This chapter develops the argument that the international protection of pmdcc can be framed as a community interest and gives rise to an obligation erga omnes.792 Obligations erga omnes exist for a State towards the international community.793 Generally, this means that all other States are entitled to claim that the obligation should be complied with in any given circumstances.794 This concept did not spring into existence overnight, but has a long trajectory of development.795 Essentially, the theory of community interests provides for its legal rationale.796 Thus, the starting point for discussing the international protection of pmdcc as an obligation erga omnes is the examination of the theory of community interests in international law. After laying down the necessary theoretical foundations, this chapter applies them to demonstrate how the international protection of pmdcc as an obligation erga omnes can affect the modalities of enforcing international law. In particular, in order to enforce this obligation, it proposes pathways that make use of the existing procedural aspects of international law and the follow-up and review mechanisms of the Global Compact on Refugees and the Global Compact for Migration. The chapter concludes with a critical evaluation of this approach and whether it can succeed in filling the legal gap and address the institutional shortcomings in order to provide adequate international protection for pmdcc.
1
The notion of community interests does not have a settled or uniform definition in international law. Generally, it refers to instances in international law in which States transcend the reciprocal exchange of benefits and go beyond the delimitation of sovereign spheres of influence.797 Community interests can generally be attributed to multilateral rights and obligations, established and protected in the interest of ‘the international community as a whole’.798 Despite their elusive nature, community interests seem to be reflected in legal concepts, such as obligations erga omnes.799 This section begins by discussing the origins and content of the notion of community interests, before undertaking a closer examination of one of its legal effects, namely obligations erga omnes.
1.1 Revival and Content
From the very beginning of modern public law, the idea that the international legal order recognises a global society and nurtures community-wide obligations was discussed.800 Unfortunately, during the nineteenth century, this idea was overthrown by the Westphalian approach to international law, which conceived of it as essentially based on more or less specific inter-State consent.801 In 1945, the UN Charter laid the foundations for a paradigm shift by
Simma undertook one of the earliest systematic analyses of community interests in 1994.803 He examined the works of a range of scholars, judges and other actors, who ‘succeeded in building up a feeling of worldwide “togetherness” which cares little about legal niceties and the sovereignty-sensitivities of Governments’.804 His main assertion was that the traditional structures and processes of international law were based upon a ‘bilateralist grounding’, which had ‘legal and moral deficiencies’, and that the notion of community interests was being developed in order to ‘mature’ international law into ‘a much more socially conscious legal order’.805
[it] left it to Governments to will and act internationally in ways that they would be morally restrained from willing and acting internally,
murdering human beings in the million in war, tolerating oppression and starvation and disease and poverty, human cruelty and suffering, human misery and human indignity, of kinds, and on a scale, that they could not tolerate within their internal societies.809
The ‘antithesis’ of bilateralism was the ‘assertion of community interests in the development of international law in a different direction, as it were’.810 Simma provided a tentative definition of community interests, which ‘perceive[d] it as a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States or inter se but is recognised and sanctioned by international law as a matter of concern to all States’.811 He explained and exemplified this definition through a rigorous analysis of the posited legal norms (and, where applicable, judicial interpretations of such norms) about international peace and security, solidarity between developed and developing countries, the protection of the environment, the concept of the common heritage of humankind and the international concern with human rights.812 As these instances showed, the existence of community interests does not derive from scientific abstraction, but rather flows from the recognition of concrete problems.813
Simma approached the self-interests of States as something different from community interests.814 Although certain issues, such as the protection of the environment, might show an overlap, others were ‘far detached from individual State interests’, such as, in his opinion, the universal protection of human
Examining the relationship between State consent and community interests, he termed State discretion to participate in certain global challenges as a ‘recipe for global suicide’.817 This situation was exacerbated, in his opinion, by the possibility that, even if States decided to participate in multilateral treaties addressing global challenges, such treaties might incorporate withdrawal clauses.818 In this case, the treaty in question could be reminiscent of ‘a marriage contract with a protocol for divorce’.819
This discussion concerning the notion of community interests inspired the theory and practice of international law.820 In 1997, Weeramantry expressed the view – in his separate opinion to the Gabcikovo-Nagymaros decision – that ‘we have entered an era’ in which international law ‘subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare’.821
Attempting to identify such greater interests, Trindade proposed that a new jus gentium, i.e. an international law for humankind, was emerging.822 He argued that the ‘growing consciousness of the need to bear in mind common values in pursuance of common interests has brought about a fundamental change in the outlook of international law in the last decade’.823
Feichtner proposed a novel conceptualisation of community interests by drawing a distinction between the objectives of community interests, on the one hand, and community interest norms, on the other.824 According to her
Expounding on her categories, the examples she provided for common goods827 include world peace and security,828 the earth’s atmosphere829 and climate,830 and common markets created under regional trade agreements.831 Common values include special treaty regimes that aim to protect (e.g. refugees,832 human rights833 and biological diversity834) or to combat (e.g. desertification,835 disaster risk836 and the proliferation of nuclear weapons837) in relation to a matter of international concern. The internationalisation of common spaces generally refers to the extinguishing of all national claims and the establishment of a more universal regime of administration for spaces, such as outer space,838 the deep
With the aim of discussing the protection of general interests in the international community, Gaja examined several treaty regimes, as well as principles and rules of general international law.844 He concluded that there is ‘clearly scope for expanding the category of general interests that international law protects’.845 The major concern, however, is political in nature, according to Gaja.846 In practice, States and international organisations ‘do not act adequately’ for the purpose of protecting general interests in the international community, and thus, Gaja concluded that, ‘only the pressure of public opinion and of some non-governmental organisations may succeed in prompting certain States, even when no specific interest of their own is at stake, to respond to violations by other States of obligations towards the international community’.847
Benedek, de Feyter, Kettemann and Voigt investigated common interests in international law and discussed ‘how international law and human rights in particular, is progressively moving away from a system based on territorial sovereignty to a system based on shared responsibilities among States and other
Building on this literature, Benvenisti and Nolte proposed a conceptual framework for undertaking a legal enquiry framed in terms of the notion of community interests.854 According to them, this is an exercise exploring ‘the extent to which contemporary international law expects States, when forming and implementing their policies, negotiating agreements, and in general conducting their relations with other States, to take into account the interests of others, namely third States or their citizens’.855 This approach embraces all sources of international law, including treaties, customary international law, general principles of law and, additionally, soft law instruments, as indicators of such a duty to take into account.856
To conclude, the notion of community interests devotes attention to the general interests of humanity and planetary welfare, transcending the interests
1.2 Legal Effects: Obligations Erga Omnes as a Reflection of Community Interests
Two expectations flow from the identification of community interests.864 First, it would be expected that a community interest norm would be created, which posits a specific rule that protects and pursues the objectives of community interests.865 Second, it would be expected that an institutional structure providing for the promotion, as well as the protection, of this specific community interest norm would be established.866 However, in order to address situations of institutional shortcomings, general international law developed several concepts and mechanisms ‘as a sort of compensation’.867 The concept of obligations erga omnes is a widely acknowledged example, which has ‘raised high hopes’ in relation to the protection of fundamental interests shared by the ‘international community as a whole’.868 Simply put, the concept of erga omnes facilitates the integration of community interests into international
33. When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.
34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.874
Defining the ‘international community as a whole’ has proven to be problematic, not least because interpreting it as a collective entity, rather than individual States, would mean that the ‘party’ to which the obligation is owed lacks a capacity to act.877 The ilc’s approach to this conundrum was to address a variety of primary obligations, which ‘may be owed to another State, to several States, or to the international community as a whole’.878 However, the ilc deferred the debate about the identification of such primary obligations.879
The icj further explained that there is a ‘legal interest’ in the protection of the rights involved in obligations erga omnes. The designation of the interest as ‘legal’ may be interpreted as providing the ground to invoke the legal responsibility of a State for the breach of an obligation erga omnes.880 This was articulated by the ilc by drawing a distinction between an ‘injured State’ and ‘any State other than an injured State’, while permitting both categories to ‘protect the community or collective interest at stake’.881
The first problem with respect to the concept of erga omnes is that its different types of effects create confusion.891 In the Barcelona Traction case, the icj only dealt with one type of erga omnes effect: the right of standing to invoke obligations erga omnes.892 Previously, the concept erga omnes was used to refer to modifications of the scope (ratione personae) of a primary rule of international law, thereby broadening the circle of States bound by the rule.893 Shortly after its pronouncement in the Barcelona Traction case, the Court brought back this ‘traditional’ usage of the concept of erga omnes, thus acknowledging its effects beyond the secondary rules governing the invocation of responsibility.894
Another problem of the concept of erga omnes is with respect to its enforcement.897 Two main means of enforcing obligations erga omnes have received particular attention: international adjudication and countermeasures.898 There are serious limitations to the enforcement of obligations erga omnes through an international court or tribunal.899 For instance, obligations erga omnes do not affect procedural rules regarding jurisdiction.900 With respect to
Another important aspect to consider is the relationship between peremptory norms of general international law (jus cogens) and obligations erga omnes.902 Peremptory norms of international law give rise to obligations owed to the international community as a whole, and they are therefore accepted as obligations erga omnes.903 However, it is widely considered that not all obligations erga omnes arise from peremptory norms of general international law.904 This is particularly important in light of the legal effects of peremptory norms, which do not allow for any derogation.905 Thus, peremptory norms could be seen as non-derogable obligations erga omnes, which the ‘international community as a whole’ has a legal interest in protecting.906
Under Article 41 of arsiwa, serious breaches of peremptory norms have specific legal consequences.907 Although the icj has not explicitly made a
Regardless of the confusion surrounding the erga omnes concept, the icj affirmed the existence of obligations erga omnes both by reference to the object and purpose of multilateral treaties, as well as in customary international law.912 Commentators are proposing new candidates for obligations erga omnes, including in the fields of international human rights, international development and international environmental law.913 The obligation erga omnes to mitigate and manage climate change has also been proposed to argue that States should grant international protection to ‘forced climate migrants’.914
2 The Application of a Community Interest Approach: Towards an Obligation Erga Omnes to Protect Persons Mobile in the Context of Disasters and Climate Change
This section makes the argument that it is realistic, not optimistic, to identify the international protection of pmdcc as an obligation erga omnes, and to seek accountability. The starting point is the identification of the international protection of pmdcc as an obligation erga omnes. Noting that there is no conclusive test for identifying obligations erga omnes in general international law,915 the author argues as follows: if (i) the international protection of pmdcc derives from the principles and rules concerning the basic rights of the human person916 and if (ii) it is a community interest,917 it follows that (iii) the international protection of pmdcc is an obligation erga omnes and all States can be held to have a legal interest in its performance. This chapter then discusses the enforcement of the international protection of pmdcc as an obligation erga omnes. It attempts to shed light on two pathways:918 using the existing procedural aspects of international law and using the follow-up and review mechanisms of the Global Compact for Migration and the Global Compact on Refugees.
2.1
According to the udhr, ‘everyone is entitled to a social and international order in which rights and freedoms […] can be fully realized’.919 The kind of social and international order of which the framers of the udhr dreamt is being disrupted by the effects of disasters and climate change.920 The recognition of the international protection of pmdcc as an obligation erga omnes can contribute to preventing, minimising and addressing the impact of disasters and climate change on people’s well-being and living conditions. In order to facilitate the identification of this obligation, this section argues that the international protection of pmdcc derives from the principles and rules concerning the basic rights of the human person and that it is a community interest.921
By its very nature, the international protection of pmdcc concerns the effective enjoyment of a range of basic human rights.922 There is extensive evidence that disasters and climate change adversely affect a number of rights: the right to life; the right to freedom from cruel, inhuman or degrading treatment or punishment; the right to food; the right to water; and the right to a healthy environment.923 These basic rights are inextricably linked to the fulfilment of other rights, and refer to a body of internationally agreed norms that have raised basic needs (such as to food, shelter and water) to the level of entitlements for all.924
Climate change multiplies threats and has long-term adverse implications for human security, human health and sustainable development.925 Due
The international protection of pmdcc entails novel challenges too. As the implications of sea-level rise demonstrate, statehood and the right to self-determination are impacted by climate change and disasters.931 More than seventy States are or are likely to be directly affected by sea-level rise.932 In Paragraph 14 of the 2030 Agenda, the unga recognised that ‘the survival of many societies, and of the biological support system of the planet, is at risk’ and that sea level rise is ‘seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and small island developing States’.933 The UN Security Council has held open debates and Arria Formula meetings on the issue of climate change, international peace and
This leads to the question of how the international protection of pmdcc concerns the core human rights principles of equality and non-discrimination.938 As the ohchr observed, ‘by disproportionally affecting already marginalised groups, including children, older persons, persons with disabilities, women at risk, migrant workers, indigenous peoples, minorities and the poor, climate change threatens State commitments related to non-discrimination and equality’.939 On an international scale, climate justice frames the disproportionate impacts of climate change and disasters.940 Climate justice is based on the reality that those that have contributed the least to climate change suffer from it the most.941 Perhaps the greatest hurdle is ‘the failure to understand climate change as a phenomenon of historical and systemic inequality as well as a geopolitical one […]. Because of its causes and effects, and the deeply
Human mobility lies at the heart of this dialogue: if people are forced to move, then the protection needs of individuals will be increased.943 Thus, action must be taken to reduce the impacts of environmental changes on communities and persons, by way of, for instance, adopting rigorous climate change action and better preparing for disasters.944 By contrast, if migration with dignity is facilitated, through laws and policies on planned relocation and on the facilitation of the movement of persons, amongst other things, specific human rights protection needs can be addressed.945 The international protection of pmdcc therefore derives from the principles and rules concerning the basic rights of the human person.
It is increasingly urgent to address the international protection of pmdcc as a matter that concerns the international community as a whole. States have been deviating from a purely consent-based conception of the norms relating to hmdcc and conveying commitments towards the common protection of pmdcc.946 Most notably, under the Global Compact on Refugees and the Global Compact for Migration, States have made important commitments to mitigating the impact of disasters, climate change and environmental degradation on human movement, and specifically commitments to facilitate safe, orderly and regular migration.947 Countries have been implementing their
The claims that the international protection of pmdcc derives from the principles and rules concerning the basic rights of the human person and that there is an undeniable community interest in its protection provide the basis for its identification as an obligation erga omnes. Going beyond reciprocal relations among States based on consent, this recognition can ensure that international law continues to address the pressing concerns of the international community as a whole, both old and new.
2.2 Pathways to Using the Existing Procedural Aspects of International Law
Although the relationship between obligations erga omnes and treaty enforcement rights ‘depend[s] less on abstract principles than on a detailed examination of specific conflicts’, a few general observations can still be made.950 First, it is open to interpretation whether the breach of an obligation erga omnes as the result of the conclusion of a treaty may render that treaty void.951 Second, there is no clear incompatibility between international treaty law and multilateral treaties protecting community interests.952 In fact, treaty regimes aiming to protect a specific obligation erga omnes have come to be termed erga
Based on these general observations, this section proposes pathways to using the existing procedural aspects of international law to enforce the international protection of pmdcc as an obligation erga omnes.956 The pathways discussed here present an alternative both to bringing a claim before the icj and to countermeasures.957 Furthermore, they foresee that the construction and protection of rights erga omnes includes the participation of a variety of actors, including non-State actors.958 With this aim, four legal areas will be examined: the international human rights regime, the international climate change regime, the international labour regime and the international trade regime (with an emphasis on the wto).
Under international human rights law, the core UN human rights conventions provide for the establishment of independent bodies, known as committees, to monitor the implementation of the respective treaty by the State Parties.959 The terms of reference of the treaty bodies differ according to the convention, and hence the means at the disposal of the committees to monitor
As indicated by the Teitiota decision of the UNHRCom, along with the Sac
chi et al. decision of the UNCRCom, the treaty bodies are already receiving communications in relation to climate change from victims of alleged human rights violations.962 Amongst other things, this provides the opportunity to interpret the respective human rights treaties by taking into account ‘any relevant rules of international law applicable in the relations between the parties’.963 Also referred to as ‘systemic interpretation’, this method acts as a ‘master-key’ to enable us to take into account the international protection of pmdcc as an obligation erga omnes.964 Admittedly, ‘systematic interpretation cannot necessarily resolve conflicts with community interest norms or
Furthermore, another possible route for non-State actors to observe this obligation is by contributing to the upr process. The upr was established by the unga in 2006 to create a cooperative mechanism to assess the human rights performance of all UN Member States.967 It is ‘based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity building needs’.968 It aims to complement the work of other human rights monitoring mechanisms, mainly the treaty bodies and the special procedures.969 The upr is essentially a peer review in which the diplomatic delegates of UN Member States evaluate each other’s performance based on three background documents: the national report, the compilation of UN information and the summary of stakeholders’ information.970 The process has been hailed as success for voluntarily bringing all UN Member
Measures taken to observe the international protection of pmdcc as an obligation erga omnes can be included in the upr process, through the national reports, as well as the stakeholders’ information. This would not be a radical inclusion. States have already been reporting on the measures they have taken with respect to hmdcc. For instance, the national submissions of Vanuatu and Fiji to the upr mechanism included references to their planned relocation policies in the context of disasters and climate change.973 This can play a pivotal role in promoting and seeking to ensure full respect for the international protection of pmdcc.
It must also be restated that, in 2021, the unhrc recognised for the first time that having a clean, healthy and sustainable environment is a fundamental right and created a new Special Rapporteur on the Protection of Human Rights in the Context of Climate Change.974 This creates an opportunity for the further engagement and deliberation on the international protection of pmdcc as an obligation erga omnes.
Turning to international climate change law, the ndcs of countries submitted under the Paris Agreement may include measures to protect pmdcc at the international level, especially by preventing future ghg emissions.975 ndcs are determined ‘bottom-up’, meaning that their content will be based on domestic politics, which provides non-State actors with the opportunity
Turning to international labour law, it provides a sophisticated avenue to take into account the international protection of pmdcc thanks to the tripartite structure of the ilo, consisting of governments, workers’ organisations and employers’ organisations in its governing organs.983 Its conventions are
Finally, under wto gats Mode 4, Member States have made binding commitments to the movement of natural persons to supply services.987 Services mobility facilitates safe, orderly and regular migration, and it plays a critical role in promoting migration as an adaptation strategy to the impacts of disasters and climate change.988 One way of enforcing the international protection of pmdcc as an obligation erga omnes is by giving attention to the Trade Policy Review Mechanism (tprm).989 All wto Members are subject to review under the tprm with different review cycles.990 Reviews are conducted by the Trade
This would not be a radical inclusion. For instance, the relationship between the environment and trade has been increasingly studied.993 There has been a push towards a circular economy as a sustainability paradigm, which has raised questions about the role of the wto.994 One study demonstrates that governments have realised the need for national-level circular-economy policies, such as adopting re-use in order to reduce the over-reliance on other manufacturing countries for essential goods, the further development of bio-based material research to promote bio-economy and devising legal frameworks to promote green logistics and waste management to incentivise local production and manufacturing.995 States’ notifications to the wto reflect this realisation: as of 2018, 16% of all notifications to the wto contained an environment-related measure, compared with only 8% in 1997.996 More specifically, there were some 370 measures which referred to the activities related to the circular economy in wto notifications between 2009 and 2017.997 One commentator
This section has discussed four areas of international law and how their procedural aspects can be used to promote the international protection of pmdcc as an obligation erga omnes. It has shown that the procedural aspects of international human rights law, international climate change law, international labour law and wto law provide mechanisms for taking into account the international protection of pmdcc. These pathways entail the participation of State, as well as non-State actors, and might not always lead to the creation of binding obligations upon relevant State parties. Yet, recourse may be had to these pathways, in order to reinforce the view that international law can be understood as a values-based system, in which universal values and the rights of individual persons are protected.999
2.3 Pathways to Using the Follow-up and Review Mechanisms of the Global Compact for Migration and the Global Compact on Refugees
The golden threads of the Global Compact for Migration and the Global Compact on Refugees are the concrete frameworks for action to which States can be held to account, at least politically.1000 Since both compacts explicitly refer to the impact of climate change, natural disasters and environmental
The Global Compact for Migration has three important pillars for implementation: the UN Network on Migration, a capacity-building mechanism and the International Migration Review Forum.1002 These mechanisms can be perceived as creating a ‘partial or limited hybrid forum, in which experts and laypersons contribute to the debate’.1003 The UN Network on Migration aims to support the implementation, follow-up and review of the Global Compact for Migration.1004 The network is the successor to the Global Migration Group, which was established by the UN in 2006 as an inter-agency group bringing together fourteen UN agencies to address global migration.1005 The iom serves as the coordinator and secretariat of the network, which consists of the members of the UN system that wish to be a part of it and for whom migration is of relevance to their mandates.1006 As of December 2018, there are 38 UN entities in the UN Network on Migration.1007
The capacity-building mechanism aims to support the implementation efforts of Member States.1008 It consists of a connection hub, a start-up fund, and a global knowledge platform as an online open data source.1009 The start-up fund, called ‘The Migration Multi-Partner Trust Fund’, was launched in
The International Review Forum serves as the primary intergovernmental global platform for Member States to discuss and share progress on their implementation.1012 The forum is the successor to the High-Level Dialogue on International Migration and Development.1013 It is intended to take place every four years beginning in 2022.1014 Each forum will result in a Progress Declaration, which may be taken into consideration by the high-level political forum on sustainable development.1015 The modalities for the forum were agreed in 2019.1016 It shall be convened under the unga, chaired by the unga President, last for four days and take place during the first semester of 2022.1017 An informal interactive multi-stakeholder hearing prior to each forum will be organised and presided by the unga President.1018
These efforts are designed to be supported by regional and sub-regional dialogues, national action plans, as well as through the efforts of other stakeholders, such as migrants, the private sector, civil society, academia, local
The current multi-stakeholder architecture for discussing the implementation of the Global Compact for Migration provides several opportunities to explicitly mention and enforce the international protection of pmdcc.1021 The UN Network on Migration developed the guidance and the booklet, which provide further indications.1022 According to the booklet, environmental factors are incorporated into the implementation of three objectives of the compact: Objective 1 (collect and utilise accurate and disaggregated data as the basis for evidence-based policies), Objective 2 (minimise the adverse drivers and structural factors that compel people to leave their country of origin) and Objective 5 (enhance availability and flexibility of pathways for regular migration).1023 In addition, the implementation of Objective 16 (empower migrants
There are concrete examples of implementation by different stakeholders.1025 For instance, ios have been launching new initiatives, such as the International Data Alliance for Children on the Move, and the Migrant Union’s commissioned report on digitalisation and displacement.1026 National implementation examples demonstrate that human mobility has been integrated into national climate change and disaster policies.1027 In some cases, countries have chosen to adopt new measures.1028 For instance, the Intergovernmental
Turning to the Global Compact on Refugees, the arrangements for the follow-up and review of the Global Compact on Refugees are designed to be primarily conducted through the Global Refugee Forum, high-level officials’ meetings, and the annual reporting of the unhcr to the unga.1032 Furthermore, in order to support its implementation, an indicator framework was developed
The Global Refugee Forum is scheduled to take place every four years, bringing together States and non-State actors to share good practices and to galvanise pledges and contributions, which can take different forms, including financial, material and technical assistance, places of resettlement, and complementary pathways for admission to third countries.1035 The first Global Refugee Forum took place in December 2019 in Geneva and was dedicated to receiving formal pledges and contributions.1036 It generated some 1,400 pledges.1037 There were several commitments to support sustainable energy and environmental conservation.1038 For instance, the Clean Energy Challenge was launched to provide access to affordable, reliable, sustainable and modern energy to all refugee settlements and nearby host communities by 2030.1039 The challenge can be situated within the broader frame of addressing the accommodation and environmental impacts of large numbers of refugees, and facilitates access to appropriate accommodation for refugees and host communities.1040 Other
As with the Global Compact for Migration, there is a multi-stakeholder approach to the implementation of the Global Compact on Refugees.1042 For instance, States committed to the establishment of ‘a global academic network on refugee, other forced displacement, and statelessness issues’, which was launched in 2019.1043 The digital platform of the compact keeps count of pledges from multiple stakeholders, including the private sector, sports, faith-based and civil society organisations, as well as cities, municipalities and local authorities.1044 Currently, some of the 1600 pledges registered in the digital platform demonstrate concrete measures for addressing hmdcc.1045 Examples include: integrating suitable solutions for refugee responses into
The preparation of new pledges for the 2023 Global Refugee Forum present a great opportunity to stress that the international protection of pmdcc is an obligation erga omnes. The implementation mechanisms of the Global Compact on Refugees engender intense efforts to create a new collaborative framework for an inclusive dialogue among the most relevant stakeholders. Even though the content of the compact does not explicitly mention the international protection of pmdcc,1047 the references it contains to climate change, environmental degradation and natural disasters have opened up new horizons.1048 The current pledges show that there are commitments to integrate different fields of law and policy in order to address hmdcc. These mechanisms can be employed to influence the outcomes of the international refugee regime in favour of responding to the protection needs of pmdcc.
This section has examined the follow-up and review mechanisms of the Global Compact for Migration and the Global Compact on Refugees in order to identify pathways to enforce the international protection of pmdcc as an obligation erga omnes. Although still in their ‘embryo’ stages, the mechanisms established to implement the compacts affirm the engagement of State and non-State actors to address hmdcc.1049 However, the content of the relevant measures fall short of filling the protection needs of pmdcc and future involvement is needed to push for concerted efforts to prevent and address the adverse impact of disasters and climate change on people’s well-being and living conditions.
3
This chapter has discussed the international protection of pmdcc as a matter of community interest. The discussion about the revival, content and legal effects of community interests demonstrated that the notion of community interests is invoked to refer to a transition from a bilateralist grounding of international law, towards an international legal order which protects and promotes the interests of humankind. Although community interests are difficult to identify a priori, scholarly works have been contributing to the identification of the objectives of community interests (i.e. the protection and creation of common goods, the protection of common values, the internationalisation of common spaces and redistributive and intergenerational justice) and community interest norms (i.e. the specific sub-set of rules of international law that protect and pursue these objectives).1050 The recognition of rights and obligations erga omnes is one of the most significant achievements of the notion of community interests.1051 Obligations erga omnes create obligations towards all and modify the right of standing to invoke the responsibility of a State.1052 These norms of ‘heightened importance’ can be seen as an important ‘enforcement tool’, since all States have a legal interest in their protection.1053
By demonstrating that the international protection of pmdcc derives from the principles and rules concerning the basic rights of the human person, and that it is a community interest, this chapter has argued for a new right and obligation erga omnes. It has examined two pathways to enforcing this new obligation. First, it focused on the procedural aspects of four areas of international law, namely, international human rights law, international climate change law, international labour law and international trade law (with an emphasis on wto law). This analysis has shown that each field has ‘something to give’: from the upr to the tprm, there are opportunities to take into account the international protection of pmdcc by paying attention to the procedural aspects.1054 Second, the follow-up and review mechanisms established under the Global Compact for Migration and the Global Compact on Refugees were rigorously examined. It was shown that, although some of the concrete measures taken to implement the compacts address hmdcc, these measures do not adequately
‘Community interests’ and ‘common interests’ are used interchangeably throughout this book.
Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v France) [1970] icj, para 33 and 34.
Giorgio Gaja, The Protection of General Interests in the International Community (364 Recueil des cours de l’Académie de Droit International, Leiden:Nijhoff 2011) 97.
As Lord Devlin once said, ‘new categories in the law do not spring into existence overnight’. See Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, 525, per Lord Devlin.
Isabel Feichtner, ‘Community Interest’ (Max Planck Encyclopedia 2007) <
ibid.
James Crawford, Multilateral Rights and Obligations in International Law (319 Recueil des cours de l’Académie de Droit International, Leiden: Nijhoff 2006).
Others include obligations jus cogens. See Christian J. Tams and Alessandra Asteriti, ‘Erga Omnes, Jus Cogens and Their Impact on the Law of State Responsibility’ in Malcolm D. Evans and Panos Koutrakos (eds), The International Responsibility of the European Union (Cambridge University Press 2013).
For instance, Wolfrum observes that M. Tullius Cicero and Hugo Grotius qualified pirates as hostes gentium, which represents one of the earliest examples of a community interest. See Rüdiger Wolfrum, ‘Identifying Community Interests in International Law: Common Spaces and Beyond’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests across International Law (Oxford University Press 2018) 19.
It is important to note that there were international judges who put forward different views. For instance, Judge Jessup had stated that ‘[i]nternational law has long recognised that States may have legal interests in matters which do not affect their financial, economic, or other “material”, or, say, “physical” or “tangible” interests’. In specific situations ‘State [therefore have] a legal interest in the general observance of the rules of international law’. icj Reports 1962, 425. Mentioned in Christian Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2004) 51. Also see The SS ‘Wimbledon’, United Kingdom and ors v Germany, Judgment, (1923) pcij Series A no 1, icgj 235 (pcij 1923), 17th August 1923, League of Nations.
However, it must be noted that it is unclear whether the founders intended to profoundly change the parameters of traditional international law. See Karl Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’ [2000] Max Planck Yearbook of United Nations Law.
Bruno Simma dedicated his general course at The Hague Academy of International Law to the topic ‘From Bilateralism to Community Interests in International Law’. His scholarly work has been a source of inspiration. During his career, he served as an icj judge, as well as a member of the UN ilc and ecosoc. See Bruno Simma, From Bilateralism to Community Interest in International Law (250 Recueil des cours de l’Académie de Droit International, Leiden: Nijhoff 1994).
ibid para 6.
ibid.
Simma mentions Prosper Weil’s conception of relative normativity of international law, which provides an instance of every-man-for-himself doctrine. See Prosper Weil, ‘Towards Relative Normativity in International Law?’ [1983] American Journal of International Law 77.
Simma (n 803) para 2.
ibid.
ibid para 5.
ibid.
ibid para 6.
ibid.
ibid.
Although Besson supported the claim that States are not inherently self-interested, and observed that bilateral and multilateral treaties between States often protect community interests. According to her, a properly understood approach to State consent and sovereignty can actually contribute to the legitimate identification and protection of community interests, and effectively promote community interests domestically and abroad. She approached State consent as a democratic condition/exception to the legitimacy of international law, and reinforced a democratic institutional design that can translate domestic community interests to the global level. Similarly, State sovereignty reflects legitimate spheres of political self-determination about community interests, even more so when these States are democratic, according to Besson. See Samantha Besson, ‘Community Interests in International Law: Whose Interests Are They and How Should We Best Identify Them?’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests across International Law (Oxford University Press 2018) 47–49.
Simma (n 803) para 12.
ibid para 6.
ibid para 88.
ibid.
Simma quoted after A. Chayes, T. Ehrlich and A. F. Lowenfeld, International Legal Process. Materials for an Introductory Course (Boston, Little, Brown and Company, Vol. ii, 1969) 999.
For instance, see Ulrich Fastenrath and others, From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011).
Case Concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia) Judgment [1997] icj Rep. 7, Separate opinion of Vice-President Weeramantry.
His first book was based on the General Course on Public International Law which he delivered at the Hague Academy of International Law. He published the first version of his study of the corpus juris in 2005, which he revised in the new editions in 2010, 2013 and 2020. See Cançado Trindade (n 19).
ibid.
Feichtner (n 796).
ibid.
ibid. Also see Christian J Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath and others, From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 380; Besson (n 814).
For an interesting discussion on the origins and definition of common goods, see Joshua Paine, ‘International Adjudication as a Global Public Good?’ [2019] ejil.
Charter of the United Nations (adopted 24 October 1945) 1 unts xvi.
For instance, see Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 26 August 187, entered into force 26 August 1989).
unfccc (n 248).
Some examples include the European Union, the European Economic Area, the Caribbean Community, the African Union, and the South Common Market (mercosur). For an interesting discussion on why countries form regional trade agreements, see Teresa L. Cyrus, ‘Why Do Countries Form Regional Trade Agreements? A Discrete-Time Survival Analysis’ [2020] Open Economies Review.
Refugee Convention (n 70); Global Compact on Refugees (n 9).
For instance, udhr (n 397).
Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 unts 69 (cbd).
unccd (n 250).
Sendai Framework (n 496).
Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 729 unts 161; Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, entered into force 26 October 2020) 729 unts 168.
Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 unts 205.
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 396.
ibid.
The Antarctic Treaty ‘froze’ territorial claims in Antarctica, therefore some interpret the treaty as establishing a res communis omnium. See Wolfrum (n 800). For an interesting discussion on territorial claims in Antarctica and the drafting history of the Antarctic Treaty, see Shirley V. Scott, ‘Ingenious and innocuous? Article iv of the Antarctic Treaty as imperialism’ [2011] The Polar Journal.
See Nils Gilman, ‘The New International Economic Order: A Reintroduction’ [2015] 6 Humanity (Philadelphia, Pa.) 1.
Feichtner (n 796).
Gaja’s book was based on his general course lecture at The Hague Academy of International Law in 2011. See Gaja (n 794) 1.
ibid 182.
ibid.
ibid 182.
The authors used the phrase ‘common interests’, however, in this book, common interests and community interests are used interchangeably. Wolfgang Benedek and others (eds), The Common Interest in International Law (Intersentia 2014).
Wolfgang Benedek, Koen de Feyter, Matthias C. Kettemann and Christina Voigt, ‘The Common Interest in International Law – Perspectives for an Undervalued Concept’ in Wolfgang Benedek and others (eds), The Common Interest in International Law (Intersentia 2014).
ibid 219.
ibid.
ibid.
As an example, the authors comment that ‘although free migration can only be safeguarded through common action, it has not so far been recognised as a global common interest’. ibid 220.
Benvenisti and Nolte (n 20) 3.
ibid.
Rudiger Wolfrum, Solidarity and Community Interests: Driving Forces for the Interpretation and Development of International Law (General Course at the Hague Academy of International Law 2020).
An example of a charter-based body is the unhrc. These bodies derive their establishment from the provisions of the UN Charter. Treaty-based bodies, on the other hand, derive their existence from provisions contained in a specific legal instrument. For instance, the UNHRCom was established to monitor the implementation of the iccpr and its optional protocols. For more information, see UN, ‘UN Documentation: Human Rights’ official webpage (2020) <
Benvenisti and Nolte refer to the chapter written by Klabbers in his contribution to the edited volume. In his chapter, Klabbers argues that ios can promote, and even embody community interests, through at least three ways: merely by existing and serving as a platform for the formulation of that interest; developing ideas and consensus by way of adopting documents to maintain and enhance the community interest; and rarely, through the coercion of States. See Jan Klabbers, ‘What Role for International Organizations in the Promotion of Community Interests? Reflections on the Ideology of Functionalism’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests across International Law (Oxford University Press 2018) 86–92.
Besson (n 814).
Politics of the day have impacts on the work of dispute settlement bodies. A recent example is the ‘break down’ of the 25-year-old Appellate Body of the wto on 10 December 2019, when new members could not appointed and too few arbiters were left to rule. See wto, ‘Farewell speech of Appellate Body Member Peter van den Bossche’ (28 May 2019) <
Georg Nolte, ‘The International Law Commission and Community Interests’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests across International Law (Oxford University Press 2018) 117.
Besson (n 814).
It must be noted that the responsibility of ios have been codified by the UN ilc in its draft articles on the responsibility of international organisations (ario). According to Art 43 of ario, ios have standing to invoke obligations erga omnes. ilc, ‘Draft articles on the Responsibility of International Organisations’ (2011) (ario), art 43.
Simma (n 790) para 89.
ibid. Also see S Villalpado, ‘The Legal Dimension of the International Community: How Community Interests are Protected in International Law’ [2010] 21 ejil 2, 387–419.
Simma (n 790) para 89.
ibid para 45.
See Tams (n 801) preface xv.
Craig Eggett and Sarah Thin, ‘Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion) (21 May 2019, ejil:Talk!) <
Case Concerning the Barcelona Traction (n 793).
Tams (n 801) 101.
Case Concerning the Barcelona Traction (n 793).
James Crawford, ‘Foreword’ in Tams (n 801) xiii-xiv.
It should be noted that the authoritative language in the Barcelona Traction case is French.
See Rosalyn Higgins, ‘Aspects of the Case Concerning the Barcelona Traction, Light and Power Company, Ltd’. [1970] 11 Virginia Journal of International Law, 327–343.
Erika de Wet, ‘Invoking Obligations Erga Omnes in the Twenty-First Century: Progressive Developments Since Barcelone Traction’ [2013]37 sayil, 1–20.; Erika de Wet, ‘Jus Cogens and Obligations Erga Omnes’ in Dinah Shelton (ed), The Oxford Handbook on Human Rights (oup 2013).
James Crawford, Chance, Order, Change: The Course of International Law (2014) 365 Recueil des Cours de l’Académie de Droit International, 340; Weil (n 806) 432.
ilc codified and progressively developed the law on a State’s right to invoke the responsibility of a breaching State in arsiwa. See ilc, ‘Articles on the Responsibility of States’ (2001) UN Doc A/56/49(Vol.1)/Corr.4, art 33(1) (arsiwa).
Robert Rosenstock, ‘The ilc and State Responsibility Symposium: The ilc’s Responsibility Articles’ [2002] 96 ajil 4, 792; James Crawford, ‘The ilc’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ [2002] 96 ajil 4, 874–980.
Tams (n 801) 95.
Under Article 42 of the arsiwa, an ‘injured State’, either individually, or as a part of a group of States or the international community as a whole, is entitled to invoke the responsibility of the breaching State. Under Article 48 of the arsiwa, ‘any State other than an injured Stated’ is entitled to invoke the responsibility of a breaching State if, (i) the obligation beached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (ii) the obligation breached is owed to the international community as whole. See arsiwa (n 878) arts 42 and 48.
Stemming from this, Tanaka argues, for instance, that there is a two-tier test to the identification of obligations erga omnes: the non-reciprocal nature of the obligations, and the common interests of the international community as a whole. See Yoshumi Tanaka, ‘Legal Consequences of Obligations Erga Omnes in International Law’ [2021] Netherlands International Law Review.
Some commentators specify the ‘non-reciprocal’ or ‘non-bilateralisable’ character of obligations erga omnes, which, in the author’s view, is contrary to the jurisprudence that highlights the importance of safeguarding the essential values of the international community. See François Voeffray, L’actio popularis ou la défense collectif devant des juridictions internationals (Paris Presses Universitaires de France 2004) 243; Gaetano Arangio Ruiz, ‘Fourth Rerport on State Responsibility’, Yearbook of International Law Commission 1992 Vol ii, 34 para 92.
This can be contrasted with Okowa, who argues that the seriousness of breaches would be relevant, and Oellers-Frahm, who states that only gross violations on a widespread scale clearly qualify as erga omnes breaches. See Phoebe Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford University Press 2000) 215–216; Karin Oellers-Frahm, ‘Third States and Sanctions in Public International Law’ [1992] 30 Archiv des Völkerrechts 1, 35. Also see Tams (n 801) 137.
See, in general, Maurizio Ragazzi, Concept of International Obligations Erga Omnes (Oxford University Press 2000).
ibid.
Previously, it has been used as ‘rights erga omnes’ of peoples to self-determination in East Timor. The Chagos Advisory Opinion clarified the term as an ‘obligation erga omnes’. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (Advisory Opinion) [2019] icj 169; Besfort T Rrecaj, ‘Case Notes: Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965’ 35 Utrecht Journal of International and European Law 1, 50–55; Eggett and Thin (n 869).
For instance, Judge de Castro stated that the dictum in the Barcelona Traction should be taken ‘cum grano salis’. See Nuclear Tests, New Zealand v France [1974] icj Rep 457 (Judge de Castro, Dissenting Opinion). Also see Nuclear Tests, New Zealand v France [1974] icj Rep 457 (Judge Onyeama, Dissenting Opinion), (Judge Dillard, Dissenting Opinion), (Judge Jimenez de Arechaa, Dissenting Opinion).
Ragazzi, for instance, stated that: ‘[F]or a long time before the International Court’s dictum in the Barcelona Traction case, efforts had been made to regulate by treaty the common interests of States in such a way that rights and obligations might potentially be valid erga omnes, or at least for a wider circle of States than the parties to the treaty in question’. See Ragazzi (n 885).
Tams (n 801) 54.
ibid.
ibid.
The icj itself mentioned in its South West Africa judgment in 1966 that a court decision could bring about a ‘general judicial settlement’, with an ‘effect erga omnes’. See South West Africa, Ethiopia v South Africa [1961] icj Rep 319, [70]. Another example is Waldock’s proposal for the inclusion of the concept of ‘objective regimes’ in arsiwa, which would lead to obligations and rights valid erga omnes. See ilc, Yearbook 1966, Vol ii 231, para 4. For a discussion of the ilc members on this topic, see ilc Yearbook 1964, Vol. I., 83, paras 29–33. An earlier example is found in the Island of Palmas arbitration decision, in which Max Huber observed that the title to territory ‘is valid erga omnes’. Island of Palmas (or Miangas), United States v Netherlands (Award) [1928] ii riaa 829.
See The Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] icj; Nuclear Tests, New Zealand v France (n 888) (Judge Bedjaoui).
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) [1996] icj Rep 616.
Tams refers to this as modifying the ‘depth’ of the primary rule. See Tams (n 801) 111–112.
For instance, in the Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the icj stated that: ‘In such a convention the contracting States do not have an interest of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type, one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between the rights and duties’. This pronouncement has been found confusing, and it is generally interpreted to mean that individual contracting States have the right to request the fulfilment of the commitments of other contracting States. See Antoni Pigrau, ‘Reflections on the effectiveness of peremptory norms and erga omnesobligations before international tribunals, regarding the request for an advisory opinion from the International Court of Justice on the Chagos Islands’ [2018] qil Zoom-out 55, 131–146; Jan Wouters and Sten Verhoeven, ‘The Prohibition of Genocide as a Norm of Ius Cogens and Its Implications for the Enforcement of the Law of Genocide’ [2005] 5 International Criminal Law Review 3, 401–416.
Tams (n 801) 180; Alexander Stremitzer, ‘Erga Omnes Norms and the Enforcement of International Law’ [2009] 165 Journal of Institutional and Theoretical Economics 1, 29–34.
Tanaka (n 882).
The icj clearly pronounced in the East Timor case that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’ and denied jurisdiction on the ground that Indonesia was an ‘indispensable party’ to the proceedings but had not accepted its jurisdiction. Whether there is a shift from this approach is currently being discussed by analysing the icj’s decision on provisional measures in Gambia v Myanmar, according to which the Gambia had prima facie standing. Myanmar argued that it had made a reservation to exclude the application of the provision of the Genocide Convention which permitted the Court to render a decision. Thus, Myanmar argued, by conferring locus standi to The Gambia, the Court vitiated the requirement of Myanmar’s consent to jurisdiction. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Provisional Measures) [2020] icj (Separate Opinion of Vice-President Xue).
See Tanaka (n 882).
The UN ilc has been studying the peremptory norms of general international law (jus cogens) since 2015. The Special Rapporteur for the topic, Mr. Dire Tladi, has produced four reports. Draft conclusions were adopted by the Drafting Committee on first reading in 2019 and transmitted to Governments for comments and observations through the UN Secretary-General. Governments, international organisations and others have until 30 june 2021 to submit comments and observations about the draft conclusions. For draft conclusions, see ilc, ‘Peremptory norms of general international law (jus cogens) Text of the draft conclusions and draft annex provisionally adopted by the Drafting Committee on first reading’ (29 May 2019) UN Doc a/cn.4/l.936. Also see ilc, ‘First report on jus cogens by Dire Tladi, Special Rapporteur’ (8 March 2016) a/cn.4/693; ilc ‘Second report on jus cogens by Dire Tladi, Special Rapporteur’ (16 March 2017) UN Doc a/cn.4/706; ilc ‘Third report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc a/cn.4/714; ilc, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur’ (31 January 2019) UN Doc 1/cn.4/727.
ilc, ‘Peremptory norms of general international law (jus cogens) Text of the draft conclusions and draft annex provisionally adopted by the Drafting Committee on first reading’ (29 May 2019) UN Doc a/cn.4/l.936, Draft Conclusion 17.
ibid draft Conclusion 17 Commentary.
Ibid. Also see Christian Tomuschat, ‘Reconceptualising the debate on jus cogens and obligations erga omnes: concluding observations’ in Christian Tomuschat and Jean-Marc Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Brill 2006).
ilc, ‘Peremptory norms of general international law’ (n 903).
See arsiwa (n 878) art 41.
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (n 887) para 180; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2003] icj, para 159.
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (n 887) para 180. Also see Eggett and Thin (n 869).
arsiwa (n 878). Also see de Wet (n 876) 543.
Also see separate opinion of Judge Cançado Trindade, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (n 887), [169], [191] and [200].
For instance, the Genocide Convention expresses the prohibition of genocide, whereas the right to self-determination derives from customary international law. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (n 887).
For instance, see Nicholas A. Robinson, ‘Environmental Law: Is an Obligation Erga Omnes Emerging?’ (iucn 2018) <
Giovanni Sciaccaluga, International Law and the Protection of ‘Climate Refugees’ (Palgrave 2020).
See, in general, Tomuschat and Thouvenin (eds) (n 905).
The icj pronounced this view in the following decisions: Case Concerning the Barcelona Traction (n 793) para 34; Legal Consequences of the Construction of a Wall (n 908) para 155; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] icj <
For a discussion on the reference by the icj to community interests, see Benedek and others (eds) (n 849).
The two commonly discussed methods of enforcing obligations erga omnes are judicial enforcement (particularly by instituting icj proceedings) and taking countermeasures. The analyses undertaken in this book are without prejudice to these options.
udhr (n 397) preamble.
See International Bar Association, ‘Achieving Justice and Human Rights in an Era of Climate Disruption: Climate Change Justice and Human Rights Task Force Report’ (iba 2014).
As Tams notes, ‘Erga omnes outside jus cogens is likely to remain uncharted territory until States begin to invoke the concept more frequently in formalised proceedings’. See Tams (n 801) 157.
See Chapter 1.1.2 and Chapter 2.1.6 of this book for discussions on the relationship between hmdcc and international human rights.
See Note by Secretary-General, ‘Human Rights of Internally Displaced Persons’ (2020) UN Doc A/75/207; Report of the Special Rapporteur on the Impacts of Climate Change on the Right to Food (2019) UN Doc A/70/287; Report of the Special Rapporteur on the Right to Food in the Context of Natural Disasters (2018) UN Doc a/hrc/37/61.
Stephen Humphreys (ed), Human Rights and Climate Change (Cambridge University Press 2010) 9.
Here, human security can be understood very broadly ‘as a condition that exists when the vital core of human lives is protected, and when people have the freedom and capacity to live with dignity’. See Adger and others, ‘Human Security’ in ipcc, Climate Change 2014: Impacts, Adaptation and Vulnerability (Cambridge University Press 2014), 759. See also, Ferris and Weerasinghe (n 654). In its resolution 68/4 on the Declaration of the High-level Dialogue on International Migration and Development, the unga recognised that human mobility is a key factor for sustainable development. See unga Res 68/4 (2014) gaor 68th Session.
unicef, ‘The climate crisis is a child rights crisis’ (unicef, 6 December 2019) <
Note by the Secretary-General, ‘Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (2019) UN Doc A/74/161, para 43.
See Chapter 2 of this book for a detailed analysis of relevant international treaty regimes, and cooperative initiatives.
UN ceb, ‘United Nations System Strategic Approach on Climate Change Action’ <
unhrc (n 10).
Oral (n 523) 3.
ilc (n 168) 326. Also see ila (n 168).
2030 Sustainable Development Agenda (n 236) para 14.
For instance, see unsc UN Doc sc/900 (17 April 2007); unsc UN Doc sc/10332 (20 July 2011); unsc UN Doc sc/11991 (30 July 2015).
unsc, ‘Sea-level rise and implications for international peace and security – UN Security Council Arria-formula meeting’ (18 October 2021) <
Soons (n 534); Lean (n 534); Powers and Stucko (n 534).
Storlazzi and others (n 533); Bird and Prescott (n 533); Bowett (n 533).
ohchr, ‘ohchr’s Key Messages on Human Rights, Climate Change and Migration’ <
ibid.
Henry Shue, Climate Justice: Vulnerability and Protection (oup 2014); Stephen M. Gardiner, ‘Climate Justice’ in John S Dryzek, Richard B. Norgaard and David Schlosberg, The Oxford Handbook of Climate Change and Society (Oxford University Press 2011) 309–322.
David Schlosberg and Lisette B. Collins, ‘From Environmental to Climate Justice: Climate Change and the Discourse of Environmental Justice’ [2014] 5 wires Climate Change 3.
Maxine Burkett, ‘Justice and Climate Migration. The Importance of Nomenclature in the Discourse on Twenty-First-Century Mobility’ in Simon Berhman and Avidan Kent (eds), ‘Climate Refugees’ Beyond the Legal Impasse? (Routledge 2018) 84.
Fornalé (n 329).
For instance, a recent policy brief urged the Australian government to create more temporary and long-term visa opportunities to provide a ‘release valve’ for Pacific islanders at risk of displacement due to climate change and disasters. Jane McAdam and Jonathan Pryke, ‘Policy Brief 10 - Climate Change, Disasters and Mobility: A Roadmap for Australian Action | Kaldor Centre’ [2020] unsw Kaldor Centre for International Refugee Law.
Elisa Fornalé, Jeremie Guélat and Etienne Piguet, ‘Framing Labour Mobility Options in Small Island States Affected by Environmental Changes’ in Robert McLeman, Jeanette Schade, Thomas Faist (eds), Environmental Migration and Social Inequality (Springer 2015) 167–187.
Scott (n 14); Dina Ionesco, Daria Mokhnacheva, and François Gemenne, The Atlas of Environmental Migration (Routledge 2017); Susanna Schwan and Xiaohua Yu, ‘Social Protection as a Strategy to Adress Climate-induced Migration’ [2017] 10 International Journal of Climate Change Strategies and Management 1.
See Chapter 1.3 of this book.
unec, ‘Regional Review of the Global Compact for Safe, Orderly and Regular Migration’ (Summary Report, 12–13 November 2020) <
Report of the Secretary-General, ‘Global Compact for Safe, Orderly and Regular Migration’ (2020) gaor 75th Session UN Doc A/75/542; UK Government, ‘The Global Compact for Migration European Regional Review’ <
Tams (n 801) 255.
This can be compared with the conclusion of treaties conflicting with a peremptory norm, which becomes void and terminates. Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 unts 331 (vclt), arts 53. See also, ilc, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur’ (31 January 2019) UN Doc 1/cn.4/727.
See Besson (n 814) 58.
Pok Yin Stephenson Chow, ‘On Obligations Erga Omnes Partes’ [2020] 52 Georgetown Journal of International Law 2, 469–504.
Besson identifies three channels for the incorporation of community interests in treaty interpretation: first, systemic interpretation according to Art 31(3)(c) of the vclt, second, evolutive interpretation of a community interest norm according to Art 31(3)(b) of the vclt, and third, teleological interpretation according to Art 31(1) vclt. See Besson (n 814) 59–65.
Gaja (n 794); Simma (n 790).
These relevant treaty regimes have been discussed in Chapter 1 of this book.
They also present an alternative to acquiring an advisory opinion from the icj. See Harry Gould, The Legacy of Punishment in International Law (Palgrave Macmillan 2010) 65–79. Also see biicl, ‘Rising Sea Levels: A Matter for the icj?’ (Webinar, 11 March 2021) <
Klabbers, for instance, argues that ‘the notion of community interests do not exist in isolation from particular projects, it always and by definition assumes someone pouring meaning to it’. See Klabbers (n 858).
Human rights are also monitored at the universal level also through the mechanisms established by UN resolutions, such as the system of country or thematic special rapporteurs and the ohchr. See unga Res 48/141 (1994). See Cassese (n 22) 386–393.
These ‘treaty bodies’, as they are often called, are Committees composed of independent experts elected by States parties to the relevant treaty. For a full list, see ohchr, ‘Human Rights Treaty Bodies – Individual Communications’ <
A complaint under one of the eight treaties may be brought against a State that satisfies two conditions. First, it must be a party (through ratification or accession) to the treaty that provides for the rights which have allegedly been violated. Second, the State party must have recognized the competence of the committee monitoring that treaty to receive and consider complaints from individuals. Currently, only the complaint mechanism for the icmw has not yet entered into force. See ohchr, ‘Human Rights Treaty Bodies – Individual Communications’ <
The Teitiota decision is discussed in more detail in Chapter 2.2.1. of this book. For the Teitiota decision, see Ioane Teitiota (n 83). The Sacchi et al. decision is discussed in more detail in Chapter 2.1.6. of this book. For the Sacchi et al. decision, see CRCom (n 10).
This is by virtue of Article 31(3)(c) of the vclt. As a matter of treaty law, the vclt applies only to the States Parties to the relevant human rights convention and to the vclt. However, there is also agreement that most of the rules of the vclt are now part of customary international law. As Schlütter points out, the UN treaty bodies ‘generally’ follow the rules of interpretation articulated in the vclt. However, ‘treaty interpretation in general, and human rights interpretation in particular, is a complex matter, and any attempt to delineate the rules of interpretation as applied by the major UN human rights treaty bodies is almost impossible …’. Birgit Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Helen Keller and Geir Ulfstein, UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 273.
On systemic interpretation, see Study Group on the Fragmentation of International Law (n 166); Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ [2005] 54 iclq 279, 281.
See Besson (n 814) 60.
One of the grounds of admissibility is the exhaustion of domestic remedies. However, UN treaty bodies only require complainants to exhaust remedies that are ‘available and effective’. Relying on this, sixteen children filed a complaint to the UNCRCom without exhausting domestic remedies in 5 nations (Argentina, Brazil, France, Germany, and Turkey), as such action may have been ‘unreasonably prolonged or unlikely to bring effective relief’. See UNHRCom, Vicente et al. v. Colombia, Communication 612/1995, Views of 29 July 1997, UN Doc ccpr/c/60/D/612/1995, [5.2] <
unga Res ga Res 60/251 (2006) gaor 60th Session, Agenda Items 46 and 120.
ibid.
Treaty bodies are committees of independent experts that monitor the implementation of the core international human rights treaties. Special procedures, on the other hand, are individual independent human rights experts or groups of such experts that report on human rights issues. See ohchr, ‘Human rights treaty bodies’ <
unhrc, ‘Basic Facts about the upr’ (2019) <
Elvira Dominguez-Redondo, ‘The Universal Periodic Review – Is There Life Beyond Naming and Shaming in Human Rights Implementation?’ [2012] 4 New Zealand Law Review, 673–706.
unhrc Res 60/25 (2007) 50th Session, UN Doc a/hrc/res/5/1.
See Chapter 3.3 of this book for a discussion on the planned relocation policies of Fiji and Vanuatu. Also see unhrc, ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (2018) UN Doc a/hrc/wg.6/34/fji/1; unhrc, ‘Report of the Working Group on the Universal Periodic Review’ (2019) UN Doc a/hrc/43/8; unhrc, ‘National Report Submitted in Accordance with Paragraph5 of the Annex to Human Rights Council Resolution 16/21’ (2018) UN Doc a/hrc/wg.6/32/vut/1.
unhrc (n 10). Also see unhrc (n 80).
Currently, under the Paris Agreement and the ‘Paris Rulebook’, the content of the ndcs are subject to ‘weak accountability’. Other than the progression requirement, their content is decided bottom-up. See Christina Voigt and Gao Xiang, ‘Accountability in the Paris Agreement: The Interplay Between Transparency and Compliance’ [2020] 1 Nordic Environmental Law Journal, 31–57.
For instance, Torstad, Selen and Boyum argue that a country’s level of democracy and vulnerability to climate change have positive effects on ndc ambition, while coal rent and gdp have negative effects. See Vegard Torstad, Hakon Sele and Live Standal Boyum, ‘The Domestic Politics of International Climate Commitments: Which Factors Explain Cross-Country Variation in ndc ambition?’ [2020] 15 Environmental Research Letters 2. Swiss referendum 2021.
See Chapter 2.1.2 of this book for a discussion on tfd.
Conference of the Parties to the United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on its Twenty-First Session, 21st sess, (29 January 2016) UN Doc fccc/cp/2015/10/Add. 1 <
Task Force on Displacement (n 1); unfccc, ‘Task Force on Displacement – Membership’ <
unfccc (n 15).
unfccc, ‘Task Force on Displacement Plan of Action 2019–2021’ <
Especially through the unfccc ngo Constituency Group ‘Youth ngos’, and the Advisory Group on Climate Change and Human Mobility. See Harriet Thew, Lucie Middlemiss and Jouni Paavola, ‘Does youth participation increase the democratic legitimacy of unfccc-orchestrated global climate change governance?’ [2021] Environmental Politics.
The ilo itself is participating in international efforts on hmdcc. It is a member of the tfd, and contributes to pdd. Furthermore, it has signed an mou with unccd to combat desertification and migration related challenges. See ilo, ‘Climate change, displacement and labour migration’ <
See ilo Convention No 144 on Tripartite Consultation (1976).
unece’s Aarhus Convention recognises the importance of public participation in decision-making and access to justice in environmental matters. See Aarhus Convention (adopted 25 June 1998, entered into force 30 October 2001) 2161 unts 447.
Jean-Michel Servais, International Labour Law (Wolters Kluwer 2020) para 73–110.; Lene Olsen and Dorit Kemter, ‘The International Labour Organization and the Environment: The Way to a Socially Just Transition for Workers’ in Nora Räthzel and David Uzzell (eds), Trade Unions in the Green Economy (Routledge 2013) 41–57; Maria Nillson and Tord Kjellstrom, ‘Climate change impacts on working people: how to develop prevention policies’ [2010] 3 Global Health Action 3; Katherine H. Regan, ‘The Case for Enhancing Climate Change Negotiations with a Labor Rights Perspective’ [2010] 35 Columbia Journal of Environmental Law 249.
See Chapter 2.1.5 of this book for a discussion in more detail.
Fornalé (n 329); Jonathan Barnett and Michael Webber, ‘Migration as Adaptation: Opportunities and Limits’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing 2010).
Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1867 unts Annex 3.
The wto rules mandate that the four Members with the largest shares of world trade (currently the European Union, the United States, Japan and China) be reviewed each two years, the next sixteen be reviewed each four years, and others be reviewed each six years. A longer period may be fixed for least-developed country members. As a result of an amendment to Annex 3 in 2017, these review cycles are three, five and seven years respectively since 1 January 2019. See wto, ‘Amendment of the Trade Policy Review Mechanism’ (27 July 2017) wt/l/1014.
Sam Laird and Raymundo Valdes, ‘The Trade Policy Review Mechanism’ in Martin Daunton, Amrita Narlikar and Robert M. Stern (eds), The Oxford Handbook on the World Trade Organization (Oxford University Press 2012).
On the limits of gats Mode 4, see Dawson (n 343) 1–23.
Ryan Abman, Clark Lundberg and Michele Ruta, ‘The Effectiveness of Environmental Provisions in Regional Trade Agreements’ (Policy Research Working Paper No 9601, World Bank, 2021) <
Shunta Yamaguchi, ‘International Trade and Circular Economy – Policy Alignment’ (oecd Trade and Environment Working Papers 2021/02).
T Ibn-Mohamed et al., ‘A critical analysis of the impacts of COVID-19 on the global economy and ecosystems and opportunities for circular economy strategies’ [2021] 164 Resources, Conservation and Recycling.
wto, ‘Role of trade in promoting circular economy’ (Official Webpage) <
A.H. Lim and others, ‘Trade and environment: what can we learn from trade policy reviews?’ (wto Staff Working Papers No. ersd-2020-06, 2020). The analysis is based on notifications containing one or more of the following keywords (and close variations): eco-design, reuse, repair, refurbishment, remanufacturing, recycling, biodegradable, compostable and waste-to-energy. The analysis does not distinguish between measures that are aligned with the goals of the circular economy and measures that are not.
Karsten Steinfatt, ‘Trade Policies for a circular economy: What can we learn from wto experience?’ (wto Staff Working Paper, 2020).
For a discussion on international law as a value-based system, see Heike Krieger and Georg Nolte, ‘The International Rule of Law – Rise or Decline? – Approaching Current Foundational Challenges’ in Heike Krieger, Georg Nolte and Andreas Zimmermann, The International Rule of Law: Rise or Decline? (Oxford University Press 2019) 3–33.
For instance, Guild and Wieland argue that the Global Compact for Migration ‘comes with a host of non-legal implementation mechanisms. These “design elements” form an implementation framework that use non-binding norms based on technical and professional know-how to find the optimal mode of implementation’. See Elspeth Guild and Raoul Wieland, ‘The UN Global Compact for Safe, Orderly and Regular Migration: What does it mean in International Law?’ [2020] 10 Global Community: Yearbook of International Law and Jurisprudence, 8.
See Chapter 1.3 of this book for a discussion on the Global Compact for Migration and the Global Compact on Refugees.
Global Compact for Migration (n 9) para 40–54.
Scott D. Watson and Corey Robinson, ‘Knowledge Controversies of Global Migration Governance: Understanding the Controversy Surrounding the Global Compact’ in Catherine Dauvergne (ed), Research Handbook on the Law and Politics of Migration (Edgar Elgar 2021) 323–339.
ibid.
ohchr, ‘Global Migration Group’ <
Global Compact for Migration (n 9) para 45.
UN Network on Migration, ‘Migration Network Hub’ <
Global Compact for Migration (n 9) para 43.
ibid.
Although it must be noted that its funding target for 2020 was initially set at usd 25 million. See iom, ‘United Nations Launches Multi-Partner Trust Fund Office to Support Cooperation on Safe, Orderly and Regular Migration’ (17 July 2019); undp, ‘Multi-Partner Trust Fund Office’ <
These groups are as follows: Core working group 1.2 migration network hub, core working group 2.1 stronger UN system for implementation, core working group 2.2 gcm national implementation plans, thematic working group 1 data, thematic working group 2 alternatives to detention, thematic working group 3 regular pathways for migrants in vulnerable situations, thematic working group 4 bilateral labour migration agreements, thematic working group 5 return and reintegration, thematic working group 6 access to services. See UN Network on Migration, ‘Migration Network Hub’ <
Global Compact for Migration (n 9) para 49.
See Lena Kainz and Alexander Betts, ‘Power and Proliferation: Explaining the Fragmentation of Global Migration Governance’ [2020] Migration Studies, 1–25.
Global Compact for Migration (n 9) para 49.
ibid.
unga, ‘Format and organizational aspects of the international migration review forums’ (Final draft, 12 July 2019) <
ibid.
ibid.
Global Compact for Migration (n 9) para 40–44.
Allinson and Weatherhead interpret this as a ‘direction-normalisation-amplification’ approach. Direction is the way that the Global Compact for Migration will be taken both individually and collectively. According to the authors, the direction should be more than the prioritisation of certain elements, and focus on holding the compact together to progress it. This can help to avoid national governments pursuing certain target areas in line with policy interests, such as controlling borders or emphasising return of irregular migrants. Normalisation refers to incorporating the compact into everyday work. The cooperative framework structured in the compact brings together key actors and provides a blueprint for strategic planning. The recommendations of the authors range from coming up with indicators to assess implementation to making references to the compact in reports, policies, and other mechanisms, such as the Universal Periodic Review and the Sustainable Development Goals. Finally, amplification refers to creating and maintaining momentum to ensure that there are positive impacts for migrants. The authors stated that the opportunity must be seized to engage a range of stakeholders, especially academics who have a role to clarify and scrutinise the content and implementation. See Kathryn Allinson and Katharine T. Weatherhead, ‘The Global Compact for Migration is more than just its objectives’ (rli, 26 September 2019) <
McAdam, ‘The Global Compacts on Refugees and Migration: A New Era for International Protection?’ [2018] 30 ijrl 4, 571–574; Sciaccaluga (n 914) 151–156.
Since the Global Compact for Migration does not have an indicator framework for implementation, the guidance and the booklet aim to fill this gap. See UN Network on Migration, ‘Implementing the Global Compact for Safe, Orderly and Regular Migration: Guidance for governments and all relevant stakeholders’ (Advanced Draft, 15 October 2020) <
UN Network on Migration, ‘Booklet’ <
ibid.
However, for a critical evaluation, see Christina Oelgemöller and Kathryn Allinson, ‘The Responsible Migrant, Reading the Global Compact on Migration’ [2020] 31 Law and Critique, 183–207.
In March 2020, unicef, iom, unhcr and oecd launched the International Data Alliance for Children on the Move, which aims to support evidence-based policymaking on migrant and displaced children, in partnership with State and non-State actors. The Migrant Union, which is an ongoing initiative to advance approaches to enabling the growing numbers of displaced people accessing sustainable livelihoods and enabling capabilities, rights and resources, has commissioned a report to explore the nexus between the changing nature of work, particularly driven by digitalisation, and livelihood opportunities for displaced people.
For instance, the first report of the UN Secretary-General on the implementation of the Global Compact for Migration mentions the 2019 revision of the Guetamala National Plan of Action on Climate Change integrates a section on human mobility with concrete commitments. Belize is integrating human mobility and planned relocation into its climate strategy. Peru is developing a specific national plan of action to address climate-related climate-related drivers of migration. However, it must be noted that there are concrete examples of States incorporating human mobility considerations into their national climate policies before the adoption of the compact. See Report of the Secretary-General, ‘Global Compact for Safe, Orderly and Regular Migration’ (2020) gaor 75th Session UN Doc A/75/542; UK Government, ‘The Global Compact for Migration European Regional Review’<
The second report of the UN Secretary-General on the implementation of the Global Compact for Migration dedicates a subsection to the implementation of the commitments with respect to environmental and disaster mobility. According to the report, several countries, such as Nepal and Vanuatu, drafted policies focused on human mobility stemming from environmental factors. Germany convened an independent commission to develop recommendations on root causes of displacement. The Global Mayors Task Force on Climate and Migration was launched in 2021 to address the impacts of the climate crisis on migration in cities and to accelerate global responses. See UN Secretary-General, ‘Global Compact for Safe, Orderly and Regular Migration Report to the Secretary-General’ UN Doc A/76/642 (2022).
igad Communiqué of the Sectorial Ministerial Meeting on the Protocol on Free Movement of Persons in the igad Region (26 February 2020, Khartoum, Republic of Sudan) <
Task Force to the President on the Climate Crisis and Global Migration, ‘A Pathway to Protection for People on the Move’ (Refugees International 2021).
Ideally, regional migration and asylum policies must be in line with this vision. For a critical evaluation of regional approaches, see Geoff Gilbert, ‘The New Pact on Migration and Asylum and the Global Compact on Refugees and Solutions’ in Serio Carrera and Andrew Geddes, The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees (eui 2021); Pauline Melin, ‘Two Years After the Adoption of the Global Compact for Migration: Some Thoughts on the Role Played by the EU’ in Wybe Doume and others, The Evolving Nature of EU External Relations Law (tmc Asser Press 2021); Fatima Khan and Cecile Sackeyfio, ‘Situating the Global Compact on Refugees in Africa: Will it make a difference to the lives of refugees “languishing in camps”?’ [2021] 65 Journal of African Law, 35–57.
Global Compact on Refugees (n 9).
unhcr, ‘Global Compact on Refugees: Indicator Framework’ (2019) <
Global Compact on Refugees (n 9).
ibid para 18. Also see unhcr, ‘What are pledges?’ (15 June 2020) <
Global Refugee Forum Outcome Document (2019) <
Ten outcomes were aimed: Progress in broadening the base of support for comprehensive refugee responses; support for the development of more inclusive national policies in host countries; launch of support platforms; additional funding and the effective and efficient use of resources; dedicated support to expand access to secondary, tertiary and higher education for refugees; financial, technical and material contributions in support of sustainable green energy and environmental conservation; private sector announcements in the form of investments, employment, innovation, advocacy and philanthropy; contributions towards solutions, including the 3-year resettlement and complementary pathways strategy; launch of the Asylum Capacity Support Group; and launch of the Global Academic Interdisciplinary Network. See Global Refugee Forum Outcome Document (2019) <
Global Refugee Forum Outcome Document (2019) <
ibid.
unhcr, ‘Global Refugee Forum Guidance Note: Pledges and Contributions and Good Practices’ (17–18 December 2019) <
ibid.
See Madeline Garlick and Claire Inder, ‘Protection of refugees and migrants in the era of the global compacts’ [2021] 23 International Journal of Postcolonial Studies 2, 207–226.
unhcr, ‘About the Global Academic Interdisciplinary Network’ (21 July 2020) <
unhcr, ‘Pledges and Contributions’ <
For pledges about disasters, see: Kingdom of Lesotho Pledge ID 1047; Government of Nigeria Pledge ID 1205; National Commission for Refugees and idps Pledge ID 1282; Ministry of Foreign Affairs of the Republic of Korea Pledge ID 3050; Kaldor Centre for International Refugee Law unsw Sydney Pledge ID 3055; Republic of Marshall Islands Pledge ID 3111; Agencia Española de Cooperación Internacional al Desarrollo Pledge ID 4022; Deltares (Stichting Deltares) Pledge ID 4033 and 4044; EU Pledge ID 4099 and 4105; Republic of Turkey, Ministry of Interior Disaster and Emergency Management Authority (afad) Pledge ID 4193; Save the Children Pledge ID 5032; intersos Pledge ID 5043 and 5194; Compact for Young People in Humanitarian Action Pledge ID 5064; ret International Pledge ID 5081; unicef Pledge ID 5111; unfpa Pledge ID 5118; ret International Pledge ID 5123 and 5184; Maya Vakfi Pledge ID 6056. For pledges about the climate and the environment, see: Government of South Sudan Pledge ID 1083; Government of Rwanda Pledge ID 1104; Permanent Mission of Mauritius Pledge ID 1241; Federal Democratic Republic of Ethiopia, Agency for Refugees and Returnees Affairs Pledge ID 1257; Republic of Zimbabwe Pledge ID 1279; Government of Rwanda Pledge ID 1352; Norwegian Ministry of Foreign Affairs Pledge ID 4008; Government of the Federal Republic of Germany Pledge ID 4012; Government of Ireland Pledge ID 4063; Denmark Ministry of Immigration and Integration Pledge ID 4107; Ministry of Foreign Affairs of Denmark Pledge ID 4289; Sweden Pledge ID 4320; Swedish International Development Cooperation Agency Pledge ID 4334, in unhcr, ‘All Pledges & Contributions’ (2 March 2021) <
Kingdom of Lesotho Pledge ID 1047; Government of Nigeria Pledge ID 1205; National Commission for Refugees and idps Pledge ID 1282; Ministry of Foreign Affairs of the Republic of Korea Pledge ID 3050, in unhcr, ‘All Pledges & Contributions’ (2 March 2021) <
See Chapter 1.3.2 of this book for a detailed discussion.
Although, it must be noted that these horizons are applicable to the countries that have adopted the Global Compact on Refugees. For a critical analysis, see Hilpold (n 96).
Kainz and Betts (n 1013) 1–25.
Feichtner (n 796).
Simma (n 790).
Case Concerning the Barcelona Traction (n 793).
Tams (n 801) 51.
For a similar discussion on procedural aspects, see Anthony J. Colangelo, ‘Procedural Jus Cogens’ [2021] 60 Columbia Journal of Transnational Law.