Benoit Mayer (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted two papers on international law obligations and climate mitigation on SSRN:
Climate Change Mitigation as an Obligation under Human Rights Treaties? (115(3) American Journal of International Law 409-451 (2021)):
Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state’s treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state’s territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.
Climate Change Mitigation as an Obligation under Customary International Law (Yale Journal of International Law, Forthcoming):
Climate treaties impose few substantive obligations on the mitigation of climate change. This article explores customary law as an alternative source of such obligations. The task faces considerable methodological difficulties due to the tension between ascending and descending reasoning in the identification of customary law. The methodology that international courts tend to follow, this article argues, would likely lead to the identification of a customary obligation on climate change mitigation, but one that only requires states to comply with the standard of care that most of them generally follow—even if that points to significantly less ambition than what global mitigation objectives suggest. It could be difficult to assess a state’s requisite level of mitigation action, but compliance with customary law could be tested by breaking down the customary mitigation obligation into implied duties reflecting the measures that states would generally be expected to take when exercising due diligence.
