1 See, e.g., Gotlieb, The Impact of Technology on the Development of Contemporary International Law, 170 Recueil des Cours 115, 139–41 (1981).

To take an important, recent example of treaty making, the Montreal Protocol [to the Vienna Convention on the Protection of the Ozone Layer] on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 ILM 1550 (1987), had been overtaken by scientific discovery by the time it entered into force on January 1, 1989. It provides in Article 2(4) that industrialized countries are to reduce their annual consumption of chlorofluorocarbons (CFCs) by June 30, 1999, to 50% of their consumption in 1986. Under Article 5, developing countries have an extra 10 years to do so. Reacting to alarming scientific findings regarding the depletion of the ozone layer, 81 nations in May 1989 declared their intent to phase out completely the production and consumption of CFCs controlled by the Montreal Protocol not later than 2000. Helsinki Declaration on the Protection of the Ozone Layer, May 2, 1989, 19 Envtl. Pol’y & L. 137(1989). See also United Nations Environment Programme [UNEP] Governing Council Res. 15/36, para. 11(a), in Report of the Governing Council on the work of its fifteenth session, 44 UN GAOR Supp. (No. 25) at 164, 167, UN Doc. A/44/25 (1989).

2 Governing Council of the UN Environment Programme, Environmental Perspective to the Year 2000 and Beyond, in UN Doc. UNEP/GC. 14/26, Ann. II, at 34 (1987).

3 On the concept of “soft law,” see especially Baxter, International Law in “Her Infinite Variety,” 29 Int’l & Comp. L.Q. 549 (1980).

4 UN Doc. A/43/241 (1988).

5 See Malta’s draft and revised draft resolutions, UN Docs. A/C. 2/43/L. 17 and A/C.2/43/L.17/Rev.1 (1988).

6 GA Res. 43/53 (Dec. 6, 1988).

7 Id., para. 1. The “common concern” language is repeated in GA Res. 44/207, Preamble (Dec. 22, 1989). The Noordwijk Declaration on Atmospheric Pollution and Climatic Change, Nov. 7, 1989, says in paragraph 7 that “Climate change is a common concern of mankind.” Int’l Env’t Rep., Current Rep. (BNA) 624 (Dec. 13, 1989). The Statement of the Meeting of Legal and Policy Experts, emanating from a meeting convened by the Government of Canada in February 1989, says in paragraph A.3 that the atmosphere “constitutes a common resource of vital interest to mankind.” See UN Doc. A / C . 2 / 4 4 / 2 (1989), and 19 Envtl. Pol’y & L. 78, 79(1989).

8 Cable from the UN Office of Legal Affairs (Nov. 16, 1981), 1981 UN Jurid. Y . B . 149. The formulation is based on a Legal Memorandum of the Office of Legal Affairs, UN Doc. E/CN.4/L.610, quoted in part in 34 UN ESCOR Supp. (No. 8) at 15, UN Doc. E/3616/Rev.l and E/CN.4/832/Rev.1 (1962).

9 See UN Doc. A/C.2/43/SR.44, at 8–9 (1988); UN Doc. A/43/905, at 5 (1988).

10 See UN Doc. A/43/PV.70, at 66 (1988). There are differing views about the significance of consensus in the adoption of General Assembly resolutions. Compare Jiménez de Aréchaga’s discussion, in Change and Stability in International Law-Making 48–49 (Cassese, A. & Weiler, J. eds. 1988)Google Scholar [hereinafter Change and Stability], and Sloan, General Assembly Resolutions Revisited (Forty Years After), 58 Brit. Y.B. Int’l L. 39,140 (1987) (stressing the significance of consensus), with Condorelli, The Role of General Assembly Resolutions, in Change and Stability, supra, at 37, 42–47, and Delupis, The Legal Value of Recommendations of International Organisations, in International Law and The International System 47, 54–55 (Butler, W. ed. 1987)Google Scholar (noting that consensus texts tend to be watered down). Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 ASIL Proc. 301, 302, 308–09 (1979), warns about false consensus, achieved despite significant reservations harbored by a minority of states. In such cases, adoption of the resolution is usually followed by statements expressing the reservations. Only two statements followed the adoption of GA Res. 43/53, one by the European Community and one by Malta. Both enthusiastically supported the resolution. UN Doc. A/43/PV.70, at 66–68 (1988).

11 Stockholm Action Plan for the Human Environment, Recommendation 70, UN Doc. A/CONF.48/14 (1972), reprinted in 11 ILM 1421, 1449 (1972).

12 See F. Kirgis, Prior Consultation in International Law 123–24 (1983).

13 The linkages between climate change and other environmental conditions, including the possibility that action to correct one environmental threat could have repercussions in other environmental areas, appear in the Report on the Villach Conference of the World Climate Impact Studies Programme (1985), summarized in UNEP, 1985 Annual Report of the Executive Director, UN Doc. UNEP/GC.14/2, at 70–71 (1986). A preambular paragraph of GA Res. 43/53 refers to the conclusions of the Villach Conference.

14 A second World Climate Conference will be convened in November 1990. A framework convention on climate change is being prepared, with the goal of completing it by the time of the 1992 UN Conference on Environment and Development. See UN Doc. UNEP/GC. 14/26, at 51 (1987); Noordwijk Declaration, supra note 7, para. 29.

15 The International Court has recognized the principle of obligations erga omnes in the context of basic human rights, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep. 15, 23 (Advisory Opinion of May 28); and Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain) (Second Phase), 1970 ICJ Rep. 3,32 (Judgment of Feb. 5); and in the context of a unilateral undertaking addressed to the international community, Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 269 and 457, 474 (Judgments of Dec. 20).

When the Court in Barcelona Traction said that “on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality” (1970 ICJ Rep. at 47), it was not denying the relevance of the erga omnes principle to standing; it was simply observing that universal human rights instruments have not explicitly conferred standing upon all states parties to protect the rights of persons of any nationality. But see ILO Constitution, Oct. 9, 1946, Art. 26(1), 62 Stat. 3485, TIAS No. 1868, 15 UNTS 35 (any member state may file a complaint if it is not satisfied that any other member is securing effective observance of a labor convention that both have ratified, without having to show harm to itself or its nationals).

Application of the erga omnes principle to locus standi in the context of indiscriminate environmental harm was suggested (as an “apparently radical concept”) in Brownlie, A Survey of International Customary Rules of Environmental Protection, 13 Nat. Resources J. 179, 183 (1973). But see the more guarded conclusions on standing by way of an actio popularis, as that term is generally understood, in Smith, B., State Responsibility and the Marine Environment 98 (1988)Google Scholar.

16 Recognition that climate change is a common concern of mankind might be thought to imply standing not only for states, but for individuals as well. As in the case of human rights, it is individuals who will suffer the consequences if governments fail to meet their obligations. But the analogy to human rights does not take individuals very far down the road to standing. Individuals do not yet have international personality in the sense that states do. Foreign offices will require that complaints from non-nationals be presented by their own governments. There are currently no international tribunals or other international mechanisms designed to hear individuals’ environmental complaints. Ordinary courts in domestic legal systems are not likely to treat a General Assembly resolution asserting a common concern as a sufficient basis, in itself, for an individual’s standing to complain about threatened climate change if the complainant is no more vulnerable to the change than is the general population.

17 In other contexts, standing has been a problem in international tribunals. It was an insurmountable problem in Barcelona Traction, supra note 15. That case did not involve any question of standing to represent common interests. The ICJ’s second opinion in the South West Africa Cases (Ethiopia & Liberia v. S. Afr.), 1966 ICJ Rep. 6 (Judgment of July 18), rejected the standing of two former League of Nations members to assert violations of a League Mandate. It should not preclude standing in a “common concern” proceeding, even though the Court observed cryptically that a right of actio popularis “is not known to international law as it stands at present.” 1966 ICJ Rep. at 47. The Court was not dealing with a matter explicitly defined by the international community at that time as a matter of common concern.

18 For a full discussion, see Charney, Third State Remedies in International Law, 10 Mich. J. Int’l L. 57 (1989).

19 2 Restatement (Third) of the Foreign Relations Law of the United States, pt. VI, Introductory Note, at 101 (1987).

20 Report of the International Law Commission on the Work of its thirty–seventh session, [1985] 2 Y.B. Int’l L. COMM’N, pt. 2 at 1, 27, UN Doc. A/CN.4/SER.A/1985/Add.1.

21 Id. Of course, standing in one context—the suspension of a multilateral treaty obligation in response to another party’s material breach—would have to take account of Art. 60(2), Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331. If climate change is a common concern of mankind, a breach of an environmental convention that significantly affects climate might well be subject to the broad grant of standing in Article 60(2)(c).

22 This would not necessarily mean that states not subject to the norm complained of could join in the challenge. Thus, in the case of treaty norms that do not reflect custom, standing might be limited to states parties to the treaty plus any intended third-party beneficiaries. The mere recognition of “common concern” probably would not render all states third–party beneficiaries of all treaty norms dealing with climate. Of course, treaty norms may codify, crystallize or generate custom. Cf. North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 4 (Judgment of Feb. 20). The Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, Art. 2(2)(b), 26 ILM 1529 (1987), requiring appropriate measures to control activities under contracting parties’ jurisdiction that are likely to have adverse effects from modification of the ozone layer, may well be in one of the custom–related categories.

23 For discussion of problems inherent in a broad concept of standing, see Charney, supra note 18, at 86–90.

24 Cf. Schachter, International Law in Theory and Practice, 178 Recueil des Cours 9, 199–201 (1982 V), concluding that there are distinct advantages in applying the concept of obligations erga omnes to a limited category of principles, including those prohibiting massive pollution of the atmosphere or the sea. Charney, supra note 18, at 95, concludes that third-state remedies may be desirable when no directly injured state would have traditional standing—as in the case of damage to common spaces outside the jurisdiction of any state.