Legal prlegal protection of the atmosphere in international law: achievements and lacunas
- Autores: Motaharehsadat Mahdiansadr
- Directores de la Tesis: Susana Borràs Pentinat (dir. tes.)
- Lectura: En la Universitat Rovira i Virgili ( España ) en 2021
- Idioma: español
- Tribunal Calificador de la Tesis: Danielle Annoni (presid.), Stephanie V. Ascencio Serrato (secret.), Valter Moura do Carmo (voc.)
- Programa de doctorado: Programa de Doctorado en Derecho por la Universidad Rovira i Virgili
- Materias:
- Enlaces
- Tesis en acceso abierto en: TDX
- Resumen
The atmosphere is considered a vital element to the survival of humankind and all life on Earth. Therefore, atmospheric dergradation and atmospheric pollution has to be a matter of grave concern to all international community members. For the first time, the UN General Assembly, in its resolution ‘Protection of Global Climate Change for Present and Future Generations of Mankind’, has considered the degradation of the atmosphere a ‘common concern of humankind’. The atmosphere's legal protection as a common concern could be described as one of the main crucial environmental issues that the international community faces and needs collective cooperation to deal with it. Current and future generations have the right to life and breathe on a healthy Earth. Thereafter, the atmosphere's protection is highlighted by the current negotiations in the context of the UN Framework Convention on Climate Change. However, as of today, as the Earth’s largest single natural resource, the atmosphere is not subject to a comprehensive legal regime. Instead, the atmosphere is being regulated by a patchwork of national, regional and international legal instruments.
The significance of the concept of common concern of humankind is that the international community collectively has an interest in the global atmosphere and a shared responsibility to seek intergenerational rights, sustainable development and equity. The present research entitled “Legal Protection of the Atmosphere in International Law: Achievements and Lacunas” aims to study the gradual development of the atmospheric protection legal frameworks and instruments under international law and proposing new view to the protection of the atmosphere as a common interest rather than traditional reciprocity approach.
The methodology of this thesis is based on descriptive analysis. This thesis firstly attempts to identify and analyze the basic concepts and perspectives. Its approache is to be taken in connection with the subject to outline the questions the international community must consider with respect to the protection of the atmosphere. It is true that many atmospheric protection measures lie in the national legal regimes. However, as was explained, the atmosphere's very nature as the Earth’s largest single natural resource and the transnational uses of the atmosphere beyond national analyze jurisdictions require a firm and comprehensive international legal protection. Despite the formation of several international legal instruments dealing with the atmospheric challenges, including climate change, air pollution and ozone layer depletion in the last few decades, the trends and scientific research show that the international community needs a far more efficient legal regime for the protection of the atmosphere.
Therefore, the central question of this research is: What are the main challenges to the protection of the atmosphere under the existing international law instruments? This question will be followed by the second question, which is: How have the recent developments, including the International Law Commission's work, contributed to filling the legal shortcomings on the protection of the atmosphere? To answer these questions, Part I “Conceptualizing The Protection Law Of The Atmosphere In Light Of Its Gradual Degradation” analyzes the atmospheric degradation and harms to the environment and humans. Also it discusses the legal concept of the atmosphere. Part II “International Legal and Institutional Framework to Protect the Atmosphere” firstly assesses the soft law mechanisms, and later analyzes the important role that customary international law plays in the protection of the atmosphere. It also studies all of the substantial corresponding treaty laws. Part III “Judicial Protection of the Atmosphere” deals with international tribunals' decisions regarding atmospheric issues and proposing the doctrine of “actio popularis” as a procedural mechanism, which can promote better protection for the atmosphere; and finally part IV “Evolutions and Innovations in the Legal Protection of the Atmosphere. The Atmosphere as an Intergenerational Right and Obligation, Protection Based on the Human Rights Framework” deals with the theoretical as well as practical discussion of the creation and development of the human right to a healthy and protected atmosphere and its possible role in the protection of the atmosphere.
FIRST. The overview of status of the atmosphere and the threats leading to its degradation is associated with humans in three aspects. First, although the study of the atmosphere shows a complicated and dynamic nature with changes through the history of the Earth, present challenges and threats to the Earth’s inhabitants through changes in the atmosphere are attributed to human activities to a great extent. In fact, human’s domination of the Earth, particularly after the industrial revolution, caused great amounts of emissions to the environment entering the dynamic processes within the atmosphere and triggered changes which are not suited for humans or most other species living on the Earth. The scientific studies about anthropogenic sources of emissions and how they change global or regional composition of the atmosphere justify this fact. Second, approximately all the changes of the atmosphere due to anthropogenic emissions are threatening human being and many of current inhabitants of the Earth. Many adverse effects of the emissions and their consequences for human are studied, showing a great loss in many aspects such as health, economy, and the environment. As the economy is shown to be the most powerful force for people and governments to take action, the adverse economic effects of many aspects have been studied and the results show the economic loss due to emission abatements and mitigation policies are not as severe as the loss from air pollution, climate change, and other environmental consequences of the emissions.
SECOND. The need to take action could lead to insufficient measures due to complicated political and economic interactions among people and governments, which is the third aspect of human action associated with current status and threats to the atmosphere. Note that most threats are transboundary and require actions and measures throughout the whole world. But the distribution of wealth and power between different people and governments affects to what extent they have the power or the will to take action. For example, low-income societies are usually more involved in low technology devices and methods in industry and agriculture which usually leads to more emissions of air pollutants. Besides, such societies usually lack the financial resources to improve the technologies, which could result in less emission with more economic benefits as well as avoiding economic loss due to the emissions. On the other hand, high-income societies and people are usually involved in lifestyles and economic activities that are responsible for emissions on a greater scales. The status of their economy is usually is responsible for past emissions which the environment still suffers from and high emission levels, particularly carbon dioxide, due to the larger size of their economies. Their lifestyle is also usually is involved in high food and other products consumption, high vehicle transport and many other characteristics which result in high emission per capita, particularly carbon footprints. Note the contrasts of benefits does not exist only among countries, but also on smaller scales such as between different sectors and cities.THIRD. To conclude, the complexity of the atmospheric threats, and subjects involved in avoiding them shows why Environment Law is necessary to manage and develop efficient and sufficient measures over the world, with a just distribution of losses and benefits of such measures.
FOURTH. The scientific findings prove that the atmosphere is facing serious challenges from pollutions and degradation. The first issue in taking legal measures for the atmospheric protection is clarifying the legal status of the atmosphere. Based on the discussions provided in the thesis, it is clear that the atmosphere cannot be considered a common good. Undoubtably, the broad concept of a global common can encompass the atmosphere - i.e. the atmosphere can be considered as an global common.
When considering further categorization, there is debate among scholars as to whether the atmosphere is a common concern of humankind.
FIFTH. I conclude that the concept of common concern of humankind and the principle of the common heritage of humankind shall be seen as two different but related concepts. In fact, the concept of the common heritage of humankind generally applies to geographic areas or resources, whereas the common concern of humankind concept applies to specific issues. As a result, the common heritage approach provides a framework for managing the sustainable utilization of shared resources, and the common concern of humankind concept provides legal grounds for protecting shared resources like the atmosphere that are being threatened by a global problem. Accordingly, the atmosphere which is a natural resource essential for sustaining life on Earth, human health, and welfare, can be considered as a kind of common heritage of humankind.
Meanwhile, its degradation and pollution are specific issues that could be categorized as a common concern of humankind.
SIXTH. In assessing the essays of the ILC on the protection of the atmosphere, despite the importance of the work of the Special Rapporteur, and the potential contribution to the codification of legal norms pertaining to protection of the atmosphere, I conclude that the Commission took a highly conservative and narrow approach toward the codification of international law in the context. In its work on the draft guidelines on protection of the atmosphere, the Commission imposed a set of controversial self-limitations, which is a kind of extreme retrogression. Also, the rejection of the academically well-accepted principle of common concern of human kind and eliminating ‘energy’ from the scope of debate on ‘atmospheric pollution’ have limited the work of the Commission to a partial codification of the existing international law on the topic. In fact, I conclude that the Commission’s work is a conservative codification of the international law and lacks the expected steps of the progressive development of international law on the topic.
SEVENTH. Comparing to the marine standards and liabilities, air pollution and generally protection of the atmosphere is less well regulated by treaty law. Therefore, the recognized no-harm principle as a well-recognized customary international norm like the principles of good faith and equity have been an important legal tool in filling the treaty law shortcomings. The no-harm principle, and requirement for the environmental impact assessment driven from it, are pertaining to a wider issue of environmental protection and are not specifically or exclusively dealing with the protection of the atmosphere. However, they have played a crucial role in atmospheric related decisions made by the international courts.
EIGHTH. Despite their positive influence in providing legal basis for the protection of the environment in general and protection of the atmosphere in particular, some of the important instances of international norms including the sustainable development, the precautionary principle, and the polluter pays principle, which remain subject to a legal debate to be considered as customary international rules. However, in the past few years there have been considerable efforts made by environmental legal activists in encouraging States to accept and be bound by these norms. This may provide the grounds for the alteration of these norms to recognize international customary norms.
NINTH. One of the main challenges in this regard is the relatively long procedure that a norm takes to be considered a recognized customary international norm. The critical issue in case of global environmental challenges in general and atmospheric issues in particular is the fast pace of pollutions and degradations. In fact, the current environmental crisis that according to the scientific facts could be altered into environmental disasters will not wait for the new legal instruments to be gradually developed during the coming decades. Therefore, it could be argued that the already recognized human rights customary norms may play a more significant role in being used as an already existing legal tool for the protection of the environment and the atmosphere in the short term.
ELEVENTH. There are several international and regional agreements for the protection of the atmosphere against air pollution, ozone depletion and climate change. However, to regulate ‘transboundary air pollution’ there is no universal framework such as the Paris Agreement or the UN Convention on Biological Diversity(regardless to their shortcomings). As discussed, International Law to regulate air pollution formed as a patchwork of scattered instruments. These fragmented instruments in some areas impose overlapping measures for the same pollutants and in some other areas are facing substantial shortcomings. Therefore, I conclude that in existing treaty law there are significant gaps and shortcomings in terms of the domain of regulated substances and activities, geographical coverage, and, most importantly, applicable principles and rules.
TWELFTH. The LRTAP Convention with its eight protocols could be considered as the main international agreement on air pollution. The LRTAP Convention has succeeded in attaining significant reductions of acidification, lead pollution, and POPs.
Although the geographic scope of the LRTAP regime is limited to 51 countries from the Northern Hemisphere, it remains the most significant transnational legal instrument dealing with the transboundary air pollution. I conclude that apart from their direct impacts, CLRTAP Convention have already influenced the global awareness and discussions regarding the transboundary air pollution.
THIRTHEENTH. The Agreement on Transboundary Haze Pollution signed by ASEAN members in 2002 is another example of the existing treaty law with regionally limited coverage. The soft language, a noncompliance mechanism, and the late participation on the part of Indonesia as a major source of haze pollution, were all factors that weakened this Agreement’s effectiveness.
FOURTHEENTH. Similarly, other instruments such as the Canada-US Agreement or directives under United European Air Policy Framework had positive impacts, but they are only regional accords with limited coverage. Moreover, other multilateral agreements pertaining to air pollution include the Minamata Convention on Mercury and the Stockholm Convention on Persistent Organic Pollutants, both of which focus on a specific type of pollutant, and do not have the required integrated and inclusive approach.
FIFTEENTH. Regarding atmospheric degradation and climate change, the UNFCCC framework and the latest achievements in bringing all of the nations to the table for the Paris Agreement, proves a promising point for global progress. However, the soft nature of its obligations and the highly flexible nature of NDCs, the political rivalries and diplomatic tensions, and lack of standardization of measuring, tracking and monitoring leave a considerable doubt about its success in meeting the essential target of preventing the global atmospheric temperature from rising more than 2 degrees.
SIXTEENTH. The thesis also concludes that the atmospheric protection requires a unified body of law with a comprehensive manner which covers atmospheric pollution and atmospheric degradation together. Due to the very nature of the International Law, formation of such treaty law mechanism highly depends to the wills and ambitions of the States. In this regard, the social and legal activism play a considerable role in encouraging the political paces to achieve such a target. I conclude that the recognition of the concept of “common concern of humankind” could provide the necessary basis for formation and establishment of such treaties in the future.
SEVENTEENTH. By assessment of the jurisprudence of the ICJ and Article 42 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, the thesis concludes that the protection of the atmosphere against the significant transboundary air pollutions and global atmospheric degradation shall be considered as an erga omnes right and obligation. The recognition of the actio polularis doctrine could substantially improve access to justice and the litigation possibilities. This may serve as an important legal tool in providing a protection umbrella for the atmosphere.
EIGHTEENTH. The thesis founds the interrelationship between the law relating to the protection of the atmosphere and international human rights law. In this regard, the protection of the atmosphere as an instance of Environmental Law, is interconnected with some aspects of human rights including the right to life, the right to health, and the right to a satisfactory environment. I conclude that it is possible to find a link between atmospheric protection and human rights protective rules. While an explicit right to a healthy environment in general and a right to the atmosphere in particular is not recognized by human rights sources, international human rights remain a potential option in service of atmospheric protection. In this regard, any damage to the atmosphere could be considered a degradation affecting the international community as a whole.
NINETEENTH. From the overall study provided, it could be concluded that the international Jurisprudence had a decisive impact on clarification of this link. Judicial or quasi-judicial organs in several cases have tried to establish a logic link between human rights and atmospheric damages. At the same context, the content of right to the atmosphere should be clarified. The nature and justiciability of that right is still under debate. On one hand, the atmosphere is an issue related to certain categories of persons and on the other hand, right to the atmosphere is an inter-generational right. In this context, equal and reasonable use of the atmosphere should be guaranteed by taking into account the benefits of future generations. TWENTIETH. Apart from the substantive discussion on the atmospheric protection from the human rights point of view, the central problem is related to the application of a right to the atmosphere. In fact, weaknesses and gaps of international structure cannot be ignored, the outcome of international courts and tribunals are far from to be satisfying and many failures remain that must be corrected.
