Introduction

The search for fora starts with identifying the issues. I begin with a visit to Antarctica in 1980, where I met scientists from the Scott Polar Research Laboratory in Cambridge who were in the course of discovering the ozone hole and its cause. The disastrous use of chlorofluorocarbons for refrigeration purposes was finally identified, and by the multilateral Montreal Protocol 19871 State parties undertook to get rid of it, and in time its use was phased out. But that was not the end of its effects.

More recently,2 at the Scott Polar Research Laboratory I was told that at best in 50 years’ time, if modern states behave, may enforcement of the agreement have freed the world from the radiation that creates the kind of skin cancer of which New Zealand’s leading public lawyer3 died in his forties. Residents of the southern latitudes will continue to be afflicted by this.4

Yet in relative terms, since it has actually been possible to abolish the use of chlorofluorocarbons, this is a limited problem. The CO2 problem, by contrast, is of a different and immense order. Its formation by industry and other human activities cannot be abolished: it is produced by the very conduct that allows the people of a developing State to secure the benefits enjoyed within developed States.

So it is not feasible simply to prohibit its emission. Rather it must be controlled by self-restraint within the international community, which does not have a good record of suppressing conduct at odds with its selfish interests.

The invisible CO2 problem is more insidious than terrorism, which attracts immediate international attention. But deficiencies in the international response to terrorism illustrate both the difficulty and the urgency of creating effective systems to deal with global warming.

Take the Paris killings on 13 November 2015 on the eve of COP21. We all know it was a neophyte terrorist group that has already killed citizens of 17 States, operating across numerous State borders.5 And yet those who have had the power to make and enforce international criminal law have failed for, it is hard to believe, 79 years6 to agree on a simple definition of a crime of terrorism at international law that would allow across those State borders a properly coordinated international response by legal process.7 That sort of sluggishness is intolerable in relation to terrorism; in the present context it would be disastrous. Killing humans is a terrible thing, but after past wars humans have reproduced. The impact of continued global warming on the ecosystem is predicted to be devastating to the human race and all life, potentially wiping out not only humans but many other species.

There are certain fundamentals.

  1. The first is the need for action. The 2011 UNDP Human Development Report and annual IPCC reports, the IBA Climate Change Task Force’s Report 2014 Achieving Justice and Human Rights in an Era of Climate Disruption, and other research provide overwhelming evidence that we are reaching an upper limit to our capacity to emit greenhouse gases without dire consequences.8 The parties to the Paris Agreement by Parties to the United Nations Framework Convention on Climate Change (COP21)9 acknowledged that the case for urgent intervention to reduce greenhouse gases, at the very least within an ultimate limit of 2% and preferably 1.5% above pre-industrial levels , is made out. James Hansen rejects even that ceiling as “definitely dangerous” and calls for an escalating price on carbon.10 Whether 2% is adequate seems to be highly doubtful. Any rational decision requires major reduction of current trends.
  2. As the Paris Agreement has shown, there is some preparedness by States to pledge or commit to limit greenhouse gases.
  3. Given such preparedness, law could be made to enforce the pledges of commitment or even to impose an obligation to limit gases.

[Page104:]

It is however another thing to achieve that. While there is urgent need to get on with it, the impediments are disquieting.

The Need for Systems to Identify and Deal with the Problems

There is a curious human reluctance to act on the evidence of pending disaster. What do we have to do to get the decision makers to act? I have identified seven factors.

First, the need to recognize the problem. A characteristically pithy Australian appraisal is that for many the problem is not concern there is no one at the helm; it is “most people don’t even know there is a ‘ship’.” I return to the topic of education.

Second, we ourselves are among the decision-makers — as scholars, scientists, political experts, lawyers, judges, members of NGOs or interested otherwise. No one covers the gamut. Yet it is those of us who have some knowledge of what is at stake who owe to others, most importantly the next generations, a moral obligation to apply our experience and expertise to the task. The point links with the responsibility of governments discussed as the seventh factor.

Third, a major focus must be on adequate systems because without that, as history shows in war11 and peace,12 the result is disaster. That was the reason for the Antarctic visit. There had been a collision of an Air New Zealand aircraft carrying 257 people with a mountain which for two reasons the flight crew didn’t see: the safe computer track on which they had been briefed was altered without notice to them so as to intersect a beacon directly behind Mount Erebus; and, while other Air New Zealand personnel were experts in polar aviation, they had received no education in the whiteout phenomenon that arose from reflection of the sun’s rays between ice crystals in the mountain snow and similar crystals in the cloud above, causing optical illusion. As they descended to view the historic bases of Scott and Shackleton, whiteout, which the latter had described in The Heart of the Antarctic (1911), created a fatal misapprehension that the route ahead was unobstructed.13 In 1993 the International Civil Aviation Organisation issued a circular that concluded:

The Erebus Report ICAO Circular 247-AN/148 45 and most of its associated literature were produced 10 years before [the air crash at Dryden Ontario]; they generated violent controversy and remained inconspicuously shelved until recently. The Erebus Report was, probably, 10 years ahead of its time. After all, Chernobyl, Bophal, Clapham Junction, King’s Cross and other major high technology systems catastrophes had yet to happen. They need not have happened. In retrospect, if the aviation community — and the safety community at large — had grasped the message from Antarctica and applied its prevention lessons, Chernobyl, Bophal, Clapham Junction, King’s Cross and certainly the Dryden report would not have existed.14

That is the systems problem which Wendy Miles has addressed: to ensure communication among related disciplines silos must have holes knocked in them.

Fourth, is the overarching problem of education. Ideally, there will be agreement by States on the quantum of each State’s CO2 emissions, enforceable by the State within its own borders and against its own citizens. But how to get the State and its citizens to do these things?

Action has high costs whose amount is a function of time, degree, innovation and incentives. So inertia usually seems the easy option; there is reluctance to accept any degree of compelled economic disadvantage. But the consequence for future generations of inertia is overwhelming.

The force of ideas is immense, as seen in the original spread of Nazism and more recently of the so-called Islamic State.15 To bring about change of attitudes requires imagination and effort. To do so in respect of global warming requires education, so that communities will both allow and encourage their politicians to engage seriously with it rather than be bundled out of office for treading on a so called right to pollute.

In the case of global warming there is an in-built human insouciance and consequent inertia. Systemic means are needed to deal with it.

In the previously fraught sphere of race relations, that problem was recognized by the creation of New Zealand’s Waitangi Tribunal.16 It has essentially no power except to investigate and report upon the injuries caused to the indigenous Maori by colonialism in breach of protection promises in the 1840 Treaty of Waitangi, by which Maori had relinquished to the British Government their antecedent governmental authority. The Tribunal communicated to New Zealanders disquieting details of expropriation by armed force and other wrongs done to the Maori minority. As a result New Zealanders have permitted recompense: that the three limbs of government — legislative, executive and judicial — should actually make fundamental changes including reparation and restoration of property and other rights. There has been a Maori renaissance that benefits all New Zealanders. A similar continuous process of education is needed here.

Fifth, recognize and deal as a primary factor with the element of self-interest. It has two sides. The nasty, negative one has been exhibited in what a French judge called “two speed justice,” the [Page105:] phenomenon that the wealthy can engage in tax mitigation unavailable to others, that has since received such prominence from the “Panama Papers” leak.17 A facet of it is a blinkered human refusal to accept need for change, even if appreciated intellectually. At the dinner in 479BC before the fatal battle of Plataea a Persian said to the Greek Thersander:

‘Since you have eaten at the board with me and drunk with me afterwards, I would like … you [to] have such knowledge as to take fitting counsel for your safety. Do you see these Persians at the banquet and the host which we left encamped by the river side? In a little time you will see but a small remnant left alive of all of these.’ Marvelling at these words Thersander answered: ‘Must you not then tell this to Mardonius and those honourable Persians who are with him?’ ‘Sir,” said the Persian … even truth sometimes finds no one to believe it. What I have said is known to many of us Persians, but we follow, in the bonds of necessity. It is the most hateful thing for a person to have much knowledge and no power.’18

The other, positive, side of self-interest was identified by Cicero in "The Good Life":19 good things are done by way of self-interest because I want to do what is decent.

Then there is the additional self-interest factor of States’ Westphalian autonomy, dating from the Treaties of Osnabrück and Munster of 1648.20

But the State autonomy they recognized is now evolving to recognize a crucial further factor. In Belhaj v Straw (CA 2014),21 the final appellate judgment from which is currently awaited, the Court of Appeal of England and Wales stated:

A fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects.

So the sixth factor is the need to recognize that all law is in fact about people.

That links with the seventh factor: the responsibility of governments for their people. There can be no more vital responsibility of every government than that of:

“the preservation of [peoples”] human right to the protection of their environment a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself … damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments … there is … a duty to ensure that [development] projects do not significantly damage the environment ” emphasised by Vice President Weeramantry in the ICJ Danube Case (1997).22

It is unhappily the case that domestic judges sometimes downplay the role of domestic law in giving effect to States’ international obligations.23 It is to be hoped that the long standing contrary line of authority supporting the Government’s obligation of protection will eventually prevail. It is reciprocal to the citizen’s obligation of loyalty to the State.

The executions for treason of Roger Casement for conduct in the First World War24 and of William Joyce (“Lord Hawhaw”) in the Second25 were justified by the courts’ citing Calvin’s Case (1608) which spoke of the duty of fealty of a citizen to the sovereign.26 What is too often overlooked27 is the actual point of the case — the hard-edged reciprocal obligation of the sovereign to protect the citizen. Recent authority shows that principle being applied in domestic law by the highest courts of the USA and the UK when construing statutes in the cases mentioned below. But the underlying principle of the common law duty of protection should not be forgotten.

What Are the Options?

I list six which are interrelated.

General principles of international law and the common law

First is recourse in any forum to the general principles of international law and of the common law confirming as just mentioned the responsibility of governments for their people.

Treaty

The second option — treaty — now focuses particularly on the Paris Agreement. That was in course of negotiation at the States meeting which the present Conference paralleled.

Legislation

One example of the third option — legislation — is to be found in US law. Massachusetts v Environmental Protection Agency (2007)28 described global warming as “the most pressing environmental challenge of our times” and upheld the appellant’s petition that the EPA had abdicated its responsibility under the Clean Air Act to regulate the emissions of greenhouse gases, including carbon dioxide.

[Page106:]

Another is seen in EU law. In R(Client Earth) v Secretary of State for the Environment, Food and Rural Affairs (29 April 2015) 29 there had been admitted and continuing failure by the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European law, under Directive 2008/50/EC. The UK Supreme Court made a mandatory order requiring the Secretary of State to prepare new air quality plans under Article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015.

And in Urgenda v Netherlands (24 June 2015) a District Court in The Hague held itself able under Dutch law to order the Dutch Government to “limit or have limited” national greenhouse gas emissions by at least 25% by 2020 compared to the level emitted in 1990. The Government has appealed the decision.

There is great scope for future legislation, such as the proposed “Model Statute on Legal Remedies for Climate Change”.30 There is need for adoption and implementation of Treaty Articles 10 (Global Stocktake), 9 (Transparency) and 3 (Mitigation) of the Draft Agreement of the Ad Hoc Working Group on the Durban Platform for Enhanced Action. 31

Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop [A] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.32

Certainly the proposed Model Statute would helpfully go part of the way: it would encourage each individual State to put its own house in order by providing a procedure to deal with domestic claims where substantive rights do exist.

The problem is to achieve a worthwhile legal obligation of individuals, corporations or the State, and thus a legal right to enforce it.

There is obvious appeal in a Model Law providing a national environmental template for each State to adopt as a domestic statute which would, like the US Foreign Corrupt Practices Act, apply to any person or company, wherever they are, with relevant links to the State. But whereas corruption is readily defined, setting legally enforceable environmental standards is another matter. Its importance is emphasized by President Obama who on 1 December 2015 said:

… the US wanted one major component of the deal — the periodic review of emissions reductions targets — to be legally binding.33

To make environmental claims readily justiciable under domestic law would require a self-denying ordinance by States, imposing on themselves as well as on their companies and individuals legally enforceable standards, as was done following the discovery of the Antarctic ozone hole.34 The IBA’s draft “Prevention of Foreign Environmental Degradation Act” contains both substantive prohibitions and procedural and penal means to enforce them. The former propose:

Environmental Restrictions and Standards

An offshoring corporation which undertakes any activity in a place outside of [Home Country] (either directly or through a subsidiary or affiliate) must take the best practicable option to prevent any material adverse effect on the environment in and around that place from that activity.

In its activities outside of [Home Country] an offshoring corporation shall not (either directly or through a subsidiary or affiliate):

  • dump, discharge or release waste or hazardous substances onto or under the ground (unless in an area designated by a State or local authority for that purpose);
  • unless a licence or permission has been obtained from a State or local authority for that purpose, dump, discharge or release waste or hazardous substances into waterways (including ocean waters) or into the environment;
  • undertake gas-flaring of waste gas associated with oil exploration and extraction;
  • undertake drilling and exploration for oil or other resources for commercial purposes in the Arctic or Antarctic regions;
  • cut down or clear more than 50 square metres of native trees or flora without the consent of the local and central government and affected indigenous groups;
  • [Further activities to be prohibited or restricted?].

But however virtuous individual States may be, since the environment knows no national boundaries all decision-makers must appreciate that action is urgently required at the international level.35

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International Legal Steps

There is compelling need to take now such international legal steps as are feasible. Possible immediate action includes:

  • Create a system of sustained and effective publicity as to the need for a seamless international legal regime;
  • Adopt and give effect by Treaty Articles 10 (Global Stocktake), 9 (Transparency) and 3 (Mitigation) of the Draft Agreement of the Ad Hoc Working Group on the Durban Platform for Enhanced Action36 so as to put before the world the facts and States’ responses to them;
  • Pursue systematically the initiative of COP21: undertake a Domesday audit of all factors relevant to a just and equitable global system of law that will operate in a principled and practical manner to avert the threatened catastrophe. Such system would provide the factual and policy basis for enforcement mechanisms. These could be of many forms, among them:
    • An international agency, perhaps linked to the United Nations Environmental Programme,37 empowered from the outset to monitor and require periodic review of emissions reductions targets and ultimately to enforce standards world-wide
    • Complementary domestic agencies with like authority
    • Civil remedies for breach, including counterclaim under investment treaties
    • Criminal liability of individuals and companies, including their officers for egregious breach.

Item (1) should be within the capacity of the COP21 parties. The major problem, given the history to date, will be Items (2)-(4). It would be admirable if the post- COP21 discussions can deal with them. They might pick up and apply internationally the draft statute proposed in the Model Statute for use by individual States. But in case they cannot, other methods will need to be considered.

Litigation/Arbitration

The fourth option — litigation (including judicial review) and arbitration — requires:

A. Law or agreement imposing obligations giving rise to a justiciable dispute

B. A forum, whether court or arbitral forum to create the process

C. Selection of the decision-makers, either by reference to an existing court or appointment of arbitrators.

Professor Phillipe Sands QC’s proposal for recourse to advisory opinion by the ICJ received a positive oral reply from Judge James Crawford of that Court should the evidence and the law justify that course; each repays a visit to the Supreme Court’s website.38 And on 26 November Lord Carnwarth recounted the success of trail-blazing judicial initiatives internationally in responding to climate change.39

A facet of the fourth option is criminal law. While the primary focus is on non-criminal responses, egregious breach of an international regime for mitigating the effects of greenhouse gases should be viewed as of a higher level of moral infringement than most crimes. Criminal law is a powerful expression of the moral standards of a community — State or international — and is a valuable deterrent. During the Peace Palace Library Lectures on 14 November 2015 commemorating the 70th anniversary of the Nuremberg Trials mention was made of environmental crimes as crimes against humanity over which the International Criminal Court has jurisdiction. Echoing aspects of the draft Prevention of Foreign Environmental Degradation Act it was suggested that these could include:

  • Major deforestation, as by forest fires or mining, depriving the environment of its lungs with adverse consequences to indigenous people and wildlife
  • Damage to polar regions or pollution of the oceans or other elements of the environment, as may be caused by oil drilling or spillage

There is also a proposal for creation of a specific international crime of ecocide.40 It is to be hoped that planning for the future takes the criminal dimension into account.

If it does there would need to be recalled the continuing reticence of certain civil law States and blanket refusal of international law to acknowledge criminal liability of companies. The Special Tribunal of Lebanon has declined to apply in contempt cases what, given the modern characteristics of companies, is a wholly outmoded rule.41

It would not be sensible to seek to extend criminal liability to States. The position of heads and other officers of State has been evolving since Pinochet42; cf Jonesv Ministry of the Interior of the Kingdom of Saudi Arabia43. The position of officers of State may be the subject of consideration by the UK Supreme Court in Belhaj v Straw.

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There are crimes against humanity being committed right now. The criminal law in every state is used to denounce those who act against its fundamentals, and it is time we realised that we’re talking about a subject fit for the criminal law.

Security Council

The fifth option — action by the Security Council — arises from its jurisdiction and duties under the UN Charter:

Article 24(1): primary responsibility for the maintenance of international peace and security.

Article 39: … determine the existence of any threat to the peace … and shall … decide what measures shall be taken in accordance with Article … 41, to maintain international peace and security.

Article 41: … decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures …

Having primary responsibility for the maintenance of international peace and security, as is shown by its post-9/11 requirement of States to legislate countermeasures against terrorism (Resolution 1540 28 April 2004), to the Ebola crisis (Resolution 2177 18 September 2014) and against foreign terrorist fighters (Resolution 2178 September 28 2015), it has both the power and the continuous responsibility to deal with threats to all kinds of international peace and security, among them climate change. It is to be emphasized that the Council is concerned not only with existing breaches of international peace and security but also — vitally — with threats. The call by Professor Alvarez-Jiminez for an Early Warning Model ("EWM") in relation to economic recession44 is of even greater moment in relation to the effects of greenhouse gases.

The Bottom of the Cliff

The foregoing concerns possible means to avert disaster. Potentiality of failure needs also to be examined, as to the consequences if they are not averted, and therefore as pressing reasons for serious urgent response.45

But:

[a]s yet there has been no systematic analysis of state practices relating to relocations and the legal issues involved. This has been identified as an important area for future research.46

The IBA Report touches on the prospect of inundation of low-lying islands, such as those of Tuvalu which is northeast of Australia (5148 km distant) and New Guinea (4640km), due north of New Zealand (3733km), and surrounded by smaller islands including Nauru (1514km), Kiribati (2852km), Fiji (1139km), Samoa (1224km) and American Samoa (1553km). What is to happen to the people if inundation occurs?

The New Zealand courts have held, inevitably, that the consequences fall outside the 1951 Refugee Convention.47 But international law cannot simply avert its eyes. The ICJ has already adopted principles of equity to deal with delimitation of the continental shelf in inter-State disputes. In North Sea Continental Shelf Cases (1969) the ICJ held:

On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continent shelves-that is to say, rules binding upon States for all delimitations;- in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal régime of the continental shelf in this field, namely: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved …48

The law has always seen a tension between the two limbs of the familiar judicial oath:

I, … , do swear that I will well and truly serve our Sovereign […] in the office of …, and [1] I will do right to all manner of people [2] after the laws and usages of this realm, without fear or favour, affection or ill will.49

Limb [2] expresses the interest of stability, which is of profound importance. But it must be read in the light of [1]. In order to do right it may be necessary to modify existing usages. The great jurists [Page109:] from Cicero through Montaigne, Grotius and Lord Bingham have done precisely that.50 Just as the Roman law was developed by the jurists to deal with the consequences of inundation by rivers51 so it is the responsibility of this generation to devise principles to deal with inundation by sea. Given the primary value of human life an application of the principle of equity, to resettle the victims in neighbouring States is an obvious course. Such ancillary issues as entitlement to their fishing and seabed mineral rights are even closer to the authority of the North Sea Continental Shelf Cases.

Conclusion

Overarching all these and more is the need for nothing less than a third great successor to the Peace of Westphalia four centuries ago and to the San Francisco conference 70 years ago.

Professor Knox’s proposed obligation of cooperation — to create and implement a common vision to identify all factors pulling against a decent future, to deal with all of them by every means available, implemented in the way described by Roger Martella — demanding action by systems devised and maintained to achieve urgent change of ethos by all States — is required to save the planet from destruction.



1
The Vienna Convention for the Protection of the Ozone Layer (1985, in force 1988) was followed by the the Montreal Protocol on Substances that Deplete the Ozone Layer September 1987, by which the parties undertook by 1 January 2010 to reduce to zero its production of controlled substances (in force 1989).


2
In January 2012.


3
Professor Michael Taggart.


4
See also “The Antarctic ozone hole: An update” Anne R. Douglass, Paul A. Newman and Susan Solomon physicstoday July 2014, page 42.


5
Associate Professor Mohamed Elewa Badar of the Northumbria Law School “The Road to Genocide: The Propaganda Machine of the Self-declared Islamic State” (2016) 16 International Criminal Law Review 1, 50. A diplomatic colleague advises that it has attracted recruits from 125 States.


6
Since the 1937 International Convention for the Prevention and Punishment of Terrorism adopted under the auspices of the League of Nations, but never implemented: Ben Saul Defining Terrorism in International Law (Oxford 2006, paperback 2008) xxiii.


7
That is not to suggest legal process is sufficient. The imperative need for public education, in relation to terrorism as to global warming, is touched on later. In his “The Road to Genocide: The Propaganda Machine of the Self-declared Islamic State” (2016) (n5 above) p1 Professor Badar School recounts the significance of hate propaganda employed by Islamic State, as by the Third Reich.


8
See Patrick Huntjens and Ting Zhang “Climate Justice: Equitable and Inclusive Governance of Climate Action” 13 April 2016 The Hague Institute for Global Justice http://www.thehagueinstituteforglobaljustice.org/information-for-policy-makers/working-paper/climate-justice-equitable-and-inclusive-governance-of-climate-action/ page 1 visited 14 April 2016.


9
Endorsed by the Joint Communiqué of the G& Foreign Ministers’ Meeting in Hiroshima on 10-11 April 2016 http://www.mofa.go.jp/files/000147440.pdf visited 11 April 2016.


10
http://www.theguardian.com/environment/2015/dec/03/un-wrong-track-plans-limit-global-warming-2c-top-scientist-climate-change visited 3 December 2015.


11
The lack of warning systems at Pearl Harbour is notorious; less well known (news of it was concealed from the press) is its repetition at Savo Island off Guadalcanal: through lack of proper system of lookout four Allied cruisers were sunk with heavy loss of life in enemy-dominated seas by a Japanese night attack when “… their commanders and crews ought to have been hyper vigilant to every likely threat”: Ian Toll The Conquering Tide (Norton 2015) 55-6.


12
In civil life it was not until the systems literature from the 1980s, listed by Victor Bignell and Joyce Fortune Understanding Systems Failures (Manchester University Press 1984) p213; René Amalberti La conduit de systèmes à risques (puf 1996); De Tchernobyl en Tchernobyls (Georges Charpak (Nobel laureate), Richard L. Garwin et Venance Journé) (Odile Jacob2005), and in 1990 the classic book Human Error by the psychologist James Reason (Cambridge), that the concept of systemic safety became generally known.


13
Report of the Royal Commission to inquire into The Crash on Mount Erebus, Antarctica of a DC10 Aircraft operated by Air New Zealand Limited 1981.


14
ICAO Circular 247-AN/148 Human Factors Digest No 10 Human factors, management and organisation


15
In his “The Road to Genocide: The Propaganda Machine of the Self-declared Islamic State” (2016) 16 International Criminal Law Review 1, n5 above Professor Badar considers the attacks directed by, linked to or inspired by it in the 17 States (p50). He cites Hitler’s:
With the help of a skilful and continuous application of propaganda it is possible to make the people conceive even of heaven as hell p2

He warns that the propaganda of ISIS:
is widespread and systematic, relentless and meticulous, utilising a vast array of mediums with an ability to reach a global audience. p49


16
Created by the Treaty of Waitangi Act 1975 New Zealand.


17
Liberation 15 July 2013 « Fraude fiscale : faire sauter le “verrou” de Bercy» by Christophe Regnard, Président de l’Union syndicale des magistrats and others:
la confiance de nos concitoyens, dans leurs institutions, durablement ébranlée, ne saurait être restaurée tant que perdura dans notre pays une justice à deux vitesses. Que « toutes les grosses fortunes négocient leurs impôts » (selon Henri Guaino). Est-ce tolérable ?

http://www.liberation.fr/futurs/2013/07/15/fraude-fiscale-faire-sauter-le-verrou-de-bercy_918449 visited 6 April 2016.
(The heading — forcing open the Bercy lock — refers to the ministries of the French government in the Bercy quarter of Paris which are responsible for the economic and financial policies of France.)


18
Herodotus 9.16.2-5. Compare West Coast Ent Incorporated v Buller Coal Limited [2013] NZSC 87 where, over the dissent of the Chief Justice, the majority of the Supreme Court of New Zealand rejected the application of environmental legislation to mining coal because it would be burned, with resulting release of gases, offshore.


19
Penguin Classics (1973). Cicero’s translator Michael Grant identifies as similar thinkers Aquinas, Dante, Petrarch, Erasmus, Montaigne, Voltaire and Kant (pp36-42).


20
Recognised by Article 2(7) of the UN Charter.


21
[2014] EWCA Civ 1394, [2015] 2 WLR 1105.


22
Gabćikovo-Nagymaros Project (Hungary v Slovakia) 1997 ICJ Rep , 90-2.


23
A debate on the matter continues in several jurisdictions. In the opinion of Oppenheim’s International Law (Ninth Edition Volume 1), William Blackstone’s assertion “that the law of nations is part of the law of the land … has been repeatedly acted upon by courts and can be regarded as an established rule of English law.”
(para19(1) citing “many cases enumerated by Lauterpacht Grotius Society 25 (1939) pp 52-67, 77-84 and modern authority including Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, Trendtex Trading Corp v Central Bank of Nigeria [1977] 1 Q.B. 529 and Post Office v Estuary Radio Ltd [1968] 2 QB 740)

Seven decades ago the Chief Justice of Australia Sir Owen Dixon, in Chow Hung Ching v R (1948) 77 CLR 449, 477, rejected Blackstone’s opinion, holding:
The true view is “that international law is not a part, but is one of the sources, of English law”. (Article by Prof. J. L. Brierly on International Law in England, (1935), 51 Law Quarterly Review, p. 31).

“In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become a source of, English [domestic] law”. (Sir William Holdsworth, Relation of English Law to International Law: Essays in Law and History, p. 267)
In Coleman v Power (2004) 220 CLR 1 at [242-3], having argued for the use of the International Covenant on Civil and Political Rights to assist in the construction of Australian legislation, Kirby J challenged the jurisprudence following Chow Hung Ching, predicting:
In time, the present resistance to the interpretative principle that I favour will pass.

The Dixon view was endorsed as recently as 2007 when Heydon J stated of the Kirby position:
The proposition that the legislative power of the Commonwealth is affected or limited by international law since 1900 is denied by most, though not all, of the relevant authorities — that is, denied by 21 of the Justices of this Court who have considered the matter, and affirmed by only one.

One of the cases cited by Heydon J was Al-Kateb v Godwin (2004) 219 CLR 562 where, over the dissent of the Chief Justice and other senior judges, an illegal immigrant who had committed no other offence was held liable to mandatory permanent detention. A decade later, in a short unanimous decision Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34, (2014) 88 ALJR 847 (11 September 2014), the Al-Kateb result was avoided.
The Court of Appeal of New Zealand in Tavita v Minister of Immigration [1994] 2 NZLR 957 dismissed as “unattractive” the Crown’s argument that the Minister could ignore New Zealand’s international human rights obligations. The Supreme Court in Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] applied the principle that legislation should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments.
Most recently however, on 16 December 2015 in R (Wang) v Central Criminal Court [2015] UKSC 76 at [35] seven judges of the UK Supreme Court stated as the law of England:
a domestic decision-maker exercising a general discretion (i) is neither bound to have regard to this country’s purely international obligations nor bound to give effect to them, but (ii) may have regard to the United Kingdom’s international obligations, if he or she decides this to be appropriate. [emphasis added]

They may have preferred the opinion of Lord Bridge in R (Brind) v Home Secretary [1991] UKHL 4, [1991] 1 AC 696 to the admirable dissenting judgment of one of their number, Lord Mance, in R (Hurst) v Commissioner of Police of the Metropolis [2007] 2 AC 189, [2007] UKHL 13 (2007):
I find unattractive the proposition that it is entirely a matter for a discretionary decision-maker whether or not the values engaged by this country’s international obligations, however fundamental they may be, have any relevance or operate as any sort of guide.


24
[1917] 1 KB 98.


25
[1946] AC 347.


26
7 Coke’s Reports 1a, 77 English Reports 377 in which a panel of 14 judges, headed by Sir Edward Coke CJ, held that under the common law a child born in Scotland after the 1603 Union of the Crowns under James (VI of Scotland and I of England) was an English subject entitled to the benefits of English law.


27
But not by Sir John Salmond, cited in Ding v Minister of Immigration (2006) 25 FRNZ 568 at [12], on appeal Ye v Minister of Immigration, as to the Crown’s responsibility to protect New Zealand citizen children of Chinese overstayers.


28
549 US 497.


29
[2015] UKSC 28.


30
“Achieving Justice and Human Rights in an Era of Climate Disruption,” International Bar Association Climate Change and Human Rights Task Force Report (2014) 127-136.


31
http://www.unep.org/climatechange.


32
Massachusetts v EPA 549 US 497 at 499.


33
The Guardian 1 December 2015 www.theguardian.com/environment/2015/dec/01/barack-obama-parts-of-paris-climate-deal-must-carry-legal-force (visited 1 December 2015).


34
Text at notes 2-4 above.


35
Cf West Coast Ent Incorporated v Buller Coal Limited [2013] NZSC 87 n 18 above.


36
Report p64.


37
http://www.unep.org/climatechange.


38
https://www.supremecourt.uk/news/climate-change-and-the-rule-of-law.html visited 2 December 2015.


39
https://www.supremecourt.uk/docs/speech-151126.pdf (visited 1 December 2015).


40
Emanuela Fronza and Nicolas Guillou « Vers Une définition du crime international d’écocide » in Des écocrimes à l’écocide (Brylant 2015) 127.


41
STL Decision in Proceedings for Contempt STL Casebook 2014 1; New TV and K Khayat Jurisdiction Appeal 2 October 2014, STL Casebook 2014 343 (majority decision) and Akhbar Beirut SAL and IMA Al Amin Appeal STL-14-06/PT/AP/AR126.1 23 January 2015.


42
Rv Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147, 269, 285-6.


43
[2007] 1 AC 270.


44
Alberto Alvarez-Jiminez “The Great Recession and the New Frontiers of International Investment Law: The Economics of Early Warning Models and the Law of Necessity” Journal of International Economic Law, 2014, 0, 1-34.


45
See Jane McAdam and Elizabeth Ferris “Planned relocations in the context of climate change: unpacking the legal and conceptual issues” Cambridge Journal of International and Comparative Law 2015, 4(1) 137-166.


46
ibid text at n105-6.


47
Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125 Priestley J, upheld on appeal at [2014] NZCA 173.


48
ICJ Reports 4 at 47.


49
Promissory Oaths Act 1868 (UK) Form 4, adopted by other Commonwealth States. (numbers added).


50
Baragwanath “The Interpretative Challenges of International Adjudication Across the Common Law/Civil Law Divide” Cambridge Journal of International and Comparative Law 2014 (3) 450 (2014) at 459-465.


51
For instance The Digest of Justinian Volume 1 (ed Alan Watson) (University of Pennsylvania Press 1985) Book Eight How Servitudes Are Lost 14 citing Javolenus from Cassius, book 10: “If ground, which is burdened with an iter, actus, or via is flooded by a river but, before the period of time required for the loss of a servitude has elapsed, it is restored to its former condition by alluvial deposits, the servitude is also revived, to exist as it did formerly. However, if the prescribed period has elapsed with the result that the servitude has been lost, the owner of the ground can be compelled to renew it.”