ABSTRACT
This chapter provides a critique of the International Law Commission's Draft Guidelines on the Protection of the Atmosphere, adopted in 2018. It focuses on the problematic methodology adopted by the ILC and its selective choice of literature. The authors contend that the scope of the Draft Guidelines that has been reduced by incorporating the ‘Understanding’ that the project would ‘not … interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution’ has severely impacted the coverage and focus of the ILC work. The ‘Understanding’ further excludes from consideration the critical questions of liability, common concerns of humankind, principles of precaution, polluter-pays, equity, and common but differentiated responsibility. It is suggested that the Commission should rethink methodological changes to contextualise and relocate its method of working in a larger, changing nature of the international law landscape.
