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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Existential problems and Nobel Prizes
When I received the honour of an invitation to address the conference of the ICC Commission in Sydney, I indicated that I would tackle a number of specific controversies it now faced.1 This would ensure that our minds met comfortably, despite the rigours of international travel and the variety of problems that arbitration faces in our different countries and regions.
I was very conscious of the fact that some participants would be making their first visit to Australia: crossing the many time zones and great distances with which Australians are accustomed when they travel overseas, unless it is to New Zealand or Antarctica. Despite the accumulated intelligence of the audience, I knew that I would be competing with the pull of circadian rhythms. These responses of the human body are common to all living things. They reflect a cycle that is influenced by chances in light, particularly natural daylight.
On 3 October 2017, the Nobel Prize in Physiology or Medicine was awarded to three United States scientists2 for their research on how time is measured daily in biological systems, including the human body. Their object was to discover the molecular elements that contribute to circadian rhythms. Their research will be treasured in Australia. It may lead to a ready means to adjust our bodies and minds more easily for intercontinental travel. When this happens, it will be a marvellous development for Australia. If we can cure ‘jet lag’, time zones and distance may no longer be a burden for international arbitrations in Australia. In that event, competitors in European and Asian hubs will need to look out for stiffer competition.
At the same time as this announcement, the Nobel Prize Committee declared that the 2017 Nobel Prize for Peace was awarded to the International Campaign to Abolish Nuclear Weapons (ICAN). The acronym of this body, in the English language, is an affirmation of the capacity of human beings to tackle successfully a problem that has confronted humanity at least since August 1945, when the first nuclear weapons were used over Hiroshima and Nagasaki in Japan. ICAN originated in a humble initiative in Melbourne, Australia, started by a disarmament campaigner, Felicity Hill, as the co-ordinator. It drew inspiration from the earlier successful work of the international campaign to ban landmines. That campaign led to negotiation of the Anti-Personnel Mine Ban Convention (the ‘Ottawa Treaty’). This prohibits the use, stockpiling, production and transfer of anti-personnel landmines. In work that I earlier performed for the United Nations in Cambodia,3 I learned of the horrors caused by landmines; the difficulties of detecting and removing them safely; and the importance and urgency of banning them. The Ottawa Treaty was a major advance. But could a similar advance be achieved in the case of nuclear weapons? Or were they so bound up with the political power of great nations that nothing would happen?
The award of the 2017 Nobel Prize for Peace to ICAN shows that, sometimes, individuals, civil society and naive dreams can produce righteous outcomes. Although we are far from achieving an effective treaty on nuclear weapons, important progress was made three months ago at the United Nations in New York. It is progress that has so far escaped the attention of our media and most people. Yet it is very important.
On 7 July 2017, 122 countries of the United Nations agreed to the text of a Nuclear Weapons Ban Convention. That text is now open for signature by the nation states of the world. None of the Permanent Five Members of the Security Council of the United Nations (China, France, the Russian Federation, the United Kingdom and the United States of America) participated in the preparation of this Treaty. None of them has indicated that they will sign or ratify it. Many of the allies of the nuclear powers, sheltering under the so-called ‘umbrella’ of nuclear ‘deterrence protection’ (including countries such as Canada and Australia) would have nothing to do with the Ban Treaty. In the case of Australia, our Prime Minister declared that we were ‘joined at the hip’ to the United States of America. We were reliant for our security upon the deterrence afforded by that country’s enormous nuclear weapons arsenal.
On the other hand, many perfectly sensible countries participated in the negotiations, including Austria, Ireland and New Zealand. Other countries were surprise participants, including Malaysia. The Holy See declared itself in favour. So did many countries of the old Non-Aligned Movement (Cuba, Vietnam and Venezuela etc.).
A number of the supporters saw participation as action consistent with the unanimous recommendation of the International Court of Justice, in its 1998 Advisory Opinion on the Suggested Illegality of the Use of Nuclear Weapons. Although a majority of the judges of the International Court of Justice failed to declare the possession, use and threat of use of nuclear weapons was already unlawful in international law, several judges did so.4 And in the International Court, the judges were unanimous concerning the duty of nation states in the international community to move promptly to negotiate the dismantlement of the huge stockpiles of nuclear weapons in a timely and effective way.5
So far, there has been no substantial response to this unanimous declaration of the duty of states to be dispossessed of nuclear weapons. It is therefore unsurprising that, 20 years after the World Court’s opinion was published, many non-nuclear states, in defence of their own citizens’ safety, have initiated a move of their own. The moves to prepare such a treaty had the support of the former Secretary-General of the United Nations (Ban Ki-moon). The present Secretary-General (António Guterres) has also lent his support. The initiative is condemned as naive and futile by defenders of the nuclear states. Nothing will happen, they say, until those possessed of such weapons agree to take an initiative. However, the action in preparing such a treaty, alongside the announcement of the Nobel Prize for Peace in 2017, suggests that nation states and civil society are increasingly alarmed about the dangers of nuclear weapons and insistent that steps should be taken to reduce the existential peril that they present to all mankind.
These happenings appear not unconnected to the actions of the Democratic People’s Republic of Korea (DPRK) (North Korea). It has undertaken six underground nuclear weapons tests since 2006. These tests indicate the remarkable progress that DPRK has made in the development and assembly of a number of such weapons. Alongside the weapons, there has been extraordinary progress in the development of missiles including inter-continental ballistic missiles (ICBN) and submarine launching equipment that greatly expands the reach of DPRK’s nuclear profile. In consequence of DPRK’s extraordinary success in the creation of nuclear weapons, the international community has begun, once again, to contemplate the special dangers of nuclear warfare that we thought had passed, with the end of the Cold War. Unexpectedly, that peril has now manifested itself in the unlikely guise of DPRK. What should the international community do to respond?
Commissions of Inquiry: old and new
I served on a United Nations Commission of Inquiry of Human Rights in the DPRK (the ‘COI’). It began shortly after DPRK’s third nuclear test took place. Three further tests were destined to occur, the most recent (sixth test) occurring on 3 September 2017. That test increased the dangers significantly. It was claimed to be, and might well have been, a hydrogen (fusion) bomb, significantly upgrading the destructive explosive power of the earlier fission bombs that DPRK had tested. DPRK remains the only nation state that has undertaken nuclear weapons tests in the 21st century. Far from being embarrassed, it is proud of its achievement. It boasts of the weapons it is developing and the security that it sees those weapons are giving to it against attack or international blackmail.
The COI on DPRK, established in 2013, was not specifically in response to the nuclear weapons test. It was created by the UN Human Rights Council to investigate reports of grave human rights violations that were occurring inside DPRK. Unusually, the COI on DPRK was created by a consensus decision. No call was made for a vote on the proposal. This was so, although the creation of COIs of the Human Rights Council is normally viewed as an important political act, and therefor invariably controversial.
Although the COI on DPRK had distinctive features, a number of such inquiries have occurred over the past two centuries. In fact, the creation of COIs in the international community has a long history. The idea of creating COIs to investigate dangerous international circumstances arose during the Congress of Vienna (1814-1815). That meeting followed the prolonged and costly Napoleonic Wars amongst the European powers. Those powers were ‘tired out with war’.6 They therefore sought to establish effective institutional means to resolve dangerous conflicts and to restrain wars and the causes of war. A key idea for this international institution was that the law of nations should provide an effective alternative to the exercise of unbridled power: a more rational solution to serious actual or potential conflict. It involved potential for both investigation and arbitration of international disputes.
A century of substantial peace followed the Vienna Congress. A number of international arbitration treaties emerged. Eventually, the Hague Convention of 1899 was adopted. It was designed to promote peaceful solutions to international conflicts in the 20th Century. The solutions would be based on careful investigation of the facts and by the application to them of rational discussion, norms of international law and peaceful resolution of transnational differences.7 At the close of the 19th Century, it was hoped to establish mechanisms that would continue the general peace of the 19th Century and the avoidance of armed conflict in the 20th Century. This idea was very soon put to the test.
In October 1904, naval vessels of the Imperial Russian fleet in the Baltic Sea left home ports on their way to the Far East to participate in a war with the Empire of Japan. Approaching the Dogger Bank in the North Sea, and allegedly on the basis of ‘intelligence’ reports, the Russian naval ships opened fire on a group of harmless British fishing vessels.8 The consequence was the destruction of the latter and widespread loss of life and injuries to the fishermen. When the Russians explained their belief that the fishing vessels were part of a Japanese flotilla sent to confront the Russian vessels before they reached the Orient, British public opinion was dismissive. How could any experienced mariner make such a basic mistake? The vessel sizes were inconsistent with a war capacity, especially so far from home ports. The British public was outraged and there were calls for war.
Eventually, France, which enjoyed treaty relations with both Russian Empire and the United Kingdom, suggested the creation of a COI. This was accepted by both sides. The COI investigated the causes of the confrontation at the Dogger Bank. Russia accepted the report and apologised for the mistake. It offered compensation. The writing of the COI report was ameliorative, even offering words of explanation for the Russian admiral’s mistake. War was avoided. Compensation was paid. A war memorial was built at Kingston Upon Hull. The Entente between France, Russia and Britain was preserved. It would shortly be put to a much greater test in the conflict that was not far off. It would give rise to countless war memorials including in faraway Australia and New Zealand where many young lives were to be lost in a lengthy and costly war.9
The success of the Dogger Bank COI was no doubt a reason why, when Archduke Franz Ferdinand was murdered in Sarajevo with his Duchess in June 1914, the Austro-Hungarian Empire demanded that Serbia submit to a number of conditions, including the creation of a COI to investigate who was behind the assassination. Serbia submitted to virtually every one of the Austro-Hungarian demands. But it held out on the appointment of the members of the proposed COI. Had there been time, it might have been possible to resolve this point also and to avoid the conflagration that quickly unfolded. However, the hostile Empires were locked into train timetables for the delivery of troops and weapons. So the war broke out. And no COI was convened. The last chance of avoiding a devastating war was lost. Yet resolution came so close. It might have prevented the terrible sufferings that followed for humanity.10
Remembering the Dogger Bank, Sarajevo and the Serbian stand-off, when the United Nations was established in 1945 by the Charter, powers were given, expressly and also by implication, to conduct international enquiries and to establish COIs. In particular, the Security Council was expressly authorised to ‘investigate any dispute or any situation which might lead to international friction to give rise to a dispute, in order to determine whether the continuation of the dispute or situation, is likely to endanger the maintenance of international peace and security’.11 Clearly, these provisions and the other grants of power to the Security Council, envisaged the establishment of COIs. It was no surprise when they were later created. The object was to use the techniques that had become common to international arbitrations, including commercial arbitrations: hearings by impartial and experienced persons, observance of due process, emphasis on rational persuasion, exploration of the governing law, a capacity to move with speed in emergency situations, opportunities for dialogue and sometimes for mediation and peaceful settlement. It is no accident that inquiries by COIs in the field of public international law have expanded side by side with international commercial arbitrations. The common object is to settle peacefully serious disputes and to so do by the application of rules, logic and reason rather than brute force or sheer economic or military power. There are differences, it is true. The deployment of public power generally involves more politics and a greater use of threat of force as well as reason. However, there is an overlap. That is why I presume to raise the issue of the COI on DPRK for your consideration.
The COI on Human Rights in North Korea
The report of the COI on DPRK, which I chaired, was produced in little more than six months from the commencement of the mandate. It was delivered to the Human Rights Council in Geneva in February and March 2014.12 The power of the report derives, in part, from the transparency of the proceedings and, in part, from the persuasive content of the report. On virtually every page can be found extracts from the testimony of victims of human rights abuses in North Korea. Victims can speak more clearly to power than mere chroniclers can do.
The report of the COI was accepted and endorsed by the UNHRC. It was transmitted to the General Assembly of the United Nations.13 In turn, the General Assembly referred it to the Security Council, a rare step in a report on human rights issues.14 Great care was taken by the COI to observe due process and natural justice to the DPRK and its leaders and elite. A draft copy of the report was sent to the Supreme Leader in advance of publication, calling to his personal attention, ‘the command principle’ by which, where international crimes have been proved, those who have the power to prevent or halt such wrongs but who fail to exercise that power, may themselves be responsible in law for the acts of others.
Although the COI found many human rights abuses and also crimes against humanity, it did not find genocide proved, according to the definition of that international crime in the Genocide Convention of 1948.15 Given the gravity of the accusations against DPRK, the COI proceeded on the basis that any doubts as to the content of the applicable law should be resolved in DPRK’s favour. But that left many grave offences to be adequately established. It led to the recommendation of the COI that the case of DPRK should be referred to a prosecutor at the International Criminal Court.
The Security Council has not to this time referred the case of the DPRK to the International Criminal Court as the Rome Statute creating the International Criminal Court would permit. Indeed, no motion to that effect has been placed before the Security Council, inferentially because China and/or the Russian Federation would refuse endorsement and invoke the veto provided in the UN Charter.16 Nevertheless, a field office has been established in ROK (South Korea). That office, under the aegis of the Office of the High Commissioner for Human Rights, continues to gather testimony from witnesses who claim to have suffered human rights abuses. That testimony will be available when, in due course, a court or tribunal is found in which those responsible for crimes against humanity and other human rights abuses in DPRK can be rendered accountable.
A first existential danger: nuclear weapons
The conduct of repeated nuclear weapons tests by DPRK; the astonishing development of missile technology; and the advances in submarine launching capacity have presented grave and additional dangers to the international community. Some of those dangers derive from the headstrong conduct of the leaders on both sides. The US President, Donald Trump, has described the Supreme Leader of DPRK (Kim Jong-un) as ‘Little Rocket Man’. He has threatened to destroy DPRK with ‘fire and fury’. For his part, the Supreme Leader of DPRK has described President Trump as ‘a mentally deranged dotard [whom we will] tame with fire’. He has complained about the ‘unprecedented rude nonsense’ used in President Trump’s speeches. The Foreign Minister of DPRK (Ri Yong-Ho) has declared that an attack by DPRK on the United States is ‘inevitable’.
The sound and fury of the respective leaders’ rhetoric is clearly designed to step up the concern about use of the weapons of mass destruction now available to DPRK. Such use might be suicidal for a country with hugely disproportional disadvantages in weaponry.17 On the other hand, conventional analysis of military deterrence theory can sometimes be invoked to justify a conclusion that ‘weak states have few choices when it comes to ensuring their survival’.18 There is enormous uncertainty in what happens next. The dangers are not confined to deliberate actions. They extend to accidents, mistakes, misinterpretation of data and, in the modern age, the actions of automated systems taking over essential decisions affecting the survival of millions of human beings and even possibly the human species.
This is the world in which ICAN was launched, now resulting in the Nobel Peace Prize 2017. It is why 122 nations in the General Assembly have participated in the proposal for a Nuclear Weapons Ban Treaty. Reconciling the imperative of the international community to respond to serious human rights abuses (and especially crimes against humanity) and the imperative of avoiding flash points of danger with weapons of enormous potential, constitutes a grave dilemma that now faces the United Nations and the international community.
In resolving that dilemma, it is impermissible to ignore, or neglect, a response to established crimes against humanity. In any case, countries where such serious human rights challenges emerge are typically unstable and dangerous to their own people and to their neighbours. How this dilemma may be resolved is a problem that will be faced by the international community in the period ahead. The dangers we face include the dangers of accidents, mistakes, misreading of data and human error. The fact that such risks have not eventuated in the 70 years since Hiroshima is not by any means a proof that they will not occur in the future.
If such a nuclear conflagration occurs, the perils to humanity are incalculable. A rational world, and an effective international legal system, would endeavour to find rational and effective solutions to retain wise and proportionate human decision-making and well informed evidence on which it may be based, in the hands of prudent leaders. However the lessons of history, including those that I have mentioned, demonstrate that these elements sometimes go missing when the smell of war gets into leaders’ nostrils. The risks to peace are then too high to be tolerated.
A second existential danger: climate change
Unfortunately, risks of nuclear warfare are not the only existential dangers faced by humanity at this time. The other risks include climate change and the need to take urgent and sometimes painful steps in the international community, to reduce greenhouse gas emissions which most scientists believe contribute directly to the rapid onset of climate change.
Here too I have seen the future. I did so in an initiative launched by a number of judges, scholars and other experts, acting independently, in the group of experts in international law, human rights law, environmental law and other law who, in March 2015, adopted the Oslo Principles on Climate Change Obligations.19 The rapporteur of the group was Judge Jaap Spier, a Judge of the Hoge Raad der Nederlanden (the highest court of the Netherlands). There is not time to detail all the features of the response of this group of experts. The central principle that they embraced concerned a specific obligation which they held to have descended on states and enterprises of the world (as defined):
6. States and enterprises must take measures based on principle 1, to ensure that the global average surface temperature increase never exceeds pre-industrial temperature by more than 2ºC.
The ambit and application of the Oslo Principles were expressed as subject to the ‘precautionary principle’ set out in paragraph 1:
(a) Precautionary Principle requires that:
(i) GHG emissions be reduced to the extent, and at a pace, necessary to protect against the threats of climate change that can still be avoided; and
(ii) The level of reductions of GHG emissions required to achieve this should be based on any credible and realistic worst case scenario accepted by a substantial number of eminent climate change experts…
The Oslo Principles, paragraph 25, establish procedural obligations of nation states and enterprises to fulfil the principles asserted to be necessary:
25. States must accept the jurisdiction of independent courts or tribunals in which the state’s compliance with its obligations are set forth in these principles to be challenged and adjudicated.
(a) States must participate in these proceedings in good faith and ensure that such proceedings are fair and efficient.
(b) In such proceedings, the State whose compliance with its obligations has been challenged must fully disclose the ways in which it has effected compliance in order to enable the court or tribunal to determine whether the State has complied with the relevant obligations and, where it is found the State has not complied, to determine the state and nature of the State’s failure to comply.
The attempt of the Oslo Principles has been to establish both substantive and procedural rules that will give courts, judges and lawyers a role to play in advancing the common goal of the future of humanity, namely the reduction of the emission of greenhouse gases at their current dangerous rate.
This is one of several steps that are now being taken in the contemporary world to increase the effectiveness of the law as a tool to protect the environment and to defend the biosphere which relies on minimum safe conditions of the environment.20
The agenda of the ICC Commission, being held in Sydney in 2017, includes consideration of a draft proposal for a Task Force on arbitration of environmental and climate change related disputes. At this stage, this is at a preliminary state of development. However, it does not arise against a blank page. Many steps are being considered in the international community at this time to render environment issues more amenable to judicial and arbitral determinations. This has happened because of the general acceptance that, in this matter, humanity faces an existential danger. Accordingly, judges, arbitrators and lawyers have a role to play in addressing such dangers, so far as their powers and duties permit.
Special attention needs to be paid to the law of standing, which is important particularly in common law countries. If a party does not have the legal ‘standing’ to raise an issue, relevant to suggested environmental concerns, any attempt to do so will be rejected without proceeding to the consideration of the substance of the point, however important it may be. Strict rules on standing arose in English law from the concern that ‘busybodies’ would intrude into the disputes of others and that this should be resisted. It was for these concerns that, ordinarily, a party raising such a point, would have to establish some special (usually financial) interest in the subject raised so as to attract the attention of the court or tribunal and consideration of the point in issue.
In my experience in international commercial arbitration, issues of the environment rarely arise in direct and substantive ways. However, they can arise co-laterally. They require care on the part of the arbitrator.
Thus, in an international arbitration heard by me in an Asian arbitral hub, a dispute between the parties was declared to have been settled by agreement between them. One party was a major engineering corporation in a large country of Asia. The other party was a government operating in another large country of Asia. The dispute concerned the application of the contract between the parties concerning the building of a dam. Fresh from the consideration of the Oslo Principles an issue was raised in my mind, as to whether the proposed settlement had sufficiently taken into account any public interest that applied, relevant to the protection of the environment, and specifically of access of water according to principles of international and local law and equality and justice. Because I was the chair of the arbitral tribunal, I raised with my colleagues whether we had authority to, and should, raise the issue of the possible public interest for the submissions of the parties. Having regard to the applicable arbitration law that governed the law of the arbitration, the supervising courts had authority to consider public interest. A risk existed that a settlement contrary to the public interest might later be set aside by the courts.
In these circumstances, the tribunal agreed that we were warranted to raise the issue for the submission of the parties. So I did. The parties strongly contended that the public interest involved in the dispute was the public interest in the settlement between the parties. In the event, the arbitral tribunal so decided: we proceeded to an award that gave effect to the settlement. However, entirely without any concerns about issues of corruption or improper dealings, the delicate and sometimes existential issues of climate change and environmental protection can sometimes arise as a side wind in commercial arbitrations. It would be desirable, in my opinion, that the ICC Commission on Arbitration and ADR give consideration to, and guidance upon, this subject in its Task Force. It should make clear what it believes should happen on the issues of standing to raise such questions and what substantive law applies or is needed to ensure that arbitral tribunals can have resort to in determining such disputes or potential disputes.
Relevance to international arbitrators
In these remarks, I have referred to two very large issues which I have described as existential. By this I mean that they are issues for which the resolution will affect the existence of human life on planet Earth. I have placed the danger of nuclear weapons first. This is because of the enormous stockpiles of such weapons that already exist, and the speed with which they could reduce our planet to lifelessness or ‘grass and insects’. The existential character of climate change is also obvious. However, the slow inexorable impact of greenhouse gas emissions presents a more insidious danger that it is likewise easy to overlook, postpone or ignore. This is why a Task Force of the kind mentioned has now been proposed and is timely.
It may be said that the issues that I have raised are beyond the competence of the ICC Commission on Arbitration and ADR. There is some substance in this viewpoint. Each of the existential questions that I have referred to is on the agenda of the international community and of the political leaders who represent the people of our nations.
Nevertheless, it is appropriate that learned, experienced and professional organisations, such as the ICC Court of Arbitration and the ICC Commission on Arbitration and ADR, should reflect upon the issues I have raised. They arise in a context that can sometimes be assisted by rational solutions and procedures used by arbitrators.
These are the reasons why I consider that several issues should be addressed at this Sydney conference:
Distinguished and talented bodies of experienced practitioners, such as the ICC Commission and the ICC Court, need to be constantly challenged to think outside their comfort zone. I hope that, on the long flights returning through many time zones and great distances to the other sides of the planet, participants in this Sydney conference will occasionally look out the window and see the beauty of the world below. If they do, they will realise our human duty to address existential challenges to human safety and the biosphere. In 2017, those challenges plainly include the proliferation of stockpiles and the testing of nuclear and threats of use of such weapons. They also include the ever growing emissions of greenhouse gases, to the danger of the planet and living matter upon it. These are existential challenges worthy of our reflection and of our action.
1 ‘International Arbitration, Young Players and Critical Intelligence’, remarks at the launch of the Australian Young Members’ Group, CIArb Australia, 22 November 2016, The CIArb Australia News, December 2016, p. 35, available at https://www.ciarb.net.au/media-publications/the-ciarb-australia-news/.
2 Geoffrey Hall, Michael Rosbash (Brandeis University) and Michael Young (Rockefeller University).
3 As Special Representative of the UN Secretary General for Human Rights in Cambodia (1993-1995).
4 Among others, Judge Christopher Weeramantry (Sri Lanka); Judge Schwebel (USA); Judge Higgins (UK) and Judge Guillaume (France) declared that, in certain circumstances, the use of such weapons would be so disproportional in the toll on human life as to be incompatible with international humanitarian law and thus unlawful.
5 International Court of Justice, advisory opinion on nuclear weapons, Legality of the Threat or use of Nuclear Weapons ,General List, No. 95, 8 July 1996.
6 Sir Frederick Pollock, The League of Nations (London: Stevens, 1920) at p. 51.
7 M.D. Kirby, ‘Foreword’ in C. Henderson (ed.), Commissions of Inquiry: Problems and Prospects (Hart, Oxford: 2017) at V and VI.
8 R.N. Lebow, ‘Accidents and Crisis: The Dogger Bank Affair’ (1978) 31 Naval War College Review, 66. The incident is also referred to by Pollock, supra note 6, p. 51.
9 Kirby in Henderson, supra note 7, at VI.
10 The Serbian confrontation is described in C. Clark, The Sleepwalkers: How Europe Went to War in 1914 (London: Harper, 2013).
11 UN Charter, art. 34.
12 United Nations, Human Rights Council, Commission of Inquiry on Human Rights in the Democratic Peoples’ Republic of Korea, (A/hrc/25/crp.1, 7 February 2014), http://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/CommissionInquiryonHRinDPRK.aspx
13 Jawoon Kim and Alan Bloomfield, ‘Argumentation, Impact and Normative Change: Responsibility to Protect After the Commission in Inquiry Report into Human Rights in North Korea’ in Global Responsibility to Protect, 9 (2017) 173.
14 M.D. Kirby, ‘The United Nations Report on North Korea and the Security Council: Interface of Security and Human Rights’ (2015) 89 Australian Law Journal, 714.
15 COI Report supra note 12 at 350-351 [1155-1159].
16 UN Charter, art 27.2. The provisions for the ‘veto’ and the provision on ‘procedural matters’ are explained in Kirby above n.14 at 717-719.
17 Blaine Harden, ‘Rocket Man Should Know His History’, New York Times, 24 September 2017, 3.
18 Vipin Narang, ‘Why Kim Wouldn’t Be Irrational to use a Nuclear Bomb First’ Washington Post, 10 September 2017, B3.
19 Oslo Principles on Global Climate Change Obligations in Social Europe, Occasional Paper, October 2015 (Yale Global Justice Program), http://globaljustice.macmillan.yale.edu/sites/default/files/files/OsloPrinciples.pdf. Subsequently, an Expert Group on Global Climate Obligations of Enterprises prepared the Enterprises Principles concerning the obligations on enterprises and investors. These clarify the specific obligations of enterprises and investors in following up the concrete actions that must be taken to address climate change from a legal perspective.
20 E.g. ‘Report, Increasing the Effectiveness of International Environmental Law: Duties of States, Rights of Individuals’, Le Club des Juristes, November 2015, http://www.leclubdesjuristes.com/report-increasing-the-effectiveness-of-international-environmental-law-duties-of-states-rights-of-individuals/. See also Council Resolution on Climate Change, Justice and Human Rights, International Bar Association, Human Rights Institute, 26 May 2016.