From the Authority of Hard Law to the Impact of Flexible Methods
The article analyzes the methods used to protect common goods of mankind against the negative impact of human activities. In the early stages of international law, publicists deemed it to be an essential feature of their branch of law that ultimately enforcement can only be ensured by resort to reprisals or even war. No thoughts were devoted to the maintenance of the natural foundations of life on earth which seemed to exist in eternal harmony. The law of State responsibility emerged as a set of rules applicable mainly to bilateral disputes between States. Only in connection with the prevention of war did the international community realize in the course of the 20th century that collective mechanisms are needed to maintain peace and security among nations. It took a long time to understand that well-planned preventive action is also necessary to preserve the earth as a living space for human and all other forms of biological life. The International Law Commission (ILC) saw it as one of the main objects of its project on State responsibility for internationally wrongful acts to devise a mechanism suited to react to the massive pollution of the atmosphere and the seas. For many years its discussions centered on whether to provide individual States with a role of guardians of the common interest by granting to them the right to take countermeasures against wrong-doing States in such instances. The outcome of those endeavors was modest by granting every State a right of “invocation” vis-à-vis the alleged wrongdoer. But this result corresponds exactly to the model that has pragmatically evolved on the basis of multilateral treaties for the protection of the environment in the form of non-compliance procedures. Enforcement is not sought by punitive sanctions but instead by non-confrontational mechanisms where the aims are pursued through dialogue and persuasion. The Paris Agreement of 2015 on climate protection has also followed this route. Currently, it cannot be said with any degree of certainty whether the switch from sanction to dialogue will yield the results which are expected of it.