International Law and the Atmosphere

The Earth’s atmosphere is a dynamic, ever-changing system, and one that is now recognised as being vulnerable to a variety of human-induced harms.  Chief among these are ozone degradation and climate change, both of which threaten effects of a global scale from harms to the atmosphere itself.  Simultaneously, the atmosphere can be a vehicle for the transmission of harms of other kinds.  Chemical, radiological and biological agents released into the atmosphere accidentally or as waste products of industrial or other processes can be spread by wind and weather over vast distances, causing damage in territories far from their point of origin.  These factors (among others) mean that the urgency of regulating States’ use (and misuse) of the earth’s atmosphere is by now clear to all.  Nevertheless, regulating this unique and dynamic space poses a number of challenges to the international order as it has evolved.

International law has long grappled with the problems of common spaces and common resources.  Questions concerning rights of access to, exploitation of, and sustainability of the resources of the world’s shared spaces have long preoccupied law of the sea lawyers, and in the past decades the difficulties of regulating the global atmosphere have increasingly exercised international environmental lawyers.  To this shared space pertains perhaps international environmental law’s most successful regime (the Vienna Convention on Ozone and its Montreal Protocol), as well as what may be (at least to date) its least successful: the climate regime, comprising the United Nations Framework Convention on Climate Change, its Kyoto Protocol, and the Paris Agreement.

One of the major challenges affecting the success or failure of regimes dealing with common spaces is their difficult fit with traditional understandings of State sovereignty.  In stark contrast to the archetypical case of regulating matters wholly within the jurisdictions of States, the principle of sovereignty pulls in different directions in response to questions concerning the division of rights and obligations between States, at once affirming the rights of States to access the resources of the commons, the rights of States to the commons’ preservation, and the impossibility of any jurisdiction to regulate State’s use without their consent.  The overlapping sovereign/common spaces that comprise the atmosphere over the land surface of the earth, wherein the atmosphere at once pertains to the area of a State and is common to all, results in a highly complex regulatory landscape.

This research project seeks to understand the difficulties the atmosphere poses for the international legal system as it currently exists.  It does so both at the substantive level—the concepts, structures and rules involved, and their interactions—and at the level of implementation (how States and other international actors understand and treat the atmosphere in their international relations).  In so doing, it deals with three conceptual levels:  legal and political theory as it applies to the atmosphere, and the concepts which derive from these foundations; legal doctrine and the “law in force”; and legal practice and the practice of States.

The project has three primary sub-areas:

• The Atmosphere in Legal and Political Theory.  This sub-project examines the implication of theoretical accounts of law and its foundations for the regulation of the atmosphere, with a particular interest in the social contract tradition and “State of Nature” theories.  The purpose is to highlight the hidden assumptions and structures of thought that concepts drawn from theoretical accounts of law’s foundations carry with them—sometimes directly, more often by implication—and that are incorporated into the writings of international environmental lawyers, and into the practice of international environmental law, through their use.
• Strategic International Climate Change Litigation.  This sub-project examines the potential of international litigation (with a focus on the courts of general jurisdiction) as a tool to combat climate change and, through that example, other complex questions affecting matter of international public interest.  It seeks to identify the legal grounds and heads of claim, to sketch an argumentative strategy and, in so doing, to identify existing gaps and lacunae in practice and scholarship that would need to be further specified in order for strategic litigation to have a realistic prospect of success.  A funding application is currently being prepared in collaboration with Professor Gleider Hernández (KU Leuven) and Dr Nataša Nedeski (University of Amsterdam).
• International Climate Governance.  This sub-project examines the process of international treaty-making, in order to understand the interaction between different pressures on the final agreement.  This highly interdisciplinary project will bring together a coalition of international lawyers, political scientists and climate scientists who are seeking new means of achieving effective action on climate change through international law.  The project aims to produce a draft agreement on climate change together with a commentary detailing the scientific, political and legal case for an agreement of this type.  The project will also examine the process of treaty drafting in areas where different disciplines interact, and on the relationship between science, policy and law.  A funding application is currently being prepared in collaboration with Dr Lina Boljka (Colorado State University), Mr Benjamin Moss (Imperial College London), Ms Vanessa Burns (James Hutton Institute), and Ms Linnea Luuppala (University of Helsinki).