This is undoubtedly a tough time for public international law. It is perhaps telling that this statement needs almost no explanation, but if needed, there are plenty of examples to choose from, ranging from ongoing wars in the Middle East (Gaza, Iran, etc.), crises at the United Nations, a still ongoing illegal invasion of Ukraine, and the looming shadow of climate change. In fact, instead of focusing on the many fresh challenges, let us focus on the last, comparatively “outdated” one: the quickly worsening state of our planet.
Some may (rightfully) say that international law bears a share of responsibility in how we got here: it enabled unbridled exploitation of both natural resources and people, it left (and still leaves) large areas of the earth un- or under-regulated, and it has a long past as a tool of subjugation for powerful states. On the other hand, imperfect as it may be, international law is currently a crucial tool in humanity’s toolbox when it comes to finding solutions to deal with this challenge that we face together and ensuring a level of stability and predictability for all members of the international community.
Seemingly unrelated to the operation of international law, many academics and scientists are involved in one of the largest and most significant scientific endeavours ever put together: the reporting coordinated by the Intergovernmental Panel on Climate Change (IPCC). In that context, a large gamut of experts integrates scientific literature, modelling results and various analyses to draw a picture of the situation that is as accurate as can be achieved, using specific tools to account for the inherent uncertainty that pertains to predicting the future.
Colliding worlds
Surprisingly, the world of climate science and that of public international law have had relatively little to do with each other epistemologically, with the notable exception of the Conference of the Parties (COP) process of the United Nations Framework Convention on Climate Change (UNFCCC). At least this was the situation until not too long ago; now, thanks to various institutional processes including most prominently an Advisory Opinion by the International Court of Justice (ICJ) and a now-concluded study group on sea-level rise in relation to international law at the International Law Commission (ILC), there is a much clearer framework to help understand how international law envisions a climate-changed future. Although there are still some significant unresolved questions that loom over how we might collectively approach the intersection between climate science and international law, already these processes underline the important role of researchers and academics in ensuring that international law remains relevant and fit for purpose.
A space for normative innovation
The position of academics in international law is peculiar. While much of what gets written in academic journals or monographs never makes it past a relatively small, usually partly insular scholarly niche, a portion of the literature has the potential to make its way beyond these academic confines and into more normative settings, as acknowledged formally in Article 38 of the ICJ Statute. The position of academics in international law is therefore a particularly interesting one since it includes a small hope of direct normative agency, delusional as this may be for the large majority of writings in the field. Uniquely, this positions international law scholarship as a source of normative innovation and creativity, with the potential of making its way to the upper echelons of the normative hierarchy.
In practice, this is a highly contingent process, and specific fora can act as catalysts for cementing certain lines of thought or to provide an emerging doctrine with solid ground to grow upon. Here, the ILC’s role is particularly prominent due to its combination of legitimacy, expertise and institutional role. The Commission’s extensive engagement with literature and scholarship positions it as a prime target for normative innovation,[1] especially since its mandate helpfully offers critical ambiguity in that it does not require the Commission to distinguish between the two prongs of its mandate, to both contribute to the progressive development of international law and its codification.
Of course, the Commission’s members are often aware of the direction in which specific elements of the Commission’s output lean, but by artfully refusing to systematically distinguish between codification and progressive development, they are able to maintain an ambiguity that is arguably more fertile for encouraging the international community to buy into normative change. Often, however, it all starts with academics and scholars.
Laying the foundations
Since the focus of this symposium is on the role of academics in contributing to law’s resilience, it is worth briefly examining the anatomy of the change that is happening, particularly in the context of how international law is slowly adapting to climate change. Here, the ILC acts as a particularly salient focal point since the work of the study group largely translated to making sense of a complex and debated normative landscape, surveying the ongoing academic and state-led discussions, and extracting from it a solid foundation for actors of international law to build upon, as they move forward.
Indeed, to the uninformed observer (that is, admittedly, one with a general interest in the workings of public international law), the task of the Study Group’s co-chairs may have seemed impossible due to the relative lack of state practice, the highly contentious nature of themes to investigate and the unclear position of the international community. Ultimately, the co-chairs’ reports emerges as a groundbreaking piece of smart scholarship, balancing carefully the need to adhere to key elements of state practice with the clear need for innovation and for maintaining space for the most affected states to steer the progressive development of international law in a way that accommodates their priorities and interests.
Namely, whereas the final report necessarily consolidates key conclusions on issues such as the lack of an obligation to update maritime boundaries and the role played by the presumption of continuity in the context of statehood, the co-chairs also clearly innovate and propose a way forward by emphasising, overarchingly, the need for maintaining legal stability, certainty and predictability. Furthermore, the co-chairs also went one step further by directly engaging with the role of international law as part of adaptation (“International Law as adaptation”),
By borrowing from and engaging with the broader discussion on adaptation, the co-chairs opened an especially promising path forward that allowed for looking at core international law concepts, such as treaty interpretation, within the context of insights provided by other strands of scientific research. Rather than being a static body of norms, observing silently on the sidelines, international law’s potential as a forum and tool for adaptation emerges and consequently also echoes the general efforts to model and understand change more broadly.
Getting warmer
In engineering, the concept known as “integration hell” is painfully familiar to anyone tasked with bringing together different systems and ensuring that they seamlessly communicate with one another. This is often because different systems, whether they be software or mechanical, often struggle to exchange information with one another. This often results in complex translation layers or requires those tasked with solving this problem to be particularly creative in their problem-solving.
Unfortunately, as doors are increasingly opening between the monumental body of climate science and the field of international law, the prospect of integration hell is only growing. In fact, even the most prominent international court can make embarrassing mistakes such as failing to specify whether overshooting climate targets is acceptable or not. This is largely because climate science does not “speak” international law, and vice versa.
In the absence of a currently ongoing process such as the ILC’s study group or the ILA’s work on the matter of sea-level rise, the crucial role of bridging this chasm therefore goes back to academics and scholars of international law, with the prospect of hopefully being picked up downstream by institutional processes or international tribunals.
More importantly, however, the importance of engaging in this exercise also lies in making the world of international law accessible to the much wider and broader discussions that are ongoing within the umbrella of climate modelling, mapping and generally forecasting the future we may (or may not) eventually live in.
In this context, academics must therefore play a central role in ensuring the resilience of international law, one that is not necessarily supported by immediate recognition or quantifiable impact, since the first steps necessarily involve bridging gaps and establishing a (methodological and theoretical) line of communication.
But why?
It is undeniably easy to stay in one’s lane. In fact, it is often an easier path forward and a much easier choice to motivate in hindsight. However, the current need for research, and particularly for research in the context discussed here, requires problem-solving skills and creativity. It requires familiarising oneself with new methods and reading literature that does not use OSCOLA footnotes or a variation thereof.
The upside, however, is worth it. International law can contribute significantly to many ongoing discussions in climate science but it often does not do so currently. Even primarily doctrinal questions such as the ambulatory nature (or not) of baselines can have wide-ranging consequences for conservation and the resilience of ecosystems. The continued statehood of small island nations is instrumental to ensure that the loudest voices in favor of a just and fair framework of mitigation and adaptation do not go quiet. These are not abstract questions, they have real and potentially measurable consequences that have the potential to influence the future we choose for ourselves.
But for the current gap to shrink (and hopefully disappear), academics must first face and eventually address integration hell, because no one else will do it.
[1] The UN Library maintains an incredibly helpful public list of all relevant references used by the Commission in some of its reporting, in the form of Zotero lists of references.
