Self-reverence, self-knowledge, self-control,
These three alone lead life to sovereign power.
Yet not for power … but to live by law,
Acting the law we live by without fear;
And, because right is right, to follow right
Were wisdom in the scorn of consequence.
Alfred Tennyson, Oenone (1829) Footnote 1
Introduction
I will attempt today to present an account of international law and its possible future that revolves around three key values: responsibility, fraternity, and sustainability. These three are themes promoted by Charles Doherty Gonthier, visionary justice of the Supreme Court of Canada from 1989 to 2003, for whom this inaugural lecture is named. A product of Canada’s bilingual and bijuridical culture, Justice Gonthier’s jurisprudence and writings reflect an abiding interest in the idea of a community and law’s place in constituting and sustaining communities. Footnote 2 The values he espoused are as important in the international sphere as they are in the domestic.
This inaugural lecture comes at a time of challenge and confrontation for international law. Since the events of 11 September 2001, it has been the subject of sustained doctrinal attack, particularly from the US academy. Footnote 3 It has seen the invasion of Iraq, Footnote 4 the practice and even the apparent endorsement of torture, putatively under the colour of law, Footnote 5 the events in the Ukraine, Footnote 6 Syria, and Libya, as well as serial atrocities committed ostensibly in the name of religious belief. The aftermath of the Arab Spring has been almost uniformly disappointing. Footnote 7
But, despite such antagonistic, often parochial voices, international law endures. Notwithstanding the popular focus on singular, high-profile events, Footnote 8 international law works — and may be seen to work — on a daily basis in a multitude of different, often mundane ways. One may take solace in the words of Ian Brownlie, who said in 2003 that “[t]he system of international law will survive, as it has done before, both terrorism and breaches of international law by powerful states.... In the long run, it is the attitude of the actors to the rule of law, and not the rule as such, that is the threat.” Footnote 9
Responsibility and Participation
international law and the responsibility of states
I turn, first, to the theme of responsibility. International law, at its core, is a system designed to allow states to be held responsible for their actions. As a rules-based system, international law may be conceived of as a web of obligations that states owe to each other and to other actors. In this respect, the achievements of the latter part of the twentieth century are considerable: the creation of an enduring international organization of universal membership, the process of decolonization, the codification and progressive development of international law, especially through the work of the International Law Commission, the growth of international courts and tribunals and their increasing utilization, new fields and specializations, and the consolidation of old ones — human rights, state responsibility, the law of the sea, international iterations of environmental, trade, economic, and criminal law.
One example, which is appropriate given our present location, is the Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol). Footnote 10 Signed in 1987, the protocol was intended to provide a binding regime whereby the release of chlorofluorocarbons (CFC) in the Earth’s atmosphere could be drastically reduced so as to prevent and repair damage to the ozone layer. The protocol entered into force in 1989, and today — a quarter of a century and 197 states parties later — CFC emissions are less than a third of their previous historic high. Footnote 11
A sceptic might respond that coordinated action of this kind is easy to achieve where a vital common interest is at stake, transaction costs are not high, and there are no sectoral political advantages for particular states. So let us examine the much more difficult case of the use of force on an inter-state basis, as covered by Article 2(4) of the Charter of the United Nations. Footnote 12 Notwithstanding misadventures in the Middle East and Crimea, death through inter-state conflict (I make no comment as to intra-state conflict, in which the regulatory capacity of international law is limited Footnote 13 ) has been virtually eradicated in the past two decades, as the work of Stephen Pinker has demonstrated. Footnote 14 I do not mean to suggest that international law has single-handedly brought us to this point — a variety of historical, sociological, and economic factors have been involved — but it would appear equally insensitive to claim that international law has played no role at all.
the obligation to participate: states as subjects and law-makers
However, within the international system, states must shoulder a variety of responsibilities if international law is to work as intended. At its most basic level, this entails an obligation of observation, a notion inherent within the very concept of ‘law’ itself. But a further corollary is that of participation. States are more than merely subjects of international law; they are also law-makers — both particle and wave. Footnote 15 In Martti Koskenniemi’s words, the material of international law is affected by “a subtle process of learning and exchange,” in which states generally play a key role. Footnote 16 For an old example, look at the circumstances surrounding the recognition of the continental shelf following the Truman Declaration of 1945 Footnote 17 to realize how quickly such an exchange can coalesce into law, given the right conditions. Footnote 18 Such an exchange extends beyond the confines of state practice and includes within its ambit the engagement of a state, its institutions, and its citizens with the international arena. As Arnold McNair said in relation to British engagement with international law at the close of the Second World War:
No person can be a good citizen today if his civic interests are confined to his own parish or even to his own country. He must spare some part of his time to be a citizen of the world. Is it not also true that no … lawyer can afford to ignore the principles which govern the legal relations of States and determine their legal disputes? Footnote 19
Canada has historically demonstrated a firm commitment to this form of responsibility. The first prime minister, Sir John Macdonald, was one of the British representatives on the Joint High Commission that brokered the 1871 Treaty between Great Britain and the United States for the Amicable Settlement of All Causes of Difference between the Two Countries, Footnote 20 the agreement that formed the basis of the Alabama Claims, Footnote 21 the exemplar of inter-state arbitration. Footnote 22 In doing so, he campaigned successfully within the British delegation in relation to issues directly affecting Canada (principally, the US–Canada border and fisheries off Nova Scotia). Footnote 23 Justice Gonthier’s grandfather, Charles Joseph Doherty, Footnote 24 was a committed internationalist, acting as negotiator and signatory of the Treaty of Versailles, Footnote 25 representing Canada at the League of Nations during its 1920 and 1921 sessions and remaining an enthusiastic supporter of the Permanent Court of International Justice (PCIJ). The inaugural bench of the International Court of Justice (ICJ), its successor, included John Read, Footnote 26 formerly legal advisor to Canada’s Department of External Affairs. Three Canadians have served on the International Law Commission: Marcel Cadieux, J. Alan Beesley, and, presently serving, Donald McRae. Philippe Kirsch served as the first president of the International Criminal Court. Notwithstanding its observer status with respect to the European Convention on Human Rights, Footnote 27 another Canadian, Ronald St. John Macdonald, was a judge of the European Court of Human Rights for nearly two decades.
As a state, Canada has been elected as a non-permanent member of the UN Security Council on six occasions, most recently from 1999 to 2000. It has accepted the compulsory jurisdiction of the ICJ under Article 36(2) of the Statute of the International Court of Justice, Footnote 28 and appeared before the court in three contested proceedings, in two of which its jurisdictional objection was successful. Footnote 29 The court has had the benefit of its submissions in six advisory proceedings. Footnote 30 Canada has also appeared or intervened before other international adjudicatory organs — notably the World Trade Organization’s (WTO) Dispute Settlement Body, Footnote 31 investment arbitration tribunals, Footnote 32 and ad hoc inter-state arbitral bodies. Footnote 33 Canada has been successful in most of these cases, either outright or (in a few cases) by substantially reducing the incidence of liability. For example, in Chapter 11 arbitrations under the North American Free Trade Agreement (NAFTA), Footnote 34 Canada has been the subject of some eleven completed proceedings. Of these, it was victorious in five, Footnote 35 achieved consent awards in two others, Footnote 36 and settled two more. Footnote 37 It has so far been found liable in four, two of them technically incomplete because quantification is pending. In the first completed case, Pope & Talbot v Canada, Canada convinced the tribunal that its only breach arose from an administrative audit undertaken to verify the claimant’s quota, leading to the relatively insignificant award of US $461,566 in damages, plus just over US $120,000 in costs. Footnote 38 In the second completed case, SD Myers v Canada, Canada succeeded in limiting the award of damages to a little over US $6 million out of US $80 million claimed and limited costs to just over US $500,000 out of US $4 million claimed. Footnote 39 Currently, nine cases are pending before NAFTA tribunals, in two of which majority findings of liability have yet to be quantified. Footnote 40
Canada has been one of the most active litigants before the Dispute Settlement Body of the WTO. It has been a party in thirty-four cases as complainant, eighteen as respondent, and 103 as a third party. Footnote 41 Of those cases in which Canada has been directly involved as a party, its most frequent sparring partners have been the United States (fifteen cases as complainant, five as respondent) and the European Union (EU) (nine cases as complainant, six as respondent). Footnote 42 Although it is difficult to talk about WTO disputes in terms of raw wins or losses, it is worth mentioning in passing a few of the Canadian successes in this forum: Australia – Measures Affecting Importation of Salmon, Footnote 43 Brazil – Export Financing Programme for Aircraft, Footnote 44 and United States – Certain Country of Origin Labelling. Footnote 45 (Perhaps the less said about the long-running softwood lumber dispute, Footnote 46 perchance to be renewed, Footnote 47 the better).
Mention must also be made of the contribution to international law made by Canadian courts. Footnote 48 The International Law Reports contain some ninety reported decisions from Canada. Several have global significance: In re the Ownership and Jurisdiction Over Offshore Mineral Rights, Footnote 49 concerning jurisdiction over the territorial sea and continental shelf; Bouzari v Iran, Footnote 50 a decision concerning the interaction between peremptory norms and state immunity cited by the ICJ in its own ruling on the subject; Footnote 51 and, of course, Re Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada (Quebec Secession), Footnote 52 which remains the definitive enunciation on the principle of self-determination in international law and was relied upon extensively in submissions before the ICJ in the advisory opinion in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. Footnote 53
This brief outline demonstrates an abiding sense of responsibility towards, and participation in, international law. It is well that this is so, as international law will increasingly be required to mediate inter-state disputes in a world of increasing interdependency and scarcity of resources. With this in mind, I turn to my second theme, fraternity.
Fraternity with Special Reference to the Arctic
fraternity as a political and legal concept
As a word, “fraternity” may seem somewhat old-fashioned. For Samuel Johnson and his eighteenth-century contemporaries, the term referred to a “corporation” or “society,” Footnote 54 though the various elaborations or conjunctions of the word bore an unmistakable gender imbalance. Footnote 55 During the French Revolution, the term — fraternité — was deployed in the service of various causes, coming to reflect an ethical relationship rooted in solidarity or community. Footnote 56 On the one hand, it was an inclusive fraternity embodying the “emotionally empowering quality of moral obligation spontaneously assumed in relation to equals.” Footnote 57 On the other hand, it was an exclusive conceptualization under which the leaders of the revolution systematically ostracized the Girondins and other moderates, as encapsulated in Robespierre’s popular slogan “fraternité ou la mort.” Footnote 58
As a political concept, fraternity is tied up with questions of boundaries: at what point does the community in question become something else to which (or to whom) the benefits of fraternity do not extend? This point was recognized by Justice Gonthier, who saw fraternity as a neglected pillar of democracy that nonetheless informed a wide variety of legal doctrines through values such as empathy, commitment, fairness, and cooperation. Footnote 59 To the question of boundaries, Justice Gonthier replied that “[t]he answer … depends in no small part on the nature of the interest in question.” Footnote 60
These thoughts on fraternity within a national legal system can be transplanted to the international plane. A regional free trade agreement such as NAFTA sets out the limits of a particular community and the benefits and obligations of membership. One can even see, in the device of the most favoured nation clause, Footnote 61 a commitment by State A to State B that, irrespective of any other community that State A joins in the future, it will not be at the expense of relevant interests of State B. A community of a different sort can be seen in the field of international human rights — a group of states united in the hope that their citizens will be subject to certain minimum standards of protection. Footnote 62
fraternity and the arctic: a case study
A third species of fraternity in international law arises from a different source, namely those occasions in which states, by reason of geographic proximity and common challenges, agree to some level of coordination — notwithstanding the potential for competition. Let me take the Arctic as an example. The Arctic comprises those regions above a latitude of 66°33’45.7” north — known more conventionally as the Arctic Circle. Footnote 63 Eight states — Canada, Denmark (through Greenland Footnote 64 and the Faroes), Norway (through its northern coast, Svalbard, Footnote 65 and Jan Mayen), Russia, the United States, Iceland, Sweden, and Finland — control territory or have maritime claims within this area, though eventually their sovereignty gives way to the polar icecap and international waters — deemed to form part of the common heritage of mankind under the terms of the United Nations Convention on the Law of the Sea (UNCLOS). Footnote 66
Maritime Delimitation in the Arctic
The Arctic may not seem a likely candidate for the kind of fraternity just described. The announcement by the US Geological Survey in 2008 that the Arctic contained approximately 22 percent of the world’s undiscovered and technically recoverable fossil fuel resources sparked speculation of a new “scramble” or “gold rush” for the Arctic. Footnote 67 Detailed predictions of states attempting to “carve up” or “annex” the region, leading to an “armed brinkmanship” or “anarchy,” were made. Footnote 68 Certainly, a measure of sovereign braggadocio seemed to be in effect. In 2007, a Russian submersible planted a titanium flag under the polar icecap in support of Russia’s claim to the Lomonosov Ridge. Footnote 69 Disputes over the Beaufort Sea and Northwest Passage between the United States and Canada Footnote 70 led to US nuclear submarines entering Canada’s claimed maritime zone, implying that Canada does not maintain effective coastal sovereignty in those areas. Footnote 71 Hans Island, a rocky outcrop located between Canada’s Ellesmere Island and the northwest coast of Greenland has long been the subject of the “flag war” between Canada and Denmark, with Denmark planting its colours on the island six times between 1984 and 2004, only to have them removed by Canada. On at least one of these occasions, the flag was sent back to Copenhagen by registered mail, where it now apparently hangs in the office of the legal adviser to the Danish Foreign Ministry. Footnote 72
However, notwithstanding these external manifestations of nationalism, it is fair to say that the Arctic states prefer to settle disputes within the framework of international law and generally act in accordance with a certain esprit de fraternité. Unlike the Antarctic, Footnote 73 the Arctic states have consistently rejected the idea of a sui generis suite of agreements to govern the area. Footnote 74 The logic behind this is clear: multiple littoral states possess substantial territorial claims in the Arctic, the region is home to some four million people, and there is no land territory underlying the Arctic icecap that might plausibly be converted into a res communis space (beyond the existing res communis of the Arctic seabed). In 2008, the five Arctic coastal states — Canada, Denmark, Norway, Russia, and the United States — issued the Ilulissat Declaration, which identified the law of the sea as the dominant regime for the regulation of the Arctic and further noted that the relevant states “remain[ed] committed to this legal framework and to the orderly settlement of any overlapping claims” Footnote 75 — predicted “gold rush” notwithstanding. All of the Arctic states are members of UNCLOS, save the United States, which has signed, but not yet ratified, the treaty — even though ratification remains a priority of the White House Footnote 76 and the US judiciary considers a substantial portion of the convention to reflect customary international law. Footnote 77
A testament to the commitment of the Arctic states to the international rule of law can be seen in the fact that nearly all of their boundary disputes have been settled by agreement. Footnote 78 In 1973, Canada and Denmark delimited a 1,450 nautical mile boundary between Canada and Greenland. Footnote 79 In 1990, the United States and Soviet Union negotiated a 1,600 nautical mile boundary in the Behring Sea, Behring Strait, and Chukchi Sea — the so-called “Baker-Shevardnaze Line.” Footnote 80 In 2006, the 430 nautical mile boundary between Greenland and Svalbard was determined by an agreement between Denmark and Norway, Footnote 81 the boundary between Greenland and Jan Mayen having been determined by the ICJ in 1993. Footnote 82
Most significantly, in 2010, Norway and Russia concluded a treaty settling the question of sovereignty with respect to a 50,000 square nautical mile expanse of exclusive economic zone (EEZ) and continental shelf that constituted some 10 percent of the Barents Sea. Footnote 83 This treaty replaced the 1978 “Gray Zone” agreement between Norway and the Soviet Union that had enabled the provisional resolution of questions regarding the disputed area for over three decades. Footnote 84 After signing the Treaty between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (Barents Sea Treaty), the Russian and Norwegian foreign ministers penned a joint opinion editorial highlighting the achievements of the agreement and further stating that “the challenges in the Arctic should inspire momentum in international relations, based on co-operation rather than rivalry and confrontation.” In addition, the ministers expressed the view “that the Arctic can be used to demonstrate … how … peace and collective interests can be served through the implementation of the international rule of law.” Footnote 85
The Barents Sea Treaty is more than just a line in the sea — it is an instance of fraternity writ large. In the first place, the parties agree to “pursue close cooperation” in the sphere of fisheries and pledge to apply the precautionary approach Footnote 86 to the conservation, management, and exploitation of shared fish stocks. Footnote 87 In the second, any cross-boundary hydrocarbon deposits will be treated in accordance with Annex II of the treaty, Footnote 88 which provides a comprehensive regime for the negotiation of a unitization agreement between the parties, backed by binding arbitration or the determination of an independent expert. The preamble to the agreement makes express mention of UNCLOS, Footnote 89 highlighting the importance of this treaty as a comprehensive legal framework underpinning the Arctic — a point stressed by the parties at the signing ceremony. Footnote 90 Following the conclusion of these agreements, there remains only one significant Arctic maritime dispute: Footnote 91 the Canada–US boundary in the Beaufort Sea. The Barents Sea Treaty could provide a template for a settlement.
The Role of the Commission on the Limits of the Continental Shelf
Notwithstanding the series of delimitations just described, the maximum maritime entitlement available to a state via unilateral action is as set out in Articles 57 and 76 of UNCLOS: an EEZ and continental shelf of 200 nautical miles, as measured from the relevant coastal baselines. The continental shelf has never been fixed at 200 nautical miles, but it represents a natural prolongation of the coastal state’s land territory: a physical or geomorphological feature that possesses legal significance. Footnote 92 As a consequence, Article 76, paragraph 1 of UNCLOS enables a state, based on considerations of natural prolongation, to lay claim to the so-called “outer” continental shelf beyond the 200 nautical mile mark and sets out in paragraphs 4–6 a series of technical rules for the determination of that entitlement, which may not in any event exceed 350 nautical miles from the shore.
When a state wishes to claim an entitlement to a continental shelf beyond 200 nautical miles, it must submit the technical data underpinning its claim to the Commission on the Limits of the Continental Shelf, a standing body created under UNCLOS Annex II to review coastal state delineations. Footnote 93 On receipt of a state’s technical data, the commission makes recommendations concerning the outer limit of that state’s continental shelf — the limits established by the state on the basis of these recommendations are final, binding, and opposable to third parties. The commission is made up of twenty-one members who are experts in geography, geophysics, and hydrology. Although elected by the states parties to UNCLOS, the commission’s members serve in an individual and non-representative capacity. Accordingly, the commission is a rare example of an independent scientific or technical body serving in an international legal and political environment. Footnote 94
Of the five Arctic coastal states, Russia, Denmark, and Norway have made submissions to the commission. Canada, while it has made a submission to the commission regarding the Atlantic Ocean, has not yet detailed its claims in the Arctic — though it has indicated to the commission that such a submission will be forthcoming. Footnote 95 As it is not a party to UNCLOS, the United States is precluded from making a submission to the commission, Footnote 96 but it has been gathering data on the Alaskan continental shelf in anticipation of ratification. Its surveys in the Beaufort Sea have been conducted jointly with Canada, their overlapping claims in the region notwithstanding. Footnote 97 Such episodes provide context for events such as the aforementioned dropping of a Russian flag under the polar icecap in 2007, which drew unfavourable comparisons from some quarters to the tropes of fifteenth-century European exploration. Footnote 98 The gesture occurred in the context of Arktika 2007, a Russian expedition to collect further data in support of its submission to the commission. As such, it was a sideshow to a wider process conducted in accordance with international law Footnote 99 — diplomatically unhelpful, perhaps, but legally defensible.
The Arctic Council
Outside the context of territorial claims, the Arctic Council is another example of international fraternity. It was formed pursuant to the 1996 Declaration on the Establishment of the Arctic Council (Ottawa Declaration): Footnote 100 its procedural rules, terms of reference, and mandate were approved in 1998. Footnote 101 The council emerged from an earlier initiative, the Arctic Environmental Protection Strategy. Footnote 102 As its name suggests, the strategy was principally concerned with the Arctic environment and, to this end, established four working groups focusing on the monitoring and assessment of pollution, the conservation of Arctic flora and fauna, emergency prevention, preparedness, and response, and the protection of the Arctic marine environment. All of these were inherited by the council, which added a number of other areas to its mandate, particularly with respect to sustainable development. Footnote 103
Another innovation was that of indigenous participation: Footnote 104 the Ottawa Declaration recognized three indigenous groups as permanent participants in the Arctic Council’s work: the Inuit Circumpolar Conference, the Saami Council, and the Association of the Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation. In 1998, a further group was added: the Aleut International Association. Footnote 105 Since then, the Arctic Athabaskan Council and the Gwich’in Council International have joined. As permanent participants, these groups are more than observers (though observers are themselves permitted) — they have the right to participate in all council meetings and other activities, their representatives sit alongside those of the Arctic states, and they have the capacity to submit proposals for cooperative action.
The Arctic Council is, by design, not an international organization possessing separate legal personality. Its decisions do not bind its members. Its mandate, moreover, is limited to the issues just adumbrated — it does not have the capacity, for example, to discuss matters pertaining to security. Its status as a high-level forum does not preclude a meaningful output, although its record to date is somewhat mixed. Footnote 106 It provides a forum for the coordinated collection of scientific data pertaining to the region, and its Arctic Marine Strategic Plan has led to promising developments in areas such as safety of navigation, application and implementation of an ecosystem approach, and the development of regional guidelines in a variety of environmentally sensitive areas. The council has sponsored the creation of a University of the Arctic, Footnote 107 and it has taken steps to help preserve and develop indigenous ways of life and cultural knowledge. Footnote 108
Where the Arctic Council has been less successful is in the production of agreements and standards. In the nineteen years since its inception, it has produced one treaty, the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, Footnote 109 itself largely based on the 1944 Convention on International Civil Aviation Footnote 110 and the 1979 International Convention on Maritime Search and Rescue. Footnote 111 Furthermore, although all eight Arctic states have ratified the 1990 Convention on Oil Pollution Preparedness, Response and Cooperation, Footnote 112 attempts to develop dedicated Arctic offshore oil and gas guidelines — in 1997, 2002, and 2009 — have largely avoided the difficult issues, such as whether oil companies active in Arctic waters should be required to maintain a same-season relief well capability. Footnote 113 Most recently, it has been suggested that as climate change causes the Arctic to become increasingly available for shipping and resource exploitation, inter-state competition will diminish the council to the point of irrelevance. Footnote 114
In summary, the Arctic provides a vivid and evolving example of cooperation under international law. Dark prognostications of inter-state rivalry and conflict have not come to pass. As Michael Byers has said, ‘In short, there is no state-to-state competition for territory or resources in the Arctic, and no prospect of conflict either. Instead, the Arctic is becoming a region marked by cooperation and international law-making, during a period of significant geopolitical, environmental and economic change.’ Footnote 115
Sustainability and the Limits of International Law
I turn now to my third and final theme: sustainability. The term sustainability has multiple meanings, two of which are relevant here. In the first place, I refer to the sustainability of international law itself as a system of rules that are observed across time. In the second, I refer to sustainability as an outcome in its own right, towards which states may be guided by international law — and, more particularly, by international environmental law.
pragmatism and the evolution of international environmental law
In 1937, Hersch Lauterpacht admitted that “international law is a weak system of law, but nothing but good can come from such an admission so long as it is not maintained that the shortcomings of international law are permanent and inherent in its very nature.” Footnote 116 Notably, Lauterpacht’s legal method was that of “progressive interpretation,” Footnote 117 and his academic work very much consisted of attempting to subject international political processes to the rule of law, not always successfully. Footnote 118
However, even Lauterpacht acknowledged the limits of a “progressive approach,” admittedly at a very low point of time for international law and relations. In terms of ultimate political decision making, international law usually has a secondary, adjectival role, even as it constrains. When I was counsel, I would occasionally be amused when a minister of foreign affairs attempted to do my job for me — but the minister would rarely be amused if I tried to do hers. I could advise on what outcome would be best, all things considered — but it was not my job to decide the preferences or policies of the state. This rather reflects the bargain struck between international law and its subjects; in a very real sense, it remains the case that the common consent of states is the basis of international law. Footnote 119 If international law is to be perceived as sustainable — in that its system of rules are observed and perpetuated — it cannot ignore the constraints of consent and acceptability.
That being said, we are not (yet) at the depths of 1937: we have come a long way from the “crude atomism” Footnote 120 of SS Lotus (Turkey v France), and the PCIJ’s dictum that “rules of law binding upon States emanate from their own free will” such that “[r]estrictions upon the independence of States cannot therefore be presumed.” Footnote 121 Nowhere is this more apparent than in the field of international environmental law. Footnote 122 The course of international environmental law from the late nineteenth to early twentieth century is one of novel approaches to state responsibility for environmental harm. In the Behring Sea Fur Seal arbitration of 1893, Footnote 123 the United Kingdom and United States agreed to arbitrate questions surrounding the taking of seals by Canadian fishermen on the high seas. This practice had greatly depleted the seal herds congregating annually in Alaska and diminished the value of the monopoly granted to the Alaska Commercial Company. The tribunal concluded that the United States did not have property in the seals and, accordingly, had no right unilaterally to regulate the sustainable management of stocks beyond its territorial waters. However, the parties also gave the tribunal the capacity to draft the necessary regulations to permit such management. This the tribunal did, creating a sixty-mile exclusion zone around the Pribilov Islands within which sealing was banned as well as a larger zone entailing a seasonal ban. Footnote 124 Following further negotiation, these regulations formed the basis of an effective treaty that survived, in one form or another, from 1911 to 1984. Footnote 125
In Trail Smelter (US v Canada), Canada was held liable for transboundary harm caused to the United States via the operation of an industrial plant in British Columbia, resulting in the imposition of a detailed system of technical standards. Footnote 126 There is some similarity between the harm identified in both cases: in Behring Sea Fur Seals, activity on the high seas resulted in harm in Alaska; in Trail Smelter, the activity emanated from British Columbia, resulting in harm in Washington. In the latter case, however, the tribunal decoupled its reasoning from considerations of right, duty, or property and, for the first time, admitted environmental principles into international law on their own terms. It said:
[U]nder the principles of international law … no state has a right to use or permit the use of its territory in such a manner as to cause injury by fumes 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. Footnote 127
This species of no-fault liability for environmental damage is now part of the international law of transboundary harm. Footnote 128
A further step is the move towards trusteeship of resources. Footnote 129 Article 117 of UNCLOS provides, with respect to high seas fisheries, that parties “take, or cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.” Article 118 of the same provides that states must cooperate for the purpose of conserving or managing living resources on the high seas. Footnote 130 Similar obligations exist in relation to fisheries located within the EEZ, with respect to which a coastal state possesses sovereign rights. Under Article 61, paragraph 1, of UNCLOS, a state must, “taking into account the best scientific evidence available to it[,] … ensure through proper conservation and management measures that the maintenance of living resources in [the EEZ] is not endangered by over-exploitation.” Arguably, this is a provision of customary international law, and, as such, would apply even to states not party to the convention. Footnote 131
sustainable development
Thus, questions of environmental protection in international law can be approached from a variety of different angles: concepts of property, of no-fault liability, and of trusteeship may be implicated. States have realized that while agreements on specific topics and regions are important for the preservation of the environment, environmental issues arise as part of an interconnected web of issues. Footnote 132 This realization led, inter alia, to the 1992 UN Conference on Environment and Development, known also as the Rio Conference. The Rio Declaration on Environment and Development (Rio Declaration)133 set out a series of principles designed to reconcile the needs of the environment, on the one hand, and development, on the other. Footnote 134
Running through the Rio Declaration is the concept of sustainable development. The concept is stated most directly in Principle 4, Footnote 135 which provides: ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.’ Justice Gonthier himself gave sustained attention to the concept of sustainable development. In the first issue of the McGill International Journal of Sustainable Development Law and Policy, he wrote that:
[h]uman activity in a society is determined and framed by its governance. Law is the ordering of and an instrument of governance. Sustainable development law seeks to bring together, rationalize, reconcile and harmonize the various strands of the law; of legal rules needed to govern the environment and human activity, economic and social … Its special concern is with “cross-cutting” issues. It is thus concerned with the proper role of law in governance as distinguished from, though in complement with, ethics: the law is the guardian of liberty, and ethics its inspiration — for liberty calls for responsibly. Footnote 136
This quotation accurately describes the place of sustainable development in international law, at least as presently conceived. The principle was acknowledged in 1997 by the ICJ in Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Footnote 137 but, as Vaughan Lowe points out, the court stopped short of stating that sustainable development constitutes a binding norm of international law. Footnote 138 As a concept, sustainable development incorporates a further series of subtle ideas that can be difficult to apply, including inter-generational equity, sustainable use, and integration of environmental protection and development. Footnote 139 Thus, sustainable development is not law per se but, rather, a way of thinking about law and its relationship to policy. One may conceive of this, as Justice Gonthier did, in terms of structures of governance.
Another function of the rule is as a mode of structuring legal argument. It is necessary and proper for a court or tribunal to seek to limit the issues in dispute between the parties, to extract the “signal” from the “noise.” Footnote 140 When sustainable development is involved, however, it may be that the principle operates to widen the issues in dispute, such that a question concerning a state’s right to develop — as contemplated in Pulp Mills on the River Uruguay (Argentina v Uruguay) Footnote 141 — cannot be discussed independently of environmental concerns. Footnote 142 A further function is that of treaty interpretation. For example, in the final text of the Canada–EU Comprehensive Economic and Trade Agreement, Footnote 143 sustainable development has its own chapter, Footnote 144 and it is also referred to extensively in the preamble. Footnote 145 Under Article 31, paragraph 2, of the Vienna Convention on the Law of Treaties, Footnote 146 preambular references form part of the context of a treaty and thus have a bearing on the interpretation of substantive provisions — even where sustainable development is not specifically referred to. Footnote 147
climate change litigation on the international plane
In light of these factors, international environmental law provides a potentially useful suite of norms and processes for confronting current challenges. This includes what many consider to be the most pressing environmental challenge since the Montreal Protocol, anthropogenic climate change. The retreating ozone layer was addressed through concerted common action, backed by treaty. However, climate change, for a variety of reasons, has not been susceptible to similar action. Footnote 148 Despite purporting to provide a comprehensive plan for the reduction of carbon emissions, the 1992 United Nations Framework Convention on Climate Change (UNFCCC) Footnote 149 and its 1997 Kyoto Protocol Footnote 150 have plainly not had the desired effect. Subsequent rounds of negotiation in Copenhagen, Cancun, Durban, and Doha have not resulted in meaningful progress, Footnote 151 although there are some glimmers of hope. Footnote 152 Another approach is perhaps required.
Over the past ten years, a number of studies have highlighted the regulatory effects of litigation on climate change. Footnote 153 Of course, litigation may impact in a variety of ways. Footnote 154 In terms of direct effects, litigation may affect legal rules — issues of constitutional or statutory interpretation or the development of new common law or equitable principles. In terms of indirect effects, litigation may be emblematic, whatever its immediate effects on individuals. Think of Somerset v Stewart, Footnote 155 where Lord Mansfield found that slavery was unsupported by the common law of England. Think of Brown v Board of Education, Footnote 156 in which the US Supreme Court overturned its 1896 decision in Plessy v Ferguson and the perverse doctrine of “separate but equal.” Footnote 157 Think, more recently, of the Supreme Court of Canada’s Quebec Secession opinion, with its emphasis on a clear answer to a clear question Footnote 158 — a dictum that played a beneficial role in the 2014 Scotland independence referendum. Footnote 159
Climate change litigation has yet to have its watershed moment, though there have been encouraging developments in some jurisdictions. One may point, for example, to the decision of the US Supreme Court in Massachusetts v Environmental Protection Agency, Footnote 160 which established a basis for federal regulation by the Environmental Protection Agency of motor vehicle and power plant emissions. At the same time, however, there is the risk of anti-regulatory litigation — a sort of global warming Dred Scott v Sandford. Footnote 161
Despite repeated rounds of treaty negotiations, there has not been much in the way of climate change litigation on the international plane. One may point to a few isolated instances and fewer substantive outcomes: the Inuit petition (ultimately rejected) to the Inter-American Commission on Human Rights, for example. Footnote 162 However, other options may also be open — though of course I make no comment as to their prospects of success. In the first place, one may point to the ICJ itself, Footnote 163 which has jurisdiction over any question duly referred to it in accordance with its statute. Footnote 164 Contested proceedings could include actions under treaties, such as the UNFCCC or principles of customary international law, such as that established in a bilateral context in the Trail Smelter arbitration. An alternative is the possibility of an advisory opinion. Under Article 64 of the ICJ’s statute, it may give an opinion “on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” Footnote 165 Such an opinion is not binding on individual states but provides a valuable means for the court to set out the applicable principles of international law in an authoritative way.
Another option arises under Part XV of UNCLOS. Unlike other international dispute settlement mechanisms, the system set out under Part XV is specifically designed to be compulsory — part of the overall “package deal” for the law of the sea that UNCLOS was intended to represent. Footnote 166 Under Article 192 of the UNCLOS, states are under a general obligation to preserve and protect the marine environment. Under Article 193, states also have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment — an expression of sustainable development. Under Article 197, states are also required to cooperate on a global and regional level in order to formulate international rules, standards, and practices. Footnote 167 All could form a basis for further litigation, Footnote 168 possibly based on the damage to the marine environment caused by rising sea temperatures.
The WTO’s Dispute Settlement Body may provide a further forum for litigating climate change. Footnote 169 For example, the Appellate Body in Canada – Certain Measures Affecting the Renewable Energy General Sector explored the relationship between subsidies and the green economy. Footnote 170 More general questions could yet arise. Article XX, paragraph b, of the General Agreement on Tariffs and Trade (GATT 1947) Footnote 171 provides that nothing in that agreement precludes the adoption or enforcement by a contracting party of measures “necessary to protect human, animal or plant life or health.” Paragraph g similarly permits the adoption of measures “relating to the conservation of exhaustible natural resources.” The Appellate Body has indicated that, provided that the terms of the chapeau of GATT Article XX are complied with, states may take action designed to protect air quality Footnote 172 and preserve endangered species. Footnote 173 The potential for states to raise tariffs or quantitative restrictions in response to carbon emissions has not yet been tested.
No doubt scenarios such as these are fraught with difficulty; there are no panaceas for the diffuse and pervasive issue of anthropogenic climate change and certainly no legal ones. In the long run, any sustainable solution to climate change can only be generated in the same way as the Montreal Protocol — through collective action in the common interest. Footnote 174 There is no room for merely unilateral action.
Conclusion
In this lecture, I have focused on Justice Gonthier’s three values of responsibility, fraternity, and sustainability and the meanings that might be given to each as they manifest themselves in international law. They are of symbolic, as well as practical, significance. Underpinning each of them is the idea that a state’s best interests may best be served through “self-knowledge, self-reverence and self-control” rather than through rampant self-interest.
The three values are moral as well as legal. There is, I believe, a moral responsibility to contribute to collective action in the common interest, an obligation from which states are not exempt. To be sustainable over time, the collegiality this requires (called fraternity by Charles Gonthier) requires international legal action, among other things. International law provides one of the few mechanisms we have for coordinating and sustaining collective action. At the same time, international law must be mindful of its own sustainability as a legal system dependent on the consent of states, while not under-estimating the extent to which states, in their enlightened self-interest, have permitted international law to develop in new and unpredicted ways. It has the capacity to generate a regulatory response from states in situations where politics has (as yet) failed to produce a sustainable outcome.
As a jurist, Justice Gonthier had a philosophical, as well as a practical, bent. He wrote: “[A]s a complement to [the] rule of law, there is a spirit of the law. The spirit of the law is not concerned so much with setting down rules. Rather, it reflects the values which a society draws upon in its development of legal rules.” Footnote 175 This is true for international law also. Responsibility, fraternity, and sustainability reflect useful values upon which international lawyers — as practitioners, on the bench, in international, governmental, and non-governmental organizations, and in foreign or justice ministries — can draw in considering the development of their field. Certainly, the modern practice of states — notably that of Canada — bears out their continued relevance.
