. Pulp Mills, supra footnote 1, p. 49, para. 78. 81

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consideration of the sophisticated range of secondary rules and procedures that MEAs employ to support the development and implementation of primary rules. 2.1. Adjudication While recourse to adjudication remains relatively rare in international environmental law, the ICJ and the International Tribunal on the Law of the Sea (ITLOS) have had the opportunity to decide a number of significant cases in the last two decades. In some instances, cases arose from disputes concerning the interpretation of a treaty 86, in others the focus was on the application of the harm prevention rule at customary law in the context of a dispute between neighbouring States 87. Chapter III will examine the constraints on the rule’s application to long-range or commons impacts, and impacts on human rights. As the chapter will illustrate, both the primary rule and the secondary rules pertaining to adjudication constrain access to judicial settlement. Indeed, there is an illuminating parallel between the implications of the substance-procedure distinction in the jus cogens-State immunity example and the state of affairs in international environmental law. Whereas, substantively, customary law anchors all States’ duty to protect commons, the rules that govern the invocation of responsibility for the breach, or access to the ICJ, help shield individual States from accountability 88. This phenomenon, and the inherent constraints of a judicial approach to international environmental problems that it  See e.g. Pulp Mills, supra footnote 1 ; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Case No. 17), Advisory Opinion of 1 February 2011, ITLOS Reports 2011, p. 41 (hereinafter Responsibilities in the Area). 87  See e.g. Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5. 88  See also Nollkaemper, supra footnote 40, pp. 771-772. 86

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highlights, also help set the stage for the consideration of treaty-based regimes and their varied procedural features in Chapter IV. It is primarily under the auspices of MEAs that common concerns and attendant protective duties are concretized, and that procedural mechanisms can be tailored to provide a measure of accountability 89. 2.2.  Procedural aspects of treaty-based regimes Procedural elements may be fairly described as both the scaffolding and the engines of treaty-based environmental law. Their prevalence is a distinctive feature of MEAs today 90. In settings where large numbers of States with widely divergent capacities, outlooks and interests must come together in responding to multi-faceted challenges, typically characterized by uncertainty, procedural frameworks are often the necessary first step towards a common approach, and agreement on substantive standards 91. They are also indispensable in facilitating long-term interaction between parties and, ideally, continuous review and adjustment of agreed standards, as well as assessment of party performance. Furthermore, in some MEAs, the development of a procedural approach to harm prevention is the very purpose of the agreement, such as in regimes that establish prior informed consent procedures for the transboundary transfer of hazardous wastes or substances 92. In short, procedural elements  See Brunnée, supra footnote 9, pp. 165-166.  See Jan Klabbers, International Law, Cambridge, Cambridge University Press, 2013, p. 263. 91  See Jutta Brunnée, “The Rule of International (Environmental) Law and Complex Problems”, in Heike Krieger, Georg Nolte and Andreas Zimmermann (eds.), The International Rule of Law : Rise or Decline ?, Oxford, Oxford University Press, 2019, p. 211. 92  See e.g. Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, done at Basel on 22 March 1989, United Nations, Treaty Series, Vol. 1673, p. 57 (hereinafter Basel Convention) ; Rotterdam 89 90

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play a wide spectrum of roles in MEAs, much more wide ranging than in the context of customary law, where they are predominantly focused upon the implementation of substantive obligations 93. Great emphasis is placed on information gathering and exchange procedures. In the early stages of regime development, they help forge the factual basis on which parties might move to substantive standard-setting 94. As the regime evolves, information procedures feed into efforts to assess the adequacy of agreed standards and revise or expand them in light of current information. They also provide the foundation for performance monitoring and compliance assessment. To facilitate regime development, MEAs establish permanent forums and procedures for regular engagement and negotiation, 95 and for lawmaking and law-development  . Finally, MEAs provide performance monitoring and technical review processes as well as compliance assessment procedures 96. In each of these permutations, MEA-based procedures are designed not only to promote particular outcomes, but also to serve intrinsic procedural values like communication, deliberation, justification, transparency, trust-building, and legitimation. Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, done at Rotterdam on 10 September 1998, United Nations, Treaty Series, Vol. 2244, p. 337 (hereinafter Rotterdam Convention). For an overview, see Ellen Hey, Advanced Introduction to International Environmental Law, Cheltenham, Edward Elgar, 2016, pp. 40-42. (See also Chap. IV, Sec. B.2.1.) 93  See Mari Koyano, “The Significance of Procedural Obligations in International Environmental Law : Sovereignty and International Co-Operation”, Japanese Yearbook of International Law Vol. 54 (2011), p. 97 at p. 115. 94  See Brunnée, supra footnote 9, p. 167. 95   Ibid., pp. 168-170. 96   Ibid., pp. 170-172.

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3. The proceduralization of international environmental law This introductory chapter has roughed out a picture of pervasive interaction between procedure and substance in international environmental law. The example of the harm prevention rule illustrates that, at the level of primary rules, procedural obligations complement the broad-meshed substantive obligation found in customary law 97. These procedural obligations help operationalize the requirement of diligence in harm prevention, and concretize the meaning of the substantive rule in a given case. When the harm prevention rule is applied to concerns that transcend the context of disputes between neighbouring States concerning transboundary impacts, the interplay between primary and secondary rules governing adjudication comes into focus. In turn, MEAs are heavily procedural, often containing more procedural than substantive primary obligations, and providing procedural frameworks for consensus-building, longterm interaction, standard-setting, and performance assessment. Various observers have referred to these developments, notably the developments in the treaty context, as the proceduralization of international environmental law 98. Some see proceduralization as a sign of the  See also Klabbers, supra footnote 90, p. 257 (observing that the same applies to other notions, such as sustainable development or equitable utilization). 98  See e.g. Marion Lemoine-Schonne, “Substance et procédure en droit international du climat”, in Ioannis Prezas (ed.), Substance et procédure en droit international public  : dialectique et influences croisées, Paris, Editions Pédone, 2016, p. 19 at pp. 34-45 ; Craik, supra footnote 54, pp. 72-83, 271-274 ; Koskenniemi, supra footnote 10, p. 74 ; Klabbers, supra footnote 90, p. 263 ; William Howarth, “Aspirations and Realities under the Water Framework Directive : Proceduralization, Participation and Practicalities”, Journal of Environmental Law, Vol. 21 (2009), p. 391. 97

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maturation of the field 99, some advocate specific modes of proceduralization 100, and others see it as cause for concern 101, even a sign of decline 102. Practically speaking, is international environmental law conceivable without procedural obligations and without the secondary rule frameworks established by MEAs ? Yet, in focusing on law’s capacity to facilitate problemsolving, are international environmental lawyers yielding too much ground to the goal-oriented logic of the “governance mindset” and to “managerialism” 103 ? Thus, is there a darker side to the field’s emphasis on procedure, as the critics of proceduralization caution ? Based on a close examination of the different dimensions of the procedure-substance interplay in the harm prevention context, this course aims to provide a foundation for a nuanced reflection on proceduralization. A more complete answer to the attendant questions will have to await the concluding Chapter V. For now, the discussion first turns to practical considerations and then to the specific concerns articulated by the proceduralization critique.  See Owen McIntyre, “The Proceduralization and Growing Maturity of International Water Law”, Journal of Environmental Law, Vol. 22 (2010), p. 475. 100  See Anna Huggins, Multilateral Environmental Agreements and Compliance : The Benefits of Administrative Procedures, Milton Park and New York, Routledge, 2017. p. 1 (on proceduralization as the trend towards adopting procedural tools of administrative character in global environmental governance). 101  Koskenniemi, supra footnote 10. 102  See Process as Decline, supra footnote 15. 103  See Koskenniemi, supra footnote 43 ; and Martti Koskenniemi, “The Fate of International Law : Between Technique and Politics”, Modern Law Review, Vol. 70 (2007), p. 1 at pp. 13, 29. 99

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3.1.  Practical considerations What accounts for the strong procedural orientation of international environmental law ? In part, the reasons lie in the characteristics of the issues with which the field is concerned 104. Be it a transboundary matter between neighbouring States or a global concern implicating a multitude of States, there is likely to be uncertainty, or disagreement, about the existence, nature or severity of the problem. Since environmental problems as such have a physical basis, they are, in principle, amenable to elucidation through scientific inquiry and assessment. In turn, without reliable information about the problem’s physical basis, efforts to resolve a bilateral question or to cooperate in tackling a common concern are unlikely to be successful. For example, in the application of the primary rules of customary international law, scientific information may be needed to determine whether transboundary harm is likely to occur, and whether such harm would be significant. Scientific information, then, helps illuminate the substantive criteria that serve as triggers for harm prevention duties. In doing so, it also assists in determining what due diligence requires of a State in the exercise of its preventive duties. That is why States are subject to procedural duties, like the obligation to undertake an EIA before proceeding with a potentially harmful activity. While environmental issues differ from many other policy challenges in that they are rooted in physical facts and while knowledge of the facts, or the best available information, is central to finding viable solutions, it is not 104

 For an overview, see Daniel Bodansky, Jutta Brunnée and Ellen Hey, “International Environmental Law : Mapping the Field”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 1 at pp. 6-8.

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sufficient. Environmental concerns tend to be intertwined with political, economic and social ones. It is not the case, therefore, that transboundary environmental problems are easily amenable to rational resolution once the facts are known 105. Furthermore, because transboundary environmental concerns do raise such multi-dimensional issues, it is difficult to imagine that a customary rule could provide more than general guidance 106. It can provide substantive parameters for decision-making or dispute resolution, but not a definitive answer to the inevitably wide range of questions and constellations that might arise 107. Here lies another reason why procedural duties play a central role. The duties to notify or consult potentially affected States, for example, mandate engagement between States and, ideally, prompt them to find a mutually satisfactory resolution that is compatible with the relevant substantive standards. In the context of MEAs, these considerations are often magnified. Such agreements typically address environmental challenges that lie, factually and legally, beyond individual States’ problem-solving capacities, requiring them to co-ordinate their actions. But how does one get the ball rolling on tackling a complex, evolving multilateral, let alone global, environmental problem in the absence of agreement on the scope (even existence) of the problem, on the best approaches to addressing it, or on who should be doing how much in doing so, notably as between States from the global South and North – to name but a few of the challenges that invariably arise ? The path towards a solution is almost inevitably procedural, certainly at the outset, but, as already noted, also in the  Koskenniemi, supra footnote 10, p. 85.  See also Koskenniemi, “The Fate of International Law”, supra footnote 103, pp. 9, 10. 107  See also Craik, supra footnote 54, pp. 271-274 (discussing the role of EIA procedures) ; Howarth, supra footnote 98, p. 396. 105 106

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context of subsequent efforts to expand or adapt the regime. Simply put, MEAs are not “one-shot” solutions, but are premised on ongoing processes of engagement. To that end, they typically establish an institutional and secondary rule framework, such that they have been rightly compared to international organizations 108. 3.2.  Theoretical considerations The practical considerations highlighted above suggest that proceduralization is a necessary aspect of international environmental law. But is it a strength or a weakness of the field ? One way to answer the question would be to focus on whether it “works”. Indeed, some critics of proceduralization appear to apply this metric, notably to MEAs. Environmental agreements are said to be elaborately procedural, but ultimately unable to produce results. For example, according to the Erik Castrén Institute’s 2019 “Helsinki Summer Seminar” description, “the main solutions [MEAs] are capable of offering tend to be procedural ones : new negotiations leading to new instruments, institutions, rules and processes. These tend to be legally sophisticated and complex, but their environmental effectiveness often remains questionable.” 109 However, the effectiveness of international environmental law, while obviously important, is notoriously   See Robin Churchill and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements : A Little-Noticed Phenomenon in International Law”, American Journal of International Law, Vol. 94 (2000), p. 623. 109  See Process as Decline, supra footnote 15 (yet, the seminar description also asks participants to “unlearn pragmatic, instrumentalist or functionalist ways of doing international environmental law” – emphasis in original). 108

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difficult to assess, in part because of the range of 110 conceivable yardsticks.  For present purposes, in any case, a legal perspective will be adopted. Hence, in the following chapters, the different ways in which procedural and substantive elements are intertwined in law will be closely scrutinized. It is helpful to take a closer look at the proceduralization critique before embarking on that analysis, precisely because this critique, while alert to effectiveness considerations, is particularly concerned with the deeper implications of the turn to procedure for international law qua law. Indeed, the tenor of the critique is that proceduralization risks weakening or undermining international environmental law, entailing not the enhancement of substantive rules, but their displacement by procedure. These concerns have been raised particularly in critical international law scholarship and, more specifically, “Helsinki School” scholarship 111. Several sub-themes can be identified in this literature. First, when it comes to international environmental law’s primary rules, critical scholars view the harm prevention rule and other customary rules as largely  See e.g. Daniel Bodansky, The Art and Craft of International Environmental Law, Cambridge, MA, Harvard University Press, 2010, pp. 252-266 (exploring different meanings of effectiveness). 111  See Andrea Bianchi, International Law Theories  : An Inquiry into Different Ways of Thinking, Oxford, Oxford University Press, 2016, p. 163 (on the “Helsinki School” label). But note also that a range of other environmental law scholars have expressed concerns about aspects of the turn to procedure. See e.g. Tim Hayward, Constitutional Environmental Rights, Oxford, Oxford University Press, 2004, p. 84 ; Anna Huggins and Md Saiful Karim, “Shifting Traction : Differential Treatment and Substantive and Procedural Regard in the International Climate Change Regime”, Transnational Environmental Law, Vol. 5 (2016), p. 427. 110

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devoid of substance 112, and as offering a “process-definition” that highlights “relevant values but leaves the determination of their normative impact [to] further process” 113. The fact that the harm prevention rule is an obligation of conduct and not of result seems to exacerbate the concern, by making wrongfulness contingent on whether or not a State acted with due diligence 114. Similarly, MEAs are said to mostly lack constraining substantive rules. According to Koskenniemi, “[t]he reasons for such proceduralization are easy to grasp. Agreement on substantive law requires more of a consensus about political value than agreeing upon procedure. Procedural solutions . . . do not prejudice any State’s substantive policy.” 115 And so, notes Koskenniemi, “[t]he strategy of environmental treaties is to treat the substance of the environmental conflict by referring its normative regulation elsewhere  ; into further cooperation between the parties . . . ; the matter is proceduralized in order to make it amenable for diplomatic treatment” 116. Extrapolating from these observations, one can surmise that the shift in the climate regime from substantive obligations of result in the Kyoto Protocol to an obligation of conduct in the Paris Agreement would be  Klabbers, supra footnote 90, p. 257.  Koskenniemi, supra footnote 10, p. 76. See also Koskenniemi, supra footnote 103, pp. 9-12. 114  Koskenniemi, supra footnote 10, p. 77. 115   Ibid., p. 74. 116   Ibid., p. 78 (emphasis in original). This critique echoes David Kennedy’s observations about institutionalization. See David Kennedy, “A Move to Institutions”, Cardozo Law Review, Vol. 8 (1987), p. 841 at pp. 951 and 981 (arguing that the League of Nations served to proceduralize issues of war and peace). 112 113

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seen as deepening proceduralization. The same applies to the agreement’s blend of non-binding substantive elements and binding procedural obligations. The second sub-theme of the proceduralization critique pertains to the interplay between primary rules and secondary rules and procedures. One concern is that procedures are deployed as a strategy for the avoidance of substance. According to Koskenniemi, “[e]ntering procedure, however, only postpones what seems inevitable : a decision on the parties’ material rights and duties. . . . For many jurists, international law’s primary task is precisely this procedural task of structuring the decision-context so that the eventuality of agreement is enhanced. . . . The question is whether recourse to procedure rather provides a substitute for agreement than a forum to attain it.” 117 A related concern is that MEAs resort to “secondary rules that lift violations from the compass of breach of treaty or State responsibility”, notably by establishing non-binding or facilitative accountability mechanisms 118. For Koskenniemi, these concerns are amplified when proceduralization coincides with the “deformalization” of international law, that is “the process whereby law retreats solely to the provision of procedures or broadly formulated directives to experts and decision-makers for the purpose of administering international problems 117 118

 Koskenniemi, supra footnote 10 , pp. 84-85.  Koskenniemi, supra footnote 103, p. 13 ; Martti Koskenniemi, “Breach of Treaty or Non-Compliance ? Reflections on the Enforcement of the Montreal Protocol”, Yearbook of International Environmental Law, Vol. 3 (1992), p. 123 ; Jan Klabbers, “Compliance Procedures”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 995 at pp. 107-108.

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by means of functionally effective solutions and ‘balancing interests’ ” 119. Writing in 2007, Koskenniemi expressed concern that this process might even turn the “formally rulelike provisions (emission reduction standards)” of the Kyoto Protocol into “negotiating chips in an unending process of balancing, adjusting and managing” 120. Again, it is not a stretch to surmise that the Paris Agreement’s accountability processes, especially in combination with primary rules that are “proceduralized” themselves, might be seen as the embodiment of the phenomenon Koskenniemi first warned against some 30 years ago. The questions raised by the proceduralization critique are incisive, and they zero in on key traits of international environmental law. But does it follow that proceduralization of the kind described above signals the decline of international law ? The answer to this question, arguably, depends on the underlying understanding of international law. To some extent, Koskenniemi’s proceduralization critique may echo the classical distinction between “the law” – the “substance” – and the (judicial) procedures that ought to give it effect 121. After all, and at the risk of pushing the point, one theme is that a retreat from substance in primary rules leads to the loss of law, and another that the loss of formal dispute settlement at the secondary rule level further undermines what little substance there may be. While Koskenniemi is wary of law’s substance 122, he also wants to have faith  See Martti Koskenniemi, “Constitutionalism as Mindset : Reflection on Kantian Themes about International Law and Globalization”, Theoretical Inquiries in Law, Vol. 8 (2007), p. 9 at p. 13. See also Koskenniemi, supra footnote 103, pp. 9-15. 120   Ibid., p. 13. 121  See text accompanying supra footnote 42. 122  See Martti Koskenniemi, From Apology to Utopia : The Structure of International Legal Argument – Reissue with 119

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in the capacity of a formal international law to provide a surface on which actors can argue their differences in terms of something shared 123. Open-ended notions, like “sovereignty, self-determination, human rights, and non-intervention”, he argues, enable the formulation of an actor’s particular grievances in generalizable terms 124. It would seem, then, that the broad-strokes nature of substance, such as that of the harm prevention rule, need not preclude its operation as law. Moreover, procedure need not spell the demise of law. Rather, procedural obligations and procedures might provide the context in which substance can operate as law, thereby strengthening law’s capacity to serve as a “surface” for a thin (legal) community of political adversaries 125. This possibility comes into sharper focus if law is understood as part and parcel of the practices that produce, sustain, shape and reshape it. In such an understanding, proceduralization can be appreciated as not necessarily benign but not inevitably of concern. Theoretically, the focus on process aligns with pragmatism and a focus on the role of practical reasoning and deliberation 126. Prominent strands of North American scholarship have long given pride of place to process, resisting the notion that positive rules could be divorced from the processes New Epilogue, Cambridge, Cambridge University Press, 2005. 123  See Martti Koskenniemi, “What Is International Law For ?”, in Malcolm D. Evans (ed.), International Law, 3rd ed., Oxford, Oxford University Press, 2010, p. 32 at p. 52. See also Koskenniemi, “The Fate of International Law”, supra footnote 103, p. 30 (referring to international law as “a kind of secular faith”). 124  Koskenniemi, supra footnote 43, p. 253. 125  I thank Ellen Hey for highlighting this point. 126  See Stephen Toope, “Emerging Patterns of Governance and International Law”, in Michael Byers (ed.), The Rule of Law International Politics : Essays in International Relations and International Law, New York, Oxford University Press, 2000, p. 91 at pp. 101-102.

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of interpretation, contestation, and justification that give them meaning and effect – and legitimacy 127. Building on these propositions, international legal process scholars emphasize the role of distinctive reasoning in law, highlighting how legal norms are developed, maintained and changed through the dynamic interplay between rules and contextual application 128. In this perspective, law and politics, or law and power, are not opposites, but are not co-extensive either 129. It is precisely the distinctive traits of legality and legal practices that enable law to operate with some autonomy 130 from State interests and power  . Perhaps more importantly, there is no radical discontinuity between “the law” and legal processes. Law itself is continuous practice, such that law emerges from and is maintained and refined through distinctively legal practices and

 See, generally, William Eskridge Jr. and Philip Frickey, “An Historical and Critical Introduction to the Legal Process”, in Henry Hart Jr. and Albert Sacks, The Legal Process : Basic Problems in the Making and Application of Law (William Eskridge Jr. and Philip Frickey, eds.), New York, Foundation Press, 1994, p. li. See also Kingsbury, supra footnote 43, p. 272 (noting that North American scholars, such as members of the New Haven School, have been more inclined than European scholars to repudiate “the positivist notion of law as a body of rules”). 128  On legal process thinking in international law see Abram Chayes and Antonia Handler Chayes, The New Sovereignty : Compliance with International Regulatory Agreements, Cambridge, MA, Harvard University Press, 1995 ; Harold Hongju Koh, “Transnational Legal Process”, Nebraska Law Review, Vol. 75 (1996), p. 181. And see Jutta Brunnée and Stephen J. Toope, Legitimacy and Legality in International Law : An Interactional Account, Cambridge, Cambridge University Press, 2010. 129  Toope, supra footnote 126, p. 102. 130  Jutta Brunnée and Stephen J. Toope, “History, Mystery and Mastery,” International Theory, Vol. 3 (2011), p. 348 at p. 354.

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reasoning 131. Legal interaction, in turn, can lead to substantive outcomes but is not contingent on substantive agreement 132. Seen from this vantage point, procedures and procedural rules are central to the existence of (international environmental) law, as they structure the very interactions that allow for the lawmaking-development, implementation, and monitoring-assessment highlighted earlier. It may be overly optimistic to assert that “substantive aims should be achieved procedurally, on the principle that if men [sic] are compelled to act in the right way, they will generally do the right things” 133. But it stands to reason that procedural rules and procedures can provide stable, predictable parameters and settings for legal interaction, and therefore constitute an indispensable feature of international environmental law. This proposition, and the concerns of the proceduralization critique, will be revisited in the concluding Chapter V. But first it is time to turn to a detailed exploration of how procedure and substance operate and interact in the harm prevention rule and in the context of MEAs.

 Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart”, Harvard Law Review, Vol. 71 (1958), p. 630 at p. 643. 132  Brunnée and Toope, supra footnote 130. 133  Fuller, supra footnote 131. See also Joshua C. Gellers and Chris Jeffords, “Toward Environmental Democracy ? Procedural Environmental Rights and Environmental Justice”, Global Environmental Politics, Vol. 18 (2018), p. 99 at pp. 110-116 (suggesting that States providing procedural environmental rights are more likely to facilitate environmental justice). 131

CHAPTER II

THE HARM PREVENTION RULE A. Overview This chapter undertakes a close analysis of the central substantive rule of international environmental law – the duty not to cause significant transboundary harm – and its related procedural rules. This primary rule framework is the conceptual core of customary international environmental law 134, and provides the background assumption for the myriad MEAs and other international instruments that have been negotiated over the years. The no harm rule constitutes international environmental law’s point of origin and, as such, exploring its development is helpful in understanding the field’s conceptual structure, evolution, and limitations 135. The harm prevention rule is also the most firmly established of international environmental law’s substantive norms, and its accompanying procedural rules are similarly well grounded. Of course, a number of other concepts operate in international environmental law today, such as the precautionary principle, sustainable development, or the notion of common concern of humankind. But the focus of the discussion will be on the no harm rule. Since this substantive rule is tightly intertwined with a series of procedural duties, it squarely raises the  See also Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, Cambridge, Cambridge University Press, 2012, p. 200 (referring to it as the “cornerstone of international environmental law”). 135  See also Kerbrat, supra footnote 8, p. 7. 134

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procedure-substance questions with which this volume is concerned. Furthermore, recent judicial decisions have put the spotlight on the procedure-substance interface, revealing a series of ambiguities in what appeared to be a settled legal regime. The chapter first provides an overview of the emergence and evolution of the no harm rule and its current contours. The discussion then turns to a detailed exploration of an apparent shift in international environmental law from a “duty not to cause significant transboundary harm” (no harm rule) to a “duty to prevent significant transboundary harm” (the harm prevention rule). This shift is read by some commentators as one that involves the emergence of a new environmental harm prevention principle, which then assumed a priority position in international environmental law. The argument developed in this chapter is slightly different. It holds that the “no harm rule” always entailed a harm prevention duty and that, to the extent that a shift occurred, it was a shift in emphasis within one and the same rule, at least for the purposes of international environmental law. In short, the “no harm rule” and the “harm prevention rule” are two sides of the same coin, and the terminological difference serves mainly to highlight the evolution of the field. As it considers this evolution, the chapter will offer a detailed analysis of the nature of the harm prevention rule, the conceptual puzzles raised by its due diligence standard, and the connections between the substantive rule and the related procedural rules. The chapter will show that the relationship between the primary rules that govern harm prevention at custom is such that procedural and substantive rules are mutually reinforcing and, indeed, mutually constitutive. As a result, it is difficult to draw a stark line between the two sets of primary rules and, indeed, procedure may play a substantive role.

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B.  The Origins of International Environmental Law and the No Harm Rule How does environmental law – any environmental law – first emerge ? This might seem an odd question to ask. But considering it at least briefly is helpful in understanding the rule framework that is at the heart of today’s international environmental law. The answer, in simple terms, is that environmental law initially consisted in the application of general legal rules or principles to harm that, today, would be understood as environmental harm 136. This approach was necessary because there was no distinct “environmental law” to which one might have been able to resort – in part because environmental problems were not perceived as such, but rather were thought of as interferences with existing rights. In most domestic legal systems, certainly in civil and common law systems, the first environmental law therefore was a law of neighbourhood nuisances. That is, when one land owner’s activities had negative impacts on a neighbour’s land, concepts such as abuse of rights or nuisance were deployed to strike a balance between the competing property rights 137. In this framing, the fact that the impacts in question were environmental impacts did not matter very much. Legally, the focus was on competing rights to use and enjoyment of land, and on harm to real property. In other words, environmental harm was legally relevant only to the extent that it amounted to actionable interference  See Albert C. Lin, “The Unifying Role of Harm in Environmental Law”, Wisconsin Law Review (2006), p. 897. 137  See Lin, supra footnote 136, p. 899 ; Jutta Brunnée, “Sic utere tuo”, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2008, online edition available at https :// opil.ouplaw.com/home/EPIL ; Michael Byers, “Abuse of Rights : An Old Principle, A New Age”, McGill Law Journal, Vol. 47 (2002), p. 389. 136

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in existing rights, typically real property rights. What is more, in such a legal framework only right holders, usually landowners, were entitled to invoke the law to challenge environmental impacts. From an environmental protection standpoint, the insufficiency of such a system is obvious 138. What if the impacts in question originate from a factory and affect not only owners of neighbouring properties, but a much larger number of people ? What if the concern to be addressed is actually an environmental concern, such that it requires a tailored response, rather than one focused on defending coincidentally affected rights ? And what if impact-producing activities proliferate and interact, as they would in any industrializing society ? Would one not need rules and laws that focus directly on environmental harm, rather than indirectly, through interference with a given right ? And would such rules not need to be administered regardless of whether there is an injured right holder who is prepared to hold a polluter to account ? Of course, the answer to all these questions is yes. It is for these very reasons that environmental law emerged as a dedicated field in countries around the world. The proliferation of specialized environmental laws and government agencies is a relatively recent development. It can be traced back to the rise of environmental awareness in the 1960s and the ensuing push for policy responses 139. The 1972 Stockholm Conference on the Human Environment, which put environmental decline  But see also Elizabeth Brubaker, Property Rights in the Defence of Nature, London, Earthscan Publications, 1995 (on the advantages of deploying property rights to protect nature). 139  See Peter Sand, “The Evolution of International Environmental Law”, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 29 at p. 34. 138

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firmly on the international agenda and is generally seen as pivotal in the emergence of international environmental law as a field, also helped ignite domestic activity, at least in Western countries 140. The evolution of international environmental law has been quite similar to that of its domestic counterpart, moving from the application of the international equivalent of neighbourhood rules, explored in this chapter and the next, to the emergence of a growing number of specialized environmental protection regimes and institutions 141, explored in Chapter IV. 1. The Trail Smelter case Not surprisingly, at a time when environmental impacts were not understood as such in domestic societies, transboundary impacts were seen, or at least conceptualized in law, as interferences with sovereign rights or territory, much as early domestic approaches had done with respect to land and related rights. Indeed, to this day, international environmental law remains grounded in concepts meant to balance competing sovereign interests. Under the no harm rule, States’ rights to use their territories and resources are limited by the obligation to avoid significant transboundary harm, while neighbouring States must tolerate harm that remains below that threshold. The first major articulation of this rule in an environmental context came in the arbitral award in the Trail Smelter dispute between the United States and Canada 142. The dispute concerned a lead and zinc smelter  See Dupuy and Viñuales, supra footnote 64, pp. 8-12.  See Alexander Proelβ, “Raum und Umwelt im Völkerrecht”, in Wolfgang Graf Vitzthum and Alexander Proelβ (eds.), Völkerrecht, 7th ed., Berlin, Boston, De Gruyter, 2016, p. 369 at pp. 416-454. 142   Trail Smelter Case (United States v. Canada), Judgment of 16 April 1938 and 11 March 1941, Reports of International 140 141

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in the town of Trail, located just north of the US border in the Canadian province of British Columbia. When the smelter was expanded and, in order to avoid local complaints, a tall smoke stack built, its sulphur dioxide emissions increasingly drifted across the border into Washington State, causing damage to agricultural land, timber and livestock. The dispute rose to the inter-State level and the two countries eventually decided to submit it to arbitration 143. Certain aspects of the Trail Smelter award arguably limit its value as a legal precedent 144. For present purposes, suffice it to highlight three. First, pursuant to the parties’ instructions 145, the tribunal relied predominantly on US law and US judicial decisions to support its findings concerning the relevant rule of international law 146. Arbitral Awards, Vol. III, p. 1905 (hereinafter Trail Smelter), available at http ://legal.un.org/riaa/cases/vol_III/19051982.pdf. For a brief overview, see Russell A. Miller, “Trail Smelter Arbitration”, in Rüdiger Wolfrum (ed.), Encyclopedia of Public International Law, Oxford, Oxford University Press, 2007), online edition available at https :// opil.ouplaw.com/home/EPIL. For a detailed analysis, see Duncan French, “Trail Smelter (United States of America/ Canada) (1938 and 1941)”, in Eirik Bjorge and Cameron Miles (eds.), Landmark Cases in Public International Law, Oxford, Portland, Hart Publishing, 2017, p. 159. 143  See Miller, supra footnote 142, para. 2. 144  See Timothy Stephens, International Courts and Environmental Protection, Cambridge, Cambridge University Press, 2009, p. 124 (arguing that “the importance of the decision to contemporary international environmental law is often overstated”). 145  See Trail Smelter, supra footnote 142, p. 1908 (citing the arbitration agreement, Art. IV : “The Tribunal shall apply the law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice . . .”). 146  See Stephen C. McCaffrey, “Of Paradoxes, Precedents, and Progeny : The Trail Smelter Arbitration 65 Years Later”, in Rebecca M. Bratspies and Russell A. Miller (eds.), Transboundary Harm in International Law : Lessons from the

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Second, Canada had already accepted liability for harm caused up to 1931 ; against that backdrop, the task of the tribunal was to decide what responsibilities Canada had on a go-forward basis, including liability for additional harm and responsibilities to limit its emissions 147. Third, the dispute was concerned only with injury caused by fumes and the arbitral award pronounced itself in a manner that was strictly limited to the facts before it. Specifically, on the facts, there was clear and convincing evidence of significant harm in Washington State and of the causal link to the fumes emitted by the smelter 148. Notwithstanding these caveats, over time, the Trail Smelter award became a major point of reference for the no harm rule. The award illustrates the observations above about the evolution of (international) environmental law. In the absence of specialized international rules or principles on pollution, recourse had to be had to general principles. The tribunal relied on a leading authority at the time, Professor Clyde Eagleton, for the proposition that sovereign States owed a duty under international law “to protect other States against injurious acts by individuals from within its jurisdiction” 149. Then, to flesh out the implications of that general proposition, the tribunal drew on domestic judicial decisions, primarily from the United States, dealing with inter-jurisdictional pollution in the United States 150. On this basis, the tribunal arrived at its famous articulation of the no harm rule : “[U]nder the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in Trail Smelter Arbitration, Cambridge, Cambridge University Press, 2006, pp. 46, 48-51. 147   Trail Smelter, supra footnote 142, pp. 1907-1908, Arts. I and III of the arbitration agreement. 148  See Miller, supra footnote 142, para. 8. 149   Trail Smelter, supra footnote 142, p. 1963. 150   Ibid., pp. 1963-1964.

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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.” 151 In international law terms, this formulation might be something of a slight of hand. After all, the tribunal cites “the principles of international law, as well as the law of the United States”, when, in fact, it worked primarily with the latter. To justify this move, the tribunal observed that it was not necessary to resolve whether it should decide “on the basis of the law followed in the United States or on the basis of international law” because the more specific US law “dealing with the quasi-sovereign rights of the States of the Union” was “in conformity with the general rules of international law” 152. In this way, the tribunal ended up generating international authority, notwithstanding the caveats highlighted above. Given the dearth of international practice or norms focused on transboundary environmental impacts, it is hardly surprising that the Trail Smelter award’s articulation of the no harm rule, even if derived at best indirectly from international law, came to be so influential. The award became a touchstone for the emerging international environmental law literature, and the rule it had articulated was invoked over and over again in interState practice and endorsed in a growing number of international instruments 153. 2.  General principles concerning territorial sovereignty The reasoning of the tribunal in the Trail Smelter case illustrates why, before turning to the gradual evolution 151 152 153

  Trail Smelter, supra footnote 142, p. 1965.   Ibid., p. 1963.  See French, supra footnote 142, pp. 176-181 (on “repetition and myth-making”)  ; McCaffrey, supra footnote 146, pp. 41-44.

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and crystallization of the no harm rule, it is important to consider the more general principles concerning territorial sovereignty from which it ultimately derives. Notionally, sovereignty entails that a State has the right both to do as it pleases within its territory and to be free from interferences with its sovereign rights or territory. These two sides of sovereignty are often referred to as territorial sovereignty and territorial integrity. But, as is readily apparent, and not unique to environmental law, territorial sovereignty cannot be absolute because it would inevitably entail encroachments on other States’ territorial integrity 154. Given this inherent legal constraint on sovereign rights, international law developed concepts that enshrine a mutual limitation of sovereign rights 155. A crisp articulation of this balancing can be found in the 1928 Island of Palmas arbitral award, a locus classicus on the legal meaning and scope of sovereignty. According to the arbitrator, Max Huber : “Territorial sovereignty . . . involves the exclusive right to display the activities of a State. The right has as corollary a duty : the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability . . .” 156  See, generally, Jelena Bäumler, Das Schädigungsverbot im Völkerrecht, Berlin, Springer Verlag, 2017 (examining the no harm principle across different area of international law). 155  See, e.g., Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, pp. 1-2, paras. 3-6 (on the implications of equal sovereignty). See also Günther Handl, “Territorial Sovereignty and the Problem of Transnational Pollution”, American Journal of International Law, Vol. 69 (1975), p. 50 at p. 56 ; and Bäumler, supra footnote 154, pp. 53-59. 156  See Island of Palmas Case (Netherlands v. United States of America), Award of 4 April 1928, PCA Case No. 1925-01, p. 9, available at https ://pca-cpa.org/en/cases/94/, Reports of International Arbitral Awards, Vol. II, p. 829 at p. 839. 154

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Some commentators have suggested that this principle of “harmless use of territory” is an expression of the maxim of sic utere tuo ut alienum non laedas 157. This notion is generally considered to be part of international law, although it is less clear whether it exists as a matter of customary law 158, or is better understood to be a general principle of law. Either way, its origins are in the domestic law constructs surrounding neighbourhood nuisances that were already canvassed, and that can be traced back as far as Roman law 159. For the purposes of international environmental law, the maxim has probably been absorbed by the no harm rule. Other, related, legal concepts to which the balancing of sovereign rights connects back are the notion of abuse of rights 160, and the notion of good neighbourliness 161. The latter serves  For an overview, see Brunnée, supra footnote 137 ; and Bäumler, supra footnote 154, pp. 1-3. And see, more generally, Joanna Kulesza, Due Diligence in International Law, Leiden, Boston, Brill, Nijhoff, 2016, p. 57 (noting that “the obligation of due diligence is to be perceived as one of the limits to state sovereignty”). 158  See Bäumler, supra footnote 154, p. 64 (citing State representatives expressing this view in the context of an ILC study). 159  See Brunnée, supra footnote 137 ; and Bäumler, supra footnote 154, pp. 47-48. 160  See Boisson de Chazournes and Maljean-Dubois, supra footnote 64, p. 6 at para. 11 ; Günther Handl, “Transboundary Impacts”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey, The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 531 at p. 534 ; Bäumler, supra footnote 154, pp. 18-21 ; and, generally, Byers, supra footnote 137. 161  For an overview, see Laurence Boisson de Chazournes and Danio Campanelli, “Neighbour States”, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2006, online edition available at https ://opil.ouplaw.com/home/EPIL. But see Handl, supra footnote 155, p. 56 (noting that good neighbourliness constitutes the “factual background against which the exercise of territorial rights must be seen”, rather 157

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to highlight the balancing requirement, in that it entails that not only territorial sovereignty is limited by the duty to respect the rights of other States, but that territorial integrity is limited too – States must tolerate some degree of interference. 3.  The evolution and crystallization of the no harm rule Exactly how the balance between the rights and obligations of States is to be struck, according to what criteria, remains one of the central questions regarding the no harm rule 162. In the Trail Smelter case, two criteria were stipulated : injury that is of “serious consequence” and a causal link established by “clear and convincing evidence”. One might ask how much weight should be placed on the articulation of these criteria by the Tribunal, given the particular circumstances of the case. As previously noted, on the facts there clearly was “serious” harm (for which Canada had already accepted responsibility) and there was clear and convincing evidence of causation 163. In any event, whether or not the evidentiary standard stipulated in the Trail Smelter case prevails, proof of causation remains a difficult aspect of the no harm rule to this day. The attendant challenges significantly limit the circumstances in which the no harm rule can be applied to remedy negative environmental impacts 164. In turn, “serious” harm marks an unduly than an independent source of legal rights and obligations) ; and Bäumler, supra footnote 154, p. 21 (suggesting that good neighbourliness is narrower in its application than the no harm rule). 162  The term “balancing” is used here in a descriptive sense, not in the sense of equitable balancing. But see René Lefeber, Transboundary Environmental Interference and the Origin of State Liability, The Hague, London, Boston, Kluwer Law International, 1996, pp. 86-87 (describing the harm threshold as a “balance of interests” device). 163  See text accompanying supra footnote 148. 164  See Beyerlin and Marauhn, supra footnote 64, p. 364.

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high threshold for situations involving environmental impacts. As a result, over time, the threshold of harm that must be tolerated has been lowered. The relevant marker today is “significant” harm, i.e. harm that is more than “detectable”, but not necessarily “serious” or “substantial” 165. Perhaps again due to the specific circumstances of the case and the tribunal’s focus on US law, the Trail Smelter award does not explicitly address the standard of conduct to which a State is held under the no harm rule 166. Some commentators read the award as espousing a due diligence standard 167, whereas others consider it to support liability for harm regardless of fault 168. Focusing only on the famous statement of the no harm rule in the award, one might read it as articulating an absolute standard. That is, whenever serious harm is caused by a State, it will be responsible under the no harm rule. Alas, that is not how the no harm rule has been understood, or is understood today. It is not an obligation of result, but a due diligence obligation – an obligation of conduct 169. The significance of this point  See Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, in Yearbook of the International Law Commission, 2001, Vol. II, Part Two, UN doc. A/CN.4/ SER.A/2001/Add.1, p. 152, Commentary on Art. 2, para. 4 (hereinafter ILC, Harm Prevention Articles). And see e.g. Boisson de Chazournes and Maljean-Dubois, supra footnote 64, p. 6, para. 13 ; Birnie et al., supra footnote 64, pp. 186-188. 166  See French, supra footnote 142, pp.174-175 (describing the ruling on this point as “particularly unclear”). 167  See e.g. Stephens, supra footnote 144, p. 133 (noting that the standard is implicit in the tribunal’s reasoning, which suggests that States are responsible only for harm that is “foreseeable and preventable”). 168  For an overview, see Brent, supra footnote 8, at pp. 33-34. 169  See Responsibilities in the Area, supra footnote 86, p. 41, para. 110 (speaking of an “obligation ‘of conduct’ and not ‘of result’, . . . an obligation of ‘due diligence’ ”) ; and Birnie et al., supra footnote 64, pp. 217-218. 165

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will be considered later in this chapter. For now suffice it to say that the no harm rule’s due diligence standard entails that States must take appropriate steps to ensure that no significant transboundary harm is caused. The due diligence standard thus provides a third balancing criterion. Specifically, a State will be responsible for having caused significant transboundary harm to another State only if it did not take reasonably required steps to ensure the harm would not result 170. More starkly put, it is lawful for a State to cause even significant transboundary harm to another State if it took reasonable steps, but nonetheless failed, to forestall the harm 171. To summarize, the no harm rule contains three balancing criteria to determine where the line runs between one State’s duty not to cause harm and another State’s duty to tolerate harm : (1) significance of the harm ; (2) evidence of causation ; and (3) due diligence. An important caveat is in order, however. As will be illustrated later in this chapter, all three of these criteria come into play only when the legal question at hand is whether or not one State is responsible for harm actually suffered by another. By contrast, when the legal question is whether one State has taken the appropriate steps to prevent significant transboundary harm to another State, the latter must show only that the former failed to do so in the face of a significant risk of harm 172. Setting this crucial point aside for the moment, the discussion now turns to the origins of the due diligence standard and its implications for the preventive dimension of the no harm rule, as well as its procedural and substantive aspects. 3.1.  Due diligence It stands to reason that the customary law duty to protect within one’s territory the rights of other States,  Birnie et al., supra footnote 64, p. 217.  See also ibid., p. 137. 172  See Chap. II, Sec. C.3.2 (b). 170 171

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as articulated in the Island of Palmas arbitration 173, was always one to take reasonable steps to that effect 174. Since the case did not necessitate it, the Island of Palmas award did not spell out the standard of conduct. Yet, the reasoning of the same arbitrator, Max Huber, in an earlier award suggests that due diligence was the assumed standard. In the British Property in Spanish Morocco arbitration, Huber considered the circumstances in which a State might be responsible for injuries caused by private actors to nationals of another State 175. Huber’s starting point was that responsibility is a necessary corollary of all rights 176. However, States were not responsible for all conduct that occurs in their territory. Rather, they were expected to exercise the diligence required by the circumstances 177, taking reasonable steps to prevent harmful acts 178. This conclusion was echoed by the very same scholar later invoked by the Tribunal in the Trail Smelter case 179, Professor Eagleton. He offered this assessment :  See text accompanying supra footnote 156.  See generally Kulesza, supra footnote 157, pp. 57-58 (arguing that “the obligation of due diligence is to be perceived as one of the limits to state sovereignty. . . . State sovereignty stops where the obligation to diligently protect the rights and interests of others starts”) ; Serena Forlati, “L’objet des différentes obligations primaires de diligence : prévention, cessation, repression . . . ?”, in Sarah Cassella (ed.), Le standard de due diligence et la responsabilité internationale, Paris, Editions Pedone, 2018, p. 39 at p. 42. 175   British Property in Spanish Morocco (Spain v. UK), Award of 1 May 1925, Reports of International Arbitral Awards, Vol. II, p. 615. 176   Ibid., p. 641 (“La responsabilité est le corollaire necessaire du droit. Tous droits d’ordre international ont pour consequence une responsibilité internationale”). 177   Ibid., p. 644. 178   Ibid., p. 645. 179  See supra footnote 149 and accompanying text. 173 174

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“While it might appear to follow from the exclusive control which the state has over its own territories that it should be responsible for all injurious acts occurring therein, the community of nations, with a proper understanding of the imperfections of human endeavour, has alleviated the force of the principle in practice by the rules of due diligence and local redress.” 180 As in the British Property case, the question of due diligence often arises when the harmful conduct in question is not that of the State itself, but of other actors within the State’s territory 181. Because their actions cannot normally be attributed to the State, the central question is whether the State itself had a duty that might have been breached – a duty to ensure that the rights of other States would not be harmed and, if so, what the relevant standard of conduct should be 182. The ICJ first engaged with this question in the Corfu Channel case, which was concerned with responsibility for mines that damaged a British warship passing  Clyde Eagleton, The Responsibility of States in International Law, New York, New York University Press, 1928, p. 94. 181  See also the earlier Alabama Claims of the United States of America against Great Britain, Award of 14 September 1872, Reports of International Arbitral Awards, Vol. XXIX, p. 125 (holding that Great Britain had failed to use the due diligence in supressing certain private acts that was incumbent upon it as a neutral power in the context of American Civil War). For a detailed discussion see Awalou Ouedraogo, “La due diligence en droit international : de la règle de la neutralité au principe général”, Revue générale de droit, Vol. 42 (2012), p. 641 at pp. 645-656. And see Duncan French and Tim Stephens, ILA Study Group on Due Diligence in International Law : First Report (March 2014), p. 2. 182  See Riccardo Pisillo-Mazzeschi, “The Due Diligence Rule and the Nature of the International Responsibility of States”, German Yearbook of International Law, Vol. 35 (1992), p. 9 at p. 26. 180

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through the channel in Albanian territorial waters 183. Since Albania had not laid the mines, the case revolved around whether it did know, or should have known, about them and ought to have warned ships navigating the channel. The court famously observed that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” 184. Some scholars have treated the Corfu Channel case as confirmation by the ICJ of the Trail Smelter principle, notwithstanding the lack of reference to the arbitral award 185. More plausible is that Corfu Channel simply reaffirmed the existence of the more general principle that the Trail Smelter tribunal had applied to a transboundary pollution scenario 186. Be that as it may, the literature, building on these general principles, has long maintained that the no harm rule in international environmental law entails an obligation of conduct, with due diligence providing the relevant standard 187. International practice and the ICJ were slower in making the point explicit, however.   Corfu Channel case (UK v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, p. 4 (hereinafter Corfu Channel).   Ibid., p. 22. And see Pulp Mills, supra footnote 1, pp. 55-56, para. 101 (where the Court invoked its ruling in the Corfu Channel case as authority for the due diligence standard in harm prevention). 185  See e.g. Bäumler, supra footnote 154, pp. 3, 60-63 (arguing that the ICJ confirmed the Trail Smelter principle and turned it into a generally applicable principle). 186  See Corfu Channel, supra footnote 183, p. 22 (“The obligations incumbent on the Albanian authorities . . . are based . . . on certain general and well-recognized principles, namely . . . every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”). See also French, supra footnote 142, p. 178. 187  See e.g. Pierre-Marie Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle, Paris, Editions Pedone, 1976, passim ; Pisillo-Mazzeschi, supra footnote 182, p. 38 ; Brent, supra footnote 8 ; Beyerlin and Marauhn, supra footnote 64, p. 42 ;

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For example, two UN Conference Declarations, the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development, reiterated the no harm rule without specifying the standard of conduct 188. The Stockholm Declaration expressed the Trail Smelter principle in terms that echo the sovereignty-based reasoning of the Island of Palmas award 189. According to the declaration’s Principle 21, states have “the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” 190. Handl, supra footnote 160, p. 538 ; Boisson de Chazournes and Maljean-Dubois, supra footnote 64, p. 6 at para. 11. 188   Note however that, today, obligations “to ensure” in international law are generally understood as denoting obligations of conduct, rather than result, and obligations of due diligence. See Responsibilities in the Area, supra footnote 86, paras. 110-112, and South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), Permanent Court of Arbitration, Award on the Merits of 12 July 2016, PCA Case No. 2013-19, pp. 375376, para. 944 (hereinafter South China Sea Arbitration). And see Birnie et al., supra footnote 64, p. 218 (noting that Stockholm Principle 21 and Rio Principle 2 “must be interpreted within the framework of customary rules on which both are based”). 189  See also Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, Separate opinion Judge Donoghue, p. 2, para. 7. But see Leslie-Anne Duvic-Paoli and Jorge E. Viñuales, “Principle 2 : Prevention”, in Jorge E. Viñuales (ed.), The Rio Declaration on Environment and Development : A Commentary, Oxford, Oxford University Press, 2015, p. 108 at pp. 114-116 (arguing that Principle 21 attempts to draw together the idea of permanent sovereignty over natural resources with the duty not to cause harm). 190  See Stockholm Declaration of the United Nations Conference on the Human Environment, done at Stockholm on

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As for the ICJ, it was only in 1996 that the Court first confirmed the existence of the no harm rule in the environmental context. In its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, the Court held that “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” 191. The Court reiterated this conclusion in its 1997 decision in the Gabčíkovo-Nagymaros Project case, a case that revolved around a dam project that Slovakia was looking to complete on the Danube, a shared watercourse, over Hungary’s objections 192. 16 June 1972, International Legal Materials, Vol. 11 (1972), p. 1416 (hereinafter Stockholm Declaration) ; and see Principle 2 of the Rio Declaration on Environment and Development, done at Rio de Janeiro on 14 June 1992, International Legal Materials, Vol. 31 (1992), p. 874 (hereinafter Rio Declaration). Principle 2 is substantially the same as Principle 21, but for the fact that it clarifies that States have the right to exploit their resources “pursuant to their own environmental and developmental policies”, a point that arguably was inherent in sovereignty to begin with. See also Birnie et al., supra footnote 64, p. 146. 191   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226 at p. 242 (hereinafter Nuclear Weapons). 192   Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 7 at pp. 41, 64-68, 74-75, paras. 53, 112-113, 140-141 (hereinafter Gabčíkovo-Nagymaros). Although, the Court did not explicitly comment on the relevant standard of conduct, it seems fair to say that its conclusion that Hungary and Slovakia had a duty to assess and manage the environmental impacts of the disputed dam project on a continuous basis reflects the due diligence requirement. See Alan E. Boyle, “The GabčíkovoNagymaros Case : New Law in Old Bottles”, Yearbook of International Environmental Law, Vol. 8 (1997), p. 13 at

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Today, we can say with certainty that the no harm rule entails a due diligence obligation 193. Two of the ICJ’s more recent judgments and an advisory opinion of the International Tribunal for the Law of the Sea’s (ITLOS) Seabed Chamber engage with the standard of conduct issue in some detail. In the Pulp Mills case, Argentina alleged that, in unilaterally authorizing the construction of two pulp mills, Uruguay had breached both substantive and procedural obligations under an agreement pertaining to the River Uruguay. In its 2010 decision, the ICJ pulled together its statements in the Corfu Channel case and in the Nuclear Weapons Advisory Opinion to confirm that the no harm rule in international environmental law is a due diligence obligation 194 : “The principle of prevention, as a customary rule, has its origins in the due diligence required of a State in its territory. It is ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ . . . A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or p. 17. And see supra footnote 188 (on the term “ensure” as indication a due diligence obligation).  See Responsibilities in the Area, supra footnote 86, p. 41, paras. 110-112 ; South China Sea Arbitration, supra footnote 188, pp. 376-376, para. 944. See also Hanqin Xue, Transboundary Damage in International Law, Cambridge, Cambridge University, 2003, Chap. 5 ; and see Birnie et al., supra footnote 64, p. 140 (pointing out that litigants in international cases have not challenged the proposition that States are obliged under general international law to control transboundary pollution, but rather focus “on the adequacy or inadequacy of the measures states have taken . . . not on whether they are necessary at all”). 194   For a similar conclusion see Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica, supra footnote 5, separate opinion Judge Donoghue, pp. 2-3, para. 8. 193

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in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation ‘is now part of the corpus of international law relating to the environment’ . . .” 195 The ITLOS Seabed Chamber built on the ICJ’s observations on due diligence in its 2011 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area 196, a case concerned with the legal responsibilities of States sponsoring prospecting and mining activities in the deep seabed. The Seabed Chamber observed that “The content of ‘due diligence’ obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that ‘due diligence’ is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity.” 197 In turn, in its 2015 decisions in Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica, the ICJ re-emphasized the due diligence nature of the no harm rule 198. The two cases involved inter-related disputes regarding sovereignty over territory and, for our purposes, various activities near a boundary river between Costa Rica and Nicaragua. With respect to international environmental law, Costa Rica complained that Nicaragua violated procedural   Pulp Mills, supra footnote 1, pp. 55-56, para. 101.   Responsibilities in the Area, supra footnote 86, pp. 41-42, paras. 111-115. 197   Op. cit. supra footnote 86, p. 43, para. 117. 198   Costa Rica v. Nicaragua, supra footnote 5, pp. 705-707, paras. 101-105.

195 196

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and substantive obligations through dredging activities, whereas Nicaragua accused Costa Rica of similar violations in the context of a road building project near the boundary. The ICJ’s focus on due diligence in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases entails detailed engagement with two other dimensions of the no harm rule that are central for present purposes. First, the no harm rule is not a rule that stipulates that no transboundary environmental harm may be caused 199. Rather, it is an obligation to take reasonable steps to prevent harm 200. Second, in order to discharge the harm prevention duty, and the attendant requirements of due diligence, States must take various procedural and substantive steps. Put differently, the substantive duty to prevent transboundary harm is intertwined with various procedural duties. 3.2. Prevention On the first issue, the ICJ observed in Pulp Mills, that the no harm rule is a “principle of prevention” with “origins in the due diligence required of a State in its territory” 201. In other words, the duty to prevent  See also Birnie et al., supra footnote 64, pp. 147-148.   Note that the Trail Smelter case too had a preventive dimension, seeing as one of the questions put to the tribunal was whether the Canadian smelter had to take measures to prevent future harm and, if so, what kinds of measures. See Trail Smelter, supra footnote 142, p. 1908, Arts. III (2) and (3) of the arbitration agreement). See also Alan E. Boyle, “State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law : A Necessary Distinction ?”, International & Comparative Law Quarterly, Vol. 39 (1990), p. 1 at p. 18 (observing that, in the Trail Smelter case, “the essence of reparation . . . was the duty of Canada to exercise due diligence in the control and regulation of the future operation of the smelter”). 201  Note that, in general terms, the ICJ already referred to the importance of “vigilance and prevention” in international 199 200

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transboundary harm and the duty of due diligence are inextricably linked 202. Since the duty to prevent is not absolute, due diligence could be said to provide much of the content of the substantive rule, and in any case to provide the parameters for the harm prevention efforts that a State can be expected to make. Specifically, according to the ICJ in Pulp Mills, a due diligence obligation “is an obligation which 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” 203. A similar approach is evident in the International Law Commission’s (ILC) Commentary on Article 3 of its 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 204, which may have influenced the Court’s approach in the Pulp Mills case and to which the discussion returns in more detail below 205. The Draft Articles spell out the implications of understanding the no harm rule in preventative terms. Article 3 stipulates that the State of origin of the activities involving a risk of causing transboundary harm “shall take all appropriate environmental protection in its decision in the GabčíkovoNagymaros case, supra footnote 192, pp. 77-78, para. 140. See also Iron Rhine Railway (Belgium v. Netherlands), Award of the Arbitral Tribunal of 24 May 2005, PCA Case No. 2003-02, pp. 28-29, para. 59 ; South China Sea Arbitration, supra footnote 188, pp. 373-374, para. 941. 202  See also French and Stephens, supra footnote 181, p. 25 (noting that “due diligence is a key component of the obligation to prevent harm”). 203   Pulp Mills, supra footnote 1, pp. 79-89, para. 197. See also Responsibilities in the Area, supra footnote 86, p. 41, paras. 110-112 ; South China Sea Arbitration, supra footnote 188, pp. 375-376, para. 944. 204  ILC, Harm Prevention Articles, supra footnote 165. 205  See Chap. II, Sec. B.3.3.

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measures to prevent significant transboundary harm or at any event to minimize the risk thereof” 206. In the commentary, the ILC specifies that “The obligation of the State of origin to take preventive or minimization measures is one of due diligence. It is the conduct of the State of origin that will determine whether the State has complied with its obligation . . . The duty of due diligence involved, however, 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 . . . to exert its best possible efforts to minimize the risk. In this sense, it does not guarantee that the harm would not occur.” 207 Most recently, the UN Secretary-General’s report on Gaps in international environmental law confirmed that the duty to prevent “is intrinsic to a core preference in international law for preventing environmental harm rather than compensating for harm that has already occurred. The prevention principle is well established as a rule of customary international law . . . [and] is also related to due diligence obligations . . .” 208 3.3.  Substantive and procedural obligations The second issue that flows from understanding the no harm rule as involving an obligation to take diligent steps to prevent harm goes directly to this course’s  ILC, Harm Prevention Articles, supra footnote 165, p. 153.   Ibid., p. 154, para. 7. 208  UN Secretary-General, Gaps in International Environmental Law and Environment-Related Instruments  : Towards a Global Pact for the Environment, UN doc. A/73/419 (30 November 2018), p. 7, para. 11, available at https :// undocs.org/A/73/419. 206 207

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preoccupation : the interplay between procedure and substance. As noted in Chapter I, today it is commonplace that international environmental law provides for primary obligations that are substantive, such as the no harm/harm prevention rule, and primary obligations that are procedural, such as the obligations to warn/ notify, consult or co-operate and negotiate with States potentially affected by transboundary impacts 209. The idea that harm prevention entails procedural obligations found early expression in the Corfu Channel case. The ICJ observed that, on the facts before the Court, the Albanian authorities were obligated to notify “shipping in general” of the existence of the minefield in its waters, and warn “the approaching British warships of the imminent danger” 210. Subsequently, in an arbitration between France and Spain concerning the waters of Lake Lanoux, the tribunal found that a State potentially affected by another’s water use “has the right to information on the proposals”, and that the “rules of reason and good faith are applicable to procedural rights and duties relative to the sharing of use of international rivers”, arguably including duties to enter into negotiations concerning mutual concessions 211. In the meantime, with the growing emphasis on the duty to prevent environmental harm, more and more attention has been devoted to the procedural obligations that States have in connection with the substantive harm prevention duty. The most detailed effort at elaborating these obligations is without a doubt found in the ILC’s 212 aforementioned Harm Prevention Articles  . The  See supra footnotes 64-66 and accompanying text.   Corfu Channel, supra footnote 183, at p. 22.   Lac Lanoux Arbitration (Spain v. France), Award of 16 November 1957, International Law Reports, Vol. 24, p. 101 at p. 119. 212  On the significance of the Harm Prevention Articles, see Birnie et al., supra footnote 64, p. 141 (observing that they “essentially codify existing obligations of environmental 209 210 211

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Articles focus on “the concept of prevention in the context of authorization and regulation of . . . activities which pose a significant risk of transboundary harm” 213. According to the ILC, “[p]revention in this sense, as a procedure or as a duty, deals with the phase prior to the situation where significant harm . . . might actually occur . . .” 214. The ILC delineates the domain of prevention as focused on “activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences” 215. That is, its prevention project deals with the duties States may have to ensure that certain activities occurring within their territories do not produce transboundary harm. In turn, “risk of causing significant transboundary harm” denotes a spectrum of scenarios ranging from “a high probability of causing significant transboundary harm” to “a low probability of disastrous harm” 216. In other words, the trigger for the obligations set out in the Draft Articles is not significant harm, but the risk of such harm. This shift in focus from “harm” to “risk” is significant and its implications will be closely examined later in this chapter. For now suffice it to say that, according to the ILC, States’ obligation to take “all appropriate measures to prevent significant transboundary harm” 217, i.e. the due diligence obligation that is triggered by the risk of such harm, entails both substantive and procedural obligations. The relevant substantive obligations encompass duties impact assessment, notification, consultation, monitoring, prevention, and diligent control of activities likely to cause significant transboundary harm . . . [and] are securely based in existing precedents”). 213  ILC, Harm Prevention Articles, supra footnote 165, p. 148, para. 1. 214   Ibid. 215   Ibid., p. 149, Art. 1. 216   Ibid., pp. 151-152, Art. 2 (a). 217   Ibid., p. 153, Art. 3.

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to enact, implement and enforce appropriate laws and policies 218, while the salient procedural obligations pertain to co-operation 219, risk assessment (or EIA) 220, notification and information to potentially affected States 221, consultation on preventive measures 222, and continuous exchange of information 223. According to the dominant view in the literature in international environmental law, these procedural obligations exist independently of the no harm rule in customary law, although they are also relevant to determining whether a State has exercised due diligence in its efforts to prevent harm 224. The ICJ too has focused in detail on the procedural obligations, but its view as to their legal basis is harder to discern. It considers them to be part of general international law, but appears to derive them from “the due diligence required of a State in its territory” and the attendant principle of prevention 225. Questions concerning the legal basis of procedural obligations rose to the surface in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica decisions, in the Court’s engagement with the duty to assess environmental impacts, which crystallized in international law more recently than the other procedural obligations. While  ILC, Harm Prevention Articles, supra footnote 165, p. 154, Commentary to Art. 3, para. 6. 219   Ibid., p. 155, Art. 4. 220   Ibid., p. 157, Art. 7. 221   Ibid., p. 159, Art. 8. 222   Ibid., p. 160, Art. 9. 223   Ibid., p. 164, Art. 12. 224  See e.g. Birnie et al., supra footnote 64, pp. 141, 147-150 ; Ilias Plakokefalos, “Prevention Obligations in International Environmental Law”, Yearbook of International Environmental Law, Vol. 23 (2012), p. 3 at p. 5. 225   Pulp Mills, supra footnote 1, pp. 56, 82-83, paras. 102, 204 ; Costa Rica v. Nicaragua, supra footnote 5, pp. 706707, para. 104 ; Nicaragua v. Costa Rica, supra footnote 5, p. 724, para. 168. 218

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there was agreement among the Court’s judges that the EIA obligation had become part of general international law, they appeared to be at odds as to whether it exists as an independent customary rule, or flows from the requirements of due diligence. Thus, in Pulp Mills, the ICJ found that the practice of EIA “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.” 226 This somewhat ambiguous statement could be read as endorsing the view that an EIA obligation both exists at customary international law (the “practice . . . has gained so much acceptance that it may now be considered a requirement under general international law”) and must be discharged as part of a State’s due diligence duty to prevent transboundary harm (“Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised”) 227. And, indeed, the ITLOS Seabed Chamber read the ICJ’s decision on this point as confirming the customary law nature of the EIA obligation 228.   Pulp Mills, supra footnote 1, p. 83, para. 204.  See ibid. (emphases added). 228   Responsibilities in the Area, supra footnote 86, p. 51, para. 147. See also South China Sea Arbitration, supra footnote 188, pp. 377-378, para. 948 ; and Birnie et al., supra 226 227

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Procedural obligations again played central roles in the Court’s decisions in Costa Rica v. Nicaragua/Nicaragua v. Costa Rica 229. But in this case, a disagreement among the judges concerning the legal basis notably of the EIA obligation is evident. Judge ad hoc Dugard, in his separate opinion, considered the EIA obligation to be customary law 230. However, the majority judgment subtly tilted the comments on EIA in such a manner as to strengthen the implication that the EIA requirement flows from a State’s obligation to exercise due diligence in preventing significant transboundary environmental harm. Rather than quote in entirety its Pulp Mills statement on the EIA obligation, the Court begins by quoting its general statement in the same case on the harm prevention duty, i.e. that : “the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States . . . A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’.” 231 footnote 64, p. 169 (noting that “the better view is simply that customary international law requires states to ensure that a transboundary EIA is carried out”). 229   Costa Rica v. Nicaragua, supra footnote 5, pp. 705707, 707-710, paras. 101-105 (on environmental impact assessment), 106-111 (on notification and consultation) ; Nicaragua v. Costa Rica, supra footnote 5, pp. 724-725 paras. 165-172 (on notification and consultation). 230   Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Dugard, at paras. 1217. And see Maljean-Dubois and Richard, supra footnote 8, p. 317 ; McIntyre, supra footnote 99, p. 495. 231   Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104.

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Omitting the references to “practice” and “acceptance”, the ICJ then turns to its earlier statements on EIA, observing : “Furthermore, the Court concluded in that case that ‘it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’. . . . Thus, to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment.” 232 Indeed, some of the judges on the Court, in their separate opinions, held specifically that the EIA duty exists at general international law as part of States’ due diligence obligation, rather than independently as a matter of custom 233. This ambiguity in the ICJ’s Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica decisions is worth highlighting because it hints at the questions that this chapter will attempt to disentangle below, in Section C : what amounts to “substance” in the harm prevention context, and what exactly is the relationship between the no harm/harm prevention rule and the various procedural   Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104. 233  See Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, paras. 12-15 ; Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Owada, paras. 13-22. 232

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obligations ? These are not merely conceptual questions, but questions that have potential implications for the realization of States’ harm prevention obligations. After all, it appears as if the Court, certainly in the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases, understood the “principle of prevention” as entirely procedural in nature, and distinct from the substantive “no harm” rule. 3.4. Environmental harm, including beyond national jurisdiction Before turning to the heart of the procedure-substance puzzle, a further dimension to the evolution of the harm rule should be briefly highlighted : the harm prevention rule today is explicitly focused on environmental harm. While this may appear to be an obvious statement, it is important to recall that the rule originated from the balancing of rights attached to territorial sovereignty. Hence, the Trail Smelter award, even though it was concerned with transboundary air pollution, articulated the no harm rule as focused on injury “in or to the territory” of another State 234. It was not for another 30 years, in the 1972 Stockholm Declaration, that States could agree on a formulation of the no harm rule that enshrined their responsibility to avoid the causation of damage “to the environment of other States or of areas beyond the limits of national jurisdiction” 235. As this phrase attests, Principle 21 also affirmed that the duty extends beyond State territory. Some 55 years after the Trail Smelter award, from its 1996 Nuclear Weapons Advisory Opinion onwards, the ICJ too finally confirmed that the no harm rule in general international law entailed a duty to “respect the environment of other States or of 234 235

  Trail Smelter, supra footnote 142 (emphasis added).  Stockholm Declaration, supra footnote 190 (emphasis added).

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areas beyond national control” 236. In other words, the rule that remains the core of customary international environmental law today, was a rather long time in the making 237. C.  From No Harm to Harm Prevention : Implications for Procedure and Substance 1.  Taking stock So far, this chapter has established that the origins of international environmental law and the transboundary harm rule are found in general international law principles deriving from the mutual limitation of rights flowing from sovereignty over territory. The Trail Smelter award first articulated the no harm rule specifically for environmental impacts. In international environmental today, the rule is understood as entailing an obligation to prevent significant transboundary environmental harm. This obligation is not absolute, but requires that States exercise due diligence by taking appropriate substantive and procedural measures to avert harm. The no harm rule itself is a substantive rule of customary international environmental law. It is flanked by a series of procedural obligations, such as the duties to undertake an EIA, notify, or consult potentially affected States. These procedural obligations are part of general international law, but there is some debate as to whether they exist independently at custom, or flow from the general requirement of due diligence. 2.  The harm prevention rule as conceived by the ICJ The ICJ’s decisions in Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica are important 236 237

 See Nuclear Weapons, supra footnote 191.  On harm prevention beyond the immediate neighbourhood setting, see also Chap. III.

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judgments on international environmental law. They shed light upon the procedural obligations that States are subject to as they contemplate potentially harmful activities in their territories, including in particular the duty to assess environmental impacts. They also highlight that the connections between the procedural and substantive dimensions of the harm prevention rule, and the role of due diligence, are far more complex than one might have imagined 238. In order to get to the bottom of the proceduresubstance puzzle revealed by the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica decisions, it is helpful to break the Court’s approach down into four questions : (a) what is “procedure” and what is “substance”, according to the ICJ ; (b) what is the relationship between procedure and substance, according to the ICJ ; (c) in the Court’s view, when is the harm prevention rule violated ; and (d) according to the ICJ, is there one overarching “harm prevention rule”, or are there two rules, revolving around a duty to act diligently to prevent harm, and a duty not to cause harm, respectively ? 2.1.  What is procedure, and what is substance ? This question is the one to which the ICJ gives the most clear-cut answers, notwithstanding some ambiguity along the way. In both cases, the ICJ distinguishes between procedural and substantive obligations, organizing its analysis of the parties’ conduct around the two categories of obligations, beginning in each case with procedure and then turning to substance 239. In 238 239

 See Brunnée, supra footnote 67.  See Pulp Mills, supra footnote 1, pp. 47-70, 70-101, paras. 67-158 (Sec. III, “The Alleged Breach of Procedural Obligations”), pp. 159-266 (Sec. IV, “Substantive Obligations”) ; Costa Rica v. Nicaragua, supra footnote 5, pp. 705-710, 710-712, paras. 101-112 (“Procedural obli-

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the Pulp Mills case, the Court engaged with obligations arising from a treaty between the parties 240, but offered observations that are relevant beyond the treaty context. In the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases, general international law played a more significant role. In both cases, in keeping with the general view in the field, the Court classifies the obligations to inform, 241 notify and consult/negotiate as “procedural”  , and the obligation to prevent transboundary environmental harm and its attendant due diligence requirement as “substantive” 242. In the Pulp Mills case, the Court considered the environmental impact assessment requirement in the context of parties’ procedural obligations, but also in the context of its assessment of their gations), paras. 113-120 (“Substantive obligations”) ; Nicaragua v. Costa Rica, supra footnote 5, pp. 719-726, 726737, paras. 146-173 (“Procedural obligations”), paras. 174217 (“Substantive obligations”). See also Kerbrat, supra footnote 8, pp. 9, 11. 240  For a detailed discussion, see Laurent Trigeaud, “La (non) spécifité du droit international de l’environnement : A propos de l’affaire relative à des usine de pâte à papier sur le fleuve Uruguay (Argentine c. Uruguay, Arrêt du 20 Avril 2010)”, Annuaire français de droit international, Vol. 56 (2010), p. 249. 241   Pulp Mills, supra footnote 1, pp. 56, 70, paras. 102, 158 ; Costa Rica v. Nicaragua, supra footnote 5, p. 705, para. 100. 242   Pulp Mills, supra footnote 1, pp. 77-80, paras. 190-197 (discussing the parties’ treaty-based obligation to prevent pollution and preserve the aquatic environment, against the backdrop of the general harm prevention obligation) ; Costa Rica v. Nicaragua, supra footnote 5, p. 710, para. 113 (examining whether “Nicaragua is responsible for any transboundary harm”) ; Nicaragua v. Costa Rica, supra footnote 5, p. 726, para. 174 (examining whether “Costa Rica breached the obligation under customary international law not to cause significant transboundary harm to Nicaragua”).

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substantive harm prevention obligations 243. By contrast, in the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases, the Court examined EIA exclusively along with the other procedural obligations, bringing its classification as “procedural” in line with the dominant view in the literature244. 2.2. What is the relationship between procedure and substance ? In its Pulp Mills and Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica decisions, the ICJ approaches the relationship between procedural and substantive rules from three vantage points. (a)  Conceptual/terminological relationship The Court, as the preceding discussion illustrates, treats procedural and substantive rules as conceptually distinct. At a purely conceptual/terminological level, that accords with the prevailing approach in international environmental law 245. However, it is equally clear that the stark “binarism” implied by the procedure-substance juxtaposition glosses over the fluidity of the boundaries and, perhaps more importantly, the interplay between them 246. To be sure, the Court is well aware of the complexities, and of the connections between procedure and substance. After all, in the Pulp Mills case, Argentina had argued that the procedural obligations in the treaty governing the water resources it shared with Uruguay 247 were “intrinsically linked” to  , even “indivisible”   Pulp Mills, supra footnote 1, pp. 82-83, para. 204.  See e.g. Craik, supra footnote 54, passim. ; Dupuy and Viñuales, supra footnote 64, p. 54. 245  See Chap. I, Sec. D.1. 246  See Chap. I, Secs. B and D.3. 247   Pulp Mills, supra footnote 1, p. 47, para. 68. 243 244

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from 248, its substantive obligations, such that “a breach of the former entailed a breach of the latter” 249. The Court agreed that procedural and substantive obligations were complementary 250, and that there is “a functional link, in regard to prevention, between the two categories of obligations” 251. (b)  Practical/functional relationship Notwithstanding the conceptual and terminological boundary that runs between the categories of obligations, the Court’s recognition of “functional” linkages between them acknowledges that, practically speaking, procedural and substantive obligations are closely connected. Indeed, procedure complements substance in various ways. Among other things, it provides concrete parameters for achieving very general substantive goals like the “prevention of significant harm” 252, both in terms of the specific steps towards prevention and in terms of understanding better what the risks are and how they can be addressed or mitigated 253. In any event, in its Pulp Mills decision, the Court repeatedly acknowledges that the procedural obligations are ultimately designed to enable parties to meet their substantive obligations 254.   Pulp Mills, supra footnote 1, p. 48, para. 72.   Ibid., p. 47, para. 68. 250   Ibid., p. 49, para. 77 251   Ibid., p. 49, para. 79. 252  See also ibid., p. 49, para. 77. 253  See also Chap. I, Sec. D.3.1. 254   Pulp Mills, supra footnote 1, p. 49, para. 77 (observing that “whereas the substantive obligations are frequently worded in broad terms, the procedural obligations are narrower and more specific, so as to facilitate the implementation of the 1975 Statute through a process of continuous consultation”) ; at p. 49, para. 78 (noting that “procedures . . . enable the parties to fulfil their substantive obligations) ; at p. 56, para. 102 (expressing the view that “the obligation to inform . . . allows for the initiation of co-operation between 248 249

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(c)  Legal relationship In legal terms, the practical/functional linkages between procedure and substance find expression in the notion of due diligence. In the Pulp Mills case, the court highlighted the central role of due diligence by describing it as the point of origin of the harm prevention rule in customary law 255, a proposition the Court reiterated in Costa Rica v. Nicaragua/Nicaragua v. Costa Rica 256. The Court also confirmed that due diligence itself entails substantive steps, like “the adoption of appropriate rules and measures” and “a certain level of vigilance in their enforcement and the exercise of administrative control” 257, and provides the legal anchor for various procedural obligations. For example, in Pulp Mills, the ICJ is explicit that complying with the risk/environmental impact assessment obligation is necessary to meeting the due diligence standard : “due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its the Parties which is necessary in order to fulfil the obligation of prevention”) ; and at p. 58, para. 113 (opining that “the obligation to notify is intended to create the conditions for successful cooperation between the parties, enabling them . . . to avoid . . . potential damage”). While these comments are offered in the context of treaty-based obligations, it stands to reason that they apply with equal force at customary law. 255   Pulp Mills, supra footnote 1, p. 56, para. 101. 256   Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104. See also French and Stephens, supra footnote 181, pp. 26-27 (describing due diligence, i.e. the obligation to take reasonable steps to avert harm, as a “material” standard). 257   Pulp Mills, supra footnote 1, pp. 79-80, para. 197.

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waters did not undertake an environmental impact assessment on the potential effects of such works” 258. In Costa Rica v. Nicaragua, the Court makes the point even more directly : “[T]o fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment.” 259 Similarly, should an environmental impact assessment confirm a risk of significant transboundary harm, “the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State” 260. In short, the Court confirms that the procedural duties are a component of the due diligence standard, and that a State would not act diligently if it failed to take one of the requisite procedural steps. 2.3.  When is the harm prevention rule violated ? Based on the analysis of the ICJ’s decisions in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases so far, three broad conclusions   Pulp Mills, supra footnote 1, pp. 82-83, para. 204. Arguably, it was for this reason that the Court considered EIA in the course of its assessment of Uruguay’s compliance with its substantive obligations. 259   Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104 (emphasis added) ; see also Nicaragua v. Costa Rica, supra footnote 5, p. 720, para. 153. 260   Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104 (emphasis added) ; see also Nicaragua v. Costa Rica, supra footnote 5, p. 724, para. 168. 258

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can be drawn as to the Court’s approach to the harm prevention rule. First, the Court treats harm prevention as a substantive obligation under customary law, flanked by a series of procedural obligations that also exist in general international law. Second, notwithstanding the conceptual distinction between substantive and procedural obligations, the Court sees pervasive functional linkages between the two categories of rules. Third, in the ICJ’s understanding of the rule there is also a legal link between procedure and substance : the due diligence standard that defines the harm prevention rule entails a series of substantive and procedural requirements. And yet, although the Court recognizes these connections between the salient procedural obligations and the harm prevention rule, including the legal linkage, it treats breaches of procedure as distinct from breaches of substance. As noted in the previous section, in the Pulp Mills case, Argentina had specifically argued that the procedural obligations contained in its agreement with Uruguay were so closely connected to the agreement’s substantive obligations, such that “a breach of the former entailed a breach of the latter” 261. The ICJ did not agree. The Court acknowledged that “the two categories of obligations . . . complement one another perfectly”, so as “to enable the parties to achieve the object of the treaty between them” 262. Still, while there is “a functional link, in regard to prevention, between the two categories of obligations . . . that link does not prevent . . . States . . . from being required to answer for those obligations separately” 263. Indeed, in Pulp Mills the Court finds that Uruguay “breached its procedural obligations to inform, notify   Pulp Mills, supra footnote 1, p. 47, para. 68.   Ibid., p. 49, paras. 77, 78. 263   Ibid., p. 49, para. 79 (emphasis added). 261 262

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and negotiate” 264, before “turning to the question of the compliance . . . with substantive obligations” 265, and concluding that no substantive breach had occurred 266. Similarly, in Nicaragua v. Costa Rica, the Court considered that, on the facts, due diligence required an EIA, and concluded that Costa Rica had breached this EIA obligation 267. But, since its road building activities had not caused transboundary harm to Nicaragua, the Court did not find that Costa Rica had breached its 268 substantive obligation  . On the Court’s reasoning, then, the occurrence of transboundary environmental harm is determinative for a finding of a substantive breach 269. 2.4.  Is there one rule or are there two ? Before answering this question, it is instructive to take another look at the Court’s conclusions with respect to procedural and substantive breaches in the Pulp Mills case. The Court offered three observations. First, at least in the context of the treaty between Argentina and Uruguay, the Court considered that “a party may [not] fulfil its substantive obligations by complying solely with its procedural obligations” 270. Second, “the fact that the parties have complied with their substantive obligations does not mean that they are deemed to have complied   Pulp Mills, supra footnote 1, p. 70, para. 158.   Ibid.   Ibid., p. 101, para. 265. 267   Nicaragua v. Costa Rica, supra footnote 5, pp. 720-721, 723, paras. 153-156, 162. 268   Ibid., pp. 731-732, 734, 736-737, paras. 196, 207, 213, 216217. 269  See also Costa Rica v. Nicaragua, supra footnote 5, p. 710, para. 113 (assessing whether Nicaragua was “responsible for any transboundary harm allegedly caused by its dredging activities”). 270   Pulp Mills, supra footnote 1, p. 49, para. 78. 264 265 266

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ipso facto with their procedural obligations” 271. Third, “a breach of procedural obligations [does not] automatically [entail] the breach of substantive ones” 272. The first and second observations may be correct, depending on what the Court had in mind. As for the first, due diligence imposes substantive (regulate/implement) and procedural requirements (EIA/notification/consultation), so that a State would not be acting diligently by meeting only the latter but not the former 273. As for the second, even if no harm is ultimately caused, and/ or the State in question took reasonable regulatory and implementation measures, it might nonetheless have violated procedural obligations to conduct an EIA, or to notify or consult the potentially affected State. That is because these obligations are triggered by the risk of harm. The third proposition was borne out in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases. In each case, a State had violated procedural obligations but, absent transboundary environmental harm, was found not to have violated the substantive rule. Put differently, although the ICJ consistently frames the harm prevention rule as an obligation to take diligent measures to prevent significant transboundary harm, and holds that due diligence entails both substantive and procedural duties, it effectively ends up treating the rule as involving two rules : –  a duty to take diligent steps to prevent significant transboundary harm, which it then deals with under the rubric of separate procedural obligations (and breaches) ; and   Pulp Mills, supra footnote 1, p. 49, para. 78.   Ibid. 273  See also Proelβ, supra footnote 8, p. 83 (noting that the procedural and substantive dimensions of due diligence, while intertwined, are not co-extensive). 271 272

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– a duty to take diligent steps not to cause harm, which it considers cannot be violated simply by a failure to act diligently 274. It is not clear, however, that this approach is correct. And if the separate opinions appended to the Court’s decisions are any indication, there was considerable debate within the Court on this very dimension of how the harm prevention rule should be applied. In their joint dissenting opinion in the Pulp Mills case, Judges Al-Khasawneh and Simma express regret that the ICJ missed an “opportunity to clarify the relationship 275 between procedural and substantive obligations”  . They underscore a crucial point that the Court mentioned only in passing – that “the most notable feature” of the rules pertaining to shared natural resources and possible transboundary harm is “the extreme elasticity and generality of the substantive principles involved” 276. They go on to observe that “in such situations, respect for procedural obligations assumes considerable importance and comes to the forefront as being an essential indicator of whether, in a concrete case, substantive obligations were or were not breached” 277. As a result, continue the judges, “the conclusion whereby non-compliance with the pertinent procedural obligations has eventually had no

 See Brunnée, supra footnote 67. See also Trigeaud, supra footnote 240, p. 269 (noting that “ne pas polluter est très different de veiller à ne pas polluter) ; and Duvic-Paoli, supra footnote 8, p. 335. 275   Pulp Mills, joint dissenting opinion Al-Khasawneh and Simma, supra footnote 6. 276   Ibid., p. 120, para. 26. 277   Ibid. 274

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effect on compliance with the substantive obligation is a proposition that cannot be easily accepted” 278. In sum, the judges consider that the Court, in concluding that no breach of substantive obligations had occurred, ended up giving insufficient weight to the breach of procedural obligations and the interdependence between procedure and substance 279. In her separate opinion in the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases, Judge Donoghue expresses related concerns. She begins by stressing that “States have an obligation under customary international law to exercise due diligence in preventing significant transboundary environmental harm”, and that “the question whether a proposed activity calls for specific [procedural] measures, should be judged against this underlying obligation of due diligence” 280. “Of course”, she notes, “it is possible that customary international law also contains specific procedural or substantive rules that give effect to this due diligence obligation.” 281 According to Judge Donoghue, “[t]he requirement of due diligence, as the governing primary norm, is an obligation of conduct that applies in all phases of a project” 282. “In the planning phase”, she writes, “a failure to exercise due diligence to prevent significant transboundary harm can engage the responsibility of the State of origin even in the absence of material damage to potentially affected States.” 283 Even more pointedly she adds : “This is why (as in Nicaragua v. Costa Rica) a failure to conduct an environmental impact assessment   Pulp Mills, supra footnote 6, p. 120, para. 26.   Ibid., p. 120, para. 27.   Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, p. 1, para. 1. 281   Ibid., p. 3, para. 10. 282   Op. cit. supra footnote 280, p. 3, para. 9. 283   Ibid. 278 279 280

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can give rise to a finding that a State has breached its obligations under customary international law without any showing of material harm to the territory of the affected State. If, at a subsequent phase, the failure of the State of origin to exercise due diligence in the implementation of a project causes significant transboundary harm, the primary norm that is breached remains one of due diligence, but the reparations due to the affected State must also address the material damage caused to the affected State.” 284 “For these reasons,” she noted forcefully, she did “not find it useful to draw distinctions between ‘procedural’ and ‘substantive’ obligations, as the Court has done” 285. To summarize, Costa Rica v. Nicaragua/Nicaragua v. Costa Rica decisions raise significant questions as to how the harm rule should be understood. First, Judges Donoghue, Al-Khasawneh, and Simma appear to view it as a single obligation to exercise due diligence in the prevention of significant transboundary harm, requiring specific procedural steps in the face of risk of such harm. By contrast, second, the Court as a whole treated the harm prevention framework as consisting of two rules, one focused on the prevention of harm, the other on the causation of harm. Third, a parallel division of opinion arises with respect to the question of whether or not breaches of procedural rules that amount to a failure to exercise due diligence should be considered to be breaches of the (substantive) harm prevention rule even in the absence of transboundary environmental harm. In the international environmental law literature, one can find a range of opinions on the first two issues, and less of a range on the third. On the first two points, a number of scholars argue that there exist two harm-related rules in international 284 285

  Op. cit. supra footnote 280, p. 3, para. 9.   Ibid. On this point, see also Brent, supra footnote 8, p. 40.

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environmental law, much like the ICJ appears to assume. Specifically, the argument is that the older no harm rule, which was focused on State responsibility for harm causation and thus on identifying the elements of a wrongful act, has come to be complemented by the harm prevention principle in international environmental law 286. By contrast, other scholars maintain that the no harm rule, in international environmental law, has evolved into the harm prevention rule, so that there now exists a single rule that requires due diligence in the face of risks of environmental harm 287. On the third issue, interestingly, the majority of international environmental law scholars consider that the harm prevention rule, be it as one of two harm-related rules, or as a single, overarching rule, is violated when a State fails to meet the requirements of due diligence, whether they be substantive or procedural in nature 288.  Duvic-Paoli, supra footnote 8, pp. 21-24, Chap. 2 ; DuvicPaoli and Viñuales, supra footnote 189 ; Sands and Peel, supra footnote 134, pp. 206-213 (distinguishing a “responsibility not to cause and environmental damage” and a “principle of preventive action”). Arguably also Beyerlin and Marauhn, supra footnote 64, p. 41 ; Xue, supra footnote 193, p. 322. 287  Proelβ, supra footnote 8, pp. 77-79 ; Birnie et al., supra footnote 64, pp. 143-150 ; Benoit Mayer, The International Law of Climate Change, Cambridge, Cambridge University Press, 2018, p. 68. 288  See e.g. Proelβ, supra footnote 8, p. 83 (noting that it is not clear why the ICJ, in the Pulp Mills case, declined to conclude that the procedural violation it found to have occurred automatically entailed a violation of the substantive prevention duty) ; Craik, supra footnote 54, pp. 66-67 ; Duvic-Paoli, supra footnote 8, pp. 332, 337 ; Brent, supra footnote 8, p. 54 See also ILC, Harm Prevention Articles, supra footnote 165, p. 150, para. 6 ; and Gerhard Hafner and Isabelle Buffard, “The Work of the ILC : From Liability to Damage Prevention”, in Yann Kerbat and Sandrine Maljean-Dubois (eds.), The Transformation of International Environmental Law, London, Hart 286

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3.  The harm prevention rule revisited Having laid out the development of the law and the state of the debate, it is time to advance an argument as to how the harm prevention rule ought to be understood and applied. The argument that this section will seek to substantiate has four prongs. First, there exists in international environmental law a single harm prevention rule, which has its antecedents in the due diligence obligations under general international law that attach to the exercise of territorial sovereignty 289. Second, this rule imposes an obligation of conduct on States to exercise due diligence in the face of risk of harm 290. As a result, third, the harm prevention rule can be violated by breaches of due diligence obligations, including procedural obligations. Fourth, while the causation of actual harm will obviously affect the remedies that might attach to the Publishing, 2011, p. 233 at p. 244 (noting that there was a “debate within the Commission on whether the violation of primary obligations, such as those formulated by the articles on prevention, could lead to state responsibility. According to one view . . ., a breach of this obligation would not generate state responsibility. Indeed, the recent judgment of the ICJ in the [Pulp Mills case] . . . seems to be inspired by this approach. . . . However, the majority of the members of the ICL considered that a breach of these draft articles would entail responsibility with all of its consequences”) (emphasis added) ; Kerbrat, supra footnote 8, pp. 1213 ; McCaffrey, supra footnote 8, p. 379. But see Timo Koivurova, “Due Diligence”, Max Planck Encyclopedia of Public International Law (February 2010), para. 11, online edition available at https ://opil.ouplaw.com/home/EPIL. 289  See also Mayer, supra footnote 287, p. 67. 290  See also Birnie et al., supra footnote 64, p. 143 (noting that the harm prevention rule “is an obligation to take appropriate measures to prevent or minimize as far as possible the risk of significant harm, not merely a basis for reparation after the event”).

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breach, it is not an element of the primary rule, the duty to prevent significant transboundary harm. 3.1.  The case for a single harm prevention rule The proposition that the harm prevention rule finds its origins in the due diligence obligations that attach to the exercise of territorial sovereignty under general international law should be uncontroversial. The trajectory of the rule was traced in some detail in the first part of this chapter. It reveals that the “no harm rule” always entailed preventive duties, specifically, duties to exercise due care in seeking to prevent harm from occurring in the first place 291. This assessment is supported by the British Properties, Island of Palmas and Corfu Channel cases 292. The Trail Smelter case also encompassed the preventive dimension of the no harm rule, even if most of the focus was on causation of actual transboundary harm, and the remedies due as a result 293. Furthermore, the ICJ too ultimately  See also Birnie et al., supra footnote 64, p. 153 (noting that already the Corfu Channel decision recognized that an obligation of diligent prevention “arises when there is a known risk to other states”) ; and Benoit Mayer, “The Place of Customary Norms in Climate Law : A Reply to Zahar”, Climate Law, Vol. 8 (2018), p. 261 at p. 265. But see Xue, supra footnote 193, p. 322 (describing prevention as “a novel concept directed at the environmental field in particular”) ; and Yann Kerbrat, “Le standard de due diligence, catalyseur d’obligations conventionelles et coutumières pour les états”, in Sarah Cassella (ed.), Le standard de due diligence et la responsabilité internationale, Paris, Editions Pedone, 2018, p. 27 at p. 35 (arguing that the ICJ, in Pulp Mills, “innovated” by declaring the prevention principle to be part of customary law). 292  See supra footnotes 173-186 and accompanying text. 293   Supra footnote 200. And see ILC, Harm Prevention Articles, supra footnote 165, General Commentary, p. 148, para. 4 (connecting the prevention principle inter alia to the Trail Smelter case, and the Stockholm and Rio Declarations) ; Birnie et al., supra footnote 64, p. 147. 291

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describes the “no harm rule” as a harm prevention rule, and traces it back to “the due diligence that is required of a State in its territory” 294. A concise account of this trajectory is found in the separate opinion of Judge Donoghue in the Costa Rica v. Nicaragua cases : “[T]aking into account the sovereign equality and territorial sovereignty of States, it can be said that, under customary international law, a State of origin has a right to engage in activities within its own territory, as well as an obligation to exercise due diligence in preventing significant transboundary environmental harm.” 295 In short, in international environmental law today, the “no harm rule” is the “harm prevention rule”. 3.2. The case for a conduct-focused harm prevention rule As noted, a majority of international environmental law scholars, whether they adhere to the “two rules” or “one rule” schools of thought, appear to agree that a failure to exercise due diligence in the prevention of harm amounts to a violation of the substantive rule, even when no harm has (yet) been caused. In principle, such a due diligence failure could be substantive (inadequate   Pulp Mills, supra footnote 1, pp. 55-56, para. 101 ; Costa Rica v. Nicaragua, supra footnote 5, p. 706, para. 104. 295  See Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, pp. 2-3, para. 8. See also at p. 2, para. 6 (noting that, “[a]s a consequence of territorial sovereignty, a State has broad freedom with respect to projects within in its own territory . . . However, the equal sovereignty of other States means that the State of origin is not free to ignore the potential environmental impact of the project on its neighbours”). 294

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laws or enforcement) or procedural in nature (failure to conduct EIA, notify, consult). In the ICJ’s jurisprudence, the question of the legal significance of a due diligence failure has come up only in relation to procedural duties, but presumably the Court would reach the same conclusion in respect of substantive failures that do not result in environmental harm 296. In any event, the issue that is of interest here arises most pointedly when the due diligence failure is procedural in nature. It is precisely in this scenario that the “binary” perspective, and the attendant idea that procedure is sharply distinct from substance 297, casts its shadow. And it is this question – the question of whether a procedural violation can breach the substantive harm prevention rule – that ultimately is the crux of the “procedure-substance” puzzle, and the core of the conceptual problem. It cannot be resolved by opting for two rather than one version of the harm prevention rule. Rather, the question needs to be confronted head-on. Again, it is convenient to proceed in several steps. (a)  Due diligence links procedure and substance Based on the preceding analysis, it is safe to conclude that, although the procedural rules on EIA, notification and consultation have an independent existence in customary international law 298, the procedural requirements they enshrine are also part of the harm prevention rule, via its due diligence standard 299. The duty to take active steps to prevent (rather than simply, passively, refrain  In the South China Sea Arbitration, the Arbitral Tribunal found evidence of both procedural and substantive due diligence failures. It also found evidence of significant environmental harm. See South China Sea Arbitration, supra footnote 188, pp. 380-384, paras. 954-966. 297  See Chap. I, Sec. B. 298  See Birnie et al., supra footnote 64, p. 141. 299   Ibid., p. 177. 296

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from something) necessarily follows from the due diligence nature of the no harm rule 300. That is why the ILC Harm Prevention Articles seek to spell out as concretely as possible what positive steps States have to take in order to discharge their due diligence in preventing transboundary harm, what the triggers are for each step, and how they relate to each other 301. According to the ILC’s commentary to the Harm Prevention Articles : “The obligation of the State of origin to take preventive or minimization measures is one of due diligence. It is the conduct of the State of origin that will determine whether the State has complied with its obligation . . .” 302 The ICJ too repeatedly acknowledges the close connections between procedure and substance in the  See also South China Sea Arbitration, supra footnote 188, pp. 373-374, para. 941 (noting, in the context of the Law of the Sea Convention, that due diligence entails a “positive obligation to take active measures to protect and preserve the marine environment”). 301  It is probably true, as Judge Donoghue points out in her separate opinion in the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases, that not all aspects of the Prevention Articles reflect customary international law. For example, it is less than clear that the obligation to notify a potentially affected State arises only once the State of origin has conducted an EIA that confirms a risk of significant transboundary harm. Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, pp. 5-6, paras. 19-24. See ILC, Harm Prevention Articles, supra footnote 165, pp. 157-158, Art. 7 (1) ; Nicaragua v. Costa Rica, supra footnote 5, p. 724, para. 168 (concluding that it need not examine a potential violation of the duty to notify and consult since Costa Rica had not complied with its EIA obligation). 302  ILC, Harm Prevention Articles, supra footnote 165, p. 154, para. 7 (emphasis added). See also Dupuy, supra footnote 75, pp. 379, 380, 382. 300

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Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases 303. Furthermore, notwithstanding its effort to separate procedural and substantive obligations, the Court actually relies on one in its analysis of the other. Specifically, in the Court’s analysis, due diligence both gives rise to and defines the parameters of various procedural requirements 304. Conversely, since procedural requirements are an aspect of due diligence, they end up contributing significantly to the definition of the substantive obligation to prevent. In short, in the Court’s own reasoning, procedure and substance are deeply intertwined, in as much procedure both follows from and defines substance 305. (b)  Violation without harm Acknowledging that procedure and substance are closely connected through the harm prevention rule’s due diligence requirement, to the point that they are interdependent in important respects, is one thing. But does it necessarily follow that the harm prevention rule can be violated even when no harm is ultimately caused ? For the ICJ one proposition obviously does not entail the other. Specifically, the fact that the standard of conduct of the harm prevention rule is due diligence  See Chap. II, Sec. C.2.2.  See Pulp Mills, supra footnote 1, pp. 55-56, 82-83, paras. 101, 204 ; Costa Rica v. Nicaragua, supra footnote 5, pp. 706707, para. 104 ; Nicaragua v. Costa Rica, supra footnote 5, pp. 720, 724, paras. 153, 168. 305  See Pulp Mills, supra footnote 1, pp. 82-83, para. 204 (observing that the substantive obligation (to protect and preserve) “has to be interpreted in accordance with” the practice of EIA, “which may now be considered to be a requirement under general international law”, and which flows from the duties of vigilance and prevention that due diligence implies). 303 304

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does not alter the Court’s premise that harm must occur for the wrongful act to be complete. However, and with all due respect, this conclusion neglects the true nature of the harm prevention rule. The rule is not primarily an obligation not to cause harm, but an obligation to take diligent steps to prevent harm. It is an obligation of conduct that is violated when State conduct falls short of what due diligence requires 306, whether actual harm results or not 307. But, one might object, does this approach not take the “harm” out of the “no harm” rule ? The answer, briefly put, is “yes, and no”. The answer is yes, in the sense that understanding the harm prevention rule as an obligation of conduct makes plain that causation of harm is not an element of the rule 308. This understanding highlights that the obligation is about preventing harm, so precisely about ensuring that harm does not occur in the first place. That is why, even on the ICJ’s reasoning 309, the trigger of the due diligence obligations of the harm prevention rule is risk  See Responsibilities in the Area, supra footnote 86, p. 41, para. 110 ; Pulp Mills, joint dissenting opinion AlKhasawneh and Simma, supra footnote 6, p. 120 para. 26 ; Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Donoghue, p. 3, para. 9 ; Proelβ, supra footnote 8, p. 77 ; Brent, supra footnote 8 ; Duvic-Paoli, supra footnote 8, p. 337 ; Birnie et al., supra footnote 64, pp. 137, 147 ; ILC, Harm Prevention Articles, supra footnote 165, p. 154, para. 7. 307  See also Kerbrat, supra footnote 8, p. 14 ; McCaffrey, supra footnote 8, p. 379. 308  See also Plakokefalos, supra footnote 224 ; Dupuy, supra footnote 75, pp. 380, 382 ; and Birnie et al., supra footnote 64, p. 137 (noting that the harm prevention rule does not prohibit transboundary harm so that “it is erroneous to refer to a ‘no harm’ rule”). 309   Pulp Mills, supra footnote 1, p. 83, para. 204 ; Costa Rica v. Nicaragua, supra footnote 5, pp. 706-707, para. 104.

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of significant transboundary environmental harm 310, and not significant harm 311. Indeed, if one pushes this argument further, it turns out that the answer to the above question should also be “no” : the “rule of conduct” approach does not take the harm out of the harm prevention rule because harm never was an element of the primary rule to begin with. Yes, the early focus was on situations in which harm had occurred and the question that preoccupied adjudicators and scholars was whether one State owed compensation to another 312. However, the fact that harm happened to be present in the relevant cases does not imply that it was an element of the primary rule. In fact, except for the early cases canvassed above, most of which did not revolve around environmental harm, there is virtually no State practice 313. One might venture to say that the Trail Smelter case is actually an outlier rather than an exemplar in this respect 314. In more recent situations in which transboundary harm was occasioned, such as the Sandoz  ILC, Harm Prevention Articles, supra footnote 165. See also Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5, separate opinion of Judge Dugard, para. 12 ; Responsibilities in the Area, supra footnote 86 ; and see Brent, supra footnote 8, p. 54. On the general trend towards risk-based standards in international law see Stephen Townley, “The Rise of Risk in International Law”, Chicago Journal of International Law, Vol. 18 (2018), p. 594. 311  But see Xue, supra footnote 193, pp. 161, 163, 165 (noting that the “criterion of damage has a direct bearing on both substantive and procedural rules with regard to preventing transboundary damage. Procedurally it triggers the process of notification, consultation, and negotiation among States” ; but going on to observe that when “an activity bears a significant risk of transboundary damage, the government must take all necessary measures to prevent such damage”, including pursuant to “an emerging set of procedural rules”). 312  See e.g. Xue, ibid. See also Chap. II, Sec. C.3.4. 313  See Birnie et al., supra footnote 64, p. 217. 314  See also Laurence Boisson de Chazournes, “La mise en œuvre du droit international dans le domaine de la protection 310

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spill on the Rhine and the Chernobyl nuclear accident, State responsibility arguments were not pursued 315. All of this being said, of course, if harm does occur, both proof that this harm is significant and that it results from another State’s failure to act diligently to prevent it will be required 316. Therefore, the “rule of conduct” approach does not entail that harm is taken completely out of the rule. When it comes to remedies, material harm still matters ! Arguably, restitution or even compensation are most likely to be due when a violation of the harm prevention rule ends up resulting in actual harm 317. By contrast, a procedural due diligence failure on its own is more likely to have precisely the sorts of consequences the ICJ contemplated in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases. At the same time, integrating procedural and substantive obligations in the way suggested here at least allows for the possibility that, in appropriate circumstances, an otherwise purely procedural violation could result in monetary compensation 318. de l’environnement : enjeux et défis”, 99 Revue générale de droit international public, Vol. 99 (1995), p. 37 at p. 46.  For a discussion, see Duvic-Paoli, supra footnote 8, pp. 5658 (discussing States’ reluctance to apply the principles of State responsibility to environmental harm). 316  See also Duvic-Paoli, ibid., p. 184 (noting that the risk threshold triggering due diligence obligations operates at two levels, before and after harm has occurred). 317   See also Xue, supra footnote 193, p. 175 (expressing concern regarding the implications of a procedural failure for a State’s substantive rights). But note that even causation of actual harm is more likely to lead to a duty to compensate and modify an activity to prevent future harm, than to a prohibition of the activity. On this point, see Boyle, supra footnote 200, pp. 12-14 (pointing out this this was the result in the Trail Smelter case). See also Birnie et al., supra footnote 64, p. 225 (noting that the general international law of remedies applies). 318  See Maljean-Dubois and Richard, supra footnote 8, pp. 312313 ; Kerbrat, supra footnote 8, p. 15 (noting that the ICJ 315

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(c)  The law of State responsibility A final question to be addressed is whether the approach suggested above is consistent with the general international law of State responsibility, and the ILC’s Draft Articles on the Law of State Responsibility (ARSIWA) ? Specifically, Article 14 (3), ARSIWA, provides that “[t]he breach of an international obligation requiring a state to prevent a given event occurs when the event occurs . . .” 319. Although it is not invoked in the ICJ’s environmental harm prevention cases, one may surmise that this provision, and the assumptions behind it, influenced the ICJ in treating “harm” as the event in question, and so as necessary to finding a violation of the harm prevention rule. After all, the ILC’s commentary to Article 14 (3) refers to transboundary air pollution and the Trail Smelter case as an example of an obligation of prevention 320. Further clues might be gleaned from the judgment in the Bosnian Genocide case 321, where the Court did refer to Article 14 (3). In fact, in that case, the ICJ dealt with the obligation to prevent genocide in a manner that, in some key respects, resembles its subsequent approach to the harm prevention rule in the Pulp Mills and Costa Rica v. Nicaragua/Nicaragua v. Costa Rica cases. refused “toute reparation matérielle dès lorsque la violation ne concerne qu’une obligation de nature procédurale”). 319  Draft Articles for Responsibility of States for Internationally Wrongful Acts, in Yearbook of the International Law Commission, 2001, Vol. II, Part Two, UN doc. A/CN.4/ SER.A/2001/Add.1, p. 26 at p. 27, Art. 14 (3) (hereinafter ARSIWA). 320   Op. cit. supra footnote 319, p. 62, para. 14. 321   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, p. 43 (hereinafter Bosnian Genocide).

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The Bosnian Genocide case was concerned with whether and on what basis Serbia was legally responsible for the genocide against the Muslim population of Bosnia, including the Srebrenica massacre. The Court found that there was insufficient evidence to conclude that the relevant acts were attributable to Serbia such that it was directly responsible for them. However, it did find that Serbia had violated its obligation under the Genocide Convention to prevent genocide 322. The Court found that this obligation was “one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide : the obligations of States parties [to the Genocide Convention] is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible. . . . In this area, ‘due diligence’ . . . is of critical importance.” 323 The ICJ went on to state that “a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. . . . In this respect, the Court refers to general rule of the law of State responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility.” 324 In apparent acknowledgment of the tension between these two propositions – and perhaps even underscoring that tension – the Court added that  Convention on the Prevention and Punishment of the Crime of Genocide, done at Paris on 9 December 1948, United Nations, Treaty Series, Vol. 78, p. 277. 323  See Bosnian Genocide, supra footnote 321, p. 221, para. 430. 324   Ibid., pp. 221-222, para. 431. 322

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“[t]his obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences ; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” 325 The ICJ’s approach to the obligation to prevent genocide met with considerable criticism in the literature, criticism that echoes many of the concerns highlighted in this course in the context of the environmental harm prevention obligation. Several commentators expressed disagreement with the Court’s conclusion that the obligation to prevent genocide is violated only once the event actually occurs 326. These authors point out that if, as the Court asserts, the duty to prevent genocide is an obligation of conduct, triggered by risk, then the occurrence of genocide could not be a precondition for the violation of the duty 327. Rather, a State should be held   Bosnian Genocide, supra footnote 321, p. 222, para. 431.  See e.g. Andrea Gattini, “Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment”, European Journal of International Law, Vol. 18 (2007), p. 695 at p. 702 ; Serena Forlati, “The Legal Obligation to Prevent Genocide : Bosnia v. Serbia and Beyond”, Polish Yearbook of International Law, Vol. 31 (2011), p. 189 at p. 200 ; Etienne Ruvebana and Marcel Brus, “Before It’s Too Late : Preventing Genocide by Holding the Territorial State Responsible for Not Taking Preventive Action”, Netherlands International Law Review, Vol. 23 (2015), p. 25 at p. 26. 327  See M. Longobardo, “Symposium on the Genocide Convention : Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ ?”, EJIL : Talk ! (16 May 2019), available at https ://www. ejiltalk.org/symposium-on-the-genocide-conventionis-the325 326

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responsible for its failure to take appropriate preventive measures “even if the event was averted” 328. Nonetheless, Article 14 (3), ARSIWA, drives the ICJ’s reasoning in the Bosnian Genocide case, and perhaps also the Pulp Mills and Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica cases. Since the Court considers Article 14 (3) to reflect a general rule of the law of State responsibility, it presumably deemed itself bound to adhere to it. Alas, as extensively discussed in the literature, Article 14 (3) may be grounded in a lingering conceptual misunderstanding. The ILC, in its work on State responsibility, wrestled with the very concepts that are the heart of the debates concerning both the harm prevention and the genocide prevention obligations : obligations of conduct, as distinguished from obligations of result. The distinction between these two kinds of obligations is commonly drawn in civil law systems 329, where an obligation of conduct “is an obligation to endeavour, without the guarantee of the result, whereas an obligation of result is an obligation to attain a certain outcome” 330. By contrast, for the former ILC Special Rapporteur Roberto Ago, an obligation of conduct was “also an obligation of result, but it was distinguishable from the latter because it specified the means through which that certain result had to be attained” 331. Although the ILC did not end up duty-to-prevent-genocide-an-obligation-of-result-or-anobligation-of-conduct-according-to-the-icj/.  Gattini, supra footnote 326. 329  See Pisillo-Mazzeschi, supra footnote 182, p. 48 (arguing that “international law, through the due diligence rule, has autonomously developed” a similar distinction). 330  A. Gattini, “Breach of International Obligations”, in André Nollkaemper and Ilias Plakokefalos (eds.), Principles of Shared Responsibility in International Law : An Appraisal of the State of the Art, Cambridge, Cambridge University Press, 2014, p. 35. 331   Ibid. 328

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adopting this categorization, it appears to have influenced the notion of the obligation to prevent, as enshrined in Article 14 (3). According to the ILC’s commentary on Article 14 (3), “[o]bligations of prevention are usually construed as best efforts obligations” 332. And, yet, they are something akin to a “negative obligation of result”, because “the decisive element for attributing responsibility to a state for breach of an obligation of prevention is still the result (which was not achieved) and not the actual conduct of the state” 333. One can thus see the seeds of the conceptual confusion concerning the harm prevention rule in Article 14 (3)’s blending of the traits of an obligation of conduct with those of an obligation of result. The inevitable tension between the two is precisely what found expression in the above excerpts from ICJ’s Bosnian Genocide decision. In the Pulp Mills and Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica cases, although the Court did not invoke Article 14 (3), it ultimately struggled with the same questions. Perhaps the ICJ sought to square the conceptual circle, by distinguishing between the procedural and substantive aspects of harm prevention, enabling it to find violations of the former without having to find a violation of the latter. An easier path to recognizing that “the whole point of the obligation is to prevent, or attempt to prevent” 334, may have been open to the Court. Assuming it is possible to distinguish between a “true obligation of prevention” and “obligations of due diligence” 335, the Court might have followed through on its conclusion that  See ILC, ARSIWA, supra footnote 319, p. 62, para. 14.  See Dupuy, supra footnote 75, p. 379 (footnotes omitted ; emphasis in original). See also James Crawford, State Responsibility : The General Part, Cambridge, Cambridge University Press, 2013, p. 228. 334  See Bosnian Genocide, supra footnote 325. 335  See Crawford, supra footnote 333, p. 227. 332 333

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the environmental harm prevention obligation is a due diligence obligation 336. To be sure, the ILC had invoked the Trail Smelter case as illustrative of an Article 14 (3) obligation. But, as the analysis in this chapter has shown, the Trail Smelter award does not establish harm as an element of the harm prevention rule 337. Similarly, yes, some of the earlier literature in international environmental law considered the Trail Smelter case primarily through a State responsibility lens and, in that context, focused on harm causation. But that literature, perhaps as a result of the ILC’s contemporaneous work on the law of State responsibility, was preoccupied with whether and to what extent State responsibility for environmental harm was fault-based 338. In this optic, which presupposes that harm has occurred, due diligence figures as a standard of care and, effectively, a “defence to a claim for compensation” 339. The ILC wrestled with the attendant issues for some time, eventually abandoning a project that had aimed to articulate a regime of “liability” for “injurious consequences” of acts “not prohibited 340 by international law”  . Instead, it opted to focus on elaborating the implications of States’ obligation to exercise due diligence in the prevention of harm, resulting in the Harm Prevention Articles.   See also Duvic-Paoli, supra footnote 8, pp. 335-336 (highlighting this “alternative route”). 337  See Chap. II, Secs. B.1 and C.3.2 (b). 338  See e.g. Lothar Gündling, “Verantwortlichkeit der Staaten für grenzüberschreitende Umweltbeeinträchtigungen”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 45 (1985), p. 264. For an overview on the state of the debate today see Jaye Ellis, “Liability for International Environmental Harm”, Oxford Bibliographies Online – International Law, last modified 22 February 2018, available at https ://www.oxfordbibliographies.com/view/docu ment/obo-9780199796953/obo-9780199796953-0017.xml. 339  See Craik, supra footnote 54, p. 66. 340  See Boyle, supra footnote 200. 336

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The harm prevention regime and the State responsibility regime operate alongside one another. They do so harmoniously, in the sense that the harm prevention regime specifies the primary obligations to which States are subject. The State responsibility regime comes into play when these primary obligations have been breached 341. As this chapter has sought to show, such a breach occurs when a State fails to exercise due diligence. Whether or not transboundary harm is caused matters, of course, but not because harm is an element of the primary obligation. Rather, it is relevant in assessing the consequences of a breach of the preventive duty 342. It is important to be clear that, even in this scenario, due diligence is not a “defence”to harm causation. As noted at various points, neither transboundary environmental harm nor the activities that produce it are unlawful in and of themselves 343. Due diligence is the key component of the primary obligation, such that the question of whether or not compensable harm has occurred can only arise once a due diligence failure is established. By the same token, State responsibility for a breach of due diligence obligations also arises in the absence of environmental harm. In such a scenario, the remedies will differ accordingly. Whether there exist any “true obligations of prevention” in international law or not is subject to debate 344. Many observers are sceptical 345, or even hold  See also ILC, Harm Prevention Articles, supra footnote 165, p. 150, para. 6 (noting that, in the case of “non-fulfilment of the duty of prevention . . . State responsibility could be engaged to implement the obligations”). 342  See Chap. II, Sec. C.3.2 (b). 343  Birnie et al., supra footnote 64, pp. 137, 142. 344  For possible examples, see Crawford, supra footnote 333, pp. 228-230. 345  See Ruvebana and Brus, supra footnote 326, p. 23 ; Gattini, supra footnote 330, pp. 45-46 ; Nienke van der Have, The Prevention of Gross Human Rights Violations under 341

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that is “important to be rid of the idea that obligations of prevention are to be left, even implicitly, on the side of obligations of result” 346. Be that as it may, the harm prevention obligation in international environmental law is not in fact an obligation of prevention in the sense envisaged by Article 14 (3), ARSIWA 347. It is an obligation of due diligence, entailing States’ responsibility for failures to act appropriately in situations of risk 348. This understanding of the harm prevention rule would resolve the tension with Article 14 (3), consistently with the ILC’s commentary on Article 31, ARSIWA, which provides : “In some cases, the gist of a wrong is the causing of actual harm to another State. In some cases what matters is the failure to take necessary precautions to prevent harm even if in the event no harm occurs.” 349 3.3.  Why it matters The final, and arguably most important, question to ask is whether the distinctions drawn here really matter. Does it really make a difference whether one concludes, like the ICJ, that the substantive rule – the harm prevention rule – is violated only once harm actually occurs, or whether one adopts the view advanced here ? Leaving aside the conceptual considerations offered above, the International Human Rights Law, The Hague, T.M.C. Asser Press, 2018, pp. 11-12.  See Dupuy, supra footnote 75, p. 380. 347  See also ibid. (providing the example of an obligation to avoid pollution of a river as “both an obligation of prevention and an obligation of conduct”). 348  See Crawford, supra footnote 333, p. 59 (noting that “if a state is under an obligation not to cause risk of harm, and it causes risk, then it is in breach of its international obligations regardless of whether damage ultimately ensues”). 349  ILC, ARSIWA, supra footnote 319, p. 92, Commentary to Art. 31, para. 6 (emphasis added). 346

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short answer to this question is that it matters because of what international environmental law is all about : the protection of the environment against harm 350. From this vantage, it is plain that prevention is what is needed, since “reaction” is generally inferior, and sometimes impossible 351. Hence, from an environmental protection perspective, prevention should be the priority of the legal framework, because that is what is most likely to ensure harm avoidance in practice 352. Herein lies the importance of the shift from a relatively amorphous “negative” duty to avoid harm to a “positive” duty to take concrete steps to protect the environment 353. That perspective, in turn, underscores the central importance of procedural obligations 354. A key foundation for any meaningful effort to prevent environmental harm is assessment of potential  See also Tulio Scovazzi, “State Responsibility for Environmental Harm”, Yearbook of International Environmental Law, Vol. 12 (2001), p. 43 at p. 49. 351  See also Brent, supra footnote 8, p. 56 (noting that requiring causation of harm before the substantive obligation can be invoked would “limit the capacity of the no-harm rule to play a preventative role in international environmental law”). 352  See also UN Secretary-General, supra footnote 208. 353   See also French, supra footnote 142, p. 181 ; Sandrine Maljean-Dubois, “Les obligations de diligence dans la pratique : la protection de l’environnement”, in Sarah Cassella (ed.), Le standard de due diligence et la responsabilité internationale, Paris, Editions Pedone, 2018, p. 145 at pp. 152-153. Of course, this does not mean that the preventive thrust of international environmental law necessarily prevails. Far from it, unfortunately. Hence, access to and further development of compensatory mechanisms remains important. See also Duvic-Paoli, supra footnote 8, p. 330. 354  See also Maljean-Dubois and Richard, supra footnote 8, p. 312 (noting that “[b]ecause compliance with procedural obligations is the only way to prevent environmental harm, procedural obligations are as important as substantive obligations”). 350

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for negative impacts, such that one can determine what activities need to be suppressed or regulated in what way so as to avoid harm 355. This point was underscored by New Zealand in its effort to stop France from carrying out further nuclear weapons tests in the territory of French Polynesia, this time underground tests. New Zealand asked pointedly : “How could France say . . . that it was taking all appropriate measures to prevent, reduce and control pollution in the Convention Area, including its territorial sea, without having first carried out an Environmental Impact Assessment ? How could France seriously assert that it was preventing, reducing and controlling pollution resulting from its nuclear testing activities, in the absence of such an assessment ? France could not know that it was meeting these obligations if it did not first carry out an EIA.” 356 In light of an EIA (or otherwise available information), harm prevention then requires that appropriate regulatory standards are set, prohibitions imposed, and potentially affected States notified 357. However, as the preceding analysis has illustrated, customary international environmental law does not provide the kinds of specific standards that would be needed to address all the many activities that could conceivably cause harm. Instead, it  See Chap. I, Sec. D.3.1.   Request for an Examination of the Situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Verbatim Record, CR95/20, Public Sitting of 12 September 1995 at 10 a.m., p. 27 (emphasis in original), available at https ://www.icj-cij.org/files/case-related/97/097-19950912 -ORA-01-00-BI.pdf. 357  See also Birnie et al., supra footnote 64, p. 169 (observing that international law requires States “not merely to notify what is known but to know what needs to be notified”).

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provides an open-textured rule 358. Over time, that rule was concretized to encompass a duty to prevent significant harm (the closest that customary law comes to setting a “standard” or threshold), and a duty that requires diligent efforts to that end. Due diligence provides an objective standard, rather than subjective or fault-based responsibility 359. At the same time, due diligence plays an important role in concretizing the duties that arise in the context of specific situations 360. Due diligence is an adaptable standard, which may become more demanding depending on the particular obligation in question 361, the magnitude of the risk and potential damage 362, available knowledge or technology, or the circumstances of the obligated State 363. Generally speaking, the higher the risk, the more serious the damage, the more stringent the requirements of due diligence 364. Since the notion of due diligence itself is broad-meshed, it matters that international courts and tribunals flesh out the parameters applicable in a given context, as the ICJ and the ITLOS Seabed Chamber have sought to do. An alternative approach to concretizing due diligence seems to have been taken by the Arbitral Tribunal in the South China Sea Arbitration. It deduced a high standard of due diligence from the environmental  See Chap. I, Sec. D.3.1.  See Pisillo-Mazzeschi, supra footnote 182, p. 42. 360  See Dupuy and Viñuales, supra footnote 64, p. 64 ; Kulesza, supra footnote 157, pp. 163-164. 361  See e.g. French and Stephens, supra footnote 181, pp. 2223. 362  See Responsibilities in the Area, supra footnote 86, p. 36, para. 117. 363  See also Bosnian Genocide, supra footnote 321, p. 221, para. 430 (emphasizing that due diligence “calls for an assessment in concreto” and may vary depending on the circumstances of the obligated State and its capacity to influence the salient acts or events). 364  See ILC, Harm Prevention Articles, supra footnote 165, pp. 154-155, paras. 10-18. 358 359

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protection provisions of Part XII of the Law of the Sea Convention (LOSC) 365, in conjunction with “the corpus of international law relating to the environment” 366. According to some observers, the Tribunal thereby treated that high standard as a matter of law, not fact, as would be the case if the standard is pegged to the level of risk in a given situation 367. In any event, in addition to these efforts to specify the content of due diligence, it is crucial that due diligence gives rise to specific procedural obligations, which can provide markers for required conduct. Needless to say, the more clarity that can be provided regarding the triggers and scope of these obligations, the better 368. In this context, it is crucial that the harm prevention rule and its procedural obligations are triggered not when there is proof of actual or pending harm, but when there is a risk of harm (such that the possibility of harm is foreseeable). Upon identification of such a risk, States are required under international law to do what it takes to prevent harm : they must take procedural steps and, depending on the circumstances, regulatory and policy steps. In this framework, potential victims of harm are given tools that have genuine legal “bite” 369. Without  See United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, United Nations, Treaty Series, Vol. 1833, p. 3 at p. 477, Part XII (hereinafter LOSC). 366  See South China Sea Arbitration, supra footnote 188, pp. 373-374, para. 941. 367   See Makane Moise Mbengue, “The South China Sea Arbitration : Innovations in Marine Environmental FactFinding and Due Diligence Obligations”, AJIL Unbound, Vol. 110 (2016), p. 285 at p. 286. 368  The ICJ and other tribunals (notably, the ITLOS) have done significant work in refining the relevant standards. See also Yann Kerbrat and Sandrine Maljean-Dubois, “Quelles perspectives en droit international de l’environnement ?”, Revue de droit d’Assas, Vol. 11 (2015), p. 132. 369  See Chap. III, Sec. B.1. 365

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having to prove (causation of) harm, or that harm is inevitable, potentially affected States can demand specific procedural steps. These procedural steps then provide yardsticks for assessing the conduct of the State from which the risk originates. It may be difficult to determine whether a State has taken substantive prevention measures (regulatory and enforcement measures) that are appropriate to the risk at hand 370 ; it is relatively easier to determine that it has failed to discharge a specific procedural duty, such as an EIA, or a notification or consultation duty 371. To be sure, procedural steps do not guarantee that harm is prevented, but they promote engagement and force justification, including under the spectre that, should harm result, lack of diligence might ground to a claim for compensation. Most importantly, if the required procedural steps are taken seriously, the harm prevention framework makes it possible to intervene at an early stage to shape the activity in question in light of environmental concerns. 3.4.  The framework in a nutshell This chapter has reviewed the primary rule framework that is at the core of customary international environmental   But note that, in the South China Sea Arbitration, the Tribunal did find that China had failed to enforce the relevant environmental rules and measures. See South China Sea Arbitration, supra footnote 188, pp. 383-384, para. 964. 371  But see also the disagreement among ICJ judges in the Whaling case as to whether a research plan submitted by Japan was sufficient to meet its procedural obligation. See Whaling in the Antarctic (Australia v. Japan : New Zealand intervening) (hereinafter Whaling in the Antarctic), separate opinion of Judge Sebutinde, ICJ Reports 2014, p. 431 at pp. 434-437, paras. 15-20 ; separate opinion of Judge Bhandari, p. 438 at pp. 440-444, paras. 7-19 ; separate opinion of Judge Ad Hoc Charlesworth, p. 453 at pp. 456-459, paras. 1117. 370

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law. The upshot of the analysis is that, while procedure is certainly not co-extensive with the substance of the harm prevention rule, it fills important parts of the substantive space with concrete parameters 372. Procedural obligations concretize in important ways what due diligence requires, and the information they generate helps shape the substantive aspects of due diligence (regulation/ preventive measures). In an open-textured rule (avoid “significant harm”) with a due diligence standard of conduct, a State’s conduct is the key. Procedure is a significant part of that conduct. It enables and promotes the achievement of the substantive goal while that goal, in turn, serves as a frame of reference for procedures 373. Although procedural and substantive obligations are notionally distinguishable, it is very difficult, if not impossible, to draw a sharp line separating the two. They are mutually reinforcing, even mutually constitutive 374. Therefore, conceptually and practically speaking, procedural violations ought to be treated as violations of the harm prevention rule. The rule is quintessentially about acting diligently in the face of risk to prevent possible harm, and only secondarily about compensation for harm. Indeed, the message of the rule is not even “do not harm”, because harm alone is not enough to violate it 375. Simply put, the gist of the harm prevention rule is : “In the case of a risk of significant harm, act diligently.” That is why it is violated not when harm occurs, but when the response to the risk falls short. It is also why the proposition “no harm = no violation of the harm  See also Kerbrat, supra footnote 8, p. 13 (“l’obligation de fond de prévenir les dommages transfrontières repose en grande partie sur des procedures”). 373  See also McIntyre, supra footnote 99, pp. 489, 495. 374  See also Maljean-Dubois and Richard, supra footnote 8, p. 312 (noting that “procedural and substantive obligations are inextricably intertwined”). 375  See also Koskenniemi, supra footnote 10, p. 77. 372

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prevention rule” 376, however intuitive it may appear at first glance, is incorrect. In sum, a close analysis of the harm prevention framework demonstrates that its procedural and substantive aspects form a legally integrated whole. Through the due diligence standard of the harm prevention rule, procedural duties are legally tied into the rule’s substance. In Chapter I, it was suggested that “primary rules” are often equated with the “substance” of law, in contrast to the secondary rules and procedures that are meant to serve that substance 377. This chapter has illustrated why both procedural and substantive primary rules in international environmental law, ultimately, are substantive. Indeed, if substance is “a fundamental or characteristic part or quality” 378, then the harm prevention rule more than bears out the proposition that procedure ought to be treated as substantive, and that procedural violations are violations of the substantive rule.

 See Chap. I, Sec. D.1.1.  See Chap. I, Secs. A and B. 378  See supra footnote 25 and accompanying text. 376 377

CHAPTER III

HARM PREVENTION BEYOND THE “NEIGHBOURHOOD” A. Context Chapter II established that procedure plays an important legal and practical role in making customary law’s harm prevention rule work. The rule is qualified, but also concretized, by the due diligence standard against which the lawfulness of States’ (in)action is assessed. It is an obligation of conduct, triggered by risk of transboundary harm. In the face of such risk, States must take certain procedural steps, as well as certain regulatory and oversight measures. Procedural requirements serve to concretize and operationalize the harm prevention rule, while also providing tangible yardsticks for assessing State conduct. In short, in a generally framed rule like the harm prevention rule, due diligence and the related procedural requirements play central roles in supporting, even supplying, substance 379. Ultimately, in the harm prevention framework at custom, both substantive and procedural requirements are substantive 380. In the classical transboundary context, this primary rule framework works reasonably well, in part because procedural obligations serve to prompt inquiry, reflection on necessary steps, engagement and, ideally, cooperation among neighbouring states. The risk-based approach, in turn, is a potentially powerful tool in that it triggers proactive duties in advance of harm, and without potentially affected States having to prove pending 379 380

 See Chap. II, Sec. C.3.4.   Ibid.

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harm. But most international environmental concerns today reach far beyond the immediate “neighbourhood” context of adjacent States. Some transboundary impacts occur far from the State of origin. Others affect all States and people through damage to resources, or natural systems, located beyond the jurisdiction of States. Furthermore, in focusing on the procedural and substantive rules that make up the harm prevention framework, Chapter II was preoccupied with the mutually reinforcing procedure-substance interplay amongst the primary rules of customary international environmental law. The other kind of procedure-substance distinction adverted to in Chapter I – the distinction between primary rules and secondary rules and procedures for their application, including judicial dispute settlement – was left aside. The secondary rules that govern dispute settlement can serve to reinforce the harm prevention framework, by facilitating clarification of primary rules or vindication of rights, but they can also impose constraints on a party’s ability to pursue harm prevention, notably when the harm is not transboundary in the classical sense considered so far. This chapter therefore widens the volume’s analytical focus in two interrelated ways. First, it explores how the primary rule framework of the harm prevention rule fares in the context of long-range transboundary impacts and “commons” issues, and in relation to impacts on human rights rather than State rights of one kind or another. Second, the chapter takes a closer look at the role of secondary rules related to adjudication in international environmental law. Throughout, climate change will be used for purposes of illustration. It entails both longrange and commons impacts, and enables an exploration of the promise and limits of adjudication. The legal picture that emerges from this survey will provide part of the backdrop to Chapter IV, which considers the emergence of treaty-based regimes as key sites for the

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production and operation of procedure and substance in international environmental law today. B.  Long-Range Transboundary Impacts This section is concerned with situations involving activities in one State that impact on another State’s territory or environment, but transcend the close neighbourhood settings considered in the previous chapter. For example, could a small island State experiencing sea level rise deploy the harm prevention rule vis-à-vis a major greenhouse gas (GHG) emitting State ? What opportunities and constraints flow from the harm prevention rule itself, and what opportunities and constraints result from secondary rules relating to adjudication ? 1.  Applying the harm prevention rule In December 2009, the Federated States of Micronesia intervened in the context of an environmental assessment of the plan to modernize a large power plant in the Czech Republic 381. The planned expansion was expected to make the Prunéřov II plant “one of Europe’s largest coal-fired power stations and the largest single source of carbon dioxide emissions in the Czech Republic” 382. Although this example involves recourse to relatively informal domestic channels, it nonetheless illustrates  See Greenpeace, Legal Steps Taken by the Federated States of Micronesia against the Prunéřov II Coal-Fired Power Plant, Czech Republic (2010), available at http ://www. greenpeace.org/international/Global/international/planet-2/ report/2010/3/teia_fsm.pdf. 382  Bonnie Malkin, “Micronesia mounts unprecedented legal challenge over Czech power station”, The Telegraph, 24 May 2011, available at https ://www.telegraph.co.uk/news/earth/ environment/climatechange/8532796/Micronesia-mountsunprecedented-legal-challenge-over-Czech-power-station. html. 381

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the potential strengths of the harm prevention rule’s procedural aspects. Under local law, any State whose territory might suffer significant environmental impacts due to a project undertaken in the Czech Republic may participate in the EIA process. Hence, in a letter to the Czech Ministry of the Environment, Micronesia asserted that the project’s environmental impacts could affect its territory and requested that a transboundary EIA be undertaken 383. It further asserted that the planned modernization failed to meet applicable best available technology (BAT) standards 384, an argument also advanced by several local environmental organizations 385. The Ministry ordered a third-party assessment of the modernization project, which concluded that the project did not meet the BAT standards and that additional CO2 would be emitted by Prunéřov II as a result 386. While the Ministry nonetheless approved the modernization, it asked the proponent power company for “compensation measures” at its other power plants to offset the excess emissions 387. The  The letter is available at http ://blogs2.law.columbia.edu/ climate-change-litigation/wp-content/uploads/sites/16/nonus-case-documents/2009/20091203_2686_petition.pdf. See also Paulo A. Lopes, “FSM v. Czech : A New ‘Standing’ for Climate Change”, Sustainable Development Law & Policy, Vol. 10 (2010), p. 24. 384  See René Lefeber, “Climate Change and State Responsibility”, in Rosemary Rayfuse and Shirley Scott (eds.), International Law in the Era of Climate Change, Cheltenham, Edward Elgar, 2012, p. 321 at p. 336. 385  See Michael Kahn and Jan Korselt, “Micronesia leads Czechs to seek power plant review”, Reuters, 26 January 2010, available at https ://uk.reuters.com/article/czechpower-micronesia-idUKLDE60P2C520100126. 386  See Press Release, Czech Republic Ministry of the Environment, “Czech Ministry of the Environment has issued an affirmative statement on comprehensive refurbishment of the Prunéřov II power plant”, 30 April 2010, available at http ://www.mzp.cz/en/news_100430_statement_Prunerov. 387  See ibid. And see Lefeber, supra footnote 384, pp. 336-337. 383

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Czech authorities did not acknowledge an international legal obligation to offset the project’s climate impact, or indeed the Micronesian request. Still, it seems that this request found support not only in the Czech Republic’s domestic law but also in its ratification of the Convention on Environmental Impact Assessment in a Transboundary Context 388. While Micronesia is not a party to that convention 389, it is interesting to note that the ICJ’s Pulp Mills judgment, which affirmed the transboundary EIA obligation under general law, was released ten days before the Czech Environment Ministry announced its decision 390. Before assessing the strengths and weaknesses of the harm prevention rule in a situation like the one highlighted in the above example, it is worth asking whether the rule applies at all to transboundary harm that extends beyond directly neighbouring States 391. By and large, the judicial decisions considered in Chapter I were concerned with the potential transboundary impacts of specific projects in the border area between two States 392, or with treaty-based obligations 393. But, given the geographical reach of transboundary pollution   Convention on Environmental Impact Assessment in a Transboundary Context, done at Espoo on 25 February 1991, International Legal Materials, Vol. 30 (1991), p. 802. 389  See Leos Rousek, “Micronesia Gets Power-Plant Review”, The Wall Street Journal, 27 January 2010, available at https ://www.wsj.com/articles/SB10001424052748704094 304575028733358203068. 390  See Pulp Mills, supra footnote 1. 391  For a detailed discussion, see Mayer, supra footnote 287, pp. 69-72. 392  See Trail Smelter, supra footnote 142 ; Lac Lanoux Arbitration, supra footnote 211 ; Gabčíkovo-Nagymaros, supra footnote 192 ; Pulp Mills, supra footnote 1 ; Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, supra footnote 5. 393  See Responsibilities in the Area, supra footnote 86 ; South China Sea Arbitration, supra footnote 188 ; Whaling in the Antarctic, supra footnote 371.

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today, what counts as “neighbourhood” arguably has grown accordingly 394. And, in any case, the harm prevention rule itself refers simply to harm to the environment of another State ; it does not stipulate that States be adjacent 395. Indeed, in the Nuclear Weapons Advisory Opinion, the ICJ did consider the harm prevention rule to be relevant in a context that involved, inter alia, long-range and cumulative harm 396. In turn, the ILC, in its Harm Prevention Articles, specifically defines transboundary harm to include harm caused in the territory of another State, “whether or not the States concerned share a common border” 397. In short, it is safe to say that, substantively, long-range impact situations are covered by the harm prevention rule 398. Micronesia’s intervention highlights the potential “bite” of the harm prevention framework in a longrange impact situation. The strength of the framework, as demonstrated in Chapter II, is precisely that it can be deployed proactively. It imposes an obligation of conduct even in the absence of unequivocal evidence of current or future harm 399, and notwithstanding the complexities of establishing causation that would arise if compensation for actual harm were the goal. Obligations flow from the risk of significant transboundary harm.  See Stuart Beck and Elizabeth Burleson, “Inside the System, outside the Box : Palau’s Pursuit of Climate Justice and Security at the United Nations”, Transnational Environmental Law, Vol. 3 (2014), p. 17 at p. 25 (observing that the “case to be made [is] straightforward. Anthropogenic GHGs act as a pollutant that causes damage across borders. The source of the damage may be diffuse and the causal pathway long and complex, but they are by now well understood”). 395  See Nuclear Weapons, supra footnote 191, para. 29. 396   Ibid., paras. 29, 35. 397  ILC, Harm Prevention Articles, supra footnote 165, pp. 151152, Art. 2 (c). 398  But see Alexander Zahar, “The Contested Core of Climate Law”, Climate Law, Vol. 8 (2018), p. 244. 399  See also Mayer, supra footnote 291, p. 167. 394

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The ILC, in its Harm Prevention Articles, defined the risk that would trigger preventive duties as ranging from a “high probability of significant harm” to a “low probability of disastrous harm” 400. Given the by now incontrovertible scientific evidence of the climate change risks engendered by GHG emissions, including sea level rise 401, this risk threshold is clearly crossed, certainly in the case of small island nations. Indeed, it seems fair to say that these States, and arguably the entire world, are facing a high probability, if not certainty, of disastrous harm 402. That ought to mean that all States are obligated under general international law to take appropriate preventive measures. Not surprisingly, that has been Micronesia’s position. Its official statements advance a robust interpretation of the harm prevention rule, and stress its significance in the context of climate change 403. While due diligence in harm prevention entails important procedural obligations, such as assessing the climate impacts of planned power plants, Chapter II has shown that due diligence also entails substantive requirements 404. Thus, as Lefeber points out specifically with respect to climate change,  ILC, Harm Prevention Articles, supra footnote 165, pp. 151152, Art. 2 (a).   Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5o C – Summary for Policymakers (October 2018), pp. 7-8 at para. B2, available at https ://www.ipcc.ch/sr15/. 402   Ibid., passim. 403   See e.g. H.E. Ambassador Jane J. Chigiyal, Permanent Representative of the Federated States of Micronesia to the United Nations, “Statement to the Sixth Committee of the United Nations General Assembly, agenda item 83 : Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in case of such harm”, 22 October 2013, available at http ://papersmart. unmeetings.org/media2/703099/micronesia-83.pdf. 404  See Chap. II, Sec. B.3.2.

400

401

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“The [harm prevention] obligation is a due diligence obligation . . . Compliance requires states to adopt, implement, supervise, and enforce policies and measures to achieve the objective, in this case policies and measures that prevent, limit, or reduce the emission of greenhouse gases, i.e. mitigation action.” 405 The focus of an action based on a substantive failure would be on showing that, by disregarding demonstrated risks, a State fell short of its due diligence obligation to take adequate preventive steps. The challenge is that most States are taking some emission reduction measures, even as virtually all of these States’ actions appear to fall short of what would be required to keep GHG concentrations in the atmosphere within a safe range 406. Showing lack of diligence therefore might be difficult, especially as States typically balance a range of considerations in making climate policy. Furthermore, for parties to the Paris Agreement, it is relevant that the agreement accommodates a wide range of national contributions, raising the question whether it would even be possible to argue that a State that meets the requirements of the agreement nonetheless falls short of due diligence under general international law 407. That said, invoking a substantive due diligence failure may be relatively easier vis-à-vis certain States, say an industrialized, high-emitting country that is rolling back rather than ramping up climate policies 408. In any case, an attempt  Lefeber, supra footnote 384, p. 334 (footnote omitted ; emphasis added). 406   See United Nations Environment Programme (UNEP), Emissions Gap Report 2018, November 2018, available at https ://www.unenvironment.org/resources/emissions-gapreport-2018. 407  See also Chap. IV, Sec. C.1.3 (on due diligence as defined by the Paris Agreement). 408  See Duncan French and Tim Stephens, ILA Study Group on Due Diligence in International Law : Second Report (July 405

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to build a case around a substantive due diligence failure would provide an interesting and valuable opportunity to seek clarification of the applicable parameters : is due diligence primarily an objective standard, what role does the overwhelming evidence of risk play, what role do national circumstances play, and what legal implications might flow from treaty-based standards of conduct 409 ? Like a finding of a procedural failure, a substantive due diligence failure would entail a violation of the harm prevention rule. This violation gives rise to State responsibility, even where a given State is unable to prove what specific impact (or share of the impact) may have been inflicted on it by another State 410. As discussed in Chapter II 411, the legal consequence of such a breach would not necessarily be compensation, but first and foremost an obligation to cease the internationally wrongful act or omission 412. The “function of cessation is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule” 413. Hence, the cessation duty reinforces the continuing obligation to comply with 2016), p. 13 (noting that a State “cannot be considered to have acted diligently when the State has acted in bad faith or has knowingly refused to take any measures whatsoever”). 409  On parameters of due diligence, see Chap. II, Sec. C.3.3. 410  For example, although, even if modernized as planned, Prunéřov II would be one of the largest sources of CO2 emissions in Europe, the emissions of one power plant could hardly be said to cause sea level rise or specific climate impacts. See Malkin, supra footnote 382 (on the magnitude of Prunéřov II emissions). 411  See Chap. II, Sec. C.3.2 (b). 412  See ILC, ARSIWA, supra footnote 319, p. 88, Art. 30. And see Lefeber, supra footnote 384, p. 341. And see Philippe Sands, “Climate Change and the Rule of Law : Adjudicating the Future in International Law”, Journal of Environmental Law, Vol. 28 (2016), p. 19 at p. 31. See also Boisson de Chazournes, supra footnote 314, p. 40. 413  ILC, ARSIWA, supra footnote 319, p. 89, Commentary to Art. 30, paras. 5-6.

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the relevant obligation 414, while also encompassing an element of restitution 415. In practical terms, a State with inadequate climate policies, including a State that is not a party to the Paris Agreement, would be reminded of its obligation under general international law to take appropriate preventive measures. All told, given the relatively more difficult evidentiary issues that would arise in demonstrating a substantive due diligence failure, a State looking to hold another to the harm prevention obligation may prefer to focus on procedural failures 416. Either way, the example provided here illustrates that treating the harm prevention rule as an obligation of conduct entails not only an appropriate emphasis on prevention, but can also lead to appropriately calibrated outcomes and remedies 417. Of course, a claim for monetary compensation for harm would be another matter altogether. In such a scenario, a State would have to demonstrate that the specific harm it is suffering, say land loss due to sea level rise, was caused by a particular emitting State’s lack of diligence. Given the cumulative past and present GHG emissions of States around the world, another challenge might be to show for what share of the harm individual States can be held responsible 418.  See ILC, ARSIWA, supra footnote 319, p. 88, Art. 29.   Ibid., p. 89, Commentary to Art. 30, para. 7. For an example, see Australia’s request, in the Whaling in the Antarctic case, for a declaration that Japan was in breach of its treaty obligations, and for an order for the cessation of the internationally wrongful act. See Whaling in the Antarctic, supra footnote 371, Memorial of Australia of 9 May 2011, pp. 275-278, available at https ://www.icj-cij.org/files/caserelated/148/17382.pdf. 416  See also Mayer, supra footnote 287, pp. 9-10. 417  See also Chap. II, C.3.2 (b). 418  On these challenges, see Zahar, supra footnote 398. But see also Sands, supra footnote 412, p. 31 (discussing the possibility of “joint and several liability”). 414 415

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2.  Adjudicating harm prevention In the preceding section, the example of Micronesia’s resort to a domestic process served as a starting point for an exploration of the opportunities and constraints that arise from deploying the harm prevention rule to address the long-range impacts of GHG emissions. In this section, the focus shifts to the opportunities and constraints a State might encounter if, in a similar situation, it sought to invoke the harm prevention rule in international adjudication against another State 419. For present purposes, the focus will be on recourse to the ICJ as a court of general jurisdiction 420. The Court can hear cases on all matters of international law, so long as the parties to a dispute consent to its jurisdiction. Consent can be granted for a particular dispute, by compromis – an agreement between the parties to refer the dispute to the ICJ 421. Alternatively, consent can be given in advance, either via a treaty-based compromissory clause in which the parties to a given treaty agree to refer disputes concerning its application or interpretation to the ICJ 422, or through a declaration by a State that it recognizes the Court’s jurisdiction “as compulsory ipso facto” 423. Although 73 States, including several major emitting  For a helpful overview, see Daniel Bodansky, “The Role of the International Court of Justice in Addressing Climate Change : Some Preliminary Reflections”, Arizona State Law Journal, Vol. 49 (2017), p. 689. 420  See also ibid., pp. 700-701 (listing ITLOS, the WTO Appellate Body, ICSID, and the PCA as other potential sites of adjudication). And see Mayer, supra footnote 287, pp. 238-243. 421  Statute of the International Court of Justice, done at San Francisco on 26 June 1945, Art. 36 (1), available at https :// treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf. 422   Ibid. And see Chap. IV, Sec. C.2.3 (a). 423   Ibid., Art. 36 (2). And see ICJ, “Declarations recognizing the jurisdiction of the Court as compulsory”, available at https ://www.icj-cij.org/en/declarations. 419

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States 424, accept the Court’s jurisdiction as compulsory 425, it seems somewhat unlikely that a contentious case on long-range climate impacts would find its way to the ICJ. The legal and political ramifications of such an action would be significant, and arguably would extend far beyond the case at hand 426. In any event, the world’s largest national emitters, China and the United States, could not be subjected to contentious proceedings before the ICJ without their specific consent. Needless to say, such consent is unlikely to be forthcoming. The procedural requirement of consent to the jurisdiction of the Court constitutes a gatekeeping factor that limits access to adjudication. The upshot is that, given the attendant secondary rules, an existing substantive right cannot necessarily be vindicated through a contentious adjudicative process 427. Might an advisory opinion be a better option for bringing the transboundary implications of climate change before the ICJ ? After all, as suggested above, the most promising type of claim in a contentious proceeding would likely be one focused on clarifying a given State’s harm prevention duties. Given those goals, and given the inherent limitations of a largely bilateral proceeding, the advisory opinion route might be preferable to a contentious case. As Bodansky points out, it “would allow the I.C.J. to perform its most important  See Bodansky, supra footnote 419, p. 711 (highlighting Australia, Canada, Germany, India, Japan, Mexico, Poland, and the United Kingdom). 425  See ICJ, “Declarations recognizing the jurisdiction of the Court as compulsory”, available at https ://www.icj-cij.org/ en/declarations. 426  See Mayer, supra footnote 287, p. 240. 427  See Maxine Burkett, “A Justice Paradox : Climate Change, Small Island Developing States, and the Absence of International Legal Remedy”, in Shawkat Alam et al. (eds.), International Environmental Law and the Global South, Cambridge, Cambridge University Press, 2015, p. 435. 424

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role relating to climate change, namely to clarify and elaborate the relevant norms of general international law” 428. The outcome could be a ruling that affirms and specifies the harm prevention rule with respect to a global issue like climate change. Such an opinion could also play a significant role in concretizing what due diligence means in the context of global climate change, thereby providing an impetus for more ambitious climate action 429. Like a proactive due diligence case, albeit at a more abstract level, an advisory opinion could do so without getting bogged down in the potentially difficult causation issues that might be raised in a contentious case revolving around compensation for specific climate impacts 430. An opinion that confirms the existence of standards binding on all States might support future climate negotiations and might play a role in proceedings before national courts and/or in domestic legislatures 431. The idea of seeking an ICJ advisory opinion on climate change-related obligations is not an idle proposition. In 2011, another small island nation, Palau, attempted to mobilize support for such an effort. The very aim of that initiative was to “establish the applicability to the emission of GHGs of existing norms of international law prohibiting transboundary harm” 432. Specifically, the proposal was to request an opinion on States’ “legal responsibility to ensure that any activities on their territory that emit greenhouse gases do not harm other  Bodansky, supra footnote 419, p. 712. But see also Mayer, supra footnote 287, p. 241 (highlighting the risk of an “excessively conservative interpretation of general international law” by the ICJ). 429  See Chap. III, Sec. B.1. And see Bodansky, supra footnote 419, p. 709. 430  Bodansky, supra footnote 419, p. 711. 431  See Beck and Burleson, supra footnote 394, pp. 24, 28. 432  Beck and Burleson, supra footnote 394, pp. 24, 28. 428

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States” 433. Interestingly, then, the initiative sought to rely on a long-range transboundary impact argument, rather than a commons argument. Pursuant to Article 96 of the UN Charter, the General Assembly or the Security Council can request advisory opinions, as can other UN organs or specialized agencies when authorized by the General Assembly 434. The most likely path to an advisory opinion arguably would be a request by the General Assembly, requiring the support of a majority of its members 435. Alas, in the case of Palau’s initiative, while some States appeared supportive, others were concerned about interference with the negotiations under the auspices of the UNFCCC 436. Palau abandoned the effort. In other words, the voting requirements for advisory opinion requests present another procedural constraint in pursuing international adjudication to invoke the harm prevention rule. C.  Concerns beyond National Jurisdiction 1.  Applying the harm prevention rule Could the harm prevention rule be deployed to insist that States meet their due diligence obligations to protect  See UN News Centre, “Palau seeks UN World Court opinion on damage caused by greenhouse gases”, 22 September 2011, available at http ://www.un.org/apps/news/ story.asp ?NewsID=39710&Cr=pacific+island&Cr1#. UbtgAr5zYeg.  See,  generally, Sands, supra footnote 412, p. 25. 434  Charter of the United Nations, done at San Francisco on 26 June 1945, Art. 96, available at https ://treaties.un.org/ doc/Publication/CTC/uncharter-all-lang.pdf. 435   Ibid., Art. 18 (3). 436  UN Department of Public Information, “Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change”, 3 February 2012, at http :// www.un.org/News/briefings/docs/2012/120203_ICJ.doc. htm. And see Beck and Burleson, supra footnote 394, p. 26 (noting that the United States “threw its full diplomatic weight against” the advisory opinion initiative). 433

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a global commons ? At first glance, the answer would seem to be yes. After all, the applicability of the harm prevention rule to areas beyond national jurisdiction or control has been confirmed in a series of international 437 instruments and ICJ decisions  . Some caution is warranted, however. Yes, States are obligated to prevent harm to the commons. But it is much less clear to whom that obligation is owed, and under what circumstances a State would be legally entitled to hold another accountable for a failure to take appropriate measures to prevent harm to the commons. The first question is whether the obligation to prevent harm to areas beyond national jurisdiction or control is owed erga omnes, such that “all States can be held to have a legal interest” in compliance with it, as the ICJ had put it in the Barcelona Traction case 438. There is a considerable spectrum of views on this question in the literature 439. Some commentators point out that it is not possible to conclude from the mere fact that the ICJ confirmed the existence of a category of erga omnes norms that obligations to protect a commons belong to that category 440. For others, obligations to protect the global  See Chap. II, Sec. B.3.4.   Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, ICJ Reports 1970, p. 3 at p. 32, para. 33. For an in-depth treatment of the case and the legal issues raised by erga omnes obligations more generally, see Christian J. Tams, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University Press, 2005. 439  See generally Jutta Brunnée, “Common Areas, Common Heritage and Common Concern”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 550 at pp. 555-556. 440   See Sean Murphy in ILC, 67th Sess., 3246th Meeting, “Provisional Summary Record of the 3246th Meeting”, UN doc. A/CN.4/SR.3246 (2016), pp. 5-6 (provisional) (inter alia pointing to the fact the environmental norms were not 437 438

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environment “may have an erga omnes character” 441. Yet other commentators suggest that specific environmental protection obligations, such as those arising in relation to the marine environment and, in particular, the high seas, may be owed erga omnes 442. Finally, at the most expansive end of the spectrum is the proposition that all environmental harm prevention, whether focused on the environment within or beyond the jurisdiction of States, is owed erga omnes 443. There would seem to be many good arguments to suggest that the commons aspect of the harm prevention obligation is owed erga omnes. Conceptually, it is difficult to entertain the notion of an obligation that is owed to nobody. While there is little direct practice that would confirm the erga omnes nature of the obligation to protect the environment of areas beyond national 444 jurisdiction or control  , this conclusion does find support in the advisory opinion of the ITLOS’s Seabed Chamber on Responsibilities in the Area 445. According to the LOSC, the “Area and its resources are the common heritage of mankind” 446. The Seabed Chamber, noting that the International Seabed Authority was tasked with among the examples provided by the ICJ in the Barcelona Traction case, or other cases that touched upon obligations erga omnes). 441  See Birnie et al., supra footnote 64, pp. 130, 232. 442  See Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, Oxford, Oxford University Press, 1997, pp. 154-163. 443  See Duvic-Paoli, supra footnote 8, pp. 321-323. 444  But see the argument of New Zealand in Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973, p. 135 at p. 139. Australia, in a parallel case, did not frame its claim explicitly in terms of the rights of all members of the international community. It did, however, argue that the French tests would infringe the freedom of the high seas. 445   Responsibilities in the Area, supra footnote 86. 446  See LOSC, supra footnote 365, Art. 136.

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acting on behalf of “mankind as a whole”, observed that each “State Party may also be entitled to claim compensation [for harm to the Area] in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and the Area” 447. It supported this observation by referring to Article 48 of the ARSIWA, which envisages circumstances in which States other than those directly injured could invoke another State’s responsibility for breaches of obligations owed erga omnes, “to the international community as a whole”, or erga omnes partes, to all treaty parties 448. In principle, procedural obligations should also follow from the commons aspect of the harm prevention duty, just as they do from its transboundary aspect. The ITLOS Seabed Chamber specifically endorsed this proposition for the duty to undertake an EIA. In referring to the ICJ’s Pulp Mills judgment, it observed : “The Court’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction ; and . . . to resources that are the common heritage of mankind.” 449   Responsibilities in the Area, supra footnote 86, p. 59, para. 180 (referring to Art. 137 (2), LOSC). 448  ILC, ARSIWA, supra footnote 319, p. 126, Art. 48. On the Draft Articles, see Jacqueline Peel, “New State Responsibility Rules and Compliance with Multilateral Environmental Obligations : Some Case Studies of How the New Rules Might Apply in the International Environmental Context”, Review of European Community and International Environmental Law, Vol. 10 (2012), p. 82 ; and Jutta Brunnée, “International Legal Accountability through the Lens of the Law of State Responsibility”, Netherlands Yearbook of International Law, Vol. 26 (2005), p. 21 at pp. 33-35. 449   Responsibilities in the Area, supra footnote 86, p. 45, para. 148. 447

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It is less clear, however, that the customary law duties to inform and consult apply in the commons context, or that they could be easily transposed from the transboundary context to a setting involving the international community as a whole. In other words, in the commons context, the potential for procedural obligations to complement and concretize the substantive requirements of harm prevention seems less certain and more limited. In short, the state of the primary rule framework constrains the customary law-based options for ensuring prevention of harm to the commons. 2.  Adjudicating harm prevention Article 48 of the ARSIWA points to a related procedural issue : assuming that the commons aspect of the harm prevention rule is owed erga omnes, do all States have standing to hold the responsible State accountable 450 ? Standing issues arise in a number of respects, including the invocation of State responsibility, eligibility to use countermeasures, and proceedings before the ICJ 451. The focus here is on adjudication. The ICJ has not pronounced itself specifically on whether the commons dimension of the harm prevention rule is owed erga omnes, or on the attendant standing issues. The Court’s recent case load has provided little opportunity to engage the issue, and the one earlier case that might have done so – the 1973 Nuclear Tests (New Zealand v. France) case – did not reach the merits phase.  See James Crawford, “Responsibility for Breaches of Communitarian Norms : An Appraisal of Article 48 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts”, in Ulrich Fastenrath et al. (eds.), From Bilateralism to Community Interest : Essays in Honour of Bruno Simma, Oxford, Oxford University Press, 2011, p. 224 at p. 227. 451  See Tams, supra footnote 438, p. 26 (describing standing as requiring a sufficient link between a State and the legal rule it seeks to enforce). 450

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In its application for interim measures against nuclear testing in the South Pacific, New Zealand invoked, inter alia, France’s violation of the rights of all members of the international community to be free from nuclear fallout and contamination of the high seas and atmosphere 452. But, given France’s unilateral declaration that it would end testing, the ICJ concluded that there was no longer a dispute between the parties that would require it to render a decision on the merits of the case 453. Various separate or dissenting opinions showed the judges were divided on the standing issue. Some noted that while “the existence of a so-called actio popularis in international law is a matter of controversy”, it “may be considered as capable of rational legal argument and a proper subject of litigation” 454. For others, the applicant States had “no legal title . . . to act as spokesman for the international community” 455. What about the more general proposition that erga omnes breaches give all States standing to invoke the responsibility of the responsible State ? Although the ICJ’s decision in the Barcelona Traction case certainly points in this direction 456, the Court has not explicitly answered the question for obligations erga omnes – obligations arising under general international law 457. By   Nuclear Tests (New Zealand v. France), supra footnote 444.  See Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, p. 253 at pp. 268272, paras. 47-59. 454  See Nuclear Tests, supra footnote 453, joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchega and Sir Humphrey Waldock, pp. 370-371, para. 117. 455  See Nuclear Tests, supra footnote 453, dissenting opinion of Judge de Castro, p. 390. 456  See also Tams, supra footnote 438, pp. 197, 310. But see Ragazzi, supra footnote 442, p. 212. 457  See also Crawford, supra footnote 450, p. 224 (observing that the debate about obligations owed erga omnes is “carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication 452 453

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contrast, some of the ICJ’s recent judgments suggest an increasing willingness to contemplate common interest standing for obligations erga omnes partes – obligations arising from a treaty. In a case involving a Belgian claim that it was entitled to proceed against Senegal to enforce compliance with the duty to extradite or prosecute under the Convention against Torture 458, the Court offered the following observations : “The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. . . . That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties ‘have a legal interest’ in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as ‘obligations erga omnes partes’ in the sense that each State party has an interest in compliance with them in any given case.” 459 The Court’s explicit comments in this case led many observers to suggest that its silence on Australia’s assertion of common interest standing in the subsequent Whaling case signalled its general acceptance of standing or State practice”) ; and Stephens, supra footnote 144, p. 67 (noting that “there is limited evidence” to suggest that public interest standing “has been accepted by states as part of customary international law”). 458  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 December 1984, United Nations, Treaty Series, Vol. 1465, p. 85. 459   Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports 2012, p. 422 at p. 450, para. 69.

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on the basis of obligations erga omnes partes 460. While this conclusion seems compelling 461, it leaves open the question of standing in relation to breaches of obligations under general international law, such as the harm prevention rule 462. Thus, although there does appear to be a trend towards common interest standing, some four decades after the Nuclear Tests cases, the scope for cases invoking the harm prevention rule in relation to a global environmental concern is still uncertain. In fact, Palau’s aforementioned advisory opinion initiative is a case in point – the proposed question was limited to States’ duties to prevent harm to other States 463. Standing is not an issue in an advisory proceeding, of course, so that an opinion could have been sought on the commons aspect of the harm prevention rule. But, presumably, the assessment was that a question focused on inter-State harm stood on stronger legal ground than one relating to harm to the commons, and that a focus on concrete and dramatic impacts, rather than more diffuse climate risks,  See Christian J. Tams, “Roads Not Taken, Opportunities Missed : Procedural and Jurisdictional Questions Sidestepped in the Whaling Judgment”, in Malgosia Fitzmaurice and Dai Tamada (eds.), Whaling in the Antarctic : Significance and Implications of the ICJ Judgment, Leiden, Brill, 2016, p. 193 at pp. 210-211 ; Yoshifumi Tanaka, “Reflections on Locus Standi in Response to a Breach of Obligations Erga Omnes Partes : A Comparative Analysis of the Whaling in the Antarctic and South China Sea Cases”, The Law and Practice of International Courts and Tribunals, Vol. 17 (2018), p. 527 at pp. 537-538. 461  But see Joe Verhoeven, “Belgique contre Sénégal ou quel intérêt pour se plaindre pour autrui ? (CIJ, 20 juillet 2012 Questions concernant l’obligation de poursuivre ou d’extrader)”, Annuaire français de droit international, Vol. 59 (2013), p. 3 at p. 15. 462  See also Priya Urs, “Guest Post : Are States Injured by Whaling in the Antarctic ?” Opinio Juris, 14 August 2014, available at http ://opiniojuris.org/2014/08/14/guest-poststates-injured-whaling-antarctic/. 463  See supra footnote 433 and accompanying text. 460

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might also help the case. Such a narrower focus also aligns with the ILC’s Harm Prevention Articles, which apply only to “harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin” 464. D.  Harm Prevention and Human Rights The harm prevention rule, as the account of its evolution in Chapter II has illustrated, has emerged from and maintained a State-centric premise. This chapter has served to confirm that premise. Questions about the application of the rule to long-range impacts, or impacts of concern to the “international community as a whole” 465, are still questions about whether and under what conditions States might be able to invoke it. Indeed, these questions are “pushing the envelope” of the harm prevention rule. Sections B and C above have shown that, the further one moves beyond the paradigmatic scenario of transboundary harm amongst adjacent States, the shakier the substantive legal ground and the narrower the procedural aspects of the primary rule become, and the narrower the openings that the salient secondary rules provide for adjudication. But what about the fact that environmental harm affects not only States but, perhaps most of all, people ? In the classical framework, their interests are subsumed under the interests of the States in which they reside 466. People affected by transboundary environmental harm, let alone harm to the environmental commons, are not entitled under the harm prevention rule.  ILC, Harm Prevention Articles, supra footnote 165, pp. 151152, Art. 2 (c). 465  See ARSIWA, supra footnote 319, p. 126, Art. 48 (1) (b). 466  See e.g. Trail Smelter, supra footnote 142, p. 1965 (referring to injury “in and to the territory of another [State] or the properties or persons therein”). 464

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It is all the more noteworthy, then, that a recent advisory opinion of the Inter-American Court of Human Rights (IACHR) broke new ground by highlighting potential linkages between human rights violations and the harm prevention rule 467. The Court deployed the harm prevention rule to find that “the jurisdiction of the States, in relation to the protection of human rights under the American Convention [on Human Rights], is not limited to [their] territory” 468. Specifically, “when transboundary harm occurs which affects rights under the American Convention, it is understood that the persons whose rights have been violated are under the jurisdiction of the state of origin if there is a causal link between the event that originated in its territory and the [violation of] human rights of people outside its territory” 469. According to the IACHR, this is because it is the State in whose territory the relevant activities take place that  See Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4 (1) and 5 (1) of the American Convention on Human Rights), Advisory Opinion OC-23/17 of 15 November 2017, Inter-Am. Ct. H.R., Series A, No. 23, available at http ://www.corteidh. or.cr/docs/opiniones/seriea_23_esp.pdf (Spanish only). See also “Advisory Opinion OC-23/17 of November 15, 2017 requested by the Republic of Colombia – Official Summary Issue by the Inter-American Court” (hereinafter OC-23/17 English Summary), available at http ://www.corteidh.or.cr/ docs/opiniones/resumen_seriea_23_eng.pdf. 468   OC-23/17 English Summary, supra footnote 467, p. 3, Sec. II.c. And see American Convention on Human Rights, done at San Jose on 22 November 1969, United Nations, Treaty Series, Vol. 1144, p. 123. 469  Advisory Opinion OC 23/17, supra footnote 467, p. 44, para. 101. Translation by Christopher Campbell-Duruflé and Sumudu Anopama Atapattu, “The Inter-American Court’s Environment and Human Rights Advisory Opinion”, Climate Law, Vol. 8 (2018), p. 321 at pp. 333-334. 467

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has effective control over them and hence is in a position to prevent transboundary harm that affects the human rights of people located in other States 470. Through this reasoning, the Court made the harm prevention rule relevant to assessing whether a State can be responsible for extraterritorial human rights violations, an approach that transcends the historical reluctance to find that human rights obligations apply extraterritorially 471. In addition to deploying the harm prevention rule to provide a link to extraterritorial impacts on human rights, the Court also imported its requirements into the assessment of rights violations under the American Convention on Human Rights. According to the Court, in order to “respect and ensure” the relevant rights, “States are obligated to prevent significant environmental damages within and outside their territory” 472. In turn, “[t]o comply with this obligation of prevention, States must regulate, supervise and monitor the activities under their jurisdiction that could cause significant damage to the environment” 473. Indeed, along the lines of the ICJ’s Pulp Mills judgment, the IACHR found that parties to the American Convention had to “carry out environmental impact assessments when there is a risk of significant damage to the environment” 474. Furthermore, “[t]o comply with its obligation of cooperation, when States become aware that an activity planned under their jurisdiction could generate a risk of significant  Campbell-Duruflé and Atapattu, supra footnote 469, p. 334 (referring to para. 102 of the Advisory Opinion). 471  For an overview, see Jorge E. Viñuales, “A Human Rights Approach to Extra-territorial Environmental Protection – An Assessment”, in Nehal Bhuta (ed.), The Frontiers of Human Rights, Oxford, Oxford University Press, 2016, p. 177. 472   OC-23/17 English Summary, supra footnote 467, p. 4, Sec. III.1. 473   Ibid., Sec. III.b. 474   Ibid. 470

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transboundary damage . . ., they must notify other States that could be affected, as well as consult and negotiate in good faith” 475. There is an inherent tension, or at least ambiguity, 476 in the Advisory Opinion  . On the one hand, the IACHR appears to require a causal link between actual transboundary harm that affects human rights under the American Convention and activities over which the State of origin has control 477. On the other hand, the Court considers that States are obligated to prevent transboundary harm “that could affect the human rights of people outside their territory” 478. Did the IACHR emulate the ICJ’s distinction between (procedural) prevention and (substantive) responsibility for causation of transboundary harm 479 ? Or might it have opened up the possibility for human rights obligations to be invoked absent proof of rights-impacting environmental harm and, in line with the understanding of the harm prevention rule advocated in this course 480, upon showing a risk of such harm 481 ? The fact that the Court cross-references another part of its opinion, in which it discusses the notions of due diligence, obligations of conduct, and precaution at length, might point in the latter direction 482.

 OC-23/17 English Summary, supra footnote 467, Sec. III.e.  See also Angeliki Papantoniou, “Advisory Opinion on the Environment and Human Rights”, American Journal of International Law, Vol. 112 (2018), p. 460 at p. 465 (noting that the Court “did not specify . . . whether its analysis applies to both actual and potential damage”). 477  Advisory Opinion OC-23/17, supra footnote 467, p. 44, para. 101. 478   Ibid. (translation by author ; emphasis added). 479  See Chap. II, Secs. C.2.3 and 2.4. 480  See Chap. II, Sec. C.3.2 (b). 481  See also Campbell-Duruflé and Atapattu, supra footnote 469, pp. 333, 335. 482  See ibid., at pp. 332-333. 475 476

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Either way, if the IACHR’s approach to the prevention of rights-impacting transboundary environmental harm gained traction, it would extend the reach of both the harm prevention rule and of human rights law in significant ways. The harm prevention rule would extend the extraterritorial scope of human rights obligations for environmental protection, and the primary rule’s substantive and procedural dimensions would matter in assessing whether a State is meeting these human rights obligations 483. In turn, through the human rights regime, a path could be open for individuals to hold States to their obligation to prevent significant transboundary environmental harm, quite possibly including climate-related harm 484. Subject to relevant secondary rules, like those pertaining to the exhaustion of local remedies, new cross-border environmental claims might be brought to the Inter-American Commission 485 on Human Rights and  , eventually, to the Court itself 486.  See also Viñuales, supra footnote 471, pp. 192-202.  See Monica Feria-Tinta and Simon C. Milnes, “The Rise of Environmental Law in International Dispute Resolution”, Yearbook of International Environmental Law, Vol. 27 (2016), p. 64 at p. 78. 485  An earlier attempt by Sheila Watt Cloutier and the Inuit Circumpolar Conference to raise climate change through the Inter-American human rights system foundered on the Commission’s conclusion that it had insufficient information to determine whether the alleged facts would suggest a violation of rights. See Petition to the InterAmerican Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming by Acts and Omissions of the United States, 7 December 2005, available at http ://www.ciel.org/Publications/ICC_Petition_7Dec05. pdf ; and Letter from Ariel E. Dulitzky, Assistant Executive Secretary, oas, to Paul Crowley, Legal Representative for Sheila Watt-Cloutier and Others, regarding Petition P-1413-05, 16 November 2006. 486  See Feria-Tinta and Milnes, supra footnote 484. 483 484

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E.  Harm Prevention beyond the Neighbourhood in a Nutshell The harm prevention rule could play a potentially useful role in the context of a global issue like climate change, especially if deployed so as to confirm States’ preventive obligations in the face of documented climate risks, and to concretize the meaning of due diligence in the climate context. The Prunéřov II example illustrates that the procedural aspects of due diligence could play useful roles in this context. The example of the 2017 IAHRC Advisory Opinion suggests that the due diligence dimension could help anchor individual complaints about extraterritorial human rights violations and frame a proactive approach to potential violations. In the human rights context, at least in the InterAmerican system, a path to adjudication may now be open for persons affected by climate related risks and harms, although the specifics of this terrain remain untested, in terms of both the scope of the primary rules governing harm prevention and the attendant secondary rules governing adjudication 487. At the inter-State level, the scope for international adjudication outside of the typical neighbourhood context is unclear. Contentious cases are least likely to be productive. At the level of primary rules, a longrange transboundary impact case should be viable, but the opportunities for it are narrowed by secondary rules, such as those requiring consent of the other State to adjudication. A commons case would run into the same 487

 A case in the Commission’s docket and may provide an opportunity to clarify some of the issues highlighted here : Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, 23 April 2013, available at https ://earthjustice.org/ sites/default/files/AAC_PETITION_13-04-23a.pdf.

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procedural hurdles to adjudication, but would also face a substantive challenge at the primary rule level. Given the dearth of practice, it remains unclear whether the harm prevention rule entails an erga omnes obligation to prevent harm to areas beyond jurisdiction. More specifically, while States may have an obligation to prevent harm to areas beyond national jurisdiction, it is uncertain to whom this obligation is owed. Furthermore, and shading into the realm of secondary rules 488, it is uncertain whether any individual State would have standing to invoke this aspect of the harm prevention rule. Advisory opinions, in either a long-range transboundary impact or a commons scenario, entail their own procedural hurdles, notably that they are contingent on majority support in the United Nations or one of its specialized agencies. Overall, the complexity of an issue like climate change makes international adjudication less likely, and also less likely to be more than a pressure tool or supporting action. Addressing complex environmental problems, and involving all relevant States in that effort, typically requires a treaty-based approach 489, explored in Chapter IV. To be sure, when national climate action is insufficient and international co-operation stalled, adjudication may come to play a larger role, as the current upswing in domestic climate litigation and human-rights based litigation suggests 490. Internationally, judicial statements  See also Nollkaemper, supra footnote 40, pp. 778 (noting that the “construction of rules of standing is the archetypical example of a (mixed procedural/substantive) question”). 489  See also ibid., pp. 778, 784. 490  See Joana Setzer and Rebecca Byrnes, Global Trends in Climate Change Litigation : 2019 Snapshot, London, Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, 2019, available at http ://www.lse.ac.uk/GranthamInstitute/ publication/global-trends-in-climate-change-litigation2019-snapshot/ ; Lemoine-Schonne, supra footnote 98, 488

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on specific procedural or substantive aspects of due diligence could prove valuable in inducing concerted climate action 491. Similarly, judicial clarification of the implications of erga omnes obligations and attendant standing to bring a climate-related case might usefully shape expectations about future international litigation 492. That said, while activists are likely to turn to domestic courts and victims of climate harms to international human rights tribunals, it is less obvious how States would respond to an increase in inter-State common interest adjudication. One observer cautions that some States might turn to procedural devices to limit their exposure, for example through withdrawals of or reservations to their acceptance of the ICJ’s compulsory jurisdiction 493. One more set of observations is in order. The analysis in Chapter II illustrated the pervasive, mutually reinforcing, interaction between the procedural and substantive aspects within the primary rule framework. In this chapter, additional dimensions of the proceduresubstance dynamic became visible. First, and most obviously, the secondary rules governing a quintessentially procedural domain like adjudication affect the scope for the realization or judicial clarification of primary rules under international law. Second, linedrawing between procedure and substance is as difficult in the interplay between primary and secondary rules as it is amongst primary rules. For example, in the context of adjudication, a range of substantive issues arise that entail procedural constraints on actors’ ability to deploy the harm prevention rule. For example, while the erga pp. 44-45 ; and Annalisa Saravesi and Juan Auz, “Climate Change Litigation and Human Rights : Pushing the Boundaries”, Climate Law, Vol. 9 (2019), p. 244. 491  See Bodansky, supra footnote 419, p. 709. 492  See Bodansky, supra footnote 419, p. 707. 493  See Tanaka, supra footnote 460, pp. 544-545.

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omnes concept denotes “an attribute of an obligation” 494, its implications for standing to invoke violations through adjudication are procedural in nature. The effect of the attendant uncertainties is that, although the commons aspect of the harm prevention rule exists as a matter of substantive law, individual States are shielded from accountability for breaches 495. As Nollkaemper puts it : “[g]eneral international law has not resolved the tension between the bilateral structure of dispute settlement, on the one hand, and the recognition of community interests, on the other” 496.

 Nollkaemper, supra footnote 40, pp. 777.  See Chap. I, Sec. D.2.1. 496  Nollkaemper, supra footnote 40, p. 784. 494 495

CHAPTER IV

COMPLEX HARM PREVENTION : MULTILATERAL ENVIRONMENTAL AGREEMENTS A. Context Most contemporary international environmental problems do not revolve around individual projects and their specific transboundary impacts. They are about cumulative or synergistic effects of various kinds of emissions, produced by ubiquitous industrial processes, the transportation sector, or fossil fuel-based energy generation. In short, most international environmental problems today are about the way people in industrial and industrializing societies around the globe run economies and go about their daily lives. Practically and legally speaking, these kinds of polycentric problems cannot be solved one pulp mill, road project or smelting facility, or even one State, at a time. Larger scale, co-ordinated approaches are needed. Hence, even leaving aside the substantive and procedural constraints canvassed in Chapter III, and open-textured rules like the harm prevention rule under customary law, can help provide baselines. But they cannot facilitate solutions when problems involve : multiple actors with widely ranging priorities, outlooks and capabilities  ; multi-faceted, evolving challenges ; interacting and cumulative causes ; scientific, technological and economic uncertainties ; collective action dynamics ; and fairness or equity issues, such as South-North issues. This chapter considers how treaty-based approaches to blending procedure and substance have evolved to respond to the challenges of what one might term “complex harm prevention”.

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MEAs have become the main site for international environmental lawmaking. By one count, some 750 497 MEAs were concluded between 1857 and 2012   ; another source refers to “a total of more than 1,300 multilateral (global and regional) agreements” in force today 498. MEAs allow States to focus on specific issues and to agree on primary rules as well as secondary rules and procedures that are limited in their application, and tailored, to those issues. In order to promote the adoption, adjustment, and implementation of substantive obligations, MEAs typically impose rigorous procedural requirements and establish procedures for information exchange, consultation, lawmaking, and accountability. MEAs also enable parties to develop finely calibrated rule frameworks, mixing and matching various combinations of obligations of result and obligations of conduct, binding and non-binding commitments, and procedural and substantive requirements. The chapter begins with a general introduction to MEA-based approaches to tackling complex harm prevention issues, highlighting the framework-protocol approach to promoting regime evolution over time. Since a full survey of MEAs is beyond the scope of the chapter 499, this overview will focus on key themes and offer a selection of illustrative examples. The chapter then turns to an exploration of the respective roles of procedural and substantive elements, as well as the  Rakhyun E. Kim, “The Emergent Network Structure of the Multilateral Environmental Agreement System”, Global Environmental Change, Vol. 23 (2013), p. 980 at p. 982. 498   See Peter H. Sand (ed.), International Environmental Agreements, Cheltenham, Edward Elgar, 2019 ; reference to 1,300 MEAs available at https ://www.e-elgar.com/shop/ international-environmental-agreements. 499  For an overview see Jutta Brunnée, “Environment, Multilateral Agreements”, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2011.

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relationship between the two. Again, attention is paid to regime evolution and, in particular, to the shifts it entails in the nature of substantive commitments and the role of procedure. In this part of the chapter, the focus will be on the evolution of the UN climate regime, culminating in the Paris Agreement, which offers especially rich terrain for the purposes of considering the interplay between procedure and substance in complex harm prevention. B.  Treaty-Based Approaches : An Overview How does one go about launching and then developing a legal framework for addressing complex, often global, environmental issues ? MEAs have spawned an array of features and approaches to promote collective action by States, ranging from carefully defined treaty scope, to the institutionalization and ongoing standardsetting processes of the framework-protocol model of treaty design, to a spectrum of elements to promote implementation and compliance. 1. Scope One key advantage of MEAs is that they enable parties to articulate and address collective harm prevention goals in relation to specific geographic areas, environmental concerns, or activities. In other words, a treaty-based approach can delineate its subject matter. While most MEAs endorse the harm prevention rule in preambular recitals 500, their targeted substantive scope has enabled 500

 See e.g. Convention on Long-Range Transboundary Air Pollution, done at Geneva on 13 November 1979, United Nations, Treaty Series, Vol. 1302, p. 217 (hereinafter LRTAP Convention) ; Vienna Convention for the Protection of the Ozone Layer, done at Vienna on 22 March 1985, United Nations, Treaty Series, Vol. 1513, p. 293 (hereinafter Vienna Convention) ; UNFCCC, supra footnote 11.

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them to tackle both long-range transboundary impacts and impacts beyond the jurisdiction of States. For example, the Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) is specifically designed to address air pollution “whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in an area under the national jurisdiction of another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources” 501. As this excerpt illustrates, the LRTAP Convention targets transboundary pollution from diffuse sources, precisely the kind of pollution that would challenge the parameters of the harm prevention rule at customary law. In turn, the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) provides an example of a regime geared to the protection of an environmental commons, the ozone layer, defined as “the layer of atmospheric ozone above the planetary boundary layer” 502. It aims to prevent adverse effects of ozone layer depletion that are “resulting or likely to result from human activities which modify or are likely to modify the ozone layer” 503. Other agreements target issues that are even further beyond the comfortable reach of the harm prevention rule, either because they focus on resources located entirely within national territory, or because they focus on impacts that result from intentional transboundary movements of goods or risks. The Biodiversity Convention is an example of the first kind of MEA, and an  LRTAP Convention, supra footnote 500, Art. 1 (b) (emphasis added).  See Vienna Convention, supra footnote 500, Art. 1 (1). 503   Ibid., Art. 2 (1). 501 502

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attempt to address the global implications of biodiversity losses, notwithstanding the fact that the relevant biological resources often are under exclusive national jurisdiction 504. The Basel Convention on Hazardous Wastes 505, the Biosafety Protocol to the Biodiversity Convention 506, and the Rotterdam Convention on Hazardous Chemicals and Pesticides are examples of the second kind of agreement 507. The LRTAP and the Vienna Conventions were supplemented through protocols that identify specific substances that parties must curb 508. The Basel and Rotterdam Conventions, and the Biosafety Protocol each identify the items of concern, and information to be provided concerning these items, through lists annexed to the treaties 509. In short, all these agreements are carefully limited in terms of the concern that they are  Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, United Nations, Treaty Series, Vol. 1760, p. 79 at p. 143, preamble (hereinafter Biodiversity Convention). Of course, biological resources also are located beyond the jurisdiction of States. See e.g. UN General Assembly, Intergovernmental Conference on an international legally binding instrument on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 3rd Sess., Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN doc. A/CONF.232/2019/6 (17 May 2019), available at https ://undocs.org/en/a/conf.232/2019/6, 505  See Basel Convention, supra footnote 92. 506   Cartagena Protocol on Biosafety to the Convention on Biological Diversity, done at Montreal on 29 January 2000, United Nations, Treaty Series, Vol. 2226, p. 208 (hereinafter Biosafety Protocol). 507  See Rotterdam Convention, supra footnote 92. 508  On protocols, see Chap. IV, Sec. B.2.2.2. 509  See Basel Convention, supra footnote 92, Annexes I-V, VII-XI ; Rotterdam Convention, supra footnote 92, I-V ; Biosafety Protocol, supra footnote 506, Annexes I-III. 504

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meant to tackle, as well as in terms of the scope of the commitments parties are expected to make to that end. 2.  Towards agreement In launching and developing a legal framework for complex harm prevention, how does one get all relevant States involved in collective action 510 ? Focusing on particular problems and particular kinds of contributions to those problems is only the beginning of the answer. An array of other questions remain. Once States are involved in a regime, how does one move their commitments beyond generalities ? How does one move beyond politics, mistrust, disagreements on science or burden-sharing, and foot-dragging ? The answers to these questions link back to Chapter I and the practical considerations that animate “proceduralization” in international environmental law 511. Briefly put, MEAs attempt to square the co-operative problem-solving circle through processoriented, dynamic and adaptable approaches, often developed in the context of a framework-protocol treaty model. 2.1.  Process-oriented, dynamic and adaptable The issues typically addressed by MEAs are not only complex, but also long-term, evolving challenges. There usually is no single, enduring “solution”. As a result, States must develop long-term co-operative schemes that allow for standards to be adopted, expanded and revised as the underlying issue, the parties’ understanding of it, or their capacity to address it evolve. To these ends, international environmental regimes, by definition, must have robust procedural components. In the early stages  For a detailed assessment of these issues, see Bodansky, supra footnote 110, Chaps. 8, 10 and 11. 511  See Chap. I, Sec. D.3.1. 510

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of regime-building, MEAs often will be predominantly procedural 512. States are unlikely to take on specific substantive duties when there is uncertainty about the problem, the best approaches, the attendant costs, or the range of States willing to make significant substantive commitments. By contrast, and judging from the development patterns of existing MEAs, in such circumstances, States do tend to be willing to engage around a given concern and open to considering how to proceed, including through future substantive commitments. Then, as the regime evolves, parties are often willing to take on specific performance or emission targets One caveat is in order : the trajectory from “primarily procedural” to “procedural in support of expanded substance” is the trajectory of many, but not all MEAs. In some instances, establishing a procedural approach to harm prevention is the very point of the agreement, so that the treaty will remain procedural throughout its lifespan. For example, agreements concerned with transboundary transfers of hazardous wastes or substances, such as the Basel and Rotterdam Conventions, establish prior informed consent procedures designed to minimize the attendant risks 513. The operation of these procedures, along with the identification of the relevant wastes or substances, is what these agreements are all about. Similarly, the Biosafety Protocol establishes a procedural framework intended to enable States to assess the potential risks attached to genetically modified organisms on “the conservation and sustainable use of biological diversity” before agreeing to permit their importation 514. In each  For examples of MEAs that contain detailed substantive requirements from the outset, see supra footnote 79 and accompanying text. 513   See Basel Convention, supra footnote 92  ; Rotterdam Convention, supra footnote 92. 514  Biosafety Protocol, supra footnote 506. 512

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case, the agreement looks to further its substantive goal through a procedural approach. The Rotterdam Convention neatly captures this premise in stating that its objective “is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decisionmaking process on their import and export and by disseminating these decisions to Parties” 515. 2.2.  The framework-protocol model The most common approach to building dynamic, adaptable environmental regimes today builds on the framework-protocol model of treaty design. This model has proven to be well suited to initiating the regime building process by articulating a common concern, shaping a collective approach over time, and tailoring substantive commitment regimes through subsequently adopted protocols 516. The climate regime provides a good illustration of this approach, but many other MEAs have employed it, including the aforementioned LRTAP and Vienna Conventions. Framework treaties set out key parameters and prerequisites for subsequent regime development. In addition to identifying the concern that is to be addressed by the regime, they define its overarching goal. Whereas problem and goal statements may be more or less assertive, the  Rotterdam Convention, supra footnote 92, Art. 1 (emphasis added). 516  See Brunnée, supra footnote 499, paras. 17, 24-30, 31-37. 515

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substantive duties contained in the framework treaty tend to be framed in non-binding or best efforts terms. For example, due to the political circumstances of the Cold War and the lack of agreement on the transboundary dimension of the problem, the LRTAP Convention parties merely recognized “the existence of possible adverse effects, in the short and long term, of air pollution including transboundary air pollution” 517. This cautious problem statement is matched with an exceedingly generic goal, namely “to protect man and his environment against air pollution”. These statements hint at the reasons for the highly qualified obligation parties agreed to take on, namely that they “shall endeavor to limit and, as far as possible, gradually reduce and prevent air pollution including long-range air pollution” 518. The Vienna Convention was somewhat more definitive, with parties declaring themselves to be “[a]ware of the potentially harmful impact on human health and the environment through modification of the ozone layer” 519. Still, given various uncertainties prevailing at the time of adoption, parties to the Vienna Convention were willing only to take on due diligence obligations. Substantively, they agreed to “take appropriate measures” to protect human health and the environment against the adverse effects of ozone depletion, and, “in accordance with the means at their disposal and their capabilities”, to “[a]dopt appropriate legislative or administrative measures” to that end 520. By contrast, the UNFCCC’s problem statement is remarkably assertive, with parties declaring themselves concerned  LRTAP Convention, supra footnote 500, preamble (emphasis added). 518   Ibid., Art. 2. 519  Vienna Convention, supra footnote 500, preamble. 520   Ibid., Art. 2 (1) and (2) (b). 517

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“that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind, . . .” 521. Nonetheless, as the next section will detail, the UNFCCC’s substantive commitments themselves were non-binding 522. For now, suffice it to say that the lack of stringent substantive commitments in the convention is hardly surprising, given the magnitude and complexity of the climate policy challenge. Indeed, the climate regime serves to underscore the rationale behind the frameworkprotocol approach. The purpose of the framework component is not so much to enshrine ambitious substantive commitments, as to create the context and conditions in which such commitments can be elaborated and updated over time 523. Since MEAs are meant to facilitate long-term cooperation between States, they generally entail a significant degree of institutionalization 524. For example, the UNFCCC established a plenary body, the Conference of the Parties (COP), which serves as a forum for regular interaction between the parties, and negotiation and adoption of all key decisions in the regime, including decisions related to regime development 525. The framework treaty, or the COP through subsequent decisions, may establish additional treaty bodies with more specific  UNFCCC, supra footnote 11, preamble.   Ibid., Art. 4.2 (a) and (b). See also Chap. IV, Sec. C.1.1.  See also Tim Staal, Authority and Legitimacy of Environmental Post-Treaty Rules, Oxford, Hart Publishing, 2019, p. 27. 524  See Brunnée, supra footnote 499, paras. 24-30. 525  UNFCCC, supra footnote 11, Art. 7. See also Chap. IV, Sec. C.2.1. 521 522 523

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mandates 526. COPs are supported by treaty secretariats that provide an array of administrative services 527. It is no coincidence, therefore, that environmental regimes and their treaty bodies have been likened by some scholars to international organizations 528. Procedural requirements play central roles in this context, and in facilitating the evolution of the regime. Framework agreements typically include three broad sets of procedural elements, examined more closely below 529. First, primary obligations concerning informa530 tion exchange and consultation among parties  . Second, rules governing decision-making by treatybodies, notably the plenary, and rules for treaty-development, such as rules on the adoption of amendments 531 or protocols  . Third, procedures for transparency, collective and individual performance assessment, and accountability or compliance or compliance control 532. The purpose of this procedural framework is to promote engagement and consensus building and, ultimately, to help enable the development and refinement of the substantive aspects of the treaty over time. In principle, new or more ambitious substantive commitments could be added to an existing treaty by amendment 533. In the context of framework treaties, parties often prefer to rely on supplementary treaties,  UNFCCC, supra footnote 11, Arts. 7.2 (i), 9, 10. And see generally Geir Ulfstein, “Treaty Bodies”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey, The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, p. 877. 527  UNFCCC, supra footnote 11, Art. 8. 528  See Churchill and Ulfstein, supra footnote 108. 529  See Chap. IV, Sec. C.2. 530  See e.g. UNFCCC, supra footnote 11, Arts. 4 (1), 5, 12. 531  See e.g. ibid., Arts. 14-16. 532  On these elements, see Chap. IV, Sec. C.2.3. 533  For an overview, see Jutta Brunnée, “Treaty Amendments”, in D. Hollis (ed.), Oxford Guide to Treaties, Oxford, Oxford University Press 2012, p. 347. 526

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usually referred to as “protocols”. Protocols are related to the underlying framework in that they usually adopt its basic goals, principles and decision-making rules. At the same time, they are separate from the framework in that they have their own sets of parties and therefore entail commitments only for these parties 534, and they can be further adjusted independently from the framework treaty. Some MEAs have spawned several protocols. For example, the LRTAP Convention has been supplemented by eight protocols 535. This model enabled the parties to adopt different approaches to different types of long-range air pollutants and allowed individual parties to commit to reducing emissions covered by some protocols, but not necessarily all. Other MEAs have opted for a single protocol 536. For example, the Vienna Convention gave rise to the Montreal Protocol on Substances that Deplete the Ozone Layer 537. This protocol then was updated by way of amendments and adjustments that accelerated the phase-out of regulated substances and expanded the range of substances covered by the regime 538. The Montreal Protocol, as well as the protocols governing air pollution under the LRTAP Convention, each provide for highly specific substantive commitments. Parties are required, to specified degrees and on specified schedules, to phase out production and consumption of certain types  See Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law, Cambridge, Cambridge University Press, 2017, pp. 86-88. 535  For a list of, and links to, the protocols to the LRTAP Convention, see UN Economic Commission for Europe (UNECE), “Protocols”, available at https ://www.unece.org/ env/lrtap/status/lrtap_s.html. 536  See Brunnée, supra footnote 499, para. 32. 537  Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal on 16 September 1987, United Nations, Treaty Series, Vol. 1522, p. 3 (hereinafter Montreal Protocol). 538  See Staal, supra footnote 523, pp. 28-30. 534

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of substances and reduce certain types of emissions, respectively 539. The UNFCCC initially followed this pattern. It was supplemented by the Kyoto Protocol, which imposed quantified emission reduction commitments on the parties. However, the protocol’s commitment regime was limited to developed countries and countries with economies in transition, ultimately accounting for only 24 per cent of global GHG emissions 540. It proved politically impossible to amend the protocol to include all States 541. An amendment that is confined to creating a new commitment period for the existing parties was adopted in 2012 but has not entered into force 542. In the meantime, the UNFCCC parties adopted the Paris Agreement. The agreement is comparable to a protocol in how it relates to the convention 543. But, unlike the Kyoto Protocol, it does provide for a commitment regime applicable to all convention parties 544. In keeping with the premises of the framework-protocol approach, the fact that the Paris Agreement is a separate treaty made it possible for parties to deviate from the approach of the Kyoto Protocol and to develop a commitment regime with a very different mix of substantive and procedural, and binding and non-binding requirements. The evolution of commitments under the climate regime and the distinctive features of the Paris Agreement will be considered in detail below.  For overviews, see Sands and Peel, supra footnote 134, pp. 262-271, 280-288. 540  See Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 108, 173. 541  For an overview, see ibid., pp. 108-115. 542   Ibid., pp. 88-90, 202-206. 543   Ibid., pp. 86, 212 (referring also to the political reasons for naming the treaty an “agreement”, rather than a “protocol”). 544   Ibid., pp. 86-88. 539

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C.  The Climate Regime Chapter I highlighted the dual nature of proceduresubstance issues : they arise in the relationship between procedural and substantive primary obligations, and in the interplay between these primary obligations and secondary rules and procedures. The following review of the climate regime builds on this framing. However, in order to highlight the evolution of the regime’s “substance”, the discussion first examines the climate regime’s substantive features, including both primary obligations and non-binding elements. Then it turns to the regime’s procedural aspects, which encompass both primary procedural obligations and secondary rules and procedures. This approach will enable the chapter to highlight the unique traits of the Paris Agreement, and its distinctive blend of non-binding and binding substantive and procedural features, and primary and secondary rules. That analysis, in turn, will set the stage for the study’s return to the debate surrounding “proceduralization” that was introduced in Chapter I. 1.  Substantive aspects 1.1.  The UNFCCC As the previous section explained, MEAs that adopt the framework-protocol model tend to be cautious in articulating substantive terms in the early stages of regime development. Typically, the “substance” of framework agreements consists in delineating the concern that gave rise to the negotiation and scope of the treaty, and in setting out a treaty objective, along with modest substantive commitments. The UNFCCC fits this mould. According to the convention’s preamble, “change in the Earth’s climate and its adverse effects are a common concern of humankind”, and the global nature of climate change

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“calls for the widest possible cooperation by all countries . . . in accordance with their common but differen545 tiated responsibilities and respective capabilities”  . The convention’s operative text goes on to state that “stabilization of greenhouse gas concentrations in the atmosphere at a level” that could avert dangerous climate change is its “ultimate objective” 546. The UNFCCC does contain an emissions-related substantive commitment, requiring Annex I parties to adopt national policies and mitigation measures, with the aim of returning, by 2000, to 1990 levels of emissions 547. In other words, while Annex I parties were obligated to adopt national policies and measures, they were not legally bound to achieve the emissions goal but only to make best efforts to that end 548. By contrast, the substantive commitment applicable to all parties is merely to “formulate, implement, publish and regularly update national and, where appropriate, regional programmes . . . to mitigate climate change” 549. Perhaps more significant than the non-binding emission mitigation commitment is the fact that only Annex I parties made it in the first place. Annex I to the UNFCCC contains a list of industrialized countries and countries with economies in transition 550, enabling the convention to distinguish between terms applicable only to these more developed parties and terms applicable to all parties, including less developed States. This distinction, in turn, is a function of one of the convention’s defining substantive features – the notion that all parties ought to help protect the climate system, but “in accordance with their common but differentiated responsibilities and  UNFCCC, supra footnote 11.   Ibid., Art. 2. 547  UNFCCC, supra footnote 11, Art. 4 (2). 548  For a discussion, see Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 132-134. 549  UNFCCC, supra footnote 11, Art. 4 (1) (b). 550  UNFCCC, supra footnote 11, Annex I. 545 546

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respective capabilities” (CBDRRC), so that developed countries ought to take the lead. This proposition is set out in the UNFCCC’s preamble 551, as well as in the operative text of the treaty. Along with precaution, sustainable development, and avoidance of undue trade restrictions, CBDRRC is among the principles that parties “shall be guided” by in implementing the convention and working towards its objective 552. Provisions such as the ones highlighted above – the designation of climate change as a common concern of humankind, the objective of averting dangerous concentrations of greenhouse gases in the atmosphere, and the concept of CBDRRC – are substantive, but not obligatory. They nonetheless carry considerable legal significance 553. They account for the common as well as the differentiated substantive terms of the convention – Article 4 of the convention being an example – and they serve as a frame of reference for the further development of the regime as a whole. Both the Kyoto Protocol and the Paris Agreement bear out the latter point. Framing provisions also serve to guide the interpretation of other treaty terms 554. This dimension plays a lesser role when it comes to quantified emission targets, which enshrine substantive obligations of result. However, it assumes increased significance in the context of the Paris Agreement’s mitigation commitments, which are cast either as non-binding terms or as obligations of conduct. The next two sections will consider these points in more detail.  UNFCCC, supra footnote 11, preamble. See also Chap. IV, Sec. C.1.1.  UNFCCC, supra footnote 11, Art. 3. 553  See also Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 125-127 ; Lemoine-Schonne, supra footnote 98, pp. 25-26. 554  See generally Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 92-94. 551 552

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1.2. The Kyoto Protocol : from obligations of conduct to obligations of result As MEAs are developed, typically in the course of the negotiation of protocols, more specific substantive 555 obligations can be crafted  . A noteworthy feature of these additional substantive terms is that they often enshrine clearly defined obligations of result. Thus, unlike the harm prevention rule at custom, or earlier stage treaty-based prevention duties, later stage treatybased preventive obligations tend to be framed by objectively verifiable substantive criteria. The general duty to prevent harm thereby is translated into specific “targets and timetables” 556. In the climate regime, the Kyoto Protocol exemplifies this trajectory. Article 3 (1) of the Protocol obligated Annex I parties to reduce their emissions of a “basket” of GHG by agreed percentages, compared to their 1990 emissions. The reduction targets for individual parties differed, but each party had to achieve its target within a “commitment period” running from 2008 to 2012 557. The parties’ initial commitments were to be followed by further reductions in subsequent commitment periods 558. There were political and policy reasons for stipulating a five-year commitment period, including the need for flexibility 559, and the desire of some parties, after an initial period of developed country “leadership”, to expand the scope of the protocol’s commitment  See Chap. IV, Sec. B.2.2.  See Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 171-179 (on “targets and timetables” in the Kyoto Protocol). 557  See Kyoto Protocol, supra footnote 12, Art. 3 (1), Annexes A and B. 558   Ibid., Art. 3 (9). 559  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 177. 555 556

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regime to include all UNFCCC parties. However, as already suggested, it proved to be impossible to amend the protocol regime in this way 560. The amendment processes in the climate regime are considered more closely below, in the discussion of the climate regime’s lawmaking procedures 561. For now, suffice it to say that, in combination with the constraints of the amendment process, the Kyoto Protocol’s five-year commitment period turned out to be a “shackle” on regime development 562. For the purposes of this discussion of substantive commitments, the key point is that Article 3 (1) of the Kyoto Protocol imposed an obligation of result on each Annex I party to the protocol 563. Consequently, the protocol’s emission reduction commitments were amenable to objective performance assessment, irrespective of whether or not a party acted diligently in attempting to meet its target. Indeed, creating a regime of quantified targets with clear indicators of compliance or non-compliance was central to the Kyoto Protocol’s approach, in part because it established an emissions trading system that required an emissions cap 564. Arguably, the Kyoto Protocol’s quantified targets approach was also inspired by the assumption that the successful regime development experience of the LRTAP  See Chap. IV, Sec. B.2.2.  See Chap. IV, Sec. C.2.2. 562   See generally Joost Pauwelyn, Ramses A. Wessel and Jan Wouters, “When Structures Become Shackles : Stagnation and Dynamics in International Lawmaking”, European Journal of International Law, Vol. 25 (2014), p. 733. 563  See Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 171-172 ; Mayer, supra footnote 287, p. 115 ; LemoineSchonne, supra footnote 98, p. 31. 564  But note that the trading system, in turn, was included to give parties more flexibility in meeting their targets. See e.g. Birnie et al., supra footnote 64, pp. 363-368. 560 561

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protocols and the Montreal Protocol could be replicated in the climate regime 565. However, as many commentators have observed, the Kyoto Protocol’s reliance on firm emission reduction targets ended up being one factor in its demise 566, along with the fact that it imposed targets on only some of the major emitters 567. Annex I parties discovered that, in view of their emission trajectories since 1990, unpredictable economic developments, and domestic politics, their reduction targets ended up being much more onerous than they had anticipated 568. In turn, developing countries, for political reasons but also out of concern over development needs and capacity limitations, were unwilling to take on legally binding obligations of result 569. Indeed, these factors led the United States, in 2001, to step away from the Kyoto Protocol 570.  See e.g. David Held and Charles Roger, “Three Models of Global Climate Governance : From Kyoto to Paris and Beyond”, Global Policy, Vol. 9 (2018), p. 527 at pp, 528529. 566  See e.g. David G. Victor, The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming, Princeton, Princeton University Press, 2001 (predicting the demise of the protocol). 567  See supra footnote 540, and accompanying text. And Held and Roger, supra footnote 565, p. 529. 568   See Benoît Mayer, “Obligations of Conduct in the International Law on Climate Change : A Defence”, Review of European, Comparative & International Environmental Law, Vol. 27 (2018), p. 130 at p. 137 ; Birnie et al., supra footnote 64, p. 361. 569  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 231. 570  See Office of the Press Secretary, The White House, “Text of a Letter from the president to Senators Hagel, Helms, Craig, and Roberts”, 13 March 2001, available at https :// georgewbush-whitehouse.archives.gov/news/releases/2001 /03/20010314.html. 565

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1.3. The Paris Agreement : a return to obligations of conduct Given the US rejection of the Kyoto Protocol and the refusal of developing countries to expand it to include emission reduction commitments for all States, it became increasingly clear that an alternative approach to a long-term, genuinely global mitigation regime had to be found. The Paris Agreement is the result of the parties’ efforts, over several years, to find a formula that would be acceptable to all States 571. Although the Kyoto Protocol remains in effect for the time being 572, the Paris Agreement, for all intents and purposes, is its successor. And it did bring a dramatic shift in approach, including a decisive step away from the binding obligations of result that were at the heart of the Kyoto Protocol’s emissions mitigation regime. Yet, although it is true that, unlike the Kyoto Protocol and most other MEAs, “the Paris Agreement establishes very few substantive legal obligations” 573, the Paris Agreement is not devoid of substance. Four kinds of substantive features stand out. First, the Paris Agreement imports some of the key substantive elements of its parent agreement, the UNFCCC. For example, in the preamble, the parties declare themselves to be acting “[i]n pursuit of the objective of the Convention, being guided by its  For an overview, see Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 108-115. 572  On the likely future of the Kyoto Protocol, see ibid., pp. 204-206. 573   Benoit Mayer, “International Law Obligations Arising in Relation to Nationally Determined Contributions”, Transnational Environmental Law, Vol. 7 (2018), p. 251. See also Lemoine-Schonne, supra footnote 98, p. 40 (observing that “les normes substantielles on quasiment disparu”). 571

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principles . . .”, and acknowledge that climate change is a “common concern of humankind” 574. Second, Article 2 of the agreement elaborates on the UNFCCC’s objective, stipulating that, “in enhancing the implementation of the Convention, including its objective”, its aim is to strengthen global climate action by “[h]olding the increase in the global average temperature to well below 2o C above pre-industrial levels” and pursuing efforts “to limit the temperature increase to 1.5o C above pre-industrial levels” 575. These temperature targets bring an important concretization of the convention objective of averting dangerous concentrations of GHG in the atmosphere. Whereas they do not specify those concentrations as such, they do provide the basis for their calculation 576. Third, the Paris Agreement contains several, carefully crafted, substantive commitments. Article 4 (1) of the agreement states that, in order to achieve the above-mentioned temperature goal, “Parties aim to reach a global peaking of greenhouse gas emissions as soon as possible, . . . and to undertake rapid reductions thereafter”, so as to arrive at net zero emissions in the second half of the century 577. This collective “aim” is complemented by the two obligations, set out in Article 4 (2) :  Paris Agreement, supra footnote 13, preamble (emphasis in original). 575  See ibid., Art. 2 (1) (a) and Art. 13 (5) (referring to “the objective of the Convention as set out in its Article 2”). 576   For a detailed discussion see Lavanya Rajamani and Jacob Werksman, “The Legal Character and Operational Relevance of the Paris Agreement’s Temperature Goal”, Philosophical Transactions of the Royal Society A, Vol. 376, Issue 2119 (May 2018). 577  Paris Agreement, supra footnote 13, Art. 4 (1). On the framing of “global peaking” in the Paris Agreement, see generally, Bodansky, Brunnée and Rajamani, supra footnote 534, p. 229-230. 574

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“Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of their NDCs.” 578 Both sentences spell out binding obligations, as the use of the word “shall” makes clear. However, they are very different in nature. Arguably, the obligation in the first sentence to “prepare, communicate and maintain successive nationally determined contributions” is not substantive, but constitutes a procedural obligation 579. To be sure, parties’ nationally determined contributions (NDCs) themselves are substantive. But, being nationally determined, they are not internationally legally binding. There is only a “good faith expectation” that parties intend to achieve their NDCs, not a legal obligation 580. Beyond that expectation, the international commitment is procedural. It is simply to put a mitigation target or goal of some kind in place at the domestic level, to do so continuously through “successive” NDCs, and to communicate these NDCs. In this limited sense, the first sentence of Article 4 (2) contains an obligation of result 581. The requirement in the second sentence that parties “shall pursue domestic mitigation measures” is substantive in nature 582. In contrast to the first sentence, it is not “each Party” that is obligated, but “Parties”. As a result, the sentence might be read as setting out a  Paris Agreement, supra footnote 13, Art. 4 (2).  See also Lavanya Rajamani, “Due Diligence in International Climate Change Law”, in Heike Krieger and Anne Peters (eds.), Due Diligence in International Law, Oxford, Oxford University Press, forthcoming 2020. 580  Bodansky, Brunnée and Rajamani, supra footnote 534, p. 231. 581  See also Rajamani, supra footnote 579. 582  See Mayer, supra footnote 573, pp. 256, 257. 578 579

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583 collective commitment  . More likely, however, it should be read as “all parties”, thereby obligating individual parties 584. In any event, the substantive obligation in the second sentence serves to reinforce the NDC approach described above. It does not make their NDCs legally binding on parties. It does state, however, that parties are legally bound to “pursue domestic mitigation measures” that aim to achieve the objectives of their 585 NDCs, whatever those may be  . This substantive obligation, as has been rightly observed, is an obligation of conduct, requiring States to be proactive and pursue measures that, “they have reasonable grounds to believe, will achieve [the] object” of the NDC 586. As a result, a party would “breach its obligation of conduct by failing to take relevant measures even if its mitigation commitment had nevertheless been realized” 587 – rather like the manner in which the customary harm prevention rule could be violated even in the absence of harm 588. In combination, the two sentences of Article 4 (2) provide for a distinctive blend of interlocking substantive and procedural, and binding and non-binding, commitments. What is more, although the NDCs are not internationally binding but determined by individual parties, they are not entirely at the parties’ discre-

 See Daniel Bodansky, “The Legal Character of the Paris Agreement”, Review of European, Comparative and International Environmental Law, Vol. 25 (2016), p. 142 at p. 146. 584  See also Mayer, supra footnote 573, p. 258. 585  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 231 (explaining that, during the negotiations, some parties, including the United States, China and India, refused to accept a binding obligation to achieve that nationally set goal). 586  Mayer, supra footnote 573, pp. 259, 261 ; Rajamani, supra footnote 579. 587   Ibid., p. 261. 588  See Chap. II, Sec. C.3.2 (b). 583

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tion 589. Indeed, fourth, the Paris Agreement provides a number of substantive parameters for the NDCs 590. Reference was already made to the importation of the UNFCCC principles, including CBDRRC, into the Paris Agreement, along with the convention objective, as concretized by the temperature enshrined in the Paris Agreement. Both are part of the interpretative context of the agreement 591, and are relevant to an assessment of what constitutes diligence for the purposes of the obligation of conduct in the second sentence of Article 4 (2). In fact, the Paris Agreement explicitly makes these connections. According to Article 3 of the Paris Agreement, the expectation is that, “[a]s nationally determined contributions to the global response to climate change . . . all Parties . . . undertake . . . ambitious efforts . . . with a view to achieving the purpose of this Agreement as set out in Article 2”. This provision, therefore, articulates the link between parties’ NDCs and the regime objective of staying within the temperature targets 592.  See also Christina Voigt, “The Paris Agreement : What Is the Standard of Conduct for Parties ?” Questions of International Law, Zoom-In, Vol. 26 (24 March 2016), p. 17 at p. 20, available at http ://www.qil-qdi.org/wp-content/ uploads/2016/03/03_COP21_VOIGT_FIN-2.pdf, ; and Christina Voigt and Felipe Ferreira, “  ‘Dynamic Differentiation’ : The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement”, Transnational Environmental Law, Vol. 5 (2016), p. 285 at pp. 295-297 ; Rajamani, supra footnote 579. 590  For a detailed analysis, see Lavanya Rajamani and Jutta Brunnée, “The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement : Lessons from the US Disengagement”, Journal of Environmental Law, Vol. 29 (2017), p. 537 at pp. 540-546. 591  See Chap. IV, Sec. C.1.3. 592  See Paris Agreement, supra footnote 13, Art. 3. See also Mayer, supra footnote 573, p. 260. 589

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In turn, Article 4 (3) establishes the expectation that “each Party’s successive nationally determined contribution will represent a progression” beyond that party’s current NDC, and will “reflect its highest possible ambition”, while also “reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances” 593. The phrase “in light of different national circumstances” introduces a dynamic element to the interpretation of the CBDRRC principle. As national circumstances evolve, so too will the common but differentiated responsibilities of parties. It could be argued that the “national circumstances” addition connects CBDRRC more explicitly to the due diligence standard, which may vary, inter alia, in accordance with the circumstances of the obligated States and its capacity to influence the salient acts or events 594. Of course, since due diligence, notwithstanding its contextual nature, is an objective standard, a State’s circumstances or level of development do not operate to eliminate its obligations 595. But the CBDRRC standard does clarify that, in the context of the climate regime, the degree of care expected of an industrialized State with sophisticated environmental management systems is different from that expected of less developed States 596. In any case, commentators have interpreted the Paris Agreement’s “normative expectations” – the temperature goals as reference point for NDCs, progression over time, highest possible ambition, and CBDRRC – as articulating treaty-specific standards of due diligence for parties’ conduct/NDCs 597. For example, according to Voigt and Ferreira,  See Paris Agreement, supra footnote 13, Art. 4 (3).  See supra footnote 363 and accompanying text. 595  See also Responsibilities in the Area, supra footnote 86, p. 36, para. 117. 596  See Voigt, supra footnote 589, p. 26. 597  See ibid., p. 21 ; Voigt and Ferreira, supra footnote 589, pp. 295-296 ; Rajamani, supra footnote 579. See also supra 593 594

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“the principle of highest possible ambition establishes the standard of care now to be exercised in climate affairs. It implies a due diligence standard which requires each government to act in proportion to the risk at stake, and reflects its common but differentiated responsibilities and capabilities” 598. In sum, the Paris Agreement in some respects returns to the mould of the harm prevention rule in customary law, explored in Chapter II, providing only a broadly framed substantive standard. Of course, the customary law standard, which is simply “act diligently to prevent significant harm” 599, is much more general than the one provided by the Paris Agreement, which provides specific parameters for what would amount to significant harm (i.e. exceeding the agreement’s temperature goals) and for what constitutes due diligence in climate change mitigation. In fact, for the purposes of the Paris Agreement, the temperature goals articulate the elevated risk of catastrophic harm that inheres in climate change, and underscore why the standard of due diligence is elevated to “highest possible ambition” 600. 2.  Procedural aspects In the harm prevention rule, procedure and substance are complementary and mutually constitutive. As Chapter II has shown, procedural obligations fill some of the rule’s substantive space by providing concrete parameters for due diligence. In turn, the substantive footnote 407 and accompanying text (on the potential implications of the Paris Agreement’s standards for due diligence under general international law). 598  Voigt and Ferreira, supra footnote 589, p. 302 (emphasis in original). 599  See Chap. II, Sec. C.3.4. 600  On the impact of risk on the standard of due diligence, see supra footnotes 362, 400-402 and accompanying text. And see Voigt, supra footnote 589, pp. 21, 24-25 ; Rajamani, supra footnote 579.

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goal of harm prevention and the standard of due diligence provide key parameters for procedural obligations. In the context of MEAs too, there is pervasive interplay between substantive and procedural elements. However, the role of procedural elements is different and considerably broader. MEAs provide for primary obligations that are procedural in nature, in particular, obligations related to information gathering and information exchange. These procedural obligations are not meant to flesh out substantive obligations, however. Instead, in the context of the lawmaking and standard-setting cycle that MEAs are meant to generate, procedural duties serve to prepare the ground for the development of substance (including its adjustment and expansion) and enable assessment of the adequacy of substance. They also facilitate assessment of whether or not parties are meeting their substantive commitments. To these ends, MEAs also provide for a range of secondary rules and procedures, focused on information exchange and scientific assessment, lawmaking and standard-setting, and performance assessment and compliance control. These secondary rules and procedures are meant to help MEAs to overcome the constraints of the primary rule framework at customary law and the limitations of adjudicative approaches to harm prevention, highlighted in Chapter III. The discussion below will turn, first, to procedural elements pertaining to information and scientific assessment, identifying the salient primary obligations imposed upon parties. It then turns to lawmaking and standardsetting, and accountability and compliance control. The primary focus will be on the Paris Agreement, given it has reanimated the scholarly interest in the “proceduralization” of international environmental law 601 ? 601

 See “Process as Decline”, supra footnote 15 ; LemoineSchonne, supra footnote 98.

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As suggested in Chapter I, the reasons for this renewed interest arguably lie in the particular approach to blending procedure and substance that the Paris Agreement embodies 602. It is now time to take a closer look. 2.1.  Information and scientific assessment (a)  Procedural requirements Information, consultation and scientific assessment are indispensable foundations for any effective effort to address a given environmental concern 603, as well as for subsequent efforts to monitor and assess the performance of the regime, or of individual parties. MEAs, therefore, require parties to co-operate in relation to research and scientific assessments and to report on their implementation of treaty requirements 604. Typically, MEAs also enshrine detailed methodological requirements, such as rules and guidelines on how to measure performance, or on what kind of information is to be reported in what manner. These requirements are crucial to ensuring transparency, and comparability of parties’ performance. In the climate regime, the UNFCCC laid the foundation for rigorous procedural requirements. For example, all parties are obligated to “[d]evelop, periodically update, publish and make available . . . national inventories” of greenhouse gas emissions, adhering to specific guidance developed by the COP 605 (UNFCCC, Articles 4 (1), 12). The Kyoto Protocol provides even more specific requirements, given its reliance on carbon trading mechanisms and emphasis on compliance control 606.  See Chap. I, Sec. D.3.2.  See Chap. I, Sec. D.3.1, Chap. II, Sec. C.3.3. 604  See See Brunnée, supra footnote 499, paras. 38-40. 605  See UNFCCC, supra footnote 11, Arts. 4 (1) (a), 12. 606  See e.g. Kyoto Protocol, supra footnote 12, Arts. 5, 7. For a detailed analysis, see Anke Herold, “Experiences with 602 603

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The Paris Agreement places similarly strong emphasis on “measurement, reporting and verification” (MRV) requirements 607, for which detailed guidance was adopted by the parties at their first meeting in Katowice in 2018, in a series of decisions referred to as the Paris Rulebook 608. To reiterate, whereas the Paris Agreement’s substantive elements either are non-legally binding (NDCs, goals, normative expectations), or are framed as obligations of conduct, its central procedural requirements are framed as legally binding (primary) obligations. Reference was already made to the Article 4 (2) obligation to “prepare, communicate and maintain” successive NDCs. As noted, NDCs are substantive in nature, and their content is not binding under international law 609. By contrast, the requirements to “prepare, communicate and maintain” such domestic contributions are procedural, and constitute obligations of result. This feature, as will become apparent, is significant in the context of the transparency and accountability mechanisms provided by the Paris Agreement 610. The Paris Agreement elaborates on the procedural requirements in Article 4 (2) in a number of respects. Three aspects are worth highlighting here. First, in meeting their obligation to communicate their NDCs, parties “shall provide the information necessary for Arts. 5, 7, and 8 Defining the Monitoring, Reporting and Verification System under the Kyoto Protocol”, in Jutta Brunnée, Meinhard Doelle and Lavanya Rajamani (eds.), Promoting Compliance in an Evolving Climate Regime, Cambridge University Press, 2012, p. 122. 607  See Paris Agreement, supra footnote 13, Art. 13. On MRV, see generally Mayer, supra footnote 287, pp. 224-228. 608  Paris Agreement, supra footnote 13, Art. 13 (13). The complete set of decisions adopted at Katowice is available at https ://unfccc.int/process-and-meetings/the-paris-agree ment/paris-agreement-work-programme/katowice-climatepackage. 609  See Chap. IV, Sec. C.1.3. 610  See Chap. IV, Sec. C.2.3.

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clarity, transparency and understanding”, in accordance with guidance provided by the plenary body, the “Conference of the Parties serving as the meeting of the Parties to the Paris Agreement” (CMA) 611. Second, new NDCs must be communicated every five years, 612 also in accordance with CMA guidance  . Third, parties must “account for” their NDCs and, in doing so, must “promote environmental integrity, transparency, accuracy, completeness, comparability, and consistency, and ensure the avoidance of double-counting”, again in accordance with guidance adopted by the CMA 613 (Article 4 (13)) 614. The additional guidance referred to in each case is part of the Rulebook adopted at Katowice 615. These rules play a central role in the Paris Agreement’s approach to promoting climate action, seeking to discipline the non-binding, nationally determined, substantive contributions of the parties through detailed procedural requirements. To that end, parties are to provide quantifiable information on the reference points used for measurement (e.g. base years, reference years, and time frames), on the gases covered, on the relevant planning processes and methodologies, on how they consider their NDC to be “fair and ambitious in light of national circumstances”, and on how the NDC contributes towards the temperature goal of the Paris Agreement 616.  See Paris Agreement, supra footnote 13, Art. 4 (8).   Ibid., Art. 4 (9). 613   Ibid., Art. 4 (13). 614  See generally Kelly Levin, “The Interplay between Accounting and Reporting on Mitigation Contributions under the Paris Agreement”, Carbon & Climate Law Review, Vol. 3 (2018), p. 203. 615  See UNFCCC, COP, 24th Sess., Further Guidance in Relation to the Mitigation Section of Decision 1/CP.21, Draft Decision -/CMA.1, UN doc. FCCC/CP/2018/L.22 (14 December 2018), paras. 7, 13, 15 (hereinafter Further Guidance), available at https ://undocs.org/FCCC/CP/2018/L.22. 616   Ibid., Annexes I and II. 611

612

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The Paris Agreement reinforces parties’ informationrelated obligations through a “transparency framework”, established by Article 13 617. In the context of mitigation, its purpose is to “provide a clear understanding of climate change action in the light of the objective of the Convention . . ., including clarity and tracking of progress towards achieving Parties’ individual [NDCs]” 618. Whereas, in the context of the harm prevention rule, information duties are owed to specific, potentially affected States, in the context of the climate regime, all treaty parties – arguably all States and people around the world – are potentially affected. Accordingly, parties are required to provide information publicly and to all interested observers. The goal of the transparency mechanism is to “facilitate public oversight and pressure on governments” to meet their commitments 619. To this end, each party “shall regularly provide” a “national inventory report” of emissions and removals of GHGs, as well as the “information necessary to track progress” in implementing and achieving NDC 620. This information is subject to technical expert review, considering each party’s implementation and achievement of its NDC, and of the consistency of information provided with the “modalities, procedures and guidelines” developed by CMA 621. These “modalities,  For an overview, see Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 242-244. And see Levin, supra footnote 614 (commenting on the linkages between the transparency mechanisms and parties’ accounting and reporting obligations). 618  Paris Agreement, supra footnote 13, Art. 13 (5). 619  See Mayer, supra footnote 287, p. 49 ; and see Bodansky, Brunnée and Rajamani, supra footnote 534, p. 242 (speaking of “peer and public pressure”). 620   Ibid., Art. 13 (7). 621   Ibid., Art. 13 (11)-(13).

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procedures and guidelines” are another plank of the Paris Rulebook 622. They contain detailed parameters for party reports and inventories 623 ; request that the treaty secretariat prepare annual reports on technical expert reviews and publish parties’ inventories and reports, along with the expert review reports, on the UNFCCC website 624 ; and task the parties with developing common reporting tables and formats 625. It is of note in this context that the Paris Agreement contains common rules for all parties, but permits developing country parties to self-determine whether they need “flexibility” in light of “their capacities” 626. In short, although NDCs are non-binding, the Paris Agreement places strong emphasis on procedural obligations and related procedures to provide transparency on the performance of each party 627, including each party’s net GHG emissions, each party’s progress towards implementing and achieving its NDC, and the consistency of the information provided with the CMA guidance.

 See UNFCCC, COP, 24th Sess., Modalities, Procedures and Guidelines for the Transparency Framework for Action and Support Referred to in Article 13 of the Paris Agreement, Draft Decision -/CMA.1, UN doc. FCCC/CP/2018/L.23 (14 December 2018) (hereinafter Modalities, Procedures and Guidelines), available at https ://undocs.org/FCCC/ CP/2018/L.23. 623   Ibid., p. 4, Annex. 624   Ibid., p. 2, para. 6. 625   Ibid., pp. 2-3, para. 12. 626  See Paris Agreement, supra footnote 13, Art. 13 (1)-(2) ; Modalities, Procedures and Guidelines, supra footnote 622, p. 5, Annex, paras. 4-6 ; and Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 242-243 (on the significance of a single oversight system for all parties, developed or developing). 627  See Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 242-244. 622

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(b)  Notable features Before turning to the lawmaking procedures that have developed under the auspices of MEAs in general, and the climate regime in particular, it is worth underscoring four notable aspects of the procedural requirements relating to information. First, procedural requirements concerning scientific and performance-related information, consultation, and reporting, all serve multiple, interlocking and iterative functions. In the early stages of MEA development, they promote transparency and trust-building, and help build the foundation for substantive agreement. As the regime evolves, they facilitate and inform the development of more ambitious substantive requirements. Finally, throughout the operation of the MEA, informationrelated requirements enable performance assessments, be it with respect to the adequacy of collective action or individual compliance 628. Second, and in distinction to the more malleable “due diligence” and “risk” parameters of the harm prevention rule’s procedural requirements 629, the triggers and parameters for treaty-based procedural steps can be highly specific and finely calibrated. As the Paris Agreement illustrates, the treaty itself, or procedural guidelines adopted under its auspices, specifies to what ends information must be provided, what is to be measured and reported, what measurement and accounting methodologies are to be used, and what format is to be followed in reporting information. Furthermore, treaty-based information, consultation, and reporting requirements are routinized, with specific time frames and regular intervals for information gathering and provision stipulated.  On performance and compliance assessment, see Chap. IV, Sec. C.2.3. 629  See Chap. II, Sec. D.3.3. 628

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Third, treaties enable parties to “mix and match” various kinds of requirements. For example, binding information, consultation and reporting obligations can be matched to binding substantive obligations, but they can also be deployed to assess performance in relation to non-binding standards. By the same token, some procedural duties can be binding while others are not. For example, in the context of the Paris Agreement’s transparency mechanism, developed country parties “shall” provide certain kinds of information, whereas developing country parties “should” do so 630. Furthermore, procedural requirements can focus on the collective performance of the treaty parties, which tends to be less sensitive politically, but nonetheless is potentially powerful in assessing whether the collective effort is actually working. Alternatively, procedural requirements can focus on the information that will be needed to assess the performance of individual parties and, potentially, their compliance with their primary obligations. Fourth and finally, treaties can provide mandates for automatic, regular involvement of third parties or expert bodies. For example, the climate regime relies on “technical expert review” to separate certain kinds of assessments from the more sensitive questions involved in determining party compliance with legal obligations 631. Expert bodies can also play crucial roles in mitigating the risks of politicization of information and scientific findings, such as the challenges inherent in relying on individual States’ potentially self-serving, and competing, assessments. In this respect, the climate regime has long 630 631

 See e.g. Paris Agreement, supra footnote 13, Arts. 13 (9), 13 (10).  See e.g. Kyoto Protocol, supra footnote 12, Art. 8 ; Paris Agreement, supra footnote 13, Art. 13 (11)-(13). On the attendant challenges, see Anna Huggins, “The Desirability of Depoliticization : Compliance in the International Climate Change Regime”, Transnational Environmental Law, Vol. 4 (2015), p. 101.

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drawn upon the expertise of the Intergovernmental Panel on Climate Change (IPCC), which operates under the auspices of the World Meteorological Organization and the United Nations Environment Programme (UNEP) 632. Among other things, the IPCC has been instrumental in bringing about acceptance of the need to keep global warming to “well below 2o C” and to pursue efforts to limit it to “1.5o C above pre-industrial levels” 633, and so in concretizing the parties’ understanding of the climate regime’s objective to avert dangerous climate change 634. 2.2.  Lawmaking and standard-setting At customary law, States’ (risk-based) obligations to engage with other States concerning transboundary environmental impacts require consultation with potentially affected States, with a view to finding an acceptable approach to harm prevention 635. Arguably, MEAs entail a good faith duty for parties to engage in ongoing consultations and, most relevant for present purposes, in negotiations aimed at developing the regime as needed to meet its objective 636. In practice, in any case, MEAs do provide iterated, institutionalized opportunities for negotiation, lawmaking, and non-binding standardsetting through decisions of the plenary body.  See Birnie et al., supra footnote 64, p. 337.  See Paris Agreement, supra footnote 13, Art. 2 (1) (a).  UNFCCC, supra footnote 11, Art. 2. See also Brunnée and Toope, supra footnote 128, pp. 146-151 (tracing the meandering path towards agreement on the climate regime’s temperature goal). 635  See ILC, Harm Prevention Articles, supra footnote 165, p. 160, Art. 9 and commentary. 636  See also UNFCCC, supra footnote 11, preamble (acknowledging the need for “the widest possible cooperation by all countries and their participation in an effective and appropriate international response”). 632 633 634

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(a)  Conferences of the Parties The lawmaking processes and further development of an MEA are usually in the hands of a plenary body, such as a COP 637. Some commentators have likened the treaty-development decisions of COPs to the emergence 638 of global environmental legislatures  . Others have argued that COPs increasingly resemble international organizations 639. For yet others, a COP is a diplomatic conference 640, albeit one that facilitates continuous processes and interlocking engagements between technical experts, policymakers, and lawyers. Be that as it may, COPs and their subsidiary bodies have come to be central venues for international standard-setting activities around common concerns. After all, MEAs enshrine the background assumption that standard-setting is a collective enterprise, and entitle all States to participate in shaping, and deciding upon, response action. COPs and other plenary bodies provide the forum for sustained interaction around these issues. (b)  Lawmaking processes MEAs also allow for the tailoring of lawmaking processes through secondary rules that strike a balance between the protection of State sovereignty through  For an assessment of state practice and scholarship, see ILC, Report of the International Law Commission on the Work of Its Sixty-sixth Session, UN GAOR, 69th Sess., Supp. No. 10, UN doc. A/69/10 (2014), pp. 205-217. And see Staal, supra footnote 523, pp. 30-36. 638  See Geoffrey Palmer, “New Ways to Make International Environmental Law”, American Journal of International Law, Vol. 86 (1992), p. 259. 639  Churchill and Ulfstein, supra footnote 108. 640  Alan E. Boyle, “Saving the World ? Implementation and Enforcement of International Environmental Law through International Institutions”, Journal of Environmental Law, Vol. 3 (1991), p. 229 at p. 235. 637

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consent requirements and the need for timely collective action 641. To be sure, formal consent-based processes continue to play a significant role in regime development. For example, when an agreement is amended 642, or when an additional treaty, such as a protocol 643, is adopted, individual States are bound only when they consent to these instruments 644. Simply put, the standard approach to treaty development requires that States “opt-in”. But the “edges of consent” have softened 645, and MEAs provide for an infinite variety of decision-making processes 646. Many environmental agreements rely upon annexes as repositories for lists of regulated substances, methodological requirements, or administrative or technical standards 647. Unlike the treaty itself, these annexes can often be adjusted with effect for all parties, except for those that explicitly opt out 648.  See Jutta Brunnée, “COPing with Consent : Lawmaking under Multilateral Environmental Agreements”, Leiden Journal of International Law, Vol. 15 (2002), p. 1. 642  See e.g. UNFCCC, supra footnote 11, Art. 15 (requiring consensus or a three-quarter majority of the parties present and voting to adopt the amendment, and its ratification by a three-quarter majority for entry-into-force). 643  See UNFCCC, supra footnote 11, Art. 17. 644  See Brunnée, supra footnote 641, pp. 17-18. 645   See Bruno Simma, “From Bilateralism to Community Interest in International Law”, Recueil des cours, Vol. 250 (1994), p. 217 at p. 325. 646  For an overview, see Brunnée, supra footnote 641, pp. 1533. 647  See Staal, supra footnote 523, pp. 25-27. 648  See e.g. UNFCCC, supra footnote 11, Art. 16 (stipulating adoption of the amendment by consensus or a three-quarter majority of the parties present and voting and entry-intoforce upon ratification by a three-quarter majority, with effect for all parties except those that notify, within 6 months, their non-acceptance). See also Kyoto Protocol, supra footnote 12, Arts. 20-21 ; and Paris Agreement, supra footnote 13, Arts. 22-23. 641

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More significantly, however, extensive regulatory detail is adopted simply through decisions of plenary bodies, without subsequent formal consent by individual States. Generally speaking, the resulting standards will not be legally binding 649. Nonetheless, such formally nonbinding decisions often contain mandatory language. For example, under the UNFCCC and its Kyoto Protocol, provisions on central treaty issues, ranging from inventory and monitoring requirements to the protocol’s mechanisms for trading of emission units or reduction credits, and even the protocol’s compliance regime were adopted in this way 650. The Paris Agreement envisages a similar approach for the adoption of standards concerning key matters like the communication of and accounting for parties’ nationally determined contributions, and the common “modalities, procedures and guidelines” for monitoring and reviewing parties’ commitments 651. Indeed, the Paris Rulebook 652, consists in a series of COP decisions that contain mandatory terms 653. As the slow evolution of the climate regime illustrates, even formally non-binding standards are subject to difficult negotiations and can be difficult to adopt 654. The  See Brunnée, supra footnote 641, p. 32. The underlying treaty may of course provide for binding decision-making, although this has remained exceptional. See Montreal Protocol, supra footnote 537, pp. 32-33, Art. 2 (9). 650  See Brunnée, supra footnote 641, pp. 23-31. For a detailed analysis, see Staal, supra footnote 523, Chaps. 3-5. 651  See Paris Agreement, supra footnote 13, e.g. Arts. 4 (8), 4 (9), 4 (13), 13 (13). 652  See Chap. IV, Sec. C.2.1 (a). 653  See e.g. Further Guidance, supra footnote 615, e.g. at paras. 7, 13, 15. 654  See Brunnée and Toope, supra footnote 128, Chap. 4 (reviewing, inter alia, the negotiation of the “Marrakech Accords”, a package of COP decisions that fleshed out key aspects of the Kyoto Protocol, and of the “Copenhagen Accord”, a political agreement that foreshadowed many aspects of the Paris Agreement). 649

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attendant challenges are exacerbated by the regime’s practice of decision-making by consensus. Throughout its existence, the COP has operated on the basis of draft rules of procedure 655. The adoption of these rules was, and continues to be, blocked, due to disagreements on the voting rule. As a result, the climate regime has operated on the basis of a general agreement that decisions be taken by consensus 656. Leaving aside the question whether a specific consensus rule has evolved in the climate regime, consensus-based decision-making potentially enables a single State to prevent the regime from moving ahead 657. Nonetheless, on balance, non-binding regulatory processes allow speedier regime development and adjustment than processes that involve subsequent ratification by individual States. Equally important is that non-binding standard-setting facilitates agreement upon collective action and adoption of standards that are applicable to all parties – an important feature for efforts to address collective action issues like climate change. (c)  The Paris Agreement The Paris Agreement evidences the increasing willingness of States to combine a range of approaches to maximize the potential for and scope of collective standard-setting. The Paris “Outcome” consists of the Paris Agreement – a treaty – and a COP decision, which adopts the treaty text and supplements it in many  See UNFCCC, COP, 2nd session, Draft Rules of Procedure of the Conference of the Parties and Its Subsidiary Bodies, UN doc. FCCC/CP/1996/2 (22 May 1996), p. 2, available at https ://undocs.org/en/FCCC/CP/1996/2. 656  See Antto Vihma, “Climate of Consensus : Managing Decision Making in the UN Climate Change Negotiations”, Review of European Community & International Environmental Law, Vol. 24 (2015), p. 58 at p. 62. 657  See Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 73-75. 655

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658 key respects  . The 2018 Paris Rulebook provides an additional set of COP decisions, designed to flesh out primary obligations and other terms contained in the Paris Agreement. However, the perhaps most experimental aspect of the Paris package is that, instead of enshrining binding emission reduction obligations, it relies on parties’ non-legally binding NDCs. Since they are nationally determined, the NDCs are not part of the agreement but “housed” outside of the agreement ; they are recorded in a public registry, accessible at the UNFCCC website 659. So far it appears as if this blend of lawmaking and standard-setting approaches may have more potential to promote genuinely global climate action than the binding emission reduction regime enshrined in the Kyoto Protocol 660. Furthermore, the Paris Agreement’s NDC approach bypasses the blockages that can result from both the formal amendment process and the climate regime’s consensus requirement. Individual parties can unilaterally make more ambitious, albeit equally nonbinding, commitments. Still, it is too soon to know whether the Paris model will succeed 661. Whether the

 See Paris Agreement, supra footnote 13 ; and UNFCCC, COP, Adoption of the Paris Agreement, Decision 1/CP.21, UN doc. FCCC/CP/2015/10/Add. 1 (29 January 2016), p. 2 (hereinafter Adoption of the Paris Agreement), available at https ://undocs.org/en/FCCC/CP/2015/10/Add.1. And see Daniel Bodansky, supra footnote 583, p. 142. 659  See Paris Agreement, supra footnote 13, Art. 4 (12). And see UNFCCC, NDC Registry (Interim), available at https :// www4.unfccc.int/sites/NDCStaging/Pages/Home.aspx. 660  See Iacobuta et al., supra footnote 14, p. 1123 (showing that NDCs now cover 90 per cent of the global population and 89 per cent of global GHG emissions, or 86 per cent and 76 per cent, respectively, if the United States is excluded). 661  This shift has been characterized by some as a move to “orchestration” rather than regulation. See Antto Vihma and Harro van Asselt, “Great Expectations : Understanding Why the UN Climate Talks Seem to Fail”, Finnish Institute of 658

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“bottom-up” approach will generate progressively more ambitious commitments – sufficiently ambitious to meet the Paris Agreement’s temperature goals – may well depend in large measure on the rigour of the accompanying procedural requirements, and on the performance review processes to which the discussion now turns. 2.3.  Performance and compliance (a)  Judicial dispute settlement As Chapter III has illustrated, customary international law, for a range of reasons rooted in its primary rules and the secondary rules related to adjudication, provides relatively limited options for invoking and compelling compliance with collective interest norms. In principle, MEAs could help overcome these barriers. Substantively, as shown above, the very point of MEAs is to give legal expression to the fact that certain environmental issues are of collective concern, or even constitute a “common concern of humankind” 662. MEAs could also remove procedural obstacles to adjudication by including a compromissary clause through which parties agree to third-party settlement of interpretative issues, as well as of compliance and responsibility issues 663. For example, under the LOSC, any party can unilaterally bring disputes, including environmental disputes involving the convention, before the ITLOS, the ICJ, or an arbitral tribunal 664. International Affairs, Briefing Paper 109, at http ://www.fiia. fi/en/publication/270/great_expectations/ (accessed 8 April 2016). 662  See Chap. IV, Secs. B.1 and C.1. 663  See Chap. III, Sec. B.2. And see Birnie et al., supra footnote 64, p. 257. 664  See LOSC, supra footnote 365, Arts. 286-288. For an overview, see Stephens, supra footnote 144, pp. 40-47.

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In MEAs, however, compulsory dispute settlement clauses are rare 665. Most MEAs are silent on dispute settlement, or provide for various non-binding or consensual settlement options 666. In practice, disputes related to the interpretation or application of MEAs are almost never submitted to adjudication 667. The paucity of binding dispute settlement is due partly to States’ reluctance to resort to it 668, and partly to the prevailing sense that adjudication may not satisfactorily address the full range of collective interests engaged by MEAs. Because collective action problems like climate change by definition raise polycentric issues that require co-operative solutions, they do not easily lend themselves to bilateral, adversarial dispute settlement 669. That is why MEAs have spawned a growing range of treaty-specific performance assessment and non Birnie et al., supra footnote 64, p. 258 (providing some examples).   Ibid. 667  The Pulp Mills case, supra footnote 1, is an example of an environmental case brought to the ICJ through a compromissory clause. However, the underlying treaty was a bilateral agreement between Argentina and Uruguay. For a detailed discussion of the case, see Chap. II. 668  See Rüdiger Wolfrum, “Means of Ensuring Compliance with and Enforcement of International Environmental Law”, Recueil des cours, Vol. 272 (1998), p. 9 at p. 96. And see Osamu Yoshida, The International Legal Régime for the Protection of the Stratospheric Ozone Layer, 2nd ed., Leiden, Boston, Brill Nijhoff, 2019, pp. 211-212. 669  See Gabčíkovo-Nagymaros, supra footnote 192, separate opinion of Vice-President Weeramantry, pp. 117-118, Sec. C (c) (pointing to the additional problems that flow from the fact that the Court’s procedures, focused as they are upon disputes between specific States parties, are ill-suited to doing “justice to rights and obligations of an erga omnes character”). And see, generally, Lon Fuller, “Forms and Limits of Adjudication”, Harvard Law Review, Vol. 92 (1978), p. 353 at p. 395 (on the challenges of adjudicating polycentric problems). 665 666

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compliance procedures (NCPs) 670, explored in the next section. (b)  Non-compliance procedures More often than not, addressing the collective concern animating an agreement requires the greatest possible degree of compliance by the widest possible range of parties, rather than a finding that an individual party has breached its obligations 671. Early MEAs relied largely on transparency mechanisms to promote compliance 672. Parties had to report on their performance, and the information was then assembled and publicized by treaty secretariats or COPs. Over time, as the number and complexity of MEAs increased, attention began to focus on compliance problems, including in respect of the very procedural obligations on which the transparency approach depends 673. In response to these considerations, MEAs have seen the rise of regime-specific procedures to assess parties’ compliance with their treaty obligations,  For an overview, see Jutta Brunnée, “Enforcement Mechanisms in International Law and International Environmental Law”, in Ulrich Beyerlin, Tobias Stoll and Rüdiger Wolfrum (eds.), Ensuring Compliance with Multilateral Environmental Agreements : A Dialogue between Practitioners and Academia, Leiden, Brill Academic Publishers, 2006, p. 1. For a critical perspective see Klabbers, supra footnote 118, pp. 1000-1003. 671  And see Yoshida, supra footnote 668, pp. 212-213 (noting the focus on dispute avoidance as opposed to only dispute settlement). 672  See Kamen Sachariev, “Promoting Compliance with International Environmental Legal Standards : Reflections on Monitoring and Reporting Mechanisms”, Yearbook of International Environmental Law, Vol. 2 (1991) p. 31. 673  See Edith Brown Weiss, “Understanding Compliance with International Environmental Agreements : The Baker’s Dozen Myths”, University of Richmond Law Review, Vol. 32 (1999), p. 1555 at pp. 1560-1561. 670

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as well as to provide for a range of measures to facilitate or compel compliance 674. (i)  Goals and features Facilitation of compliance has been the primary objective of the majority of these compliance procedures 675. The procedure under the Montreal Protocol encapsulates the facilitative approach, aimed, as it is, at “securing an amicable solution . . . on the basis of respect for the provisions of the Protocol” 676. This co-operative approach recognizes the fact that, in the context of ozone depletion, non-complying parties are most likely to be States with genuine capacity limitations 677. Accordingly, the Montreal Protocol’s NCP seeks to “identify the facts and possible causes relating to individual cases of non-compliance” 678, and address these factors, when appropriate through financial and technical assistance and other capacity-building measures 679.  See Günther Handl, “Compliance Control Mechanisms and International Environmental Obligations”, Tulane Journal of International & Comparative Law, Vol. 5 (1997), p. 29. 675  See Bodansky, supra footnote 110, p. 227. 676  See UNEP, Report of the Tenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP Doc. OzL.Pro10/9 (3 December 1998), Annex II : Non-Compliance Procedure, p. 47 at p. 48, para. 8 (hereinafter Montreal Protocol NCP), available at https :// ozone.unep.org/sites/default/files/2019-04/MOP-10-9E. pdf. 677  Brunnée, supra footnote 670, p. 19. 678  Montreal Protocol NCP, supra footnote 676, p. 48, para. 7 (d). 679  See UNEP, Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP Doc. OxL.Pro.4/15 (5 November 1992), Annex V : Indicative List Measures that Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol, p. 46, available at https ://ozone.unep.org/ sites/default/files/2019-04/MOP-4-15E.pdf. 674

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But MEAs also allow for non-compliance regimes to be tailored to the collective concern at hand, and to the priorities and needs of the parties involved. For example, since under the Kyoto Protocol only developed countries and transition countries had emission reduction commitments 680, capacity building and financial assistance were not the appropriate means to promote compliance. Moreover, the Kyoto Protocol regime had certain unique features, such as its emissions trading mechanisms, which required a tougher approach to compliance to backstop the parties’ target-related commitments 681. In light of these considerations, the Kyoto Protocol’s compliance procedure explicitly declared its goals to “facilitate, promote and enforce compliance” with the protocol 682. Indeed, the protocol’s compliance committee was bifurcated into a “facilitative branch” (concerned with providing advice and assistance), and an “enforcement branch” (tasked with resolving all questions relating to parties’ binding emission reduction commitments and related reporting and inventory requirements) 683. The range of “consequences to non-compliance” that the enforcement branch could “apply” differed depending  See Kyoto Protocol, supra footnote 12, Art. 3 (1), and Annex B. And see Chap. IV, Sec. C.1.2. 681  See Jutta Brunnée, “A Fine Balance : Facilitation and Enforcement in the Design of the Compliance Regime for the Kyoto Protocol”, Tulane Environmental Law Journal, Vol. 13 (2000), p. 223 at p. 256. 682  See UNFCCC, COP, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, Decision 27/ CMP.1, UN doc. FCCC/KP/CMP/2005/8/Add.3 (30 March 2006), p. 92 at p. 93, Sec. I (hereinafter Kyoto Protocol NCP), available at https ://unfccc.int/resource/docs/2005/ cmp1/eng/08a03.pdf (emphasis added). 683  See ibid., pp. 93, 94-96, Secs. II.2, IV and V. For an overview, see Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 195-200. 680

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on the commitment at issue 684. In relation to noncompliance with emissions targets, consequences were predetermined in the NCP and automatic in the sense that they had to be applied by the enforcement branch upon a finding of non-compliance 685. A central feature of treaty-based NCPs is the triggering mechanism, which can help strike a balance between individual parties’ sovereignty concerns and the collective interest of all parties in systematic oversight. In most MEAs, any State party can trigger the NCP, including with respect to its own performance 686. This “self-triggering approach” is especially common in the context of MEAs that anticipate parties with capacity limitations to be most likely to encounter compliance problems and that, therefore, adopt a largely facilitative approach, such that the goal of the NCP is to assist the party in returning to compliance. However, “collective interest triggers” exist as well, such as under the Montreal Protocol, where the NCP can be (and is) triggered by the treaty secretariat 687. Under the Kyoto Protocol, the NCP was automatically triggered whenever an expert review team identified questions about a party’s implementation of its commitments 688. Finally, it is worth circling back to the nature of substantive commitments in MEAs and, in particular, the implications of the nature of primary obligations for compliance assessment. The Kyoto Protocol imposed obligations of result – the emissions targets to  See Kyoto Protocol NCP, supra footnote 682, pp. 101-103, Secs. XIV and XV. 685   Ibid., p. 102, Sec. XV.5. 686  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 66. 687  Montreal Protocol NCP, supra footnote 676, p. 47, para. 3. 688  Kyoto Protocol NCP, supra footnote 682, p. 96, Sec. VI.1. For an overview, see Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 195-200. 684

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be met by Annex I parties 689. In the parameters for the compliance assessment to be undertaken through the NCP, due diligence did not figure. As noted above, upon a finding that a party had exceeded it emissions target, the compliance committee’s enforcement branch was mandated to apply predetermined consequences. It stands to reason that MEA-based substantive obligations of result are likely to go hand-in-hand with systematic, even automatic, compliance assessment processes, and with findings of non-compliance that do not depend on whether or not a party acted with due diligence. At the same time, as the different approaches of the Montreal and Kyoto Protocol NCPs illustrate, compliance processes may or may not be designed so as to allow some room for consideration of party circumstances and capacity. (ii)  Paris Agreement The Paris Agreement, as detailed above, differs from the Kyoto Protocol in a number of key respects. For present purposes, the most salient difference is that the agreement, alongside binding procedural obligations, provides for substantive obligations of conduct, connected to parties’ non-binding NDCs 690. Given this reliance on nationally determined, rather than internationally negotiated, emission reduction commitments, it is unsurprising that the Paris Agreement abandoned the hard-edged compliance approach of the Kyoto Protocol. It returns to a transparency-based approach, akin to that found in early MEAs 691, although its transparency mechanism is relatively robust. As 692 detailed above  , parties are obligated to provide  See Chap. IV, Sec. C.1.2.  See Chap. IV, Sec. C.1.3.  See supra footnote 672 and accompanying text. 692  See Chap. IV, Sec. C.2.1 (a).

689 690 691

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emission inventories and reports on progress towards and implementation of their NDCs. These reports are subject to expert review, the results of which will be accessible not only to treaty parties but to the public at large. This transparency mechanism, which is focused on the performance of individual parties, is complemented by a “global stocktake”, which is meant to assess the parties’ collective performance towards the treaty objective and temperature goals 693. Beginning in 2023, parties are to take stock every five years 694. The stocktake is meant to “inform Parties” 695, and is intended to identify “opportunities and challenges for enhancing action and support” 696. But the process is explicitly not focused on individual performance 697. It is meant only to offer “nonpolicy prescriptive consideration of collective progress” that parties may consider in the “updating and enhancing, in a nationally determined manner, of their actions and support” 698. The stocktake is to yield publicly acces699 sible results  , thereby potentially reinforcing the “public pressure” dimension of the transparency mechanism 700.  See Paris Agreement, supra footnote 13, Art. 14. And see UNFCCC, COP, 24th Sess., Matters Relating to Article 14 of the Paris Agreement and Paragraphs 99-101 of Decision 1/CP.21, Draft decision -/CMA.1, UN doc. FCCC/CP/2018.L.16 (14 December 2018) (hereinafter Matters Relating to Article 14), available at https ://undocs. org/FCCC/CP/2018/L.16. For an overview on the Paris Agreement provisions concerning the global stocktake, Bodansky, Brunnée and Rajamani, supra footnote 534, pp. 244-246. 694  See Paris Agreement, supra footnote 13, Art. 14 (2) ; and Matters Relating to Article 14, supra footnote 693, para. 8. 695   Ibid., Art. 14.3. 696   Matters Relating to Article 14, supra footnote 693, para. 13. 697   Ibid., para. 14. 698   Matters Relating to Article 14, supra footnote 693, para. 14. 699   Ibid., paras. 33-34. 700  See supra footnote 619 and accompanying text. 693

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The third component of the Paris Agreement’s performance assessment approach is a “mechanism to facilitate implementation and promote compliance” 701. As the label suggests, given the retreat from legally binding emissions targets (obligations of result), the Paris Agreement also retreated from the Kyoto Protocol’s enforcement-oriented approach to compliance. Nonetheless, it is significant that the process does include a “compliance” assessment dimension, rather than focus strictly on “implementation” assessment 702. The mechanism is focused, in tightly defined fashion, on individual countries’ compliance with their primary obligations under the Paris Agreement and, more specifically, with their procedural obligations 703. In the Paris Outcome 704, now complemented through the Paris Rulebook 705, the parties stipulated that the compliance mechanism is to have a 12-member committee. The committee is to be “expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive”, and is to be attentive to “the respective national capabilities and circumstances of Parties” 706. In addition, the compliance committee is explicitly barred from changing, through  See Paris Agreement, supra footnote 13, Art. 15 (1).  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 246. 703  See Bodansky, supra footnote 110, p. 242. 704  See supra footnote 658 and accompanying text. And see Adoption of the Paris Agreement, supra footnote 658, para. 103. 705  See UNFCCC, COP, 24th Sess., Modalities and Procedures for the Effective Operation of the Committee to Facilitate Implementation and Promote Compliance Referred to in Article 15, Paragraph 2 of the Paris Agreement, Draft Decision -/CMA.1, UN doc. FCCC/CP/2018/L.5 (14 December 2018), para. 5 (hereinafter Modalities and Procedures for Compliance), available at https ://undocs. org/FCCC/CP/2018/L.5. 706  Paris Agreement, supra footnote 13, Art. 15 (2). 701 702

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its work, “the legal character of the provisions of the Paris Agreement” 707. In “considering how to facilitate implementation and promote compliance”, the committee “shall endeavor to constructively engage with the party concerned” 708. According to the Rulebook decision on compliance, the process can be triggered by written submission by a party “with respect to its own implementation of and/or compliance with any provision of the Paris Agreement” 709. In a specified set of circumstances, the compliance process can also be initiated by the compliance committee. The committee will initiate the process where a party has not : communicated or maintained an NDC ; submitted a mandatory report or communication of information under the auspices of the Article 13 transparency mechanism ; or submitted a mandatory report or communication of information under Article 9 (5) concerning financial support to developing countries 710. The defining feature of the committee-initiated process is that it is concerned only with whether or not the party has communicated or submitted the relevant items. It is not meant to focus on their content. Indeed, the Rulebook decision specifically states that the committee’s consideration “will not address the content of the contributions, communications, information and reports” 711. The only, extremely cautious, opening to content assessment is that, with the consent of the relevant party, the compliance committee may “engage in facilitative consideration of . . . significant and   Modalities and Procedures for Compliance, supra footnote 705, para. 19 (a). 708   Ibid., para. 19 (b). 709   Modalities and Procedures for Compliance, supra footnote 705, para. 20. 710   Ibid., para. 22 (a). 711   Ibid., para. 23. 707

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persistent inconsistencies in reporting” with the relevant modalities, procedures and guidelines 712. In brief, the Paris Agreement’s compliance process is focused entirely on parties’ non-performance of their primary procedural obligations. What is more, on its own initiative, the committee is permitted only to consider complete non-performance – no NDC at all, no report at all, and so on. In this respect, the relevant procedural obligations are being treated as obligations of result 713. While this approach simplifies objective compliance assessment, it also excludes the detailed procedural requirements concerning what to submit from assessment. The compliance committee may not stray into the content of various items, and even methodological inconsistencies can only be considered – in strictly facilitative fashion – with the consent of the relevant party. There is no review of the parties’ compliance with their substantive obligations of conduct to “pursue domestic mitigation measures” 714, let alone their NDCs. These aspects of parties’ performance are subject only to expert review in the context of the transparency mechanism, not compliance review. Given the narrow focus of the Paris Agreement’s implementation and compliance process and its facilitative nature, it is unsurprising that the “measures and outputs” it can yield are correspondingly lean. Eschewing penalties or sanctions of any kind, the committee may take “appropriate measures” with “a view to facilitating implementation and promoting compliance”, including 715 dialogue, assistance, and recommendations  . The committee can also “issue findings of fact” regarding the implementation of and compliance with the afore  Op. cit. supra footnote 705, para. 22 (b).  See Chap. IV, Sec. C.2.1 (a). 714  Paris Agreement, supra footnote 13, Art. 4 (2). 715   Modalities and Procedures for Compliance, supra footnote 705, para. 30 (a)-(d). 712 713

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mentioned procedural commitments 716. Thus, although some commentators considered this aspect to be “the most stringent” of the measures 717, it is also the case that, even in relation to the Paris Agreement’s binding procedural obligations, the committee may not issue findings of non-compliance concerning individual parties. It may identify or, at the request of the CMA, examine only “issues of a systemic nature with respect to implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties” 718. But the Rulebook decision goes on to underscore that “[i]n addressing systemic issues, the Committee shall not address matters that relate to the implementation of and compliance with the provisions of the Paris Agreement by an individual Party” 719. In summary, when explored through the proceduresubstance lens of this course, it becomes evident that the Paris Agreement and its Rulebook take international environmental law full circle in certain respects. Performance assessment has returned to the transparency-based approach of early MEAs, and committeeinitiated compliance assessment is limited to holding States to procedural standards, the Paris Agreement’s main primary obligations, and its only obligations of result. This review is tightly limited, focused on “big picture” markers : the delivery of the relevant items, not their content – not even where that content is regulated by the Paris Rulebook.   Op. cit. supra footnote 705, para. 30 (e).   See Gu Zihua, Christina Voigt, and Jacob Werksman, “Facilitating Implementation and Promoting Compliance with the Paris Agreement under Article 15 : Conceptual Challenges and Pragmatic Choices”, Climate Law, Vol. 9 (2019), p. 65 at p. 72. 718   Ibid., paras. 32-33. 719   Ibid., para. 34. 716 717

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The assessment processes are even more limited when it comes to the Paris Agreement’s substance. Since the parties’ NDCs are non-binding and determined by each party, it is little surprise that the compliance assessment process does not extend to their content. However, the agreement’s substantive obligation “to pursue domestic mitigation measures” too is excluded from compliance review. That fact can be attributed to the sensitivities of some parties, especially developing country parties, with respect to any kind of international oversight of their domestic climate action 720. Arguably, it is also connected to the fact that the relevant obligation is an obligation of conduct, and that the parties did not want to provide the compliance committee with a space in which to flesh out the agreement’s standards of conduct, notably the standard of highest possible ambition 721. After all, the Rulebook specifically precludes the committee from changing the legal character of the provisions of the Paris Agreement. Is there any space for assessment of the parties’ performance in relation to the Paris Agreement’s substance ? Yes – as noted above, the transparency mechanism does consider parties’ emission inventories and their reports on implementation of and progress towards their NDCs, such that detailed performance information will be publicly available. The same applies to the consistency of information provided by the parties with the “modalities, procedures and guidelines” developed by CMA. Thus, the Paris Agreement’s expert-based performance review process constitutes a crucial complement to its compliance assessment process.  See Bodansky, Brunnée and Rajamani, supra footnote 534, p. 242. 721  See Chap. IV, Sec. C.1.3. 720

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D.  Treaty-Based Procedure and Substance in a Nutshell In MEA-based approaches to harm prevention the interplay between procedure and substance is quite different from the procedure-substance relationship in customary law. As shown in Chapter II, customary law’s harm prevention framework consists of interrelated procedural and substantive obligations. These two sets of primary obligations are mutually reinforcing, and even mutually constitutive. Substance – the harm prevention rule and its due diligence standard – anchors and frames procedure, while procedure advances the substantive goal and even provides some of the rule’s substance, as part of what constitutes due diligence. In MEAs, meanwhile, procedure and substance are mutually reinforcing, but not mutually constitutive. This assessment holds true for the relationship between primary obligations, and for the relationship between primary obligations and the secondary rules and procedures that MEAs provide. Like customary law, MEAs provide for substantive and procedural primary obligations. These obligations, while complementary, are legally distinct. This fact is most obvious when the substantive obligation in question is an obligation of result, such as the emissions targets of the Kyoto Protocol. Whether or not a party has met a procedural requirement has no bearing on whether or not it complied with its substantive obligation. In the Paris Agreement, the single substantive obligation is an obligation of conduct to pursue domestic mitigation measures. Still, the agreement’s procedural obligations do not serve to provide or specify the relevant standard of conduct. Rather, the parameters for due diligence in the Paris Agreement are provided by its non-binding substantive goals and normative expectations. MEAs provide for a much wider range of secondary rules and procedures than those generally available to support customary international law. Indeed, the

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development of regime-specific information exchange, lawmaking and standard-setting, and performance and compliance assessment processes is one of the hallmarks of treaty-based international environmental law. The function of these procedural features is to help parties develop the regime’s substance, monitor and assess its efficacy, and determine whether or not parties are meeting their commitments. They do so in part by providing predictable rules for the salient processes – rules that also serve intrinsic procedural functions like communication, deliberation, justification, trust-building, and legitimacy. As the climate regime serves to illustrate, the precise relationship between primary and secondary rules in MEAs depends in part on the nature of the relevant agreement’s primary obligations. For example, the shift from the Kyoto Protocol’s obligations of result to the Paris Agreement’s obligation of conduct and nonbinding NDCs entailed a shift in the secondary rules concerning performance and compliance assessment. Thus, under the Kyoto Protocol, parties’ emissionsrelated substantive and procedural obligations were subject to systematic compliance assessment. In the Paris Agreement, the compliance committee is empowered to trigger compliance assessment only with respect to the parties’ procedural obligations. The parties’ emissionsrelated obligation of conduct is not subject to compliance assessment. Instead, it falls under the agreement’s transparency mechanism and attendant expert review.

CHAPTER V

CONCLUSION The procedure and substance of international environmental law make for much more variegated terrain than the classical distinction between rights and obligations (the substance) and (adjudicative) procedures that support them – between primary and secondary rules – allows. Indeed, if that common conceptualization of the procedure-substance distinction were the yardstick, then many procedural rules, by virtue of being primary rules of obligation, ought to be considered substantive. Whatever one may think of this proposition as a general matter, it certainly is borne out in international environmental law. If substance is “a fundamental or characteristic part or quality” of a given matter 722, then harm prevention and the procedural devices needed to accomplish it most certainly are part of the substance of international environmental law. Furthermore, as the analysis in Chapter II has shown, the procedural and substantive obligations of customary law’s harm prevention framework are linked not only in a functional sense, but also in legal terms, through the due diligence standard. The harm prevention rule is an obligation of conduct, and the required conduct very often is defined by procedural obligations. These obligations, as demonstrated, fill part of the substantive space of the harm prevention rule. That is why the ICJ’s efforts to specify the parameters of due diligence and the related procedural rules are to be welcomed, even as the Court’s choice to treat the procedural and substantive obligations 722

 See supra footnote 25 and accompanying text.

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of the harm prevention framework as legally distinct is open to question. In the treaty context, the relationship between procedural and substantive obligations, as illustrated in Chapter IV, is different. The two categories of primary obligations complement and reinforce one another, but they are legally distinct. Procedural obligations support the development and adjustment of substance by the parties, and the assessment of their performance, but they are not part of the content of the relevant substantive rules. Turning to the classical distinction between rights and obligations and secondary rules (of adjudication), adjudication plays a limited role in international environmental law. As Chapter III has demonstrated, the reasons for the relative dearth of adjudication relate to constraints and uncertainties in the substantive primary rules of harm prevention (e.g. their erga omnes effect), result from certain secondary rules concerning adjudication (e.g. consent requirements, standing rules), and flow from the features of environmental concerns that transcend the immediate neighbourhood setting. Long-range and commons issues require a treatybased approach to harm prevention, both to develop specialized substantive requirements and matching procedural obligations, and to establish frameworks of secondary rules that facilitate lawmaking and oversight. Chapter IV, using climate change as an example of a complex harm prevention challenge, traced the trajectory of the UN climate regime. Throughout its development, the climate regime placed consistently strong emphasis on procedural obligations. At the level of substance, however, the regime moved from the non-binding substantive commitments of the UNFCCC, to the Kyoto Protocol’s binding obligations of result, to the Paris Agreement’s combination of a binding obligation of conduct framed by non-binding substantive parameters.

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The structure of primary rules, in turn, has implications for the regime’s secondary rules and procedures. When it comes to standard-setting, the rules governing formal amendments or even the consensus-based decisions of the COP have constrained the regime’s capacity to develop the substantive requirements it imposes. By contrast, under the Paris Agreement, individual parties can adjust their NDCs unilaterally, because they are not part of the agreement’s binding terms. Whether this approach will succeed depends in part on how the practices and interactions between parties evolve. For example, if the Paris Agreement’s normative expectations (progression over time, highest possible ambition, temperature goal) are upheld and treated as legally relevant in the practices in the regime, it can be anticipated that they will guide and constrain parties’ NDCs, notwithstanding their non-binding nature. Furthermore, consistent, sustained practices upholding the agreement’s normative expectations will strengthen their role as parameters for the due diligence required of parties in meeting their obligation of conduct regarding domestic mitigation measures. Performance and compliance assessment procedures too can play a significant role in regularizing assessment and in developing legal practices surrounding the assessment. However, as Chapter IV has also shown, the Paris Agreement’s compliance committee will be on a tight leash in the latter respect. Substantive commitments and the assessment of whether parties are meeting the salient normative expectations are matters for expert review, not compliance review. Only the procedural obligations that are to provide the information needed for this expert assessment are within the purview of the compliance committee. But this review will be truncated, as a consequence of casting the relevant procedural obligations as obligations of result in the most minimal sense : save with the consent of a party, it is the bare

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delivery of a communication or report, not the content of what is being submitted, that is subject to committee review. To be sure, it is possible that the practice under the Paris Agreement will give rise to an expectation of party consent to content review, but it is too soon to know. The Paris Agreement’s compliance assessment stands in contrast to the Kyoto Protocol’s NCP. The protocol also contained obligations of result but, crucially, these were substantive obligations of result – emission reduction targets. In the context of these targets, it mattered only whether the required reduction had occurred, not why or why not. So, in some respects, the Paris Agreement’s substantive rules have returned to the model of obligations of conduct found in the customary harm prevention rule. Procedural obligations do not serve to define the conduct of the Paris Agreement’s substantive obligation in the way they do at custom. Still, because compliance with these procedural obligations is all that will be assessed, it is only procedural violations that will be found to have occurred. Thus, albeit for different reasons, the upshot of the Paris Agreement’s review of complex harm prevention efforts is rather like the upshot of the approach taken by the ICJ to harm prevention duties in the neighbourhood context. Against this backdrop, the discussion can now return to the proceduralization debate highlighted in Chapter I. Practically speaking, however desirable one may think that binding substantive obligations backed by binding dispute settlement are, this kind of approach is neither achievable nor desirable in the context of a complex global challenge like climate change, for reasons highlighted at various points in this course. Writing in 2019, the wild card in relation to climate change, as in relation to most other international issues, is how domestic politics evolve in the United States, the United Kingdom, and other increasingly inward-looking democracies. Assuming a return to a more internationally engaged approach, there

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is a good chance that the Paris Agreement will succeed. It has been able to establish a global, long-term approach to emissions mitigation. Its substantive goals and normative expectations are appropriate, as is the recognition that, ultimately, the difficult choices about climate action must be made at the national level. The Paris Agreement also provides finely calibrated system of interlocking substantive and procedural elements. Indeed, the lenses offered in this course – procedure-substance, primarysecondary rules, obligations of conduct-result – prove to be very useful in exploring the Paris Agreement and the shifts it has brought. But what about the concerns about the fate of international law that animate the proceduralization critique as introduced in Chapter I ? Are the primary rules of international environmental law devoid of substance ? And is Paris-style proceduralization weakening or undermining international law, through recourse to secondary rules and procedures that avoid substance, or treat substance as non-obligatory ? As for the first concern – primary rules with weak or no substance – customary law’s harm prevention rule was specifically invoked as an exemplar. It was described as a “process-definition” that highlights “relevant values but leaves the determination of their normative impact 723 . The fact that it imposes [to] further processes”  an obligation of conduct, such that even actual harm causation would not ipso facto be wrongful, appeared to heighten the concern. As already suggested in Chapter I, the harm prevention rule is hardly unique in providing only broad-stroke substantive guidance. At any rate, it is not clear why this feature should spell the undoing of law. Indeed, as Chapter II has shown, the feature, including the reliance on due diligence as a standard of conduct, is long-standing 723

 See Chap. I, Sec. C.3.2.

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and runs through much of general international law’s framework of sovereignty-related rights and obligations. What is more, Chapter II has also shown – and this conclusion has reiterated – that the procedural obligations that form part of the harm prevention framework are in fact substantive. They require some of the very actions that are needed to achieve the rule’s substantive goal. Hence, rather than say that the customary law of harm prevention is devoid of substance, it would be more accurate to say that procedure is part of its substance. Moreover, when it comes to the substantive goal of harm prevention, Chapters II and III have also established that a risk-based obligation of conduct is likely to perform better than a rule that requires proof of harm causation. In other words, the fact that the harm prevention rule is an obligation of conduct is a strength, not a weakness. Procedural obligations, in turn, contribute to enhancing that strength. In short : while the proceduralization critique accurately identifies key features of the harm prevention rule, it misreads them, perhaps as a result of its conception of “substance”. When it comes to treaty-based harm prevention, many MEAs have been able to complement procedural obligations with substantive obligations, even substantive obligations of result. By contrast, the Paris Agreement does entail the displacement of substance. But, again, more nuance is needed. What is “displaced” is substance in the shape of mitigation-related obligations of result, in favour of an obligation of conduct, complemented by nonbinding substantive parameters for the relevant conduct. What does this mean for international environmental law ? It is too soon to know whether the Paris Agreement will serve as model for other MEAs, or whether it will remain a unique response to a unique challenge. But leaving aside the possible broader implications of its approach, the issue raised by the Paris Agreement is not one of recourse to procedure – the climate regime, as

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noted, has always been strongly procedural. The main change rests in its approach to substance. One might say that, ultimately, what matters is whether patterns of legal interactions evolve around the Paris Agreement’s substantive standard, and whether they are treated by the parties as legal standards. If they are consistently treated as such, the Paris Agreement’s approach to substance may prove to be more resilient than the Kyoto Protocol’s “binding but selective” approach. At the end of the day, as suggested in Chapter I, whether proceduralization is a concern depends in part on one’s understanding of international law. This observation applies also to the secondary rule framework established by the Paris Agreement. The proceduralization critique articulated by Koskenniemi some 30 years ago seems prescient. Koskenniemi was concerned that procedures would facilitate the avoidance of substance, and that secondary rules would remove violations from the purview of general rules governing treaty breaches or State responsibility. And, indeed, the Paris Agreement appears to bring such a shift, both for procedural obligations, for which compliance assessment is available, and for the agreement’s substantive obligation, for which expert assessment is available. In fact, the latter feature of the Paris Agreement’s performance assessment regime also raises the spectre of “deformalization” – the turn to experts who “manage” problems, rather than engage with legal issues. On this last dimension, Koskenniemi’s prediction does seem to have come to have been realized in the Paris Agreement. Although the expert review will engage with the extent to which parties’ mitigation efforts conform to the agreement’s normative expectations, it is not clear that this review will serve to treat these expectations as due diligence standards. Much will depend on how practices evolve as the transparency mechanism begins to operate. On the compliance side of things, the fact

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that the compliance committee is not empowered to find breaches might also tend to substantiate Koskenniemi’s concerns. Yet, terming the committee’s conclusions “findings of fact” does not necessarily undercut their significance in upholding the relevant procedural obligations. Furthermore, the Paris Agreement arguably should not be measured against the yardstick of an idealized regime of primary and secondary rules. After all, international practice concerning recourse to the law of State responsibility and to binding adjudication is highly selective. Similarly, the Kyoto Protocol’s effort to combine binding obligations of result and an automatic compliance review system, was applicable only to a small number of parties and, at any rate, was subject to the option of withdrawal that is always available to treaty parties. In other words, it is not simply the form (i.e. binding, specific rules plus binding dispute settlement versus non-binding, general standards plus non-binding oversight mechanisms) that actors initially choose that will ensure that law holds sway. What matters at least as much is what actors ultimately do with the framework they establish. Seen in this light, the Paris Agreement has the potential to spawn legal practices that engage all parties, which would be a strength when compared with more selective practices. Does the substance of international environmental law allow actors to articulate grievances in generalizable terms 724, and do its procedural obligations and secondary rules serve to strengthen the context in which substance can operate as law. For customary law, this study suggests that the answer is yes, at least as far as the primary rules of the harm prevention framework are concerned. For MEAs, the analysis suggests that the answer is “quite possibly”. As the meandering path of the climate regime’s development illustrates, MEAs are not recipes 724

 See supra footnote 124 and accompanying text.

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for guaranteed success. But in the context of the complex issues that MEAs typically address, it is not clear how a procedural approach could be avoided, or indeed that it should be. In conditions of deep diversity of outlooks and priorities, agreement on “procedural rules for coping with difference” is a prerequisite for working towards substance and, arguably, valuable in and of itself 725.

725

 Jutta Brunnée and Stephen J. Toope, “Interactional Legal Theory, the International Rule of Law, and Global Constitutionalism”, in Anthony Lang and Antje Wiener (eds.), Handbook of Global Constitutionalism, Cheltenham, Edward Elgar, 2017, p. 170 at pp. 178-179.

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LIST OF ABBREVIATIONS ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts BAT Best Available Technology CBDR-RC Common but Differentiated Responsibilities and Respective Capabilities CMA Conference of the Parties serving as the meeting of the Parties to the Paris Agreement COP Conference of the Parties EIA Environmental Impact Assessment GHG Greenhouse Gas IACHR Inter-American Court of Human Rights ICJ International Court of Justice ICSID  International Centre for the Settlement of Investment Disputes ILA International Law Association ILC International Law Commission IPCC Intergovernmental Panel on Climate Change ITLOS International Tribunal for the Law of the Sea LOSC Law of the Sea Convention LRTAP Long-Range Transboundary Air Pollution MRV Measurement, Reporting, and Verification MEA Multilateral Environmental Agreement NDC Nationally Determined Contribution NCP Non-Compliance Procedure PA Paris Agreement PCA Permanent Court of Arbitration UNEP United Nations Environment Programme UNFCCC United Nations Framework Convention on Climate Change VCLO Vienna Convention on the Protection of the Ozone Layer WHO World Health Organization WMO World Meteorological Association WTO World Trade Organization

ABOUT THE AUTHOR

Biographical Note Jutta Brunnée, born 3 July 1961 in Wiesbaden, Germany. Canadian and German citizenship. Johannes Gutenberg-Universität, Germany ; Dalhousie University, Canada ; First and Second State Exams (1985 and 1989) ; Doctor Juris (summa cum laude) (1989). Visiting and Assistant Professor, McGill University (1990-1995) ; Assistant Professor and Associate Professor, University of British Columbia (1995-2000) ; Professor of Law and Metcalf Chair in Environmental Law, University of Toronto (since 2000). Visiting/Guest/Adjunct Lecturer, University of Western Ontario (1990), Vermont Law School (1993, 1994, 1997, 1998), University of Auckland (2007), Institut des Hautes Etudes Internationales – Université Panthéon-Assas (2009), New York University School of Law (2013), Munich Advanced Course in International Law (2014). Associate Dean Graduate, Faculty of Law, University of Toronto (2010-2014) ; Interim Dean, Faculty of Law, University of Toronto (2014). Scholar-in-Residence, Department of Foreign Affairs and International Trade Canada (1998-1999) ; Member, International Expert Group on the Programme for the Development and Periodic Review of Environmental Law for the First Decade of the 21st Century (Montevideo Programme III), United Nations Environment Programme (1999-2000) ; Member, Committee on Transnational Enforcement of Environmental Law, International Law Association (2004-2006) ; Member, Committee on the Use of Force, International Law Association (2006-2010) ; Elected Member, Board of Editors, American Journal of International Law (2006-2016) ; Member, Committee on The Legal Principles relating to Climate Change, International Law Association (2009-2014) ; Senior Research Fellow, KollegForschergruppe “The International Rule of Law : Rise or Decline”, Humboldt, Potsdam, and Free Universities Berlin (2016) ; Member, Scientific Advisory Board, Max Planck Institute for Comparative Public Law and International Law, Heidelberg (2016-2021). American Society of International Law, Certificate of

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About the Author

Merit for a Preeminent Contribution to Creative Scholarship, for J. Brunnée and S. J. Toope, Legitimacy and Legality in International Law : An Interactional Account (2011) ; American Society of International Law, Certificate of Merit for a specialized area of international law, for D. Bodansky, J. Brunnée and L. Rajamani, International Climate Change Law (2017). Elected Fellow, Royal Society of Canada (2013) ; Elected Associate, Institut de Droit International (2017).

Principal Publications A. Books International Climate Change Law, Oxford, Oxford University Press, 2017 (with D. Bodansky and L. Rajamani). Promoting Compliance in an Evolving Climate Change Regime, Cambridge, Cambridge University Press, 2011 (edited with M. Doelle and L. Rajamani). Legitimacy and Legality in International Law : An Interactional Account, Cambridge, Cambridge University Press, 2010 (with S. J. Toope). The Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2008 (edited with D. Bodansky and E. Hey). A Globally Integrated Climate Policy for Canada, Toronto, University of Toronto Press, 2007 (edited with S. Bernstein, D. Duff and A. Green). Articles and Book Chapters “The Rule of International (Environmental) Law and Complex Problems”, in H. Krieger, G. Nolte and A. Zimmermann (eds.), The International Rule of Law : Rise or Decline ?, Oxford, Oxford University Press, 2019, pp. 211-231. “Norm Robustness and Contestation in International Law : Self-Defence against Non-State Actors”, Journal of Global Security Studies, Vol. 4 (2019), pp. 73-87 (with S. J. Toope). “International Law and the Practice of Legality : Stability and Change,” Victoria University of Wellington Law Review, Vol. 49 (2019), pp. 429-445 (with S. J. Toope). “Community Obligations in International Environmental Law : Procedural Aspects”, in E. Benvenisti and G. Nolte (eds.), Community Obligations across International Law, Oxford, Oxford University Press, 2018, pp. 150-175.

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233

“Völkerrechtskritik : Gestern und Heute”, in N. Dethloff, G. Nolte and A. Reinisch (eds.), Rückblick nach 100 Jahren und Ausblick – Migrationsbewegungen, Berichte der Deutschen Gesellschaft für Völkerrecht, Vol. 49, Heidelberg, C.F. Müller Verlag, 2018, pp. 167-191. “Self-Defence against Non-State Actors : Are Powerful States Willing but Unable to Change the Law ?”, International & Comparative Law Quarterly, Vol. 67 (2018), pp. 263-286 (with S. J. Toope). “The Sources of International Environmental Law : Interactional Law”, in S. Besson and J. d’Aspremont (eds.), Oxford Handbook on Sources of International Law, Oxford University Press, 2017, pp. 960-983. “The Rule of Law in an Agnostic World”, in W. Werner, M. De Hoon and A. Galán (eds.), The Law of International Lawyers – Reading Martti Koskenniemi, Cambridge, Cambridge University Press, 2017, pp. 137-166 (with S. J. Toope). “Interactional Legal Theory, the International Rule of Law, and Global Constitutionalism”, in A. Lang and A. Wiener (eds.), Handbook of Global Constitutionalism, Cheltenham, Edward Elgar, 2017, 170-182 (with S. J. Toope). “The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement : Lessons from the US Disengagement”, Journal of Environmental Law, Vol. 29 (2017), pp. 537-551 (with L. Rajamani). “Limitation of the Use of Force”, in H. Kindred et al. (eds.), International Law – Chiefly as Interpreted and Applied in Canada, 8th ed., Toronto, Emond Montgomery, 2014, pp. 781-869. “Transparency and International Environmental Institutions”, in A. Bianchi and A. Peters (eds.), Transparency in International Law, Cambridge, Cambridge University Press, 2013, pp. 23-48 (with E. Hey). “International Environmental Law”, in Tony Carty (ed.), Oxford Bibliographies Online : International Law – Oxford Bibliography on International Law (2013). “Multilateral Environmental Agreements,” in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2012. “Constructivist Approaches to International Law”, in J. L. Dunoff and M. A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations : The State of the Art, Cambridge, Cambridge University Press, 2012, pp. 119-145 (with S. J. Toope). “Treaty Amendments”, in D. Hollis (ed.), Oxford Guide to

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About the Author

Treaties, Oxford, Oxford University Press, 2012, pp. 347366. “The Responsibility to Protect and the Use of Force : Building Legality ?”, Global Responsibility to Protect, Vol. 2 (2010), pp. 191-212 (with S. J. Toope). “Environment, Multilateral Agreements”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2011. “Interactional International Law and the Practice of Legality”, in E. Adler and V. Pouliot (eds.), International Practices, Cambridge, Cambridge University Press, 2011, pp. 108-136 (with S. J. Toope). “Climate Change, Global Environmental Justice and International Environmental Law”, in J. Ebbesson and P. Okowa (eds.), Environmental Law and Justice in Context, Cambridge, Cambridge University Press, 2009, pp. 316-332. “All Together Now ? Europe, the United States and the Global Climate Regime”, Journal of Land Use and Environmental Law, Vol. 24 (2008), pp. 1-43. “International Legislation”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2008. “Consent”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press, 2008. “International Legal Accountability through the Lens of the Law of State Responsibility”, Netherlands Yearbook of International Law, Vol. 36 (2005), pp. 3-38. “Common Areas, Common Heritage and Common Concerns”, in D. Bodansky, J. Brunnée and E. Hey (eds.), Oxford Handbook of International Environmental Law, Oxford, Oxford University Press, 2007, pp. 550-573. “Enforcement Mechanisms in International Law and International Environmental Law”, in U. Beyerlin, T. Stoll and R. Wolfrum (eds.), Ensuring Compliance with Multilateral Environmental Agreements : A Dialogue between Practitioners and Academia, Leiden, Brill Academic Publishers, 2006, pp. 1-23. “The Security Council and Self-Defence : Which Way to Global Security ?”, in N. M. Blokker and N.J. Schrijver (eds.), The Security Council and the Use of Force, Leiden, Brill, 2005, pp. 107-132. “Reweaving the Fabric of International Law ? Patterns of Consent in Environmental Framework Agreements”, in M. Craven and Mal. Fitzmaurice (eds.), Interrogating

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235

the Treaty : Essays in the Contemporary Law of Treaties, Tilburg, Wolf Legal Publishers, 2005, pp. 119-135. “Slouching towards New Just Wars : International Law and the Use of Force after September 11”, Netherlands International Law Review, Vol. 51 (2004), pp. 363-392 (with S. J. Toope). “The United States and International Environmental Law : Living with an Elephant”, European Journal of International Law, Vol. 15 (2004), pp. 617-649. “The Use of Force : International Law after Iraq”, International & Comparative Law Quarterly, Vol. 53 (2004), pp. 785-806 (with S. J. Toope). “Of Sense and Sensibility : International Liability Regimes as a Tool for Environmental Protection”, International & Comparative Law Quarterly, Vol. 53 (2004), pp. 351-367. “A Hesitant Embrace : The Application of International Law by Canadian Courts”, Canadian Yearbook of International Law, Vol. 40 (2003), pp. 3-60 (with S. J. Toope). “Persuasion and Enforcement : Explaining Compliance with International Law”, Finnish Yearbook of International Law, Vol. 13 (2002), pp. 273-295 (with S. J. Toope). “The Kyoto Protocol : A Testing Ground for Compliance Theories ?”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 63 (2003), pp. 255-280. “COPing with Consent : Lawmaking under Multilateral Environmental Agreements”, Leiden Journal of International Law, Vol. 15 (2002), pp. 1-52. “The Changing Nile Basin Regime : Does Law Matter ?”, Harvard International Law Journal, Vol. 43 (2002), pp. 105159 (with S. J. Toope). “International Law and Constructivism : Elements of an Interactional Theory of International Law”, Columbia Journal of Transnational Law, Vol. 39 (2000), pp. 19-74 (with S. J. Toope). “A Fine Balance : Facilitation and Enforcement in the Design of a Compliance Regime for the Kyoto Protocol”, Tulane Environmental Law Journal, Vol. 13 (2000), pp. 223-270. “The Role of National Courts in Implementing International Environmental Law”, Review of European Community and International Environmental Law, Vol. 7 (1998), pp. 12-21 (with D. Bodansky). “Environmental Security and Freshwater Resources : Ecosystem Regime Building”, American Journal of International Law, Vol. 91 (1997), pp. 26-59 (with S. J. Toope). “A Conceptual Framework for an International Forest Convention : Customary Law and Emerging Principles”, in

236

About the Author

Canadian Council of International Law (ed.), Global Forests and International Environmental Law, London, The Hague, Boston, Kluwer International, 1996, pp. 41-77. “Environmental Security and Freshwater Resources : A Case for International Ecosystem Law”, Yearbook of International Environmental Law, Vol. 5 (1994), pp. 41-76 (with S. J. Toope). “The Baltic Sea Area and Long-Range Atmospheric Pollution – How Regional Cooperation Fits into the Larger Picture”, McGill Law Journal, Vol. 37 (1991), pp. 853-887. “Common Interest – Echoes from an Empty Shell  ? Some Thoughts on Common Interest and International Environmental Law“, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 49 (1989), pp. 791808.

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