As is always the case with the Commission’s output, the draft guidelines are to be read together with the commentaries. The Commission recognizes the importance of being fully engaged with the international community’s present-day needs. It is acknowledged that both the human and natural environments can be adversely affected by certain changes in the condition of the atmosphere mainly caused by the introduction of harmful substances or energy, causing transboundary air pollution, ozone depletion, as well as changes in the atmospheric conditions leading to climate change. The Commission seeks, through the progressive development of international law and its codification, to provide guidelines that may assist the international community as it addresses critical questions relating to transboundary and global protection of the atmosphere. In doing so, the Commission, based on the 2013 understanding, does not desire to interfere with relevant political negotiations or to impose on current treaty regimes rules or principles not already contained therein.

Preamble

Acknowledging that the atmosphere is a natural resource, with a limited assimilation capacity, essential for sustaining life on Earth, human health and welfare, and aquatic and terrestrial ecosystems,

Bearing in mind that the transport and dispersion of polluting and degrading substances occur within the atmosphere,

Considering that atmospheric pollution and atmospheric degradation are a common concern of humankind,

Aware of the special situation and needs of developing countries,

Noting the close interaction between the atmosphere and the oceans,

Noting in particular the special situation of low-lying coastal areas and small island developing States due to sea-level rise,

Recognizing that the interests of future generations of humankind in the long-term conservation of the quality of the atmosphere should be fully taken into account,

Recalling that the present draft guidelines were elaborated on the understanding that they were not intended to interfere with relevant political negotiations or to impose on current treaty regimes rules or principles not already contained therein,

Commentary

(1) The preamble seeks to provide a contextual framework for the draft guidelines. The first preambular paragraph is overarching in acknowledging the essential importance of the atmosphere for sustaining life on Earth, human health and welfare, and aquatic and terrestrial ecosystems. The atmosphere is the Earth’s largest single natural resource and one of its most important. It was listed as a natural resource – along with mineral, energy and water resources – by the former Committee on Natural Resources of the Economic and Social Council, as well as in the 1972 Declaration of the United Nations Conference on the Human Environment (hereinafter, “Stockholm Declaration”) and in the 1982 World Charter for Nature. The World Charter recognizes that humankind is part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. The atmosphere provides renewable “flow resources” essential for human, plant and animal survival on the planet, and it serves as a medium for transportation and communication. As a natural resource, the atmosphere was long considered to be non-exhaustible and non-exclusive. That view is no longer held. It must be borne in mind that the atmosphere is a natural resource with a limited assimilation capacity, also referred to in draft guideline 5.

(2) The second preambular paragraph addresses the functional aspect of the atmosphere as a medium through which transport and dispersion of polluting and degrading substances occurs, involving the large-scale movement of air. The atmospheric movement has a dynamic and fluctuating feature. Long-range transboundary movement of polluting and degrading substances is recognized as one of the major problems of the present-day atmospheric environment, with the Arctic region being identified as one of the areas seriously affected by the worldwide spread of deleterious pollutants.

(3) The third preambular paragraph states that atmospheric pollution and atmospheric degradation are a “common concern of humankind”. This expression first appeared in General Assembly resolution 43/53 of 6 December 1988 on the protection of global climate for present and future generations of mankind, recognizing that climate change was a “common concern of [human]kind”, since the climate was an essential condition sustaining life on Earth. The first paragraph of the preamble to the 1992 United Nations Framework Convention on Climate Change acknowledges that “change in the Earth’s climate and its adverse effects are a common concern of humankind” (emphasis added), which was reiterated in the preamble of the 2015 Paris Agreement on climate change. Likewise, other conventions use this expression or similar language. The phrase as used in this preambular paragraph reflects a concern of the entire international community that all may be affected by atmospheric pollution and atmospheric degradation, as defined in the draft guidelines. It is recalled that the expression has commonly been used in the field of environmental law, even though doctrine is divided on its scope, content and consequences. It is understood that the expression identifies a problem that requires cooperation from the entire international community, while at the same time that its inclusion does not create, as such, rights and obligations, and, in particular, that it does not entail erga omnes obligations in the context of the draft guidelines.