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152 Chapter 4
to its long-term effects, the climate crisis has been labelled as a ‘child rights
crisis’.926 At least 155 States have now recognised in law the human right to
a safe, clean, healthy and sustainable environment.927 Internationally, States
have been cooperating under different treaty regimes (such as the tfd of the
unfccc), as well as establishing new initiatives (such as the pdd) which are
instrumental to developing an international legal framework for the protec-
tion of pmdcc.928 Focusing on the nexus of climate change, sustainable devel-
opment, peace and security, human rights, and humanitarian issues, the UN
has also been addressing displacement and migration, notably as a part of its
‘system strategic approach on climate change action’.929 In a landmark UN res-
olution, the unhrc recognised for the first time in 2021 that having a clean,
healthy and sustainable environment is a fundamental right and appointed
Ian Fry as the new Special Rapporteur on the Protection of Human Rights in
the Context of Climate Change.930
The international protection of pmdcc entails novel challenges too. As
the implications of sea-level rise demonstrate, statehood and the right to self-
determination are impacted by climate change and disasters.931 More than
seventy States are or are likely to be directly affected by sea-level rise.932 In
Paragraph 14 of the 2030 Agenda, the unga recognised that ‘the survival of
many societies, and of the biological support system of the planet, is at risk’
and that sea level rise is ‘seriously affecting coastal areas and low-lying coastal
countries, including many least developed countries and small island devel-
oping States’.933 The UN Security Council has held open debates and Arria
Formula meetings on the issue of climate change, international peace and
human mobility is a key factor for sustainable development. See unga Res 68/4 (2014)
gaor 68th Session.
926 unicef, ‘The climate crisis is a child rights crisis’ (unicef, 6 December 2019) <https://
www.unicef.org/press-releases/fact-sheet-climate-crisis-child-rights-crisis> accessed 6
April 2022.
927 Note by the Secretary-General, ‘Human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment’ (2019) UN Doc A/74/161, para 43.
928 See Chapter 2 of this book for a detailed analysis of relevant international treaty regimes,
and cooperative initiatives.
929 UN ceb, ‘United Nations System Strategic Approach on Climate Change Action’ <https://
unsceb.org/united-nations-system-strategic-approach-climate-change-action> accessed
6 April 2022.
930 unhrc (n 10).
931 Oral (n 523) 3.
932 ilc (n 168) 326. Also see ila (n 168).
933 2030 Sustainable Development Agenda (n 236) para 14.
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International Protection as a Community Interest 153
security since 2007.934 Although a resolution has not been adopted yet, the
Security Council has expressed its ‘concern that possible security implications
of loss of territory of some States caused by sea-level-rise may arise, in par-
ticular in small low-lying island States’.935 In the case of low-lying island coun-
tries, sea-level rise might cause significant loss of territory, perhaps eventually
submerging their entire territory.936 Before being completely submerged, sea-
level rise, combined with other stressors, might render low-lying islands unin-
habitable, by causing saltwater intrusion into already vulnerable groundwater
sources and into arable land, severely undermining water and food security.937
This leads to the question of how the international protection of pmdcc con-
cerns the core human rights principles of equality and non-discrimination.938
As the ohchr observed, ‘by disproportionally affecting already marginalised
groups, including children, older persons, persons with disabilities, women
at risk, migrant workers, indigenous peoples, minorities and the poor, cli-
mate change threatens State commitments related to non-discrimination and
equality’.939 On an international scale, climate justice frames the dispropor-
tionate impacts of climate change and disasters.940 Climate justice is based on
the reality that those that have contributed the least to climate change suffer
from it the most.941 Perhaps the greatest hurdle is ‘the failure to understand
climate change as a phenomenon of historical and systemic inequality as well
as a geopolitical one […]. Because of its causes and effects, and the deeply
934 For instance, see unsc UN Doc sc/900 (17 April 2007); unsc UN Doc sc/10332 (20 July
2011); unsc UN Doc sc/11991 (30 July 2015).
935 unsc, ‘Sea-level rise and implications for international peace and security –UN Security
Council Arria-formula meeting’ (18 October 2021) <https://media.un.org/en/asset/k1i/k1i
m1x4i6t> accessed 6 April 2022.
936 Soons (n 534); Lean (n 534); Powers and Stucko (n 534).
937 Storlazzi and others (n 533); Bird and Prescott (n 533); Bowett (n 533).
938 ohchr, ‘OHCHR’s Key Messages on Human Rights, Climate Change and Migration’
<https://environmentalmigration.iom.int/sites/default/files/Key%20Messages%20HR
_CC_Migration.pdf> accessed 6 April 2022; ohchrc, ‘The rights of those disproportion-
ately impacted by climate change’ (Discussion Paper, 30 September 2016) <https://www
.ohchr.org/Documents/Issues/ClimateChange/EM2016/DisproportionateImpacts.pdf>
accessed 6 April 2022.
939 ibid.
940 Henry Shue, Climate Justice: Vulnerability and Protection (oup 2014); Stephen M. Gardiner,
‘Climate Justice’ in John S Dryzek, Richard B. Norgaard and David Schlosberg, The Oxford
Handbook of Climate Change and Society (Oxford University Press 2011) 309–322.
941 David Schlosberg and Lisette B. Collins, ‘From Environmental to Climate Justice: Climate
Change and the Discourse of Environmental Justice’ [2014] 5 wire s Climate Change 3.

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154 Chapter 4
lopsided nature of them, “climate change” is a political term as well as a scien-

tific one’.942
Human mobility lies at the heart of this dialogue: if people are forced to move,
then the protection needs of individuals will be increased.943 Thus, action must
be taken to reduce the impacts of environmental changes on communities
and persons, by way of, for instance, adopting rigorous climate change action
and better preparing for disasters.944 By contrast, if migration with dignity is
facilitated, through laws and policies on planned relocation and on the facilita-
tion of the movement of persons, amongst other things, specific human rights
protection needs can be addressed.945 The international protection of pmdcc
therefore derives from the principles and rules concerning the basic rights of
the human person.
It is increasingly urgent to address the international protection of pmdcc
as a matter that concerns the international community as a whole. States have
been deviating from a purely consent-based conception of the norms relat-
ing to hmdcc and conveying commitments towards the common protection
of pmdcc.946 Most notably, under the Global Compact on Refugees and the
Global Compact for Migration, States have made important commitments to
mitigating the impact of disasters, climate change and environmental degra-
dation on human movement, and specifically commitments to facilitate safe,
orderly and regular migration.947 Countries have been implementing their
942 Maxine Burkett, ‘Justice and Climate Migration. The Importance of Nomenclature in the
Discourse on Twenty-First-Century Mobility’ in Simon Berhman and Avidan Kent (eds),
‘Climate Refugees’ Beyond the Legal Impasse? (Routledge 2018) 84.
943 Fornalé (n 329).
944 For instance, a recent policy brief urged the Australian government to create more tem-
porary and long-term visa opportunities to provide a ‘release valve’ for Pacific islanders
at risk of displacement due to climate change and disasters. Jane McAdam and Jonathan
Pryke, ‘Policy Brief 10 -Climate Change, Disasters and Mobility: A Roadmap for Australian
Action | Kaldor Centre’ [2020] unsw Kaldor Centre for International Refugee Law.
945 Elisa Fornalé, Jeremie Guélat and Etienne Piguet, ‘Framing Labour Mobility Options in
Small Island States Affected by Environmental Changes’ in Robert McLeman, Jeanette
Schade, Thomas Faist (eds), Environmental Migration and Social Inequality (Springer
2015) 167–187.
946 Scott (n 14); Dina Ionesco, Daria Mokhnacheva, and François Gemenne, The Atlas of
Environmental Migration (Routledge 2017); Susanna Schwan and Xiaohua Yu, ‘Social
Protection as a Strategy to Adress Climate-induced Migration’ [2017] 10 International
Journal of Climate Change Strategies and Management 1.
947 See Chapter 1.3 of this book.

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commitments under the compacts in multiple ways.948 Measures include

incorporating climate change considerations into national migration policies,
cooperating with other States to ‘develop solutions such as human rights–
based disaster displacement and relocation guidelines’, and commissioning
research ‘to better understand the links between migration and climate change
and to build evidence of drivers and effective responses’.949
The claims that the international protection of pmdcc derives from the
principles and rules concerning the basic rights of the human person and that
there is an undeniable community interest in its protection provide the basis
for its identification as an obligation erga omnes. Going beyond reciprocal rela-
tions among States based on consent, this recognition can ensure that inter-
national law continues to address the pressing concerns of the international
community as a whole, both old and new.
2.2 Pathways to Using the Existing Procedural Aspects of

International Law
Although the relationship between obligations erga omnes and treaty enforce-
ment rights ‘depend[s]‌less on abstract principles than on a detailed examina-
tion of specific conflicts’, a few general observations can still be made.950 First,
it is open to interpretation whether the breach of an obligation erga omnes as
the result of the conclusion of a treaty may render that treaty void.951 Second,
there is no clear incompatibility between international treaty law and multi-
lateral treaties protecting community interests.952 In fact, treaty regimes aim-
ing to protect a specific obligation erga omnes have come to be termed erga
948 unec, ‘Regional Review of the Global Compact for Safe, Orderly and Regular Migration’
(Summary Report, 12– 13 November 2020) <https://migrationnetwork.un.org/country
-regional-network/europe-north-america> accessed 6 April 2022.
949 Report of the Secretary-General, ‘Global Compact for Safe, Orderly and Regular Migration’
(2020) gaor 75th Session UN Doc A/75/542; UK Government, ‘The Global Compact for
Migration European Regional Review’ <https://migrationnetwork.un.org/sites/default/
files/docs/uk_submission_-_gcm_european_regional_review_. pdf> accessed 6 April 2022;
German Government, ‘Global Compact for Safe, Orderly and Regular Migration’ <https://
migrationnetwork.un.org/sites/default/files/docs/germany.pdf> accessed 6 April 2022.
950 Tams (n 801) 255.
951 This can be compared with the conclusion of treaties conflicting with a peremptory norm,
which becomes void and terminates. Vienna Convention on the Law of Treaties (adopted
22 May 1969, entered into force 27 January 1980) 1155 unts 331 (vclt), arts 53. See also,
ilc, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire
Tladi, Special Rapporteur’ (31 January 2019) UN Doc 1/c n.4/727.
952 See Besson (n 814) 58.

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156 Chapter 4
omnes partes.953 Third, obligations erga omnes may be taken into account in
treaty interpretation through different channels, depending on the case.954
Fourth, whether States are actually interested in requesting the performance
of an obligation erga omnes by invoking the responsibility of another State in
vindication of a breach under treaty enforcement mechanisms is usually per-
ceived as a political decision, and States have often been called ‘reluctant’ to
act.955
Based on these general observations, this section proposes pathways to
using the existing procedural aspects of international law to enforce the inter-
national protection of pmdcc as an obligation erga omnes.956 The pathways
discussed here present an alternative both to bringing a claim before the icj
and to countermeasures.957 Furthermore, they foresee that the construction
and protection of rights erga omnes includes the participation of a variety of
actors, including non-State actors.958 With this aim, four legal areas will be
examined: the international human rights regime, the international climate
change regime, the international labour regime and the international trade
regime (with an emphasis on the wto).
Under international human rights law, the core UN human rights conven-
tions provide for the establishment of independent bodies, known as com-
mittees, to monitor the implementation of the respective treaty by the State
Parties.959 The terms of reference of the treaty bodies differ according to the
convention, and hence the means at the disposal of the committees to monitor
953 Pok Yin Stephenson Chow, ‘On Obligations Erga Omnes Partes’ [2020] 52 Georgetown
Journal of International Law 2, 469–504.
954 Besson identifies three channels for the incorporation of community interests in treaty
interpretation: first, systemic interpretation according to Art 31(3)(c) of the vclt, second,
evolutive interpretation of a community interest norm according to Art 31(3)(b) of the
vclt, and third, teleological interpretation according to Art 31(1) vclt. See Besson (n
814) 59–65.
955 Gaja (n 794); Simma (n 790).
956 These relevant treaty regimes have been discussed in Chapter 1 of this book.
957 They also present an alternative to acquiring an advisory opinion from the icj. See Harry
Gould, The Legacy of Punishment in International Law (Palgrave Macmillan 2010) 65–79.
Also see biicl, ‘Rising Sea Levels: A Matter for the icj?’ (Webinar, 11 March 2021) <https://
www.biicl.org/events/11468/webinar-series-rising-sea-levels-promoting-climate-justice
-through-international-law?cookiesset=1&ts=1619444541> accessed 6 April 2022.
958 Klabbers, for instance, argues that ‘the notion of community interests do not exist in
isolation from particular projects, it always and by definition assumes someone pouring
meaning to it’. See Klabbers (n 858).
959 Human rights are also monitored at the universal level also through the mechanisms
established by UN resolutions, such as the system of country or thematic special rappor-
teurs and the ohchr. See unga Res 48/141 (1994). See Cassese (n 22) 386–393.

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compliance are not uniform.960 Nonetheless, individual communication pro-

cedures, which allows victims of alleged human rights violations or their rep-
resentatives to initiate formal procedures against the violating State before the
respective committee, exist for all core UN human rights treaties.961
As indicated by the Teitiota decision of the UNHRCom, along with the Sac
chi et al. decision of the UNCRCom, the treaty bodies are already receiv-
ing communications in relation to climate change from victims of alleged
human rights violations.962 Amongst other things, this provides the opportu-
nity to interpret the respective human rights treaties by taking into account
‘any relevant rules of international law applicable in the relations between
the parties’.963 Also referred to as ‘systemic interpretation’, this method acts
as a ‘master-key’ to enable us to take into account the international protection
of pmdcc as an obligation erga omnes.964 Admittedly, ‘systematic interpreta-
tion cannot necessarily resolve conflicts with community interest norms or
960 These ‘treaty bodies’, as they are often called, are Committees composed of independent
experts elected by States parties to the relevant treaty. For a full list, see ohchr, ‘Human
Rights Treaty Bodies –Individual Communications’ <https://www.ohchr.org/EN/HRBod
ies/TBPetitions/Pages/IndividualCommunications.aspx#overviewprocedure> accessed 6
April 2022. Also see Kälin and Künzli (n 22) 210–220.
961 A complaint under one of the eight treaties may be brought against a State that satisfies
two conditions. First, it must be a party (through ratification or accession) to the treaty
that provides for the rights which have allegedly been violated. Second, the State party
must have recognized the competence of the committee monitoring that treaty to receive
and consider complaints from individuals. Currently, only the complaint mechanism for
the icmw has not yet entered into force. See ohchr, ‘Human Rights Treaty Bodies –
Individual Communications’ <https://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/
IndividualCommunications .aspx#overviewprocedure> accessed 6 April 2022.
962 The Teitiota decision is discussed in more detail in Chapter 2.2.1. of this book. For the
Teitiota decision, see Ioane Teitiota (n 83). The Sacchi et al. decision is discussed in more
detail in Chapter 2.1.6. of this book. For the Sacchi et al. decision, see CRCom (n 10).
963 This is by virtue of Article 31(3)(c) of the vclt. As a matter of treaty law, the vclt applies
only to the States Parties to the relevant human rights convention and to the vclt.
However, there is also agreement that most of the rules of the vclt are now part of cus-
tomary international law. As Schlütter points out, the UN treaty bodies ‘generally’ follow
the rules of interpretation articulated in the vclt. However, ‘treaty interpretation in gen-
eral, and human rights interpretation in particular, is a complex matter, and any attempt
to delineate the rules of interpretation as applied by the major UN human rights treaty
bodies is almost impossible …’. Birgit Schlütter, ‘Aspects of Human Rights Interpretation
by the UN Treaty Bodies’ in Helen Keller and Geir Ulfstein, UN Human Rights Treaty
Bodies: Law and Legitimacy (Cambridge University Press 2012) 273.
964 On systemic interpretation, see Study Group on the Fragmentation of International Law
(n 166); Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c)
of the Vienna Convention’ [2005] 54 iclq 279, 281.

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158 Chapter 4
guarantee that community interest norms are respected in priority thereaf-

ter’.965 However, assuming that the complaint is admissible, and that the com-
plainant includes reference to the international protection of pmdcc as an
obligation erga omnes, the committee may be in a position to take into account
this reference.966
Furthermore, another possible route for non-State actors to observe this
obligation is by contributing to the upr process. The upr was established by
the unga in 2006 to create a cooperative mechanism to assess the human
rights performance of all UN Member States.967 It is ‘based on an interactive
dialogue, with the full involvement of the country concerned and with con-
sideration given to its capacity building needs’.968 It aims to complement the
work of other human rights monitoring mechanisms, mainly the treaty bodies
and the special procedures.969 The upr is essentially a peer review in which
the diplomatic delegates of UN Member States evaluate each other’s perfor-
mance based on three background documents: the national report, the com-
pilation of UN information and the summary of stakeholders’ information.970
The process has been hailed as success for voluntarily bringing all UN Member
965 See Besson (n 814) 60.

966 One of the grounds of admissibility is the exhaustion of domestic remedies. However,
UN treaty bodies only require complainants to exhaust remedies that are ‘available and
effective’. Relying on this, sixteen children filed a complaint to the UNCRCom without
exhausting domestic remedies in 5 nations (Argentina, Brazil, France, Germany, and
Turkey), as such action may have been ‘unreasonably prolonged or unlikely to bring effec-
tive relief’. See UNHRCom, Vicente et al. v. Colombia, Communication 612/1995, Views
of 29 July 1997, UN Doc ccpr/c /60/D/612/1995, [5.2] <http://hrlibrary.umn.edu/undocs/
612-1995.html> accessed 6 April 2022.
967 unga Res ga Res 60/251 (2006) gaor 60th Session, Agenda Items 46 and 120.
968 ibid.
969 Treaty bodies are committees of independent experts that monitor the implementation
of the core international human rights treaties. Special procedures, on the other hand,
are individual independent human rights experts or groups of such experts that report on
human rights issues. See ohchr, ‘Human rights treaty bodies’ <https://www.ohchr.org/
EN/HRBodies/Pages/TreatyBodies.aspx> accessed 6 April 2022. Also see International
Justice Resource Center, ‘Special Procedures of the UN Human Rights Council’ <https://
ijrcenter.org/un-special-procedures/> accessed 6 April 2022.
970 unhrc, ‘Basic Facts about the upr’ (2019) <https:// www.ohchr.org/EN/HRBod
ies/UPR/Pages/BasicFacts.aspx> accessed 6 April 2022; upr info, ‘The Civil Society
Compendium: Comprehensive guide for Civil Society Organisations engaging in the
Universal Periodic Review, Geneva’ (upr Info, 2017) <https://www.upr-info.org/sites/
default/files/general-document/pdf/upr_info_cso_compendium_en.pdf> accessed 6
April 2022.

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States to subject their human rights record to international scrutiny.971 The

outcome report of the upr can be either ‘accepted’ or ‘noted’, but the possibil-
ity of rejection is not envisaged.972
Measures taken to observe the international protection of pmdcc as
an obligation erga omnes can be included in the upr process, through the
national reports, as well as the stakeholders’ information. This would not be
a radical inclusion. States have already been reporting on the measures they
have taken with respect to hmdcc. For instance, the national submissions of
Vanuatu and Fiji to the upr mechanism included references to their planned
relocation policies in the context of disasters and climate change.973 This can
play a pivotal role in promoting and seeking to ensure full respect for the inter-
national protection of pmdcc.
It must also be restated that, in 2021, the unhrc recognised for the first
time that having a clean, healthy and sustainable environment is a fundamen-
tal right and created a new Special Rapporteur on the Protection of Human
Rights in the Context of Climate Change.974 This creates an opportunity for
the further engagement and deliberation on the international protection of
pmdcc as an obligation erga omnes.
Turning to international climate change law, the ndc s of countries sub-
mitted under the Paris Agreement may include measures to protect pmdcc
at the international level, especially by preventing future ghg emissions.975
ndc s are determined ‘bottom-up’, meaning that their content will be based
on domestic politics, which provides non-State actors with the opportunity
971 Elvira Dominguez-Redondo, ‘The Universal Periodic Review –Is There Life Beyond
Naming and Shaming in Human Rights Implementation?’ [2012] 4 New Zealand Law
Review, 673–706.
972 unhrc Res 60/25 (2007) 50th Session, UN Doc a/h rc/r es/5/1.
973 See Chapter 3.3 of this book for a discussion on the planned relocation policies of Fiji and
Vanuatu. Also see unhrc, ‘National Report Submitted in Accordance with Paragraph 5
of the Annex to Human Rights Council Resolution 16/21’ (2018) UN Doc a/h rc/wg.6/34/
fji/1; unhrc, ‘Report of the Working Group on the Universal Periodic Review’ (2019) UN
Doc a/h rc/43/8; unhrc, ‘National Report Submitted in Accordance with Paragraph5 of
the Annex to Human Rights Council Resolution 16/21’ (2018) UN Doc a/h rc/wg.6/32/
vut/1.
974 unhrc (n 10). Also see unhrc (n 80).
975 Currently, under the Paris Agreement and the ‘Paris Rulebook’, the content of the ndc s
are subject to ‘weak accountability’. Other than the progression requirement, their con-
tent is decided bottom-up. See Christina Voigt and Gao Xiang, ‘Accountability in the
Paris Agreement: The Interplay Between Transparency and Compliance’ [2020] 1 Nordic
Environmental Law Journal, 31–57.

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160 Chapter 4
to participate in the process of determining national climate ambition.976

Another possibility is participating in the ongoing work of the tfd.977 In 2015,
the unfccc wim was mandated to create the tfd with the aim of develop-
ing recommendations to ‘avert, minimize and address displacement related to
the adverse impacts of climate change’.978 Comprising fourteen members, the
Task Force represented perspectives from the fields of development, adapta-
tion, human mobility, humanitarian, civil society, least-developed countries,
and loss and damage.979 Their recommendations were delivered in 2018 during
the cop 24, which was ‘welcomed’ by cop.980 As it is currently undertaking its
second phase, the tfd’s plan of action fosters deeper engagement with pol-
icy and legal considerations to implement its recommendations.981 The tfd’s
work envisages an inclusive approach, engaging and collaborating with rele-
vant stakeholders, including civil society, which provides an opportunity to
build momentum on the international protection of pmdcc.982
Turning to international labour law, it provides a sophisticated avenue to
take into account the international protection of pmdcc thanks to the tripar-
tite structure of the ilo, consisting of governments, workers’ organisations
and employers’ organisations in its governing organs.983 Its conventions are
976 For instance, Torstad, Selen and Boyum argue that a country’s level of democracy and vul-
nerability to climate change have positive effects on ndc ambition, while coal rent and
gdp have negative effects. See Vegard Torstad, Hakon Sele and Live Standal Boyum, ‘The
Domestic Politics of International Climate Commitments: Which Factors Explain Cross-
Country Variation in ndc ambition?’ [2020] 15 Environmental Research Letters 2. Swiss
referendum 2021.
977 See Chapter 2.1.2 of this book for a discussion on tfd.
978 Conference of the Parties to the United Nations Framework Convention on Climate
Change, Report of the Conference of the Parties on its Twenty-First Session, 21st sess, (29
January 2016) UN Doc fccc/c p/2015/10/Add. 1 <https://www.un.org/en/developm
ent/desa/population/migration/generalassembly/docs/globalcompact/FCCC_CP_2015
_10_Add.1.pdf> accessed 6 April 2022.
979 Task Force on Displacement (n 1); unfccc, ‘Task Force on Displacement –Membership’
<https://unfccc.int/process/bodies/constituted-bodies/WIMExCom/TFD/membership>
980 unfccc (n 15).
981 unfccc, ‘Task Force on Displacement Plan of Action 2019–2021’ <https://unfccc.int/
sites/default/files/resource/TFD%20PoA%202nd%20phase.pdf> accessed 6 April 2022.
Also see Odeyemi (n 229).
982 Especially through the unfccc ngo Constituency Group ‘Youth ngo s’, and the Advisory
Group on Climate Change and Human Mobility. See Harriet Thew, Lucie Middlemiss and
Jouni Paavola, ‘Does youth participation increase the democratic legitimacy of unfccc-
orchestrated global climate change governance?’ [2021] Environmental Politics.
983 The ilo itself is participating in international efforts on hmdcc. It is a member of the
tfd, and contributes to pdd. Furthermore, it has signed an mou with unccd to combat

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similarly premised on the right to participation of all constituents.984 The

rights of workers, including migrant workers, to establish their own independ-
ent organisations and to bargain collectively must be respected in order to
foster the democratic decision-making dealing with the working conditions
of pmdcc.985 The tripartite structure can particularly be used by all relevant
parties to guarantee the incorporation of hmdcc when applying the ils.986
The Governing Body settles the agenda for all meetings of the ilo Conference,
which provides its constituent members with the opportunity to discuss the
relationship between the ils and the obligation erga omnes to provide inter-
national protection the pmdcc.
Finally, under wto gats Mode 4, Member States have made binding com-
mitments to the movement of natural persons to supply services.987 Services
mobility facilitates safe, orderly and regular migration, and it plays a critical
role in promoting migration as an adaptation strategy to the impacts of disas-
ters and climate change.988 One way of enforcing the international protection
of pmdcc as an obligation erga omnes is by giving attention to the Trade Policy
Review Mechanism (tprm).989 All wto Members are subject to review under
the tprm with different review cycles.990 Reviews are conducted by the Trade
desertification and migration related challenges. See ilo, ‘Climate change, displacement
and labour migration’ <https://www.ilo.org/global/topics/labour-migration/climate-cha
nge/green-jobs/lang--en/index.htm> accessed 6 April 2022.
984 See ilo Convention No 144 on Tripartite Consultation (1976).
985 unece’s Aarhus Convention recognises the importance of public participation in
decision-making and access to justice in environmental matters. See Aarhus Convention
(adopted 25 June 1998, entered into force 30 October 2001) 2161 unts 447.
986 Jean-Michel Servais, International Labour Law (Wolters Kluwer 2020) para 73–110.;
Lene Olsen and Dorit Kemter, ‘The International Labour Organization and the
Environment: The Way to a Socially Just Transition for Workers’ in Nora Räthzel and
David Uzzell (eds), Trade Unions in the Green Economy (Routledge 2013) 41–57; Maria
Nillson and Tord Kjellstrom, ‘Climate change impacts on working people: how to develop
prevention policies’ [2010] 3 Global Health Action 3; Katherine H. Regan, ‘The Case
for Enhancing Climate Change Negotiations with a Labor Rights Perspective’ [2010] 35
Columbia Journal of Environmental Law 249.
987 See Chapter 2.1.5 of this book for a discussion in more detail.
988 Fornalé (n 329); Jonathan Barnett and Michael Webber, ‘Migration as Adapta
tion: Opportunities and Limits’ in Jane McAdam (ed), Climate Change and Displace
ment: Multidisciplinary Perspectives (Hart Publishing 2010).
989 Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994,
entered into force 1 January 1995) 1867 unts Annex 3.
990 The wto rules mandate that the four Members with the largest shares of world trade
(currently the European Union, the United States, Japan and China) be reviewed each
two years, the next sixteen be reviewed each four years, and others be reviewed each six
years. A longer period may be fixed for least-developed country members. As a result of an

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162 Chapter 4
Policy Review Body of the wto, based on the policy statement by the Member
State under review, and a report is prepared by economists in the Trade Policy
Review Division of the wto Secretariat.991 Unlike the upr in the human rights
regime, the tprm of the wto does not allow non-State actors to contribute
to the review process. Nonetheless, Member States might be encouraged to
include in their policy statements measures to address the international pro-
tection of pmdcc by revising their commitments under gats Mode 4.992
This would not be a radical inclusion. For instance, the relationship between
the environment and trade has been increasingly studied.993 There has been
a push towards a circular economy as a sustainability paradigm, which has
raised questions about the role of the wto.994 One study demonstrates that
governments have realised the need for national-level circular-economy poli-
cies, such as adopting re-use in order to reduce the over-reliance on other man-
ufacturing countries for essential goods, the further development of bio-based
material research to promote bio-economy and devising legal frameworks to
promote green logistics and waste management to incentivise local produc-
tion and manufacturing.995 States’ notifications to the wto reflect this realisa-
tion: as of 2018, 16% of all notifications to the wto contained an environment-
related measure, compared with only 8% in 1997.996 More specifically, there
were some 370 measures which referred to the activities related to the circular
economy in wto notifications between 2009 and 2017.997 One commentator
amendment to Annex 3 in 2017, these review cycles are three, five and seven years respec-
tively since 1 January 2019. See wto, ‘Amendment of the Trade Policy Review Mechanism’
(27 July 2017) wt/l /1014.
991 Sam Laird and Raymundo Valdes, ‘The Trade Policy Review Mechanism’ in Martin
Daunton, Amrita Narlikar and Robert M. Stern (eds), The Oxford Handbook on the World
Trade Organization (Oxford University Press 2012).
992 On the limits of gats Mode 4, see Dawson (n 343) 1–23.
993 Ryan Abman, Clark Lundberg and Michele Ruta, ‘The Effectiveness of Environmental
Provisions in Regional Trade Agreements’ (Policy Research Working Paper No 9601, World
Bank, 2021) <https://openknowledge.worldbank.org/handle/10986/35354> accessed 6
April 2022.
994 Shunta Yamaguchi, ‘International Trade and Circular Economy –Policy Alignment’
(oecd Trade and Environment Working Papers 2021/02).
995 T Ibn-Mohamed et al., ‘A critical analysis of the impacts of COVID-19 on the global
economy and ecosystems and opportunities for circular economy strategies’ [2021] 164
Resources, Conservation and Recycling.
996 wto, ‘Role of trade in promoting circular economy’ (Official Webpage) <https://www
.wto.org/english/news_e/news19_e/envir_03dec19_e.htm> accessed 6 April 2022.
997 A.H. Lim and others, ‘Trade and environment: what can we learn from trade pol-
icy reviews?’ (wto Staff Working Papers No. ersd-2020-06, 2020). The analysis is
based on notifications containing one or more of the following keywords (and close
variations): eco- design, reuse, repair, refurbishment, remanufacturing, recycling,

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argues that, in order for the wto to make a positive contribution to the circu-
lar economy, the members need to: improve their collective understanding of
trade-circular economy interactions; build trust and confidence to engage in
mutually beneficial activities related to this topic; open and facilitate trade in
key areas of the circular economy; and support related efforts in developing
countries.998 Similarly, with the identification of the international protection
of pmdcc as an obligation erga omnes, and the relevant activism and schol-
arly work, wto Member States can include their measures to increase services
mobility, in order to facilitate safe, orderly and regular migration.
This section has discussed four areas of international law and how their
procedural aspects can be used to promote the international protection of
pmdcc as an obligation erga omnes. It has shown that the procedural aspects
of international human rights law, international climate change law, interna-
tional labour law and wto law provide mechanisms for taking into account the
international protection of pmdcc. These pathways entail the participation of
State, as well as non-State actors, and might not always lead to the creation of
binding obligations upon relevant State parties. Yet, recourse may be had to
these pathways, in order to reinforce the view that international law can be
understood as a values-based system, in which universal values and the rights
of individual persons are protected.999
2.3 Pathways to Using the Follow-up and Review Mechanisms of the

Global Compact for Migration and the Global Compact on Refugees
The golden threads of the Global Compact for Migration and the Global
Compact on Refugees are the concrete frameworks for action to which States
can be held to account, at least politically.1000 Since both compacts explicitly
refer to the impact of climate change, natural disasters and environmental
biodegradable, compostable and waste-to-energy. The analysis does not distinguish

between measures that are aligned with the goals of the circular economy and measures
that are not.
998 Karsten Steinfatt, ‘Trade Policies for a circular economy: What can we learn from wto
experience?’ (wto Staff Working Paper, 2020).
999 For a discussion on international law as a value-based system, see Heike Krieger and
Georg Nolte, ‘The International Rule of Law –Rise or Decline? –Approaching Current
Foundational Challenges’ in Heike Krieger, Georg Nolte and Andreas Zimmermann, The
International Rule of Law: Rise or Decline? (Oxford University Press 2019) 3–33.
1000 For instance, Guild and Wieland argue that the Global Compact for Migration ‘comes with
a host of non-legal implementation mechanisms. These “design elements” form an imple-
mentation framework that use non-binding norms based on technical and professional
know-how to find the optimal mode of implementation’. See Elspeth Guild and Raoul
Wieland, ‘The UN Global Compact for Safe, Orderly and Regular Migration: What does it

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164 Chapter 4
degradation as drivers of human movement, the implementation of these

commitments may induce the development of dedicated policy and legal
responses.1001 This section focuses on the follow-up and review mechanisms
of the compacts to make the argument that the international protection of
pmdcc as an obligation erga omnes can be enforced by means of these over-
sight mechanisms.
The Global Compact for Migration has three important pillars for imple-
mentation: the UN Network on Migration, a capacity-building mechanism
and the International Migration Review Forum.1002 These mechanisms can be
perceived as creating a ‘partial or limited hybrid forum, in which experts and
laypersons contribute to the debate’.1003 The UN Network on Migration aims
to support the implementation, follow-up and review of the Global Compact
for Migration.1004 The network is the successor to the Global Migration Group,
which was established by the UN in 2006 as an inter-agency group bringing
together fourteen UN agencies to address global migration.1005 The iom serves
as the coordinator and secretariat of the network, which consists of the mem-
bers of the UN system that wish to be a part of it and for whom migration is of
relevance to their mandates.1006 As of December 2018, there are 38 UN entities
in the UN Network on Migration.1007
The capacity-building mechanism aims to support the implementation
efforts of Member States.1008 It consists of a connection hub, a start-up fund,
and a global knowledge platform as an online open data source.1009 The start-
up fund, called ‘The Migration Multi-Partner Trust Fund’, was launched in
mean in International Law?’ [2020] 10 Global Community: Yearbook of International Law

and Jurisprudence, 8.
1001 See Chapter 1.3 of this book for a discussion on the Global Compact for Migration and the
Global Compact on Refugees.
1002 Global Compact for Migration (n 9) para 40–54.
1003 Scott D. Watson and Corey Robinson, ‘Knowledge Controversies of Global Migration
Governance: Understanding the Controversy Surrounding the Global Compact’ in
Catherine Dauvergne (ed), Research Handbook on the Law and Politics of Migration
(Edgar Elgar 2021) 323–339.
1004 ibid.
1005 ohchr, ‘Global Migration Group’ <https://www.ohchr.org/EN/Issues/Migration/Pages/
Global MigrationGroupIndex.aspx> accessed 6 April 2022. Also see Antoine Pécoud,
‘Narrating an ideal migration world ? An analysis of the Global Compact for Safe, Orderly
and Regular Migration’ [2020] 42 Third World Quarterly 1.
1006 Global Compact for Migration (n 9) para 45.
1007 UN Network on Migration, ‘Migration Network Hub’ <https://migrationnetwork.un.org/
hub> accessed 6 April 2022.
1009 ibid.

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May 2019; as of April 2021, it has raised over usd 15 million.1010 The connec-
tion hub and the global knowledge platform have been launched under the
title ‘Migration Network Hub’, and core working groups and thematic working
groups have been established.1011
The International Review Forum serves as the primary intergovernmen-
tal global platform for Member States to discuss and share progress on their
implementation.1012 The forum is the successor to the High-Level Dialogue
on International Migration and Development.1013 It is intended to take place
every four years beginning in 2022.1014 Each forum will result in a Progress
Declaration, which may be taken into consideration by the high-level politi-
cal forum on sustainable development.1015 The modalities for the forum were
agreed in 2019.1016 It shall be convened under the unga, chaired by the unga
President, last for four days and take place during the first semester of 2022.1017
An informal interactive multi-stakeholder hearing prior to each forum will be
organised and presided by the unga President.1018
These efforts are designed to be supported by regional and sub-regional
dialogues, national action plans, as well as through the efforts of other stake-
holders, such as migrants, the private sector, civil society, academia, local
1010 Although it must be noted that its funding target for 2020 was initially set at usd 25 mil-
lion. See iom, ‘United Nations Launches Multi-Partner Trust Fund Office to Support
Cooperation on Safe, Orderly and Regular Migration’ (17 July 2019); undp, ‘Multi-Partner
Trust Fund Office’ <http://mptf.undp.org/factsheet/fund/MIG00> accessed 6 April 2022.
1011 These groups are as follows: Core working group 1.2 migration network hub, core working
group 2.1 stronger UN system for implementation, core working group 2.2 gcm national
implementation plans, thematic working group 1 data, thematic working group 2 alterna-
tives to detention, thematic working group 3 regular pathways for migrants in vulnerable
situations, thematic working group 4 bilateral labour migration agreements, thematic
working group 5 return and reintegration, thematic working group 6 access to services.
See UN Network on Migration, ‘Migration Network Hub’ <https://migrationnetwork
.un.org/hub/working_groups?text=&gcm_objectives=All&cross_cutting_theme=All&reg
ion=All&country=All> accessed 6 April 2022.
1013 See Lena Kainz and Alexander Betts, ‘Power and Proliferation: Explaining the
Fragmentation of Global Migration Governance’ [2020] Migration Studies, 1–25.
1015 ibid.
1016 unga, ‘Format and organizational aspects of the international migration review forums’
(Final draft, 12 July 2019) <https://www.un.org/pga/73/wp-content/uploads/sites/53/
2019/07/IMFR-silence-procedure.pdf> accessed 6 April 2022.
1017 ibid.
1018 ibid.

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166 Chapter 4
authorities and the media.1019 The compact refers to these as ‘concerted efforts’
at the global, regional, national and sub-national levels.1020
The current multi-stakeholder architecture for discussing the implemen-
tation of the Global Compact for Migration provides several opportunities
to explicitly mention and enforce the international protection of pmdcc.1021
The UN Network on Migration developed the guidance and the booklet, which
provide further indications.1022 According to the booklet, environmental fac-
tors are incorporated into the implementation of three objectives of the com-
pact: Objective 1 (collect and utilise accurate and disaggregated data as the
basis for evidence-based policies), Objective 2 (minimise the adverse drivers
and structural factors that compel people to leave their country of origin) and
Objective 5 (enhance availability and flexibility of pathways for regular migra-
tion).1023 In addition, the implementation of Objective 16 (empower migrants
1019 Global Compact for Migration (n 9) para 40–44.

1020 Allinson and Weatherhead interpret this as a ‘direction-normalisation-amplification’
approach. Direction is the way that the Global Compact for Migration will be taken both
individually and collectively. According to the authors, the direction should be more
than the prioritisation of certain elements, and focus on holding the compact together
to progress it. This can help to avoid national governments pursuing certain target areas
in line with policy interests, such as controlling borders or emphasising return of irregu-
lar migrants. Normalisation refers to incorporating the compact into everyday work. The
cooperative framework structured in the compact brings together key actors and provides
a blueprint for strategic planning. The recommendations of the authors range from com-
ing up with indicators to assess implementation to making references to the compact in
reports, policies, and other mechanisms, such as the Universal Periodic Review and the
Sustainable Development Goals. Finally, amplification refers to creating and maintaining
momentum to ensure that there are positive impacts for migrants. The authors stated
that the opportunity must be seized to engage a range of stakeholders, especially academ-
ics who have a role to clarify and scrutinise the content and implementation. See Kathryn
Allinson and Katharine T. Weatherhead, ‘The Global Compact for Migration is more than
just its objectives’ (rli, 26 September 2019) <https://rli.blogs.sas.ac.uk/2019/09/26/the
-global-compact-for-migration-is-more-than-just-its-objectives/> accessed 6 April 2022.
1021 McAdam, ‘The Global Compacts on Refugees and Migration: A New Era for International
Protection?’ [2018] 30 ijrl 4, 571–574; Sciaccaluga (n 914) 151–156.
1022 Since the Global Compact for Migration does not have an indicator framework for imple-
mentation, the guidance and the booklet aim to fill this gap. See UN Network on Migration,
‘Implementing the Global Compact for Safe, Orderly and Regular Migration: Guidance for
governments and all relevant stakeholders’ (Advanced Draft, 15 October 2020) <https://
migrationnetwork.un.org/sites/default/files/docs/gcm_implementation_guide_finalized
_revised_15_october.pdf> accessed 6 April 2022; UN Network on Migration, ‘Booklet’
<https://migrationnetwork.un.org/sites/default/files/docs/gcm_booklet_finalized_rev
ised_15_october_002.pdf> accessed 6 April 2022.
1023 UN Network on Migration, ‘Booklet’ <https://migrationnetwork.un.org/sites/default/
files/docs/gcm_booklet_finalized_revised_15_october_002.pdf> accessed 6 April 2022.

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and societies to realise full inclusion and social cohesion) and Objective 23
(strengthen international cooperation and global partnerships for safe, orderly
and regular migration) incorporate climate change, while Objective 22 (estab-
lish mechanisms for the portability of social security entitlements and earned
benefits) incorporates disasters.1024
There are concrete examples of implementation by different stakehold-
ers.1025 For instance, io s have been launching new initiatives, such as the
International Data Alliance for Children on the Move, and the Migrant Union’s
commissioned report on digitalisation and displacement.1026 National imple-
mentation examples demonstrate that human mobility has been integrated
into national climate change and disaster policies.1027 In some cases, countries
have chosen to adopt new measures.1028 For instance, the Intergovernmental
1024 ibid.
1025 However, for a critical evaluation, see Christina Oelgemöller and Kathryn Allinson, ‘The
Responsible Migrant, Reading the Global Compact on Migration’ [2020] 31 Law and
Critique, 183–207.
1026 In March 2020, unicef, iom, unhcr and oecd launched the International Data
Alliance for Children on the Move, which aims to support evidence-based policymak-
ing on migrant and displaced children, in partnership with State and non-State actors.
The Migrant Union, which is an ongoing initiative to advance approaches to enabling
the growing numbers of displaced people accessing sustainable livelihoods and ena-
bling capabilities, rights and resources, has commissioned a report to explore the nexus
between the changing nature of work, particularly driven by digitalisation, and livelihood
opportunities for displaced people.
1027 For instance, the first report of the UN Secretary-General on the implementation of the
Global Compact for Migration mentions the 2019 revision of the Guetamala National Plan
of Action on Climate Change integrates a section on human mobility with concrete com-
mitments. Belize is integrating human mobility and planned relocation into its climate
strategy. Peru is developing a specific national plan of action to address climate-related
climate-related drivers of migration. However, it must be noted that there are concrete
examples of States incorporating human mobility considerations into their national cli-
mate policies before the adoption of the compact. See Report of the Secretary-General,
‘Global Compact for Safe, Orderly and Regular Migration’ (2020) gaor 75th Session UN
Doc A/75/542; UK Government, ‘The Global Compact for Migration European Regional
Review’ <https://migrationnetwork.un.org/sites/default/files/docs/uk_submission
__gcm_european_regional_review_.pdf> accessed 6 April 2022. Also see iom, ‘Mapping
Human Mobility and Climate Change in Relevant National Policies and Institutional
Frameworks’ (unfccc wim tfd, 2018) <https://unfccc.int/sites/default/files/resource/
20180917%20WIM%20TFD%20I.1%20 Output%20final.pdfY> accessed 6 April 2022.
1028 The second report of the UN Secretary-General on the implementation of the Global
Compact for Migration dedicates a subsection to the implementation of the commit-
ments with respect to environmental and disaster mobility. According to the report, sev-
eral countries, such as Nepal and Vanuatu, drafted policies focused on human mobility
stemming from environmental factors. Germany convened an independent commission
to develop recommendations on root causes of displacement. The Global Mayors Task

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168 Chapter 4
Authority on Development (igad) Ministers on Foreign Affairs adopted the

Protocol on the Free Movement of Persons, which includes provisions allow-
ing people affected by disasters to enter and stay in igad member states.1029
Furthermore, the US Task Force to the President on the Climate Crisis and
Global Migration recommended to the government, amongst others, options
for the ‘protection and resettlement of individuals displaced directly or indi-
rectly from climate change’.1030 It must be noted, however, that such measures
do not fully respect the international protection of pmdcc as an obligation
erga omnes. The multi-stakeholder approach to implementing the compact
must be used to deal with the issue more rigorously, with the aim of going
beyond the current implementation measures under the Global Compact for
Migration.1031
Turning to the Global Compact on Refugees, the arrangements for the follow-
up and review of the Global Compact on Refugees are designed to be primarily
conducted through the Global Refugee Forum, high-level officials’ meetings,
and the annual reporting of the unhcr to the unga.1032 Furthermore, in
order to support its implementation, an indicator framework was developed
Force on Climate and Migration was launched in 2021 to address the impacts of the cli-
mate crisis on migration in cities and to accelerate global responses. See UN Secretary-
General, ‘Global Compact for Safe, Orderly and Regular Migration Report to the Secretary-
General’ UN Doc A/76/642 (2022).
1029 igad Communiqué of the Sectorial Ministerial Meeting on the Protocol on Free
Movement of Persons in the igad Region (26 February 2020, Khartoum, Republic of
Sudan) <https://igad.int/attachments/article/2373/Communique%20on%20Endorsem
ent%20of%20the%20Protocol%20of%20Free%20Movement%20of%20Persons.pdf>
accessed 6 April 2022. Also see ilo, ‘UN Agencies and igad Secretariat launch a regional
initiative to address mitigation and climate change in East Africa’ (ilo 2021) <https://
www.ilo.org/global/docs/WCMS_794443/lang--en/index.htm> accessed 6 April 2022.
1030 Task Force to the President on the Climate Crisis and Global Migration, ‘A Pathway to
Protection for People on the Move’ (Refugees International 2021).
1031 Ideally, regional migration and asylum policies must be in line with this vision. For a crit-
ical evaluation of regional approaches, see Geoff Gilbert, ‘The New Pact on Migration
and Asylum and the Global Compact on Refugees and Solutions’ in Serio Carrera and
Andrew Geddes, The EU Pact on Migration and Asylum in light of the United Nations Global
Compact on Refugees (eui 2021); Pauline Melin, ‘Two Years After the Adoption of the
Global Compact for Migration: Some Thoughts on the Role Played by the EU’ in Wybe
Doume and others, The Evolving Nature of EU External Relations Law (tmc Asser Press
2021); Fatima Khan and Cecile Sackeyfio, ‘Situating the Global Compact on Refugees in
Africa: Will it make a difference to the lives of refugees “languishing in camps”?’ [2021] 65
Journal of African Law, 35–57.
1032 Global Compact on Refugees (n 9).

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and published in July 2019.1033 However, the indicator framework focuses on

the four main objectives of the compact (easing pressures on host countries,
enhancing refugee self-reliance, expanding access to third country solutions
and supporting conditions in countries of origin for return in safety and dig-
nity) and does not address hmdcc.1034
The Global Refugee Forum is scheduled to take place every four years, bring-
ing together States and non-State actors to share good practices and to galvanise
pledges and contributions, which can take different forms, including financial,
material and technical assistance, places of resettlement, and complementary
pathways for admission to third countries.1035 The first Global Refugee Forum
took place in December 2019 in Geneva and was dedicated to receiving for-
mal pledges and contributions.1036 It generated some 1,400 pledges.1037 There
were several commitments to support sustainable energy and environmental
conservation.1038 For instance, the Clean Energy Challenge was launched to
provide access to affordable, reliable, sustainable and modern energy to all
refugee settlements and nearby host communities by 2030.1039 The challenge
can be situated within the broader frame of addressing the accommodation
and environmental impacts of large numbers of refugees, and facilitates access
to appropriate accommodation for refugees and host communities.1040 Other
1033 unhcr, ‘Global Compact on Refugees: Indicator Framework’ (2019) <https://www.unhcr

.org/5cf907854> accessed 6 April 2022.
1034 Global Compact on Refugees (n 9).
1035 ibid para 18. Also see unhcr, ‘What are pledges?’ (15 June 2020) <https://globalcompactr
efugees.org/article/what-are-pledges> accessed 6 April 2022.
1036 Global Refugee Forum Outcome Document (2019) <https://www.unhcr.org/5ecd458c4
.pdf> accessed 6 April 2022.
1037 Ten outcomes were aimed: Progress in broadening the base of support for comprehen-
sive refugee responses; support for the development of more inclusive national policies
in host countries; launch of support platforms; additional funding and the effective and
efficient use of resources; dedicated support to expand access to secondary, tertiary and
higher education for refugees; financial, technical and material contributions in support
of sustainable green energy and environmental conservation; private sector announce-
ments in the form of investments, employment, innovation, advocacy and philanthropy;
contributions towards solutions, including the 3-year resettlement and complemen-
tary pathways strategy; launch of the Asylum Capacity Support Group; and launch of
the Global Academic Interdisciplinary Network. See Global Refugee Forum Outcome
Document (2019) <https://www.unhcr.org/5ecd458c4.pdf> accessed 6 April 2022.
1038 Global Refugee Forum Outcome Document (2019) <https://www.unhcr.org/5ecd458c4
1039 ibid.
1040 unhcr, ‘Global Refugee Forum Guidance Note: Pledges and Contributions and Good
Practices’ (17– 18 December 2019) <https://globalcompactrefugees.org/sites/default/
files/2020-07/GRF%202019%20Guidance%20Note%20on%20Pledges%20and%20
Contributions%20and%20Good%20Practices.pdf> accessed 6 April 2022.

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170 Chapter 4
examples include: planning for environmentally conscious land use in refugee-

hosting areas; facilitating the inclusion of refugees in climate change resilience
and adaptation programming; and including refugees in disaster risk reduc-
tion strategies related to infrastructure for essential services.1041
As with the Global Compact for Migration, there is a multi-stakeholder
approach to the implementation of the Global Compact on Refugees.1042 For
instance, States committed to the establishment of ‘a global academic net-
work on refugee, other forced displacement, and statelessness issues’, which
was launched in 2019.1043 The digital platform of the compact keeps count
of pledges from multiple stakeholders, including the private sector, sports,
faith-based and civil society organisations, as well as cities, municipalities
and local authorities.1044 Currently, some of the 1600 pledges registered in the
digital platform demonstrate concrete measures for addressing hmdcc.1045
Examples include: integrating suitable solutions for refugee responses into
1041 ibid.
1042 See Madeline Garlick and Claire Inder, ‘Protection of refugees and migrants in the era of
the global compacts’ [2021] 23 International Journal of Postcolonial Studies 2, 207–226.
1043 unhcr, ‘About the Global Academic Interdisciplinary Network’ (21 July 2020) <https://
globalcompactrefugees.org/article/about-global-academic-interdisciplinary-network>
1044 unhcr, ‘Pledges and Contributions’ <https://globalcompactrefugees.org/channel/pled
ges-contributions> accessed 6 April 2022.
1045 For pledges about disasters, see: Kingdom of Lesotho Pledge ID 1047; Government of
Nigeria Pledge ID 1205; National Commission for Refugees and idp s Pledge ID 1282;
Ministry of Foreign Affairs of the Republic of Korea Pledge ID 3050; Kaldor Centre for
International Refugee Law unsw Sydney Pledge ID 3055; Republic of Marshall Islands
Pledge ID 3111; Agencia Española de Cooperación Internacional al Desarrollo Pledge ID
4022; Deltares (Stichting Deltares) Pledge ID 4033 and 4044; EU Pledge ID 4099 and
4105; Republic of Turkey, Ministry of Interior Disaster and Emergency Management
Authority (afad) Pledge ID 4193; Save the Children Pledge ID 5032; intersos Pledge
ID 5043 and 5194; Compact for Young People in Humanitarian Action Pledge ID 5064;
ret International Pledge ID 5081; unicef Pledge ID 5111; unfpa Pledge ID 5118; ret
International Pledge ID 5123 and 5184; Maya Vakfi Pledge ID 6056. For pledges about
the climate and the environment, see: Government of South Sudan Pledge ID 1083;
Government of Rwanda Pledge ID 1104; Permanent Mission of Mauritius Pledge ID 1241;
Federal Democratic Republic of Ethiopia, Agency for Refugees and Returnees Affairs
Pledge ID 1257; Republic of Zimbabwe Pledge ID 1279; Government of Rwanda Pledge ID
1352; Norwegian Ministry of Foreign Affairs Pledge ID 4008; Government of the Federal
Republic of Germany Pledge ID 4012; Government of Ireland Pledge ID 4063; Denmark
Ministry of Immigration and Integration Pledge ID 4107; Ministry of Foreign Affairs of
Denmark Pledge ID 4289; Sweden Pledge ID 4320; Swedish International Development
Cooperation Agency Pledge ID 4334, in unhcr, ‘All Pledges & Contributions’ (2 March
2021) <https://globalcompactrefugees.org/channel/pledges-contributions> accessed 6
April 2022.

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national disaster and climate change policies; establishing national authori-

ties to enhance the coordination of actors in the management of disasters and
human mobility; the relocation and reintegration of those displaced by disas-
ters; and allocating budgets for disaster risk reduction resulting from climate
change.1046
The preparation of new pledges for the 2023 Global Refugee Forum pres-
ent a great opportunity to stress that the international protection of pmdcc
is an obligation erga omnes. The implementation mechanisms of the Global
Compact on Refugees engender intense efforts to create a new collaborative
framework for an inclusive dialogue among the most relevant stakehold-
ers. Even though the content of the compact does not explicitly mention
the international protection of pmdcc,1047 the references it contains to cli-
mate change, environmental degradation and natural disasters have opened
up new horizons.1048 The current pledges show that there are commitments
to integrate different fields of law and policy in order to address hmdcc.
These mechanisms can be employed to influence the outcomes of the inter-
national refugee regime in favour of responding to the protection needs
of pmdcc.
This section has examined the follow-up and review mechanisms of the
Global Compact for Migration and the Global Compact on Refugees in order
to identify pathways to enforce the international protection of pmdcc as an
obligation erga omnes. Although still in their ‘embryo’ stages, the mechanisms
established to implement the compacts affirm the engagement of State and
non-State actors to address hmdcc.1049 However, the content of the rele-
vant measures fall short of filling the protection needs of pmdcc and future
involvement is needed to push for concerted efforts to prevent and address
the adverse impact of disasters and climate change on people’s well-being and
living conditions.
1046 Kingdom of Lesotho Pledge ID 1047; Government of Nigeria Pledge ID 1205; National
Commission for Refugees and idp s Pledge ID 1282; Ministry of Foreign Affairs of the
Republic of Korea Pledge ID 3050, in unhcr, ‘All Pledges & Contributions’ (2 March
2021) <https://globalcompactrefugees.org/channel/pledges-contributions> accessed 6
April 2022.
1047 See Chapter 1.3.2 of this book for a detailed discussion.
1048 Although, it must be noted that these horizons are applicable to the countries that have
adopted the Global Compact on Refugees. For a critical analysis, see Hilpold (n 96).
1049 Kainz and Betts (n 1013) 1–25.

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172 Chapter 4
3 Conclusion
This chapter has discussed the international protection of pmdcc as a mat-

ter of community interest. The discussion about the revival, content and legal
effects of community interests demonstrated that the notion of community
interests is invoked to refer to a transition from a bilateralist grounding of
international law, towards an international legal order which protects and pro-
motes the interests of humankind. Although community interests are difficult
to identify a priori, scholarly works have been contributing to the identifica-
tion of the objectives of community interests (i.e. the protection and creation
of common goods, the protection of common values, the internationalisation
of common spaces and redistributive and intergenerational justice) and com-
munity interest norms (i.e. the specific sub-set of rules of international law
that protect and pursue these objectives).1050 The recognition of rights and
obligations erga omnes is one of the most significant achievements of the
notion of community interests.1051 Obligations erga omnes create obligations
towards all and modify the right of standing to invoke the responsibility of a
State.1052 These norms of ‘heightened importance’ can be seen as an important
‘enforcement tool’, since all States have a legal interest in their protection.1053
By demonstrating that the international protection of pmdcc derives from
the principles and rules concerning the basic rights of the human person, and
that it is a community interest, this chapter has argued for a new right and obli-
gation erga omnes. It has examined two pathways to enforcing this new obli-
gation. First, it focused on the procedural aspects of four areas of international
law, namely, international human rights law, international climate change law,
international labour law and international trade law (with an emphasis on
wto law). This analysis has shown that each field has ‘something to give’: from
the upr to the tprm, there are opportunities to take into account the interna-
tional protection of pmdcc by paying attention to the procedural aspects.1054
Second, the follow-up and review mechanisms established under the Global
Compact for Migration and the Global Compact on Refugees were rigorously
examined. It was shown that, although some of the concrete measures taken to
implement the compacts address hmdcc, these measures do not adequately
1050 Feichtner (n 796).

1051 Simma (n 790).
1052 Case Concerning the Barcelona Traction (n 793).
1053 Tams (n 801) 51.
1054 For a similar discussion on procedural aspects, see Anthony J. Colangelo, ‘Procedural Jus
Cogens’ [2021] 60 Columbia Journal of Transnational Law.

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fill the ‘lacuna’ in international law with respect to the international protec-
tion of pmdcc. Thus, the chapter calls for future action to use the established
multi-stakeholder mechanisms of the compacts to enforce the international
protection of pmdcc as an obligation erga omnes.

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chapter 5
The International Protection of Persons Mobile

in the Context of Disasters and Climate Change as a
Common Concern of Humankind
This chapter proposes the creation of an international treaty to protect

pmdcc, where the common concern of humankind provides the ‘normative
anchor’.1055 Treaties have been used to shape international or neighbourly
relations since ancient times –today, they are the principal instrument for
ordering international relations.1056 A common concern approach to treaty-
making has the potential to govern the conduct of States to address shared
and urgent problems which require the meaningful cooperation of everyone
in response.1057 Borrowing from Cottier and others, this chapter submits that
there are two implications of a common concern approach: a novel duty to
cooperate and a novel duty to act.1058 Attached to the urgent, immediate and
unavoidable need to provide international protection to pmdcc, common
concern provides the basis and foundation for the crystallisation of more
specific rights and obligations. In constructing its argument, this chapter first
discusses the theory of common concern of humankind, before turning to its
application in governing the matter of hmdcc.
1055 Jutta Brunnée, ‘International Environmental Law and Community Interests: Procedural
Aspects’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests
across International Law (Oxford University Press 2018), 166.
1056 Malgosia Fitzmaurice, ‘Treaties’ [2010] mpil, para 5; Christian J. Tams, Antonios
Tzanakopoulos and Andreas Zimmermann, ‘Introduction’ in Christian J. Tams, Antonios
Tzanakopoulos and Andreas Zimmermann (eds), Research Handbook on the Law of
Treaties (Edgar Elgar 2014) x; Crawford (n 864) 115–146.
1057 This book uses ‘common concern of humankind’ and ‘common concern’ interchangeably.
1058 Their work is the result of the research project titled ‘Towards a Principle of Common
Concern in Global Law: Foundations and Case Studies’, which was funded by the Swiss
National Science Foundation and undertaken at the World Trade Institute, University of
Bern. The project was led by Professor Thomas Cottier and included four case studies
by four authors: climate change (by Dr. Zaker Ahmad), violations of human rights (by
Dr. Iryna Bogdanova), economic inequality (by Dr. Alexander Beyleveld), and monetary
instability (by Dr. Lucia Satragno). See Cottier (ed) (n 21); Ahmad (n 27); Cottier and
Shingal (n 332) 51–76.
© Aylin Yildiz Noorda, 2022 | DOI:1 0.1163/9789004522367_007

This is an open access chapter distributed under the terms of the cc by-nc-nd 4.0 license.
Aylin Yildiz Noorda
- 978-90-04-52236-7
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International Protection as a Common Concern of Humankind 175
1 The Theory of the Common Concern of Humankind in

International Law
The notion of the common concern of humankind does not have a settled or
uniform definition in international law. Yet, as this section demonstrates, it has
been a source of inspiration in international law-making. For instance, in 2018,
States identified the ‘predicament of refugees’ as a common concern of human-
kind under the Global Compact on Refugees.1059 More recently, in 2020, the
‘protection of the atmosphere from atmospheric pollution and atmospheric
degradation’ was articulated as a common concern of humankind as a part of
the ongoing work of the UN ilc.1060 In order to frame the international pro-
tection of pmdcc as a common concern of humankind, the meaning, content
and legal effects of the notion of common concern must be fleshed out. With
this aim, this section first analyses the emergence and expressions of common
concern, which is then followed by a doctrinal discussion of its possible legal
effects.
1.1 Emergence and Expressions

The concept of common concern was developed from the 1980s onwards, as a
part of the discussion about the environment and development.1061 During this
1059 Global Compact on Refugees (n 9) para 1.

1060 Although this topic is explained in more depth later on in the Chapter, it can already
be alluded to here that the Special Rapporteur Shinya Murase had actually framed the
protection of the atmosphere as a common concern of humankind in 2015. This gave rise
to a debate and as a result, the term ‘pressing concern of humankind’ was preferred at
the time. However, upon the second reading in 2020, the language of ‘common concern
of humankind’ was reintroduced. See Nolte (n 861) 113; Nilüfer Oral, ‘The International
Law Commission and the Progressive Development and Codification of Principles of
International Environmental Law’ [2019] 13 fiu L. Rev. 1075.
1061 It is important to note that the notion has been traced back to earlier treaties and arbi-
tral awards addressing problems in shared jurisdiction and resources. For instance,
Horn traces common concern back to a convention from 1949 between the USA and the
Republic of Costa Rica declared tuna and other fish to be ‘of common concern’, express-
ing the need to maintain fish populations for the future. See Laura Horn, ‘The Common
Concern of Humankind and Legal Protection of the Global Environment’ (PhD thesis
University of Sydney 2000); Laura Horn, ‘The Implications of the Concept of Common
Concern of a Humankind on a Human Right to a Healthy Environment’ [2004] Macquarie
Journal of International and Comparative Environmental Law, 243; Laura Horn,
‘Globalisation, Sustainable Development and the Common Concern of Humankind’
[2007] Macquire Law Journal 7, 53–74. Inter-American Tropical Tuna Commission was
set up for this purpose. The convention that established the commission has been ratified
by twenty countries. See Convention between the USA and the Republic of Costa Rica for

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176 Chapter 5
period, common concern was recommended as ‘a way out of the controversies’

of the principle of common heritage of humankind.1062 The common heritage
approach aimed to establish the substance of the international administration
of areas recognised as common goods based on the prohibition of national
appropriation and the liberty of exploitation.1063 Common concern, on the
other hand, was devoid of proprietary connotations and focused on interna-
tional cooperation in relation to protection.1064 Opting for the latter approach,
States referred to climate change and the loss of biological diversity as com-
mon concerns in 1992.1065 Since then, common concern has been expressed in
the preambles of several binding treaties as well as in non-binding UN instru-
ments.1066 This section discusses the emergence of common concern with ref-
erence to the principle of common heritage, followed by an examination of the
expressions of common concern in international legal instruments.
In 1927, the Argentinian jurist and member of the League of Nations
Committee of Experts for the Progressive Codification of International Law,
José León Suárez, proposed that the living resources of the seas should be the
‘heritage of mankind’.1067 Forty years later, in 1967, the Maltese ambassador
Arvid Pardo proposed the recognition of the governance of the seabed and
the establishment of an Inter-American Tropical Tuna Commission [adopted 31 May 1949,

entered into force 3 March 1950] 80 unts 3.
1062 See ‘Note from the unep Secretariat to the Meeting’ in DJ Attard (ed), The Meeting of
the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind in
Relation to Global Environmental Issues (Malta: University of Malta 1990) 38.
1063 The principle of common heritage of humankind was first developed under the name
of common heritage of ‘mankind’. This book uses common heritage, common heritage
of humankind, and common heritage of mankind interchangeably. See generally, Kemal
Baslar, The Concept of the Common Heritage of Mankind in International Law (Martinus
Nijhoff Publishers 1998); Rüdiger Wolfrum, ‘Common Heritage of Mankind’ (Max Planck
Encyclopedia 2009) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law
-9780199231690-e1149> accessed 6 April 2022.
1064 Zeynep Kivilcim, Uluslararasi Kamu Hukukunda Insanligin Ortak Mirasi (On Iki Levha
Yayinlari 2010) 40–52.
1065 cbd (n 834); unfccc (n 248).
1066 International Treaty on Plant Genetic Resources for Food and Agriculture (adopted 3
November 2001, entered into force 29 June 2004) 2400 unts 303, preamble; United Nations
Educational, Scientific and Cultural Organisation Convention for the Safeguarding of the
Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006),
preamble; Conference of the Parties, Adoption of the Paris Agreement (2016) unfccc
Paris Agreement (Paris, 12 December 2015 and in force 4 November 2016), UN Doc. fccc/
cp/2015/L.9/Rev.1, 12 December 2015, preamble; Sendai Framework (n 496); Global
Compact on Refugees (n 9) para 1.
1067 Tullio Scovazzi, ‘The Seabed beyond the Limits of National Jurisdiction: General
and Institutional Aspects’ (Report submitted to the Fourth J. W. H. Verzijl Memorial

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the ocean floor as a ‘common heritage of mankind’ within the framework of

the UN.1068 Observing the rapid development of technology to explore, occupy
and exploit the world’s seabed and ocean floor, Pardo stated that ‘in accord-
ance with historical precedent this capability will lead, indeed is already
leading, to appropriation for national use of these areas, with consequences
for all our countries that may be incalculable’.1069 Some of the consequences
he articulated included political tension, the risk of pollution and economic
injustice, in light of which ‘the strong would get stronger, the rich richer’.1070
He advocated for the establishment of a universal regime of administration
and control, governed under the common heritage principle.
Following Pardo’s influential speech, the seabed and the ocean floor (along
with its subsoil) lying beyond the limits of national jurisdiction (Area),
as well as the resources of the Area were declared the common heritage of
humankind in a unga Resolution in 1970.1071 Shortly afterwards, two binding
treaties –namely, the Moon Treaty of 1979 and unclos of 1982 –adopted
the common heritage principle.1072 Furthermore, some commentators
argue that the legal regimes for outer space, the high seas and –to a lesser
Symposium ‘The legal regime of areas beyond national jurisdiction: current principles
and frameworks and future direction’, Utrecht, 21 November 2008).
1068 unga, Agenda item 92 (1967), 22nd Session, Annexes, 1. Also see Note verbale dated 17
August 1967, from the Permanent Mission of Malta to the UN Secretary General, Doc. No.
A/6695.
1069 unga, 22nd Sess, Official Records, First Committee, 1515th meeting, New York, 1967, UN
Doc A/C .1/p v.1515.
1070 Arvid Pardo, The Common Heritage -Selected Papers on Oceans and World Order (Malta
University Press, 1975) 31.
1071 unga Res 2749 (1970) ‘Declaration of Principles Governing the Seabed and the Ocean
Floor and the Subsoil thereof beyond the limits of national jurisdiction xxv’.
1072 Art 11(1) of the Moon Treaty states that ‘[t]‌he moon and its natural resources are the com-
mon heritage of mankind’. Art 136 of unclos states that ‘[t]he Area and its resources
are the common heritage of mankind’. It must be noted that prior to these treaties, in
1967, the Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty)
recognised in its preamble the ‘common interest of all mankind’ in the progress of the
exploration and use of outer space for peaceful purposes. See Agreement Governing the
Activities of States on the Moon and Other Celestial Bodies (adopted 18 December 1979,
entered into force) 1363 unts (Moon Treaty); United Nations Convention on the Law of
the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 396;
Treaty on Principles Governing Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered
into force 10 October 1967) 610 unts 205.

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178 Chapter 5
extent –Antarctica are governed by common heritage.1073 There were failed

attempts to bring the management of other goods, such as cultural heritage
and the human genome, under the common heritage regime.1074
The development of the common heritage regime occurred during the
pressing demands for a New International Economic Order (nieo). From the
1950s onwards, nieo appeared as a movement in international law, which was
majorly advocated by the newly created States of the Global South as a result
of decolonisation.1075 Their broader demands focused on correcting inequal-
ities, ensuring steadily accelerating economic and social development, and
peace and justice for present and future generations.1076
nieo inspired the adoption of a unga Declaration and an Action Programme
on the Establishment of a New International Economic Order, as well as the
Charter of Economic Rights and Duties of States, all of which referred to
the structural economic relations between developed and developing coun-
tries.1077 In 1985, a study by unitar, at the request of the unga and presided
over by Abi-Saab, identified the two cornerstones of nieo demands: sovereign
equality and the duty to co-operate closely with other States.1078 Sovereign
equality related to the right of States to choose their own economic system and
the duty to co-operate called for preferential treatment of developing coun-
tries. In relation to natural resources governance, their demands emphasised
the even and balanced development ‘of all the peoples on Earth’,1079 leading
1073 Rüdiger Wolfrum argues this by examining the province of all humankind principle in
Outer Space Treaty, Art 2 of the Geneva Convention on the High Seas and Article iv of the
Antarctic Treaty. See Wolfrum (n 787). Also see Committee on the Role of International
Law in Sustainable Natural Resources Management for Development ‘2020 ila Guidelines
on the Role of International Law in Sustainable Natural Resources Management for
Development’ in International Law Association Report of the Seventy-Ninth Conference
(Kyoto 2020) 5.
1074 Kivilcim (n 1064) 12–17.
1075 Cassese (n 22) 42–45.
1076 See Philip Golub, ‘From the New International Economic Order to the G20: how the
global South is restructuring world capitalism from within’ [2013] Third World Quarterly
34, 1004. For a critical reading of the nieo, see Herbert G. Grubel, ‘The Case Against the
New International Economic Order’ [1977] Weltwirtschaftliches Archiv, Bd 11.
1077 unga Res 3201 (s-v i) Declaration on the Establishment of a New International Economic
Order (1974); unga Res 3281 (xxix) Charter of Economic Rights and Duties (1974) UN Doc
a/r es/29/3281.
1078 Report of the Secretary-General, ‘Progressive Development of the Principles and Norms
of International Law Relating to the New International Economic Order’ (1984) UN Doc
A/39/504/Add.1.
1079 Mohammed Bedjaoui, Towards a New International Legal Order (New York: Holmes &
Meier 1979) 72.

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to calls for stronger permanent sovereignty over resources in national juris-

dictions and the development of a common heritage regime for resources in
common goods, as a manifestation of the duty to co-operate.1080
However, the concept of common heritage was the target of significant
criticism.1081 In 1990, a group of experts were convened by unep to examine
the concept of common concern, and they approached common heritage as
generating ‘controversies’, while viewing common concern ‘as a way out of
these controversies’.1082 These controversies can be summarised under three
headings:
First, common heritage is applicable to common goods, which leads to free
access and exploitation administered under an international regime.1083 This
was perceived as an unwanted outcome for natural resources within State
jurisdiction, as States wanted to preserve their sovereign rights to exploit their
resources according to domestic laws and policies.
Second, common heritage prescribes the liberty of exploitation, an element
which ‘appeared no longer satisfactory’.1084 Some commentators approach
common heritage as being ‘locked’ in an ‘exploitation bias’.1085 According to
1080 Umut Özsu, ‘Neoliberalism and the New International Economic Order: A History of
“Contemporary Legal Thought”’ in Justin Desautels-Stein and Christopher Tomlins,
Searching for Contemporary Legal Thought (cup 2017); Nico J Schrijver, The Evolution of
Sustainable Development in International Law: Inception, Meaning and Status (Pocketbooks
of the Hague Academy of International Law Brill 2009) 47–56.
1081 On hindsight, whether common heritage delivered its initial promise to achieve a uni-
versal regime of administration and control in common goods can also be debated.
Examining the Moon Treaty, it was ratified only by 18 States, and the international body
that was supposed to administer the ‘exploitation of the natural resources of the moon as
such exploitation is about to become feasible’, was never established. Examining the Area
recognised as a common heritage under unclos, one-third of the surface of the world
ocean was allocated to thirty-five States in the form of an ‘economic zone’, which signifi-
cantly shrank the areas where the common heritage principle would be applicable under
unclos. Furthermore, the international Enterprise that would conduct the exploita-
tion operations was never established. However, the International Seabed Authority was
created with a view to organising and controlling activities in the Area, especially with
regards to the administration of resources.
1082 ‘Note from the unep Secretariat to the Meeting’ in DJ Attard (ed), The Meeting of the
Group of Legal Experts to Examine the Concept of the Common Concern of Mankind in
Relation to Global Environmental Issues (Malta: University of Malta 1990) at page 38. The
Group of Legal Experts also met in Malta 1990, Geneva 1991, Beijing 1991.
1083 Simon Bilderbeek, Ankie Wijgerde and Netty van Schaik (eds), Biodiversity and
International Law: The effectiveness of international environmental law (ios Press 1992) 87.
1084 Cançado Trindade (n 19) 295.
1085 See Isabel Feichtner and Surabhi Ranganathan, ‘International Law And Economic
Exploitation in The Global Commons: Introduction’ [2019] 30 ejil 2, 541–546.

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180 Chapter 5
this view, common heritage incorporates an ‘economy of interests in which the

rampant commercial exploitation of nature is justified with the satisfaction of
societal needs’ and underlies two competing interests: first, the participation
in exploitation and revenue generation pursued by developing States and, sec-
ond, access to raw materials pursued by industrialised States.1086 During the
Cold War era, this understanding justified the legal conditions for seizing both
national and international jurisdiction.1087
Third, there was a growing consensus that the exploitation aspect of com-
mon heritage failed to deliver on the responsible conservation of natural
resources in the interest of future generations.1088 Most notably, the report of
the World Commission on Environment and Development released in 1987
described the now-common term ‘sustainable development’ as development
that ‘meets the needs of the present without compromising the ability of
future generations to meet their own needs’.1089 It was in the aftermath of this
report that common concern was conceived as showing ‘universal interest and
a shared responsibility in conservation and sustainable use’.1090
These criticisms highlight that there was, and still is, room for improve-
ment with respect to the content and application of the common heritage
1086 Isabel Feichtner, ‘Sharing the Riches of the Sea: the Redistributive and Fiscal Dimension of
Deep Seabed Exploitation’ in Symposium: International Law and Economic Exploitation
In The Global Commons [2019] 30 ejil 2, 601–633.
1087 Surabhi Ranganathan, ‘Ocean Floor Grab: International Law and the Making of an
Extractive Imaginary’ in Symposium: International Law and Economic Exploitation In
The Global Commons [2019] 30 ejil 2, 573–600.
1088 See for instance, Alex Kiss and Dinah L. Shelton, International Environmental Law
(Transnational Publishers, Ardsley-on-Hudson 1991) 380. Responses to these criticisms
generally focus on the guidelines developed by the International Seabed Authority, which
aim to contribute to the development of international environmental law and clarify what
is meant by sustainable development with respect to the management of the resources in
the Area. See Rüdiger Wolfrum, ‘The Contribution of the Regulations of the International
Seabed Authority to the Progressive Development of International Environmental Law’
in Michael W. Lodge and Myron H. Nordquist (eds), Peaceful Order in the World’s Oceans
Essays in Honor of Satya N. Nandan (2014) 242.
1089 In 1983, on account of urgent problems over the environment, resources, development
and people, the unga decided to establish the World Commission on Environment and
Development to formulate ‘a global agenda for change’. The Commission was led by Gro
Harlem Brundtland, and released its report titled ‘Our Common Future’ in 1987. World
Commission on Environment and Development, ‘Our Common Future’ (1987).
1090 Ahmed Yusuf, ‘The UN Convention on Biological Diversity’ in Najeeb Al-Nauimi and
Richard Meese (eds) International Legal Issues Arising under the United Nations Decade
of International Law: Proceedings of the Qatar International Law Conference (Springer
Netherland 1994) 1171.

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principle.1091 Common concern emerged as a means to address these criti-

cisms. In 1988, the unga recognised that climate change is a common con-
cern.1092 In 1992, common concern was acknowledged in the preambles of two
binding international conventions, namely, the unfccc and the cbd.1093
Common concern has been adopted in different contexts since then. In
2001, the preamble of the International Treaty on Plant Genetic Resources
termed plant genetic resources for food and agriculture as a common con-
cern.1094 Similarly, in 2003, the preamble of the unesco Convention for the
Safeguarding of the Intangible Cultural Heritage included a reference to ‘being
aware of the universal will and the common concern to safeguard the intan-
gible cultural heritage of humanity’.1095 In 2015, the preamble of the Paris
Agreement re-emphasised that climate change is a common concern.1096 The
same year, Sendai Framework for Disaster Risk Reduction similarly identified
‘the reduction of disaster risk’ as a ‘common concern for all States’.1097
In 2018, the Global Compact on Refugees phrased ‘the predicament of refu-
gees’ as a common concern.1098 The wording ‘common concern’ was inserted
into the text during the second round of consultations.1099 The unhcr’s
Assistant High Commissioner for Protection at the time, Dr Volker Türk, ‘had
the idea to include in the compact reference to the refugee issue as a common
concern at the beginning, building upon one of the first unga Resolutions
in 1946, which considered the refugee problem as a matter of international
1091 See Karin Mickelson, ‘Common Heritage of Mankind as a Limit to Exploitation of the
Global Commons’ in Symposium: International Law And Economic Exploitation In The
Global Commons [2019] 30 ejil 2, 635–663.
1092 Based on a proposal by Malta, see unga Res 43/53 (1988).
1093 See Claire Shine and Palitha Kohona, ‘The Convention on Biological Diversity: Bridging
the Gap Between Conservation and Development’ [1992] Review of European Community
and International Environmental Law, 282. Furthermore, Kiss and Shelton note that
Malta had initially proposed climate to be common heritage, which was rejected. See Kiss
and Shelton (n 1088) 10.
1094 International Treaty on Plant Genetic Resources for Food and Agriculture (n 1066).
1095 United Nations Educational, Scientific and Cultural Organisation Convention for the
Safeguarding of the Intangible Cultural Heritage (n 1066).
1096 Paris Agreement (n 1066).
1097 Sendai Framework (n 496).
1099 See unhcr, ‘The global compact on refugees: Draft 1’ (9 March 2018) <https://www.unhcr
.org/events/conferences/5aa2b3287/official-version-draft-1-global-compact-refugees-9
-march-2018.html> accessed 6 April 2022; unhcr, ‘The global compact on refugees: Draft
2’ (30 April 2018) <https://www.unhcr.org/events/conferences/5ae758d07/official-vers
ion-draft-2-global-compact-refugees-30-april-2018.html> accessed 6 April 2022.

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182 Chapter 5
concern’.1100 The inclusion of common concern in the text was welcomed and
made it into the final adopted version.1101
Common concern continues to inspire international law-making. In 2020,
the Draft Convention on the Right to Development acknowledged that ‘the
realisation of the right to development is a common concern of humankind’.1102
Furthermore, the same year, the iucn proposed a common concern approach
to be included in the preamble of the treaty on marine biodiversity of areas
beyond national jurisdiction (abnj).1103 The negotiations for this treaty began
following the decision of the unga in 2017 to convene an intergovernmental
1100 The first draft of the compact stated that the ‘predicament of refugees is an important
international concern’. In 1949 in a resolution, the unga had referred to the problem of
refugees as international in scope and nature, and the necessary legal protection of ref-
ugees as a concern. Building on this, unhcr’s Assistant High Commissioner at the time,
Dr. Volker Türk, had the idea to include in the Global Compact on Refugees a reference to
the refugee issue as a common concern. Türk had already written in 2003 with Nicholson
that the 1951 Refugee Convention and its 1967 Protocol set the core principles for the
international protection of refugees, and reinforcing these global treaties as the foun-
dation of the protection regime is a common concern. Reference to common concern
was inserted in the second draft of the compact, and succeeded until the final adopted
version. See unga Res 319, ‘Refugees and stateless persons’ (3 December 1949) UN Doc
a/r es/319 <https://www.refworld.org/docid/3b00f1ed34.html> accessed 6 April 2022;
Volker Türk and Frances Nicholson, ‘Refugee Protection in International Law: An Overall
Perspective’ in Erika Feller, Volker Türk and Frances Nicholson, Refugee Protection in
International Law (Cambridge University Press 2003).
1101 For instance, see the written contribution of the Business Fights Poverty to the UN
Consultations on the Global Compact on Refugees. Business Fights Poverty, ‘Written
Contribution to the UN Consultations on the Global Compact on Refugees’ <https://
www.unhcr.org/events/conferences/5b3c8fba7/enabling-business-solutions-refugees-glo
bal-compact-refugees-mobilize-business.html> accessed 6 April 2022.
1102 unhrc, ‘Draft convention on the right to development’ UN Doc a/h r/wg.2/21/2.
1103 iucn proposed the following wording: ‘Aware that the conservation of marine biodiversity
is a common concern and the shared responsibility of all States and that States have the
obligation to protect and preserve the marine environment in abnj and to assist other
States to do the same’. See ‘Textual proposals submitted by delegations by 20 February
2020, for consideration at the fourth session of the Intergovernmental conference on
an international legally binding instrument under the United Nations Convention on
the Law of the Sea on the conservation and sustainable use of marine biological biodi-
versity of areas beyond national jurisdiction (the Conference), in response to the invita-
tion by the President of the Conference in her Note of 18 November 2019 (a/c onf.232/
2020/3)’ <https://www.un.org/bbnj/sites/ www.un.org.bbnj/files/textual_proposals_comp
ilation_article-by-article_-_15_april_2020.pdf> accessed 6 April 2022, 5. Also see Pascale
Ricard, ‘Marine biodiversity beyond national jurisdiction: The launch of an intergovern-
mental conference for the adoption of a legally binding instrument under the UNCLOS’
[2019] Maritime Safety and Security Law Journal.

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conference to consider an international legally binding instrument under

unclos on the conservation and sustainable use of marine biological diver-
sity of abnj.1104 Oral is one of the proponents of the need to recognise the
marine biodiversity of abnj as a common concern, and she interprets the
ongoing negotiations as an opportunity to define the emerging principle.1105
The fourth and final session of the intergovernmental conference has been
postponed due to the covid-19 pandemic, and it is to be seen whether the
notion of common concern will prevail.
Another recent discussion on the use of common concern took place at the
UN ilc. ilc Special Rapporteur Shinya Murase had proposed already in 2015
under the draft guidelines that ‘[t]‌he atmosphere is a natural resource essen-
tial for sustaining life on Earth, human health and welfare, and aquatic and
terrestrial ecosystems, and hence the degradation of atmospheric conditions is
a common concern of humankind’.1106 This formulation gave rise to a ‘contro-
versial debate’.1107 As a result, the ilc settled on the phrase ‘pressing concern
of the international community as a whole’ at the time, which is the criterion
it uses to select its own topics. According to ilc member Nolte, the ilc, ‘[b]
eing a body which usually decides by way of consensus, no more emphatic
or clearer articulation of the collective interest ‘protection of the atmosphere’
was possible at the moment’.1108
However, the conversation did not end there. States brought common con-
cern back to the discussions on the protection of the atmosphere at the ilc. The
EU suggested that the ilc use the wording ‘common concern of humankind’
1104 UN, ‘bbnj’, official webpage <https://www.un.org/bbnj/> accessed 6 April 2022; unga Res
72/249 (24 December 2017) UN Doc a/r es/72/249; unga Res 69/292 (6 July 2015) UN Doc
a/r es/62/292.
1105 iucn, ‘ESIL Annual Conference: International Law, Global Public Goods, Global
Commons and Fundamental Values’ official webpage (11 September 2017) <https://
www.iucn.org/news/world-commission-environmental-law/201709/esil-annual-confere
nce-international-law-global-public-goods-global-commons-and-fundamental-values>
1106 ilc, ‘Second report on the protection of the atmosphere by Shinya Murase, Special
Rapporteur’ 67th sess (2 March 2015) UN Doc a/c n.4/681. Also see ilc, ‘Third report on
the protection of the atmosphere by Shinya Murase, Special Rapporteur’ 68th sess (25
February 2016) UN Doc a/c n.4/692; ilc, ‘Fourth report on the protection of the atmos-
phere by Shinya Murase, Special Rapporteur’ 69th sess (31 January 2017) UN Doc a/c n.4/
705; ilc, ‘Fifth report on the protection of the atmosphere by Shinya Murase, Special
Rapporteur’ 70th sess (8 February 2018) UN Doc a/c n.4/711; ilc, ‘Sixth report on the pro-
tection of the atmosphere by Shinya Murase, Special Rapporteur’ 68th sess (11 February
2020) UN Doc a/c n.4/736.
1107 Nolte (n 861) 113.
1108 ibid 114. Also see, Oral (n 1060) 1075.

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184 Chapter 5
instead of the ‘pressing concern of the international community’.1109 Antigua

and Barbuda, the Netherlands, Germany, Colombia, Iran, Japan, Sri Lanka
and Viet Nam also supported the use of the expression ‘common concern of
humankind’.1110
The Nordic countries submitted that they would like to encourage the ilc
to elaborate on the implications of the legal concept of common concern
of humankind in the context of environmental law on the protection of the
atmosphere.1111
Portugal argued that the protection of the atmosphere should be referred to
as a common concern of humankind in accordance with international legally
binding instruments of the unfccc, arguing that, for the progressive develop-
ment of international law, a normative statement was preferable to a purely
factual one.1112
In line with these comments, the Special Rapporteur proposed in his sixth
report, which was distributed in February 2020, that ‘recognising the protec-
tion of the atmosphere from atmospheric pollution and atmospheric degrada-
tion is a common concern of humankind’.1113 The ilc is set to discuss the draft
preamble and guidelines prepared by the Special Rapporteur and submit its
final draft report to the unga, accompanied by a recommendation for further
action.1114
In 2021, ilc Special Rapporteur Shinya Murase also prepared a report on
epidemics and international law as a part of the Institut de Droit International
in the capacity of Rapporteur, in which he has proposed that epidemics are
matters of common concern of humankind.1115
To conclude, this section has demonstrated that common concern was
developed as an alternative to the application of the common heritage princi-
ple. The fact that it is devoid of proprietary connotations, that it respects State
sovereignty over relevant resources and that it calls for institutional cooper-
ation in order to secure protection were the main reasons for its success in
the climate change and biological diversity treaty negotiations. The notion of
1109 ilc, ‘Sixth report on the protection of the atmosphere by Shinya Murase, Special
Rapporteur’ 68th sess (11 February 2020) UN Doc a/c n.4/736, para 24.
1110 ibid para 23–28.
1111 ibid para 65.
1112 ibid para 24.
1113 ibid para 33.
1114 ibid para 100–102.
1115 Institut de Droit International, ‘Epidemics and International Law’ 12éme Commission,
Rapporteur: Shinya Murase (2021) <https://www.idi-iil.org/app/uploads/2021/05/Report
-12th-commission-epidemics-vol-81-yearbook-online-session.pdf> accessed 6 April 2022.

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common concern has undoubtedly expanded in scope since then, being used
to address shared problems in other matters, such as disaster risk reduction
and refugee protection. The ongoing negotiations for the treaty on marine
biodiversity of abnj, and the draft guidelines for the protection of the atmos-
phere indicate that the concept of common concern continues to play a role in
inspiring the development of international law.
1.2 Legal Effects: Treaty Regimes as a Reflection of Common Concerns

Common concern finds expression in several international legal instruments,
but these fail to elaborate on its precise legal ramifications.1116 Scholarly writ-
ings have attempted to fill this gap by fleshing out its material content and
legal effects.1117 Borrowing from Cottier and others, in the author’s view, there
should be two main normative effects of common concern: a novel duty to
cooperate and a novel duty to act.1118 This section analyses the doctrinal dis-
cussion to expound on the novel duties to cooperate and to act, with a focus
on the climate change and refugee regimes where common concern has been
adopted.
The starting point for discussing the legal effects of common concern is the
articulation of its material content. The previous section has discussed the fact
that common concern emerged as an alternative to the principle of common
heritage. Unlike common heritage, common concern does not aim to sup-
press national claims in favour of creating a universal regime of administra-
tion and control, so that all States can exercise the liberty to exploit a natural
resource.1119
1116 Zaker Ahmad, ‘State Responsibility Aspects of a Common Concern Based Approach to
Collective Action’ in Samantha Besson (ed), International Responsibility: Essays in Law,
History and Philosophy (Schulthess 2017) 97–116.
1117 Friedrich Soltau, ‘Common Concern of Humankind’ in Cinnamon Pinon Carlarne, Kevin
R. Gray, Richard Tarasofsky (eds), The Oxford Handbook on International Climate Change
Law (oup 2016); Werner Scholtz, ‘Human Rights and Climate Change: Extending the
Extraterritorial Dimension via the Common Concern’ in Wolfgang Benedek and others
(eds), The Common Interest in International Law (Intersentia 2014) 134–135; Jimena Murillo,
‘Common Concern of Humankind and its Implications in International Environmental
Law’ [2008] 5 Macquarie Journal of International and Comparative Environmental
Law 133; Frank Biermann, ‘“Common Concern of Humankind”: The Emergence of a
New Concept of International Environmental Law’ [1996] 34 Archiv des Völkerrechts 4,
426–481.
1118 Cottier (ed) (n 21).
1119 Jutte Brunnée, ‘Common interests -Echoes from an Empty shell? Some thoughts on com-
mon interest and international environmental law’ [1989] 49 ZaöRV, 791–808.

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186 Chapter 5
Instead, common concern is devoid of proprietary connotations and empha-

sises the element of protection.1120 Building on these qualities, Trindade sug-
gested that common concern: necessitates the engagement of all countries,
societies and social segments within the countries; encompasses both the pres-
ent and future generations; primarily gives attention to the causes of the prob-
lems (both for their prevention and for determing the responses to be given);
and finally, applies equitable sharing of responsibility.1121
These constitutive elements of common concern are applied to issues of
a specific character. First, these issues are ‘common’, meaning that they are
shared or transboundary problems, transcending the boundaries of a single
State.1122 What makes them a ‘concern’ is the sense of urgency of the problem,
which has a wide-ranging and long-term socio-economic impact.1123 Second,
the meaningful cooperation of everyone involved is necessary to address these
shared problems.1124 The contrary scenario might lead to the ‘tragedy of the
commons’, which is a dilemma that occurs when multiple individuals act inde-
pendently and according to their own self-interest, ultimately depleting a finite
shared resource.1125 Similarly, so-called beggar-thy-neighbour policies might be
adopted, which attempt to remedy a problem by maximising one’s own benefits
at the expense of partners, neighbours and others that are impacted, thus wors-
ening the situation for other parties involved.1126
To facilitate the identification of a transboundary problem as a common
concern, Cottier and others proposed setting ‘the potential and risk to threaten
international stability, peace and welfare’ as a threshold.1127 They argue that
1120 Edith Brown Weiss, ‘The Coming Water Crisis: A Common Concern of Humankind’ [2012]
1 Transnational Environmental Law 1, 153–168.
1121 Cançado Trindade (n 19) 351.
1122 Dinah Shelton, ‘Common Concern of Humanity’ (Environmental Law and Policy 39/
2, 2009).
1123 Christina Voigt, ‘Delineating the Common Interest in International Law’ in Wolfgang
Benedek and others (eds), The Common Interest in International Law (Intersentia
2014) 19.
1124 Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel
Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International
Environmental Law (oup 2008).
1125 ibid. Also see Garrett Hardin, ‘The Tragedy of the Commons’ [1968] 162 Science 3859.
1126 ibid.
1127 Their work is the result of the research project titled ‘Towards a Principle of Common
Concern in Global Law: Foundations and Case Studies’, which was funded by the Swiss
National Science Foundation and undertaken at the World Trade Institute, University of
Bern. The project was led by Professor Thomas Cottier and included four case studies
by four authors: climate change (by Dr. Zaker Ahmad), violations of human rights (by
Dr. Iryna Bogdanova), economic inequality (by Dr. Alexander Beyleveld), and monetary

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matters are deemed to be of common concern as the result of a ‘process of

claims and responses’.1128 This refers to the initiatives, debates, approvals or
rejections in the diplomatic and legal processes of law-making, and involves
contributions from States and non-State actors.1129 Scholarly works also hold
a special place in this process, as these can be recognised in case law, interna-
tional declarations and perhaps even in treaty law.1130
A closer look at the international climate regime and the international refu-
gee regime, where common concern has been adopted, expounds on the legal
ramifications of common concern. The adoption of the unfccc marks the
beginning of an international legal process for ongoing exchange and negoti-
ation on climate change, supported by treaty secretariats.1131 In the preamble
to the unfccc, climate change has been recognised as a common concern
of humankind.1132 This recognition was reiterated in the Paris Agreement in
2015.1133
In line with the notion of common concern, the regime’s approach from
the onset incorporated an understanding of ‘minimised’1134 interference with
State sovereignty, calling instead for the ‘widest possible cooperation by all
countries and their participation in an effective and appropriate international
response’.1135 The setting out of common standards and commitments for fur-
ther cooperation drives the regime.
One of its biggest challenges has been how to differentiate responsibil-
ities to address climate change as a common concern.1136 cbdr-r c was
acknowledged in the unfccc as a key structural principle.1137 Translated into
instability (by Dr. Lucia Satragno). Cottier (ed) (n 21); Beyleveld (n 21); Satragno (n 21);
Bogdanova (n 21); Ahmad (n 27).
1129 ibid.
1130 ibid.
1131 Bodansky (n 219); Stephen D. Krasner, ‘Structural Causes and Consequences: Regimes as
Intervening Variables’ in John J. Kirton (ed), International Organization [1982] 36 Spring 2.
1132 unfccc (n 248), preamble.
1133 Paris Agreement (n 1066).
1134 Soltau (n 1117).
1135 unfccc (n 248), preamble.
1136 Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights
under International Law (Hart Publishing 2019) 41–69.
1137 Rio Declaration on Environment and Development (Rio de Janeiro, 3–14 June 1992) a/
conf.151/26, vol.i, principle 7; Lavanya Rajamani, Differential Treatment in International
Environmental Law (Oxford Scholarship Online 2006) 134; Sonja Klinsky and Harald
Winkler, ‘Equity, sustainable development and climate policy’ [2014] 14 Climate Policy
1, 1–7.

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188 Chapter 5
responsibilities, it first landed on a stark South-North differentiation under the

1997 Kyoto Protocol, in which only Annex I countries were obliged to reduce or
limit their ghg emissions.1138 A ‘more nuanced and dynamic differentiation’
was achieved with the invention of ndc s for a number of reasons.1139 First, the
distinction between Annex I and non-Annex I country groupings effectively
disregarded the emissions of emerging economies such as China and India.1140
Second, the US never ratified the Kyoto Protocol, Canada withdrew from it, and
Japan and Russia had no binding targets in its second commitment period.1141
Third, the measures for the Annex I countries mostly related to mitigation, and
the need to include adaptation and finance was increasingly stressed.1142 Thus,
the ndc s were adopted under the Paris Agreement to address the delicate bal-
ance between equitable burden sharing, on the one hand, and the need to hold
all States to sufficiently high standards of responsibility, on the other.1143
However, it is difficult to argue that the common concern approach to cli-
mate change has been successful. The attempt to limit the global temperature
rise to well below 2 degrees Celsius above pre-industrial levels –with a view to
pursuing further efforts to limit it to 1.5 degrees Celsius –is failing. The world
1138 Annex I countries included the industrialised countries that were members of the oecd
in 1992, and countries with economies in transition. The Doha Amendment to the Kyoto
Protocol was adopted for a second commitment period, starting in 2013 and lasting until
2020. unfccc, Doha Amendment to the Kyoto Protocol <https://unfccc.int/files/kyoto
_protocol/application/pdf/kp_doha _amendment_english.pdf> accessed 6 April 2022 See
Nada Maamoun, ‘The Kyoto Protocol: Empirical evidence of a hidden success’ [2019] 95
Journal of Environmental Economics and Management, 227–256; Roger Guesnerie, ‘A
Future for the Kyoto Protocol?’ in Ajit Sinha and Siddhartha Mitra, Economic Development,
Climate Change, and the Environment (Routledge 2006).
1139 It must be noted that when the first commitment period of the Kyoto Protocol expired in
2012, the global emissions were approximately 50% higher than they were in 1990. Bang,
Hovi and Skodvin explain this by at least four forms of free riding. See Guri Bang, Jon Hovi
and Tora Skodvin, ‘The Paris Agreement: Short-Term and Long-Term Effectiveness 2016.
Also see Brunnée (n 1034) 165.
1140 Karoliina Hurri, ‘Rethinking climate leadership: Annex I countries’ expectations for
China’s leadership role in the post-Paris UN climate negotiations’ [2020] 35 Environmental
Development.
1141 Christian Almer and Ralph Winkler, ‘Analyzing the effectiveness of international envi-
ronmental policies: The case of the Kyoto Protocol’ [2017] 81 Journal of Environmental
Economics and Management, 125–151.
1142 Dale Jamieson, ‘Adaptation, Mitigation, and Justice’ [2015] 5 Perspectives on Climate
Change, Science, Economics, Politics, Ethics, 217–248.
1143 Peter Pauw et al., ‘Beyond headline mitigation numbers: we need more transparent and
comparable ndc s to achieve the Paris Agreement on climate change’ [2017] 147 Climatic
Change, 23–29.

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is on track to see global warming of around 3 degrees Celsius by the end of this
century, even if countries live up to their current commitments.1144
At least two features of the international climate change regime can explain
this. First, the Paris Agreement creates obligations of conduct, instead of obli-
gations of result.1145 Essentially, the Paris Agreement leaves the target to unilat-
eral commitments by States.1146 Party States are to prepare, communicate and
maintain successive ndc s, and ‘pursue domestic mitigation measures, with the
aim of achieving the objectives of such contributions’.1147 Each State is expected
to set its own priorities and ambitions ‘bottom-up’, which stimulates countries’
self-differentiation of responsibilities and capabilities.1148 So far, the level of
ambition for reducing emissions is very weak: the ndc submissions up to 31
December 2020 show that there would be less than –1% change in the total
emissions in 2030 as compared to 2010.1149 By contrast, the ipcc has indicated
that, in order to meet the 1.5°C temperature goal, emissions reduction should
be around –45% in 2030 as compared to 2010.1150 More recent studies unfortu-
nately do not show positive progress. In its sixth assessment report published
in August 2021, the ipcc confirmed that in the near term (2021–2040) 1.2°C
global warming is happening.1151 Furthermore, prior to cop26 to the unfccc,
the unfccc Secretariat published a report in October 2021 which showed that
the communicated ndc s may lead to a temperature rise of about 2.7°C by the
end of this century.1152
1144 unep, ‘Emissions Gap Report 2020’ (2020).

1145 Jutta Brunnée, Procedure and Substance in International Environmental Law (The Hague
Academy of International Law, Brill 2021).
1146 See Pieter Pauw and others, ‘Conditionally national determined contributions in
the Paris Agreement: foothold for equity or Achilles heel?’ [2020] 20 Climate Policy
4; Benoit Mayer, ‘International Law Obligations Arising in Relation to Nationally
Determined Contributions’ [2018] 7 Cambridge Core 2; Lavanya Rajamani, ‘Ambition and
Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying
Politics’ [2016] 65 iclq 493.
1147 Paris Agreement (n 1066) art 4(2).
1148 Amita Punj, ‘Common but Differentiated Responsibility’ in Koen de Feyter, Gamze
E. Türkelli and Stéphanie de Moerloose, Encylopedia of Law and Development (Edgar
Elgar 2021).
1149 unfccc, ‘Nationally Determined Contributions Synthesis Report’ (26 February
2021) fccc/pa/c ma/2021/2.
1150 ipccc, ‘Special Report on Global Warming of 1.5°C’ (2018).
1151 ipcc (n 26) 14.
1152 unfccc Secretariat, ‘Nationally determined contributions under the Paris Agreement.
Revised Note by the Secretariat’ UN Doc fccc/pa/c ma/2021/8/Rev.1 (2021).

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190 Chapter 5
Second, the Achilles’ heel of the Paris Agreement is compliance.1153

Compliance, in a legal sense, applies to legally binding obligations, and under
the Paris Agreement, the legally binding obligations relate to procedural obli-
gations.1154 For instance, States Parties must communicate their ndc s every
five years.1155 However, substantive issues such as the content of the ndc s
(other than the procedural requirement of submitting an ndc that represents
a ‘progression’) or the mobilisation of climate finance cannot be subject to
noncompliance measures.1156 In fact, States even reserve the right to withdraw
from the treaty, as exemplified by the US, which had a short sojourn (totalling
107 days) outside the Paris Agreement.1157
1153 See Anna Huggins, ‘The Paris Agreement’s Compliance Mechanism: An Incomplete
Compliance Strategy’ in Alexander Zahar and Benoit Mayer (eds), Debating Climate
Change (cup 2021); Zerrin Savasan, Paris Climate Agreement: a deal for better compliance?
(Springer 2019); Alexander Zahar, ‘A Bottom-Up Compliance Mechanism for the Paris
Agreement’ [2017] Chinese Journal of International Law 69–98.
1154 Some of these procedural aspects –those relating to the carbon market mechanisms
under Article 6 –are brought together under the ‘Paris Rulebook’ which has been finalised
during cop26. Beyond the submission of ndc s, there are also procedural requirements
relating to reporting and global stocktaking. Furthermore, there is a standing com-
mittee on implementation and compliance to monitor progress. See UK Government,
‘COP26: The Negotiations Explained’ (UK Government 2021) <https://ukcop26.org/wp
-content/uploads/2021/11/COP26-Negotiations-Explained.pdf> accessed 6 April 2022;
unfccc, ‘Paris Agreement Implementation and Compliance Committee Meets to Assess
Challenges’ (UN News 2022) <https://unfccc.int/news/paris-agreement-implementation
-and-compliance-committee-meets-to-assess-challenges> accessed 6 April 2022; Joanna
Depledge, Miguel Saldivia and Cristina Penasco, ‘Glass half full or glass half empty? The
2021 Glasgow Climate Conference’ [2022] 22 Climate Policy 2, 147–157.
1155 See unfccc, ‘Nationally determined contributions’ (unfccc 2022) <https://unfccc.int/
process-and-meetings/the-paris-agreeme nt/nationally-determined-contributions-ndcs/
nationally-determined-contributions-ndcs> accessed 6 April 2022.
1156 unfccc, ‘COP26 Outcomes: Finance for Climate Adaptation’ (unfccc 2022) <https://
unfccc.int/process-and-meetings/the-paris-agreement/the-glasgow-climate-pact/
cop26-outcomes-finance-for-climate-adaptation> accessed 6 April 2022. Also see Zahar
(n 1127); Lavanya Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft
and Non-Obligations’ [2016] 28 Journal of Environmental Law 2; Christina Voigt, ‘The
Compliance and Implementation Mechanism of the Paris Agreement’ [2016] 25 Review
of European, Comparative & International Environmental Law 2; Daniel Bodansky, ‘The
Legal Character of the Paris Agreement’ [2016] 25 Review of European, Comparative &
Environmental Law 2.
1157 The US withdrew from the Paris Agreement on 4 November 2020 under President Trump,
and rejoined the agreement on 19 February 2021 under President Biden. See White House,
‘Fact Sheet: President Biden sets 2030 Greenhouse Gas Pollution Reduction Target aimed
at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy

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In contrast with the climate change regime, the refugee regime did not adopt
a common concern approach from the outset.1158 States recognised the ‘predica-
ment’ of refugees as a common concern under the Global Compact on Refugees
in 2018.1159 In the author’s view, the common concern framing of the predica-
ment of refugees has two implications for the international refugee regime: first,
it politically reinforces the predicament approach to refugees and, second, it
calls for the widest possible cooperation to address burden-and responsibility-
sharing whilst respecting State sovereignty.
The so-called predicament approach in refugee law looks at the potential
refugee’s predicament, focusing on the link between the risk of persecution
and whether this risk is due to one of the five Refugee Convention grounds.1160
The predicament approach does not require a persecutor’s intent to cause seri-
ous harm; it also does not require that the harm be the direct consequence of
discrimination or that the harm and discrimination experienced come from
the same source.1161 In other words, ‘[t]‌here is no need for the persecutor to
have a punitive intent to establish the causal link. The focus is on the reasons
for the applicant’s feared predicament within the overall context of the case,
and how he or she would experience the harm rather than on the mind-set
of the perpetrator’.1162 By clearly identifying refugees’ predicament as a com-
mon concern under the Global Compact on Refugees, States Parties have now
Technologies’ (Statements and Releases, 22 April 2021) <https://www.whitehouse.gov/

briefing-room/statements-releases/2021/04/22/factsheet-president-biden- sets-2030
-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs
-and-securing-u-s-leadership-on-clean-energy-technologies/> accessed 6 April 2022; US
Department of State, ‘On the U.S. Withdrawal from the Paris Agreement’ Press Statement
by Michael R. Pompeo, Secretary of State (4 November 2019) <https://www.state.gov/on
-the-u-s-withdrawal-from-the-paris-agreement/> accessed 6 April 2022; Hai-Bin Zhang
and others, ‘U.S. withdrawal from the Paris Agreement: Reasons, impacts, and China’s
Response’ [2017] 8 Advances in Climate Change Research 4.
1158 Although ‘the problem of refugees’ was recognised as ‘international in scope and nature’
in 1949. See unga Res 319, ‘Refugees and stateless persons’ (3 December 1949) UN Doc a/
res/319 <https://www.refworld.org/docid/3b00f1ed34.html> accessed 6 April 2022.
1160 For its possible application to climate change, see Lauren Nishimura, ‘Climate change
and international refugee law: A predicament approach’ (RefLax, 19 October 2018). For its
possible application to children, see James C Hathaway and Michelle Foster, The Law of
Refugee Status (Cambridge University Press 2014) 192–193.
1161 Nishimura (n 1160).
1162 unhcr, ‘Guidelines for International Protection No. 9: Claims to Refugee Status Based on
Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951
Convention and/or Its 1967 Protocol Relating to the Status of Refugees’ (2012) hcr/g ip/
12/09 para 39 <https://perma.cc/9QDS-8MQU> accessed 6 April 2022.

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192 Chapter 5
committed to conducting refugee status determination procedures in accord-

ance with this interpretation.1163
International cooperation in burden-and responsibility-sharing is an impor-
tant pillar for the realisation of the predicament of refugees as a common
concern.1164 Although the Refugee Convention acknowledged that without
international cooperation, the granting of asylum may place unduly heavy bur-
dens on certain countries, it failed to clearly establish the content of the duty
to cooperate.1165 Commentators have been examining practical cooperation for
burden-and responsibility-sharing for refugees, especially at the regional level,
and pointing out that ‘the contributions and political and moral support for the
displaced waver and formal obligations are elusive’.1166 The numbers speak vol-
umes: as of mid-2020, 86% of the world’s refugees and Venezuelans displaced
abroad are hosted in developing countries.1167 Sutherland characterised this as
‘responsibility by proximity’, according to which refugees are expected to stay in
the first country they enter.1168
It was in this context that the Common Refugee Response Framework
(crrf) was developed.1169 crrf specifically relates to large refugee situations,
1163 Also see Scott (n 14).

1164 Volker Türk and Madeline Garlick, ‘From Burdens and Responsibilities to Opportunities:
The Comprehensive Refugee Response Framework and a Global Compact on Refugees’
[2016] 28 irjl 4, 656–678. See also, Volker Türk, ‘Prospects for Responsibility Sharing in
the Refugee Context’ [2018] Journal on Migration and Human Security.
1165 unhcr Executive Committee Conclusion No 89 (li) (2000); unhcr Executive
Committee Conclusion No 100 (lv) (2004). Also see Alexander Betts and Paul Collier,
Refuge: Transforming a Broken Refugee System (Penguin 2017).
1166 Goodwin-Gill and McAdam (n 56) 504.
1167 Turkey hosts the largest number of refugees, with 3.6 million people. Colombia is second
with 1.8 million, including Venezuelans displaced abroad. Pakistan and Uganda are third,
each hosting 1.4 million refugees. See unhcr, ‘Figures at a Glance’ <https://www.unhcr
.org/en-us/figures-at-a-glance.html> accessed 6 April 2022.
1168 UN News, ‘Interview: “Refugees are the responsibility of the world … Proximity doesn’t
define responsibility –Peter Sutherland’ (2 October 2015) <https://news.un.org/en/story/
2015/10/511282-interview-refugees-are-responsibility-world-proximity-doesnt-define>
1169 Volker Türk’s proposal for a framework for burden-and responsibility-sharing served as a
key inspiration for the crrf. He argued that a more predictable, systematic and equitable
responsibility sharing has at least three advantages: it can help alleviate tensions between
States, mitigate against potential negative consequences for refugees, and ensure that
States are able to respond to refugees more effectively. His responsibility-sharing arrange-
ment includes triggering mechanisms and proportional contributions in line with State
capacity, which would be agreed upon in advance of large-scale movements of people.
For the new system to work, States must find new ways to uphold their obligations to ref-
ugees, for instance, through new forms of group refugee status determinations to ensure

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including in protracted situations (as an integral and distinct part of an overall

humanitarian response, where it exists).1170 It was annexed to the New York
Declaration in 2016 and incorporated into the Global Compact on Refugees
under Part ii.1171
Before being adopted, it was piloted in fifteen countries.1172 These appli-
cations show that, once the unhcr –in close coordination with relevant
States and other relevant UN entities –initiates the crrf, a multi-stakeholder
approach to addressing the large refugee situations is triggered.1173 In that case,
there is international support for refugees, as well as for host countries and
communities.1174 The response provided also envisages durable solutions, to
‘help refugees thrive, not just survive’.1175 Overall, areas that find support range
from reception and admission, meeting needs and supporting communities, to
solutions such as resettlement, complementary pathways for admission to third
countries and local integration.1176
An important shortcoming of the crrf is the fact that the host countries
can choose to withdraw from it (Tanzania is a case in point).1177 Furthermore,
the support coming from other States is mostly decided on the basis of their
‘pledges’ which are put forward in the Global Refugee Forum.1178 The other
that the protection needs of individuals and persons in a targeted group are addressed.
See Türk and Garlick (n 1164) 656–678; Türk (n 1164).
1170 See Randall Hansen, ‘The Comprehensive Refugee Response Framework: A Commentary’
[2018] 31 Journal of Refugee Studies 2, 131–151.
1171 New York Declaration (n 119), Annex 1 ‘Comprehensive Refugee Response Framework’;
Global Compact on Refugees (n 9) Part ii ‘Comprehensive Refugee Response Framework’.
1172 unhcr, ‘Bringing the New York Declaration to Life: Applying the Comprehensive
Refugee Response Framework’ (unhcr, January 2018) <https://www.unhcr.org/593e5c
e27> accessed 6 April 2022.
1173 Garlick and Inder (n 1021) 207–226.
1174 unhcr, ‘Global Update on the Comprehensive Refugee Response Framework’ (unhcr,
September 2018) <https://www.unhcr.org/events/conferences/5bd041e33/global-update
-comprehensive-refugee-response-framework.html> accessed 6 April 2022.
1175 unhcr, ‘Comprehensive Refugee Response Framework’ <https://www.unhcr.org/
comprehensive- refugee- response- f ramework- c rrf.html#:~:text= T he%20New%20
York%20Decla ration%20lays,the%20countries%20that%20host%20them.> accessed 6
April 2022.
1176 Global Compact on Refugees (n 9) Part ii ‘Comprehensive Refugee Response Framework’.
1177 Mans Fellesson, ‘From Roll-Out to Reverse: Understanding Tanzania’s Withdrawal from
the Comprehensive Refugee Response Framework (crrf)’ [2019] Journal of Refugee
Studies.
1178 In the author’s view, this is conceptually akin to the ndc s under the Paris Agreement.
There is the notion of self-differentiation of responsibilities, in a sense. On how the com-
pacts can shift the dominance of ‘self-serving’ migration and refugee policies, see Nicholas
Maple, Susan Reardon-Smith and Richard Black, ‘Immobility and the containment of

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194 Chapter 5
arrangements for burden-and responsibility-sharing, as well as the arrange-

ments for follow-up and review, are devised to create further incentives for
participation.1179 However, whether and how much each State is willing to
participate in burden-and responsibility-sharing remains entirely a political
decision, with no legal ramifications in relation to compliance or enforcement.
In this sense, the recognition of the predicament of refugees as a common
concern under the Global Compact on Refugees supports the view that the
duty to cooperate is firmly grounded in State sovereignty. Although the precise
modalities in which international cooperation should take place in large ref-
ugee situations has been given more clarity, the responsibilities of individual
States with respect to their capacities and capabilities have not been clearly
articulated.1180
In the author’s view, for the progressive development of international law,
common concern should be employed as a normative statement rather than
a factual one.1181 The examination of the international climate and refugee
regimes demonstrates that common concern is employed in connection to
an international cooperation mechanism, with modalities for responsibility-
sharing and implementation.1182 However, there are significant shortcomings
in both regimes. Common concerns cannot be addressed by all States, if con-
straints on State sovereignty are not adequately and effectively established.1183
A normative concept of common concern thus needs to address these
shortcomings and introduce a novel duty to cooperate and a novel duty to
act.1184 The minimum content of the novel duty to cooperate should consist
solutions: Reflections on the Global Compacts, Mixed Migration and the Transformation
of Protection’ [2020] 23 International Journal of Postcolonial Studies 2, 326–347.
1179 For instance, see Inter-Agency, ‘Revised Uganda Country Refugee Response Plan’ (July
2020 – D ecember 2021) <https://data2.unhcr.org/en/documents/details/84715> accessed
6 April 2022; unhcr, ‘South Sudan Regional Refugee Response Plan’ (January 2020 –
December 2021) <https://data2.unhcr.org/en/documents/details/79194> accessed 6 April
2022; unhcr, ‘The Democratic Republic of the Congo Regional Refugee Response
Plan’ (January 2020 –December 2021) <https://data2.unhcr.org/en/documents/deta
ils/74403> accessed 6 April 2022; unhcr, ‘Burundi Regional Refugee Response Plan’
(January –December 2021) <https://data2.unhcr.org/en/documents/details/84923>
1180 McAdam and Wood (n 16) 191–206.
1181 Thomas Cottier and Rosa Losada, ‘Migration as a Common Concern of Humankind’ in
Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International
Law (Cambridge University Press 2021) 292–345.
1182 ibid.
1183 ibid.
1184 ibid.

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of transparency, a duty to consult and negotiate, burden-sharing and differen-

tiated responsibility, and cooperation in implementation and compliance.1185
According to the normative framework established by Cottier and others,
transparency involves the obligation to publish laws, regulations and prece-
dents, akin to the multilateral trading system of the wto.1186 The duty to con-
sult and negotiate implies seeking agreement and, if an agreement fails, stating
the reasons.1187 Burden-sharing and differentiated responsibility is commensu-
rate with the economic performance, and levels of social and economic devel-
opment of States.1188 Cooperation in implementation and compliance involve
transposing the international commitments into domestic law and policy, as
well as mutual assistance by administrative bodies and judicial assistance by
legal authorities.1189 A novel duty to act goes beyond a right to act, and should
aim to avoid free-riding and offset lack of reciprocity.1190 This entails the
domestic implementation of international obligations, as well as measures to
secure compliance.1191
Formulated under these two novel duties, common concern has the poten-
tial to deploy legal effects.1192 A more rigorous engagement with transboundary
problems calls for reviewing the principle of State sovereignty supported by
more stringent international obligations. The application of the novel duties
to cooperate and act can provide a basis and foundation for the crystallisation
of more specific rights and obligations.
This section has discussed the legal effects of the concept of common con-
cern of humankind, which has never been fully defined. As the analyses of
the climate change and the refugee regimes have demonstrated, common con-
cern relates to the creation of a cooperative mechanism to address the matter

1186 ibid.
1187 ibid.
1188 ibid.
1189 ibid.
1190 ibid.
1191 According to the normative framework established by Cottier and others, domestic meas-
ures can have extraterritorial effects, although, a ‘careful balance’ must be sought. The
balance will be assessed as to ‘whether the measure and action is able to support the
attainment of a Common Concern as defined by the international community’. Measures
to secure compliance, on the other hand, call for seriously reviewing the existing rules
and moving towards majority decisions in areas other than the use of force. Economic
measures on behalf of the international community is one recommendation by the
authors. Another is arguing that common concern entails obligations erga omnes and can
be invoked by all States under Art. 48 of arsiwa. Cottier (ed) (n 21).
1192 ibid.

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196 Chapter 5
identified as a shared problem, generally (but not exclusively) by establishing a

treaty regime which identifies modalities for responsibility-sharing. An impor-
tant feature of common concern is that national sovereignty over the shared
problem remains strong. Some scholarly attention has been paid to the poten-
tial ramifications of constraining State sovereignty to address common con-
cerns. The proposal by Cottier and others fleshes out a novel duty to cooperate
and a novel duty to act to deploy legal effects, both of which will be explored in
more depth in the next section.
2 The Application of a Common Concern Approach: Towards a New

Treaty Regime
One way of applying the concept of common concern to a shared problem is

the creation of a treaty regime that prescribes a novel duty to cooperate and a
novel duty to act. In contrast to the treaty proposals on this topic in scholarship,
the main goal here is to operationalise the international protection of pmdcc
as a common concern of humankind.1193 As explained earlier, the interna-
tional protection of pmdcc aims to: (i) provide protection against return to the
country of origin; (ii) prevent future displacement; (iii) facilitate safe, orderly
and regular migration in the context of disasters and climate change.1194 The
common concern approach offers a normative framework which gives rise to
specific obligations. The ‘success’ of such a treaty would depend on whether
it is on the ‘rise’: it would need to gather more and more ratifications, its law-
making and compliance systems need to start to work and it must represent
the most widely shared approach to the problem of hmdcc.1195 By placing
a novel duty to cooperate and a novel duty to act at the heart of its ‘success’,
1193 For instance, Prieur and others from the University of Limoges developed an international
convention to recognise and protect the status of environmentally-displaced persons.
See Michel Prieur, ‘Draft Convention on the International Status of Environmentally-
Displaced Persons’ <https://unfccc.int/files/adaptation/groups_committees/loss_and
_damage_executive_committee/application/pdf/prieur-convention_on_the_interna-
tional_status_of_environmentally.pdf> accessed 6 April 2022. Docherty and Giannini
proposed a convention on climate change refugees, which would theoretically become a
protocol to the 1951 Refugee Convention or the unfccc. See Bonnie Docherty and Tyler
Giannini, ‘Confronting A Rising Tide: A Proposal For A Convention on Climate Change
Refugees’ [2009] 33 Harvard Environmental Law Review 2, 349.
1194 See Chapter 1.2.2 of this book for a detailed discussion.
1195 Georg Nolte, ‘Treaties and Their Practice –Symptoms of Their Rise and Decline’ (218) 329
Recueil des Cours de l’Académie de Droit International, 167.

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this section discusses the international protection of the pmdcc as a common

concern of humankind under a treaty regime.
2.1 A Novel Duty to Cooperate

So far, the ‘facilitation’ of human mobility has been the focus of international
and multilateral cooperation on human movement.1196 The conversation on
the facilitation of human mobility takes place in the context of, on the one
hand, freedom of movement –a fundamental, ‘incomplete’ human right –
and, on the other hand, migration control and management –‘indispensable’
exercises of State sovereignty.1197 Aiming to harmonise these aspirations, the
facilitation of human mobility refers to making migration easier by lower-
ing barriers to mobility and does not mean absolute free movement or open
borders.1198 A common concern approach to the international protection of
pmdcc would build on these cooperative initiatives by calling for the intro-
duction of a rule-based system that can address and prevent the impact of
disasters and climate change on people’s livelihoods. This section fleshes out
1196 François Crépeau, ‘Towards a Mobile and Diverse World: “Facilitating Mobility” as a
Central Objective of the Global Compact on Migration’ [2018] 30 ijrl 3, 650–656; Annick
Pijnenburg, Thomas Gammeltoft-Hansen and Conny Rijken, ‘Controlling migration
through international cooperation’ [2018] 20 European Journal of Migration and Law 4,
365–371.
1197 Freedom of movement is a fundamental human right with a long history, and it came to
be embodied in, most notably, the udhr and the iccpr. Article 13 of the udhr formu-
lates the freedom of movement as follows: ‘1. Everyone has the right to freedom of move-
ment and residence within the borders of each State. 2. Everyone has the right to leave
any country, including his own, and to return to his country’. Article 12 of the iccpr states
as follows: ‘1. Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence. 2. Everyone
shall be free to leave any country, including his own. 3. The above-mentioned rights shall
not be subject to any restrictions except those which are provided by law, are necessary to
protect national security, public order (ordre public), public health or morals or the rights
and freedoms of others, and are consistent with the other rights recognized in the present
Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country’. See
ccpr General Comment No. 27: Article 12 (Freedom of Movement) (ohchr, 2 November
1999) UN Doc ccpr/C/21/Rev.1/Add.9; Jane McAdam, ‘An Intellectual History of Freedom
of Movement: The Right to Leave as a Personal Liberty’ in Mary Crock (ed), Refugees and
Rights (Routledge 2015).
1198 François Crépeau, ‘Foreword’ in Helmut Kury and Slawomir Redo (eds), Refugees and
Migrants in Law and Policy Challenges and Opportunities for Global Civic Education
(Springer 2018). For an interesting conversation on free movement and open borders, see
François Gemenne, ‘10 Reasons Why Borders Should be Opened’ (TedX 2016) <https://
www.youtube.com/watch?v=RRcZUzZwZIw> accessed 6 April 2022. Also see Satvinder S
Juss, ‘Free Movement and the World Order’ [2004] 16 ijrl 3, 289–335.

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198 Chapter 5
a ‘thicker’ form of international cooperation, first, by examining the interna-

tional and multilateral initiatives concerning the facilitation of human mobil-
ity and, second, by proposing fundamental principles under the common
concern approach.
The Berne Initiative, which was launched by the government of Switzerland
in 2001, represents one of the earliest State-led consultative processes on
international migration.1199 It enabled governments from all over the world to
engage in a process that would led to the creation of ‘an informal international
reference system or framework of guiding principles to facilitate the manage-
ment of migration’.1200 In 2005, as a result of several consultations and meet-
ings of experts in Berne, along with regional consultations in Africa, Europe
and Central Asia, Asia and the Pacific, and the Americas and the Caribbean, the
International Agenda for Migration Management (iamm) was developed.1201
The iamm was designed to be an ‘open exchange of information and experi-
ence’ and consisted of common understandings and effective practices on a
wide-range of issues.1202 Importantly, it dedicated a section to migration and the
environment, acknowledging that ‘natural disasters, man-made catastrophes
and ecological degradation are causes of population displacement’.1203 Noting
that States ‘more and more recognize the increasing significance of eco-
logical issues and interdependence of disaster reduction, protection of
national resources, and environmental management’, it called for ‘an intensi-
fication of international cooperation and efforts to protect and improve the
1199 Michele Klein Solomon, ‘Berne Initiative’ [2013] The Encyclopaedia of Global Human
Migration.
1200 The discourse on international migration management has generally been aiming to
maximise the benefits and minimise the costs of migration. Bimal Ghosh was one of the
earliest to address this concept in 1993, at the request of the UN Commission on Global
Governance and the government of Sweden. Critical accounts see the notion of migration
management as aiming to ‘discipline’ migration by ‘introducing a specific rationality to
what may otherwise turn out to be a disruptive process’ which ‘implies the transforma-
tion of a complex, multifaceted, sometimes unlawful and always challenging process into
“predictable”, “sound”, “manageable”, “orderly” and rule-obeying dynamics’. See Antoine
Pécoud, ‘Introduction: Disciplining the Transnational Mobility of People’ in Martin Geiger
and Antoine Pécoud (eds), Disciplining the Transnational Mobility of People (Springer
2012); Bimal Ghosh, ‘Managing Migration: Whither the Missing Regime? How Relevant is
Trade Law to Such a Regime?’ [2007] 101 American Society of International Law, 303–306.
Alexander Betts. 2012. Introduction: Global Migration Governance, in Global Migration
Governance, edited by A Betts. Oxford: Oxford University Press, page 4.
1201 The Berne Initiative, ‘International Agenda for Migration Management’ (iom and fom
2005) <https://publications.iom.int/system/files/pdf/iamm.pdf> accessed 6 April 2022.
1202 ibid.
1203 ibid 64.

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environment’.1204 iamm has been widely disseminated among governments

to serve as a reference document for enhancing migration policies at the
regional, national and international levels.1205 In particular, its emphasis on
‘safe, orderly and humane migration’ resonates well with the initiatives follow-
ing the iamm, including the Global Compact for Migration.1206
Also in 2001, the iom launched the International Dialogue on Migration
(idm), which has been brought together ‘all migration stakeholders’ at the
global level to discuss an annual theme related to the opportunities and chal-
lenges of migration, in order to ‘strengthen cooperation on migration issues
between governments and with other actors’.1207 For instance, the theme for
the idm session in 2020 was ‘covid-19 Crisis: Reimagining the Role of Migrants
and Human Mobility for the Achievement of the Sustainable Development
Goals’.1208 Importantly, the 2011 session specifically referred to climate change,
environmental degradation and migration as a part of the grander theme of
‘The Future of Migration: Building Capacities for Change’.1209 The final report
of this session called for developing strategies for ‘a comprehensive approach
to ensure effective protection and assistance to environmental migrants’.1210
In 2003, the then UN Secretary-General, Kofi Annan, established the first
global panel addressing international migration, which was titled the Global
Commission on International Migration (Global Commission).1211 The Global
1204 ibid.
1205 Philip Martin, Susan Martin and Sarah Cross, ‘High-Level Dialogue on Migration and
Development’ [2007] 45 International Migration 1, 7–25.
1206 Elspeth Guild, ‘The UN Global Compact for Safe, Orderly and Regular Migration: to what
extent are human rights and sustainable development mutually compatible in the field of
migration?’ [2020] 16 International Journal of Law in Context 3, 239–252.
1207 iom, ‘International Dialogue on Migration’ <https://www.iom.int/international-dialo
gue-migration> accessed 6 April 2022.
1208 iom, ‘International Dialogue on Migration, COVID-19 Crisis: Reimagining the Role of
Migrants and Human Mobility for the Achievement of the Sustainable Development
Goals’ (iom 2021) <https://publications.iom.int/system/files/pdf/idm-30.pdf> accessed 6
April 2022.
1209 iom, ‘Climate Change, Environmental Degradation and Migration’ (29– 30 March
2011) <https://www.iom.int/idmclimatechange> accessed 6 April 2022.
1210 iom, ‘International Dialogue on Migration, Climate Change, Environmental Degradation
and Migration’ (iom 2012) <https://publications.iom.int/system/files/pdf/rb18_eng_web
1211 The discourse on international migration management has been generally aiming to
maximise the benefits and minimise the costs of migration. Bimal Ghosh was one of
the earliest to address this concept in 1993, at the request of the UN Commission on
Global Governance and the government of Sweden. Critical accounts see the notion of
migration management as aiming to “discipline” migration by “introducing a specific
rationality to what may otherwise turn out to be a disruptive process” which “implies

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200 Chapter 5
Commission was composed of 19 members from all regions of the world to

develop a broader understanding of international migration and to promote
a comprehensive debate.1212 A year later, the Global Commission released its
report, in which it reviewed government and other migration policy approaches
and best practices, and explored interlinkages between migration and devel-
opment, trade, human rights, human security, displacement and international
cooperation, to mention only a few examples.1213 The report emphasised the
complexity of human mobility, and claimed that the Soviet Union epitomized
this complexity by developing its own vocabulary for ‘ecological migrants’,
which was defined as ‘people who have been forced to move by environmental
disasters’.1214
Following the surge of interest in migration issues, two important coopera-
tive processes were established within the UN in 2006. The unga established
the High-Level Dialogue on International Migration and Development (hld)
to ‘identify appropriate ways’ to ‘maximise’ the benefits of migration and ‘min-
imise’ its negative impacts.1215 Furthermore, the UN Secretary-General estab-
lished the Global Migration Group (gmg) as a UN interagency coordination
mechanism, which was superseded by the UN Network on Migration with the
adoption of the Global Compact for Migration.1216
In 2007, the Global Forum on Migration and Development (gfmd) initiated
within the UN as a State-led, informal and non-binding process.1217 The gfmd
has been providing a commendable venue for governments, civil society, the
private sector, the UN system and other relevant stakeholders to discuss the
the transformation of a complex, multifaceted, sometimes unlawful and always challeng-

ing process into ‘predictable’, ‘sound’, ‘manageable’, ‘orderly’ and rule-obeying dynamics”.
Pécoud (n 1200); Bimal Ghosh (ed), Managing Migration: Time for a New International
Regime? (Oxford University Press 2001).
1212 Stephen Castles, ‘International migration at a crossroad’ [2014] 18 Citizenship Studies 2,
190–207.
1213 Global Commission on International Migration, ‘Migration in an interconnected
world: New directions for action’ (2005) <https://www.iom.int/global-commission-intern
ational-migration> accessed 6 April 2022.
1214 ibid.
1215 unga Res 58/208 (23 December 2003); Kathleen Newland, ‘The governance of inter-
national migration: mechanisms, processes and institutions’ (Policy Paper, September
2005) <https://www.iom.int/sites/default/files/jahia/webdav/site/myjahiasite/shared/
shared/mainsite/policy_and_research/gcim/tp/TS8b.pdf>.
1216 Global Migration Group, ‘Background’ <https://www.globalmigrationgroup.org/what-is
-the-gmg> accessed 6 April 2022.
1217 Kathleen Newland, ‘The GFMD and the Governance of International Migration’ [2012]
Global Perspectives on Migration and Development, 227–240.

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multi-dimensional aspects of migration and development.1218 Its 2021 sum-

mit was entitled ‘The Future of Human Mobility: Innovative Partnerships for
Sustainable Development’, and it aimed to contribute to the implementation,
follow-up and review of the Global Compact for Migration.1219
In 2013, during the second hld, the unga recognised ‘the need for inter-
national cooperation to address, in a holistic and comprehensive manner, the
challenges of irregular migration to ensure safe, orderly and regular migration,
with full respect for human rights’.1220 The unga has also acknowledged ‘the
important contribution of migration in realizing the Millennium Development
Goals, and recognize that human mobility is a key factor for sustainable devel-
opment which should be adequately considered in the elaboration of the
post-2015 development agenda’.1221 This recognition translated to the 2030
Agenda. In sdg target 10.7, States committed to ‘[f]‌acilitate orderly, safe, reg-
ular and responsible migration and mobility of people, including through the
implementation of planned and well-managed migration policies’.1222 At least
eight of the 169 sdg targets directly relate to migrants, thereby connecting the
achievement of sdg s on poverty, health, education and gender equality to
international migration.1223
1218 Stefan Rother, ‘The Global Forum on Migration and Development as a venue of state
socialization: a stepping stone for multi-level migration governance?’ [2018] 45 Journal of
Ethnic and Migration Studies 8, 1258–1274.
1219 gfmd, ‘GFMD Working Group on Sustainable Development and International
Migration: Terms of Reference’ <https://gfmd.org/tors-wg-sustainable-development-and
-international-migration> accessed 6 April 2022.
1220 unga Res A/68/4 ‘Declaration of the High-level Dialogue on International Migration and
Development 2013’ (3 October 2013).
1221 unga Res A/68/L .5, gaor 68th Session, Agenda Item 21(e) (1 October 2013).
1222 Agenda for Sustainable Development (n 276). iom defines ‘orderly migration’ as ‘the
movement of a person from his/her usual place of residence, in keeping with the laws
and regulations governing exit of the country of origin and travel, transit and entry into
the host country’. iom defines regular migration as ‘migration that occurs through recog-
nized, legal channels’. See UN Department of Economics and Social Affairs, Population
Division and iom ‘Development, validation and testing of a methodology for sdg indica-
tor 10.7.2 on migration policies’ (Technical Paper, 2019).
1223 In 2014, the unga recognised that ‘human mobility is a key factor for sustainable devel-
opment’. unga Res 68/4 (21 January 2014) UN Doc a/r es/68/4. See iom ‘Migration in the
2030 Agenda’ (2017) <https://www.iom.int/sites/default/files/press_release/file/Migrat
ion%20in%20the%20 2030%20Agenda. pdf> accessed 6 April 2022. Also see Emily
Wilkinson and others, ‘Climate Change, Migration and the 2030 Agenda for Sustainable
Development’ (2016).

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202 Chapter 5
Aiming for a more concrete understanding of sdg target 10.7, the iom
developed the Migration Governance Framework (MiGOF) in 2015.1224 MiGOF
assembles the ‘essential elements for facilitating orderly, safe, regular and
responsible migration and mobility of people through planned and well-
managed migration policies’.1225 In order to assess the national policies accord-
ing to MiGOF, Migration Governance Indicators (mgi) were developed. The
mgi have six dimensions: migrant’s rights, the whole of government approach,
partnerships, the well-being of migrants, the mobility dimensions of crises and
safe, orderly and dignified migration.1226 Through the mgi assessment, the
strengths and weaknesses of national migration policies are identified.1227 The
recent dataset comprising 49 countries with information collected between
2015 and 2019 demonstrates that ‘silos remain’ and that ‘migration policies
are often not in sync with other policy domains at national level’.1228 The iom
stressed in its report that, ‘[t]‌here is a need to fully integrate human mobility
considerations in other policy topics, such as human development, disaster
management and climate change mitigation and adaptation, and not try to
address them separately’.1229
In 2017, the Special Rapporteur on Human Rights of Migrants at the time,
François Crépeau, proposed the development of a 2035 Agenda for Facilitating
Human Mobility.1230 Crépeau suggested that this agenda may be implemented
1224 iom, ‘Migration Governance Framework’ <https://www.iom.int/sites/default/files/about

-iom/migof_brochure_a4_en.pdf> accessed 6 April 2022.
1225 ibid.
1226 iom, ‘Migration Governance Indicators’ <https://gmdac.iom.int/migration-governance
-indicators> accessed 6 April 2022.
1227 ibid.
1228 Susanne Melde, ‘Comprehensive approaches but in a silo: 3 findings from the Migration
Governance Indicators’ (Migration Data Portal, 30 January 2020) <https://migrationdat
aportal.org/blog/comprehensive-approaches-silo-3-findings-migration-governance-ind
icators-mgi> accessed 6 April 2022.
1229 ibid.
1230 unga Res A/72/173 (19 July 2017), gaor 72nd Session, Item 73 (b) of the provisional
agenda. Also see Report of the Special Rapporteur on the human rights of migrants to the
United Nations General Assembly, ‘Proposals for the development of the global compact
on migration’ (20 July 2016) UN Doc A/71/40767; Report of the Special Rapporteur on the
human rights of migrants to the United Nations Human Rights Council, ‘Bilateral and
multilateral trade agreements and their impact on the human rights of migrants’ (4 May
2016) UN Doc a/h rc/32/40; Report of the Special Rapporteur on the human rights of
migrants to the United Nations General Assembly, ‘Recruitment practices and the human
rights of migrants’ (11 August 2015) UN Doc A/70/310; Report of the Special Rapporteur
on the human rights of migrants to the United Nations Human Rights Council, ‘Banking
on mobility over a generation: follow-up to the regional study on the management of the

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in parallel to both the sdg s and the Global Compact for Migration. His agenda
was inspired by the observation that, ‘[m]‌obility is key to development and
prosperity, and with the proper vision we can make broader legal pathways
for migration work for everyone’.1231 According to the Special Rapporteur,
practices such as the externalisation of national boundaries or stringent visa
requirements do not respond to mobility needs, labour market shortages or
the protection needs of the displaced and refugees.1232 Therefore, Crépeau
presented the solution as lying in the development of a long-term strategic
vision for mobility policy.1233 Although the content of the agenda remains
to be determined, he recommended, amongst other things, multiplying the
number of visa opportunities, reducing ‘underground labour markets’, open-
ing access to permanent residence and citizenship, recognising visa-free travel
programmes and developing refugee resettlement programmes.1234 It is yet to
be seen whether such an agenda will be followed up on and developed.
It is evident that international cooperation on human mobility has been
growing more sophisticated, as epitomised by the recent adoption of the
Global Compacts for Migration and on Refugees.1235 The most conspicuous
difference between international cooperation on human mobility and interna-
tional cooperation on other matters (e.g. human rights, climate change, trade,
the law of the sea and the use of force) consists in the fact that the overwhelm-
ing majority of the international norms relating to human mobility are legally
non-binding.1236 Only a handful of international treaties specifically address
the treatment of certain categories of people on the move.1237 Customary
international law crystallises a few relevant rules, most notably the principle
external borders of the European Union and its impact on the human rights of migrants’
(8 May 2015) UN Doc a/h rc/29/36.
1231 François Crépeau, ‘A new agenda for facilitating human mobility after the UN Summits
on refugees and migrants’ (Open Democracy, 24 March 2017) <https://www.opendemocr
acy.net/en/beyond-trafficking-and-slavery/new-agenda-for-facilitating-human-mobility
-after-un-summits-on-refuge/> accessed 6 April 2022.
1232 unga Res A/72/173 (19 July 2017), gaor 72nd Session, Item 73 (b) of the provisional
agenda.
1233 ibid.
1234 ibid.
1235 See Chapter 1.3 of this book for a discussion on the compacts.
1236 For instance, see Francesca Capone, ‘The alleged tension between the Global Compact for
Safe, Orderly and Regular Migration and state sovereignty: “Much Ado about Nothing?”’
[2020] 33 Leiden Journal of International Law 3, 713–730.
1237 These include, the Refugee Convention and its Protocol, wto gats Mode 4, the icrmw,
and the ilo Conventions No 97 and No 143. See Chapter 2.1 of this book for a more
detailed discussion.

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204 Chapter 5
of non-refoulement.1238 Furthermore, international human rights law offers a

non-discriminatory approach to rights protection, thereby providing a useful
source for migrants to advocate their rights.1239 However, the contours and
content of the big issue, i.e. the facilitation of the movement of persons, still
remains unaddressed under international law.1240
The starting point for framing the international protection of pmdcc under
a common concern approach is addressing the shortcomings of international
cooperation on international migration.1241 A rule-based system created under
a treaty, with binding obligations to cooperate, is well placed to offer a com-
mendable solution.1242 Thomas Cottier explains this effect of common con-
cern as follows:
As the principle of Common Concern seeks to prevent or remedy threats

to international peace, security and welfare in a broader sense, the pur-
pose is in line with the original goals of sovereignty enabling to main-
tain law and order, provide peace and welfare, and prosperity in society.
The principle of Common Concern of Humankind thus complements
the same goals aspired by self-determination and enters the stage where
these very goals cannot be secured by States alone but depend upon
international cooperation. Common Concern helps us to reshape and
understand the proper functions of contemporary modern sovereignty.
We can perceive it as a dialogue between the two concepts, influencing
each other in shaping and coordinating their respective contours.1243
Transposed to the complex problem of hmdcc, the chief benefit of a common

concern approach consists in the fact that it can justify limiting sovereignty
over immigration matters in favour of international cooperation.1244 A treaty-
based system may ‘fend off excessive domestic pressures and maintain peace-
ful relations with partner countries. It is wrong to assume that nations will lose
1238 Thomas Gammeltoft-Hansen and James Hathaway, ‘Non-Refoulement in a World of

Cooperative Deterrence’ [2015] 53 Columbia Journal of Transnational Law 2, 235–284.
1239 Elspeth Guild, Stefanie Grant and C.A. Groenendjik, Human Rights of Migrants in the 21st
Century (Routledge Focus 2017).
1240 Kainz and Betts (n 1013) 65–89.
1241 Alexander Betts (ed.), Global Migration Governance (Oxford: Oxford University Press
2011); Thomas Gammeltoft Hansen (n 97).
1242 Cottier and Losada (n 1181); Ghosh (n 1211) 303–306.
1243 Cottier (ed) (n 21) 54.
1244 This is especially important to rebut the presumptions about the pragmatic difficulties in
the construction of a treaty solution. See McAdam (n 208).

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sovereignty; in fact they will gain control in extending international coopera-

tion in this complex field’.1245
Treaty negotiations to provide international protection to pmdcc would need
to pay attention to balancing the interests of people living in their countries of
origin as well as people on the move.1246 ‘Leaving no one behind’ necessitates
a better understanding of the impact of migration on income, wealth distribu-
tion, urbanisation and other related areas.1247 People living in their countries of
origin are concerned about the impact of migration on jobs, competition and
levels of renumeration.1248 Furthermore, the preventive aspect of the interna-
tional protection of pmdcc requires people living in their countries of origin
to mitigate the impact of climate change more rigorously, as a contribution
to preventing future displacement.1249 People on the move are generally con-
cerned about the lack of an internationally binding framework that can help
protect their rights.1250 The existing mechanisms either appeal exclusively to
specific categories of mobile persons or, in the case of the international human
rights framework, lead to protection gaps.1251 More specifically, pmdcc do not
fall within the specific category of mobile persons that are internationally pro-
tected. A treaty can guarantee their fundamental rights, prevent their displace-
ment, facilitate their movement, provide for a clear rule on their non-return to
their country of origin, and hence produce lasting solutions.
The duty to cooperate must include due process transparency, the duty to
consult and negotiate, burden-sharing and differentiated responsibility.1252
According to the balance of interests, principles such as market access and
non-discrimination may be envisaged.1253 The duty to cooperate must also
take into account cooperation for mutual assistance and capacity building.1254
1245 Cottier and Losada (n 1181).

1246 ibid. Also see Thomas Alexander Aleinikoff, ‘International Legal Norms and
Migration: A report’ in Thomas Alexander Aleinikoff and Vincent Chetail (eds), Migration
and International Legal Norms (tmc Asser Press 2003).
1247 For instance, see Athanassios Vozikis, Theodoros Fouskas and Symeo Sidiropoulos (eds),
No One Left Behind?: Migrant and Refugee Health in the covid-19 Crisis in Greece (igi
Global 2020).
1248 Cottier and Losada (n 1181) 333–336.
1249 Mayer (n 33) 16.
1250 Kritzman-Amir (n 433).
1251 See Chapter 2 of this book.
1252 Cottier and Losada (n 1181) 319–322.
1253 ibid.
1254 Chelsea Bowling, Elizabeth Pierson and Stephanie Ratte, ‘Common Concern of
Humankind: A Potential Framework for a New International Legally Binding Instrument
on the Conservation and Sustainable Use of Marine Biological Diversity in the High Seas’

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206 Chapter 5
Furthermore, in order to empower the pmdcc to effectively defend their

rights, a dispute settlement mechanism may be established.1255
Where the perspectives of diverse actors are glaringly different, prescribing
a novel duty to cooperate under a treaty regime forms an essential pillar to
providing effective protection for pmdcc. As this section has demonstrated,
even though international cooperation for the facilitation of the movement of
persons has mushroomed over the last thirty years, the content and contours
of State obligations remain undefined. By incorporating principles such as the
balance of interests, due process transparency, and burden-sharing and differ-
entiated responsibility, a rule-based framework may be created under a treaty
regime to provide international protection to pmdcc.
2.2 A Novel Duty to Act

It has been proposed that there are two dimensions of a novel duty to act
under a common concern regime.1256 First, States would be expected to trans-
pose their obligations deriving from the treaty regime domestically, in other
words, they would be obliged to ‘do their homework’.1257 Second, States would
be expected to secure compliance and enforce the rules of the treaty.1258
Expounding on these two dimensions, this section fleshes out a novel duty
to act under a common concern approach to protect pmdcc at the interna-
tional level.
The critical idea behind the duty to act is to build on the institution of
international responsibility.1259 This institution identifies international
public goods for which States and any competent io s ought to be assigned
[2018] <https://www.un.org/depts/los/biodiversity/prepcom_files/BowlingPiersonandR
atte_Common_Concern.pdf> accessed 6 April 2022.
1255 See, in general, Duncan French, Matthew Saul and Nigel D White, International
Law and Dispute Settlement: New Problems and Techniques (Hart Publishing 2010);
Barbara Koremenos and Timm Betz, ‘The Design of Dispute Settlement Procedures in
International Agreements’ in Jeffrey L. Dunoff and Mark A Pollack, Interdisciplinary
Perspectives on International Law and International Relations (cup 2013), 371–393.
1258 Edith Brown Weiss, ‘Rethinking compliance with international law’ in Eyal Benvenisti and
Moshe Hirsch, The Impact of International Law on International Cooperation: Theoretical
Perspectives’ (Cambridge University Press 2004), 134– 165; Pierre- Marie Dupuy,
‘International Law: Torn between Coexistence, Cooperation and Globalization. General
Conclusions’ [1998] 9 ejil 2, 278–286; Menno T. Kamminga, Inter-State Accountability for
Violations of Human Rights (Cloth 1992).
1259 See, in general, Katja Creutz, State Responsibility in the International Legal Order: A Critical
Appraisal (Cambridge University Press 2020).

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responsibilities.1260 The ilc’s Articles on State Responsibility is the most sig-

nificant attempt to articulate the circumstances of when States have standing
to protect against breaches of fundamental norms, and institute proceedings
to vindicate their interests as a member of the international community.1261
According to Article 48 of arsiwa, if the obligation breached is owed to ‘a
group of States including that State, and is established for the protection of a
collective interest of the group’, any State other than an injured State is entitled
to invoke the responsibility of another State.1262 This category comprises what
are often called obligations erga omnes partes, which purport to provide legal
standing for States that are not directly injured, provided that these States are
parties to the same treaty.1263
It is submitted that common concerns give rise to obligations erga omnes
partes.1264 The treaties protecting common concerns result from States having
a vital interest in the creation and maintenance of certain rules and principles
to address issues transcending their boundaries and for which international
cooperation is required.1265 A modification or breach of these rules and princi-
ples in any given case is likely to adversely affect all parties to the treaty, albeit
not to the same degree. For instance, if a Party State breaches the obligation
to reduce the impact of climate change, then other Party States vulnerable to
the impact of climate change, especially those that are or likely to be adversely
affected by sea-level rise, would be impacted by this breach to a greater degree.
Nevertheless, obligations erga omnes partes provide for the injured State, as
well as any State other than the injured State, to see the treaty provisions
enforced.1266
1260 James Crawford and Jeremy Watkins, ‘International Responsibility’ in Samantha Besson
and John Tasioulas (eds), The Philosophy of International Law (oup 2010); Ruth W. Grant
and Robert O. Keohane, ‘Accountability and Abuses of Power in World Politics’ [2005] 99
American Political Science Review 35.
1261 James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International
Responsibility (Oxford University Press, 2010).
1262 James Crawford, The ilc’s Articles on State Responsibility: Introduction, Text and
Commentaries (Cambridge University Press 2002); arsiwa (n 878) art 33(1).
1263 Chow (n 953) 471.
1264 Cottier (ed) (n 21) 70–77; Shelton (n 1122); Thomas Cottier and others, ‘The Principle of
Common Concern and Climate Change’ (wti, Working Paper No 2014/18); Laura Horn,
‘Climate Change and the Future Role of the Concept of Common Concern of Humankind’
(2015) ii Australian Journal of Environmental Law 33, 30.
1265 ibid.
1266 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment,
icj gl No 144, icgj 437 (icj 2012), 20th July 2012.

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208 Chapter 5
The novel duty to act aims to entrench two dimensions –doing ‘homework’
and securing compliance –in order to allow for the effective international pro-
tection of pmdcc as an obligation erga omnes partes.1267 Doing ‘homework’
involves taking domestic measures at the local, subnational and national lev-
els. Under the Global Compact for Migration, States committed to striving to
‘create conducive conditions that enable all migrants to enrich our societies
[…] and thus facilitate their contributions to sustainable development at the
local, national, regional and global levels’.1268 Similarly, the Sendai Framework
calls for reducing disaster risk at ‘local, national, regional and global levels by
countries and other relevant stakeholders, leading to a decrease in mortal-
ity in the case of some hazards’.1269 The Paris Agreement also recognises the
‘local, subnational, national, regional and international dimensions’ of climate
change.1270 As human mobility, disaster and climate change policies have
become increasingly dispersed over various levels of government, local author-
ities have markedly developed different approaches.1271 Further complicat-
ing the situation, States have also handed over significant powers to regional
institutions, such as the EU, which might significantly limit Member States’
policy discretion in the context of hmdcc.1272 Whilst the common concern
approach aims to prescribe the meaningful cooperation of everyone involved
to address a shared problem, it also envisages autonomous domestic meas-
ures, which could go beyond the obligations of States to internationally protect
the pmdcc under the treaty regime. The key test here would be whether the
domestic measure or action is able to support the attainment of the common
concern defined by the international community.1273
Securing compliance refers to the logical expectation that all States involved
in a treaty regime would be able to offset free-riding and take measures of
non-compliance.1274 In international law, explanations of compliance often
refer to a sense of legal obligation in the context of a decentralised system

1268 Global Compact for Migration (n 9) para 18(d).
1269 Sendai Framework (n 496) para 3.
1270 Paris Agreement (n 1066) para 2.
1271 Elisa Fornalé, ‘Environmental migration governance at regional level’ in Tim Krieger,
Diana Panke and Michael Pregernig (eds), Environmental Conflicts, Migration and
Governance (Bristol University Press 2020) 136–156.
1272 Peter Scholten and Rinus Penninx, ‘The Multilevel Governance of Migration and
Integration’ in Blanca Garcés-Mascarenas and Rinus Penninx (eds), Integration Processes
and Policies in Europe (Springer 2016).
1274 ibid.

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of enforcement, the self-interest of States and perceptions of the distribution

of power.1275 Progressively developing these narratives, the theory of common
concern prescribes a cooperative facilitation of compliance.1276 It implies a
positive obligation to act to correct the behaviour of non-compliant States.1277
As Zaker Ahmad holds, ‘the doctrine adds another layer of action, which is of
due diligence nature, making sure that any outcome of cooperation is followed
upon by the stakeholders with necessary implementation steps’.1278 Applied to
the international protection of pmdcc, it would call for setting up an institu-
tional mechanism under the treaty regime to enforce compliance and, as a last
resort, incorporate rules on taking unilateral countermeasures.1279
By emphasising the obligations to do homework and to secure compliance,
a novel duty to act aims to influence rulemaking and provide the mainstay of
a new treaty regime to internationally protect the pmdcc. As this section has
specified, the international protection of pmdcc would entail obligations erga
omnes partes under a common concern approach, and trigger responsibilities
to take domestic action to implement and enforce treaty provisions.
3 Conclusion
This chapter has argued that the theory of common concern of humankind
has the potential to inspire a treaty regime to protect pmdcc at the interna-
tional level. In order to do so, it first discussed the emergence of common con-
cern in international law and demonstrated that the theory was developed as
a ‘way out of the controversies’ generated by the common heritage principle.
Common heritage aims to establish the substance of the international admin-
istration of areas recognised as common goods based on the prohibition of
national appropriation and the liberty of exploitation. Common concern, on
the other hand, is devoid of proprietary connotations and focuses on interna-
tional cooperation aimed at protection.
1275 Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law: An
Interactional Account (cup 2010); Andrew Guzman, ‘Reputation and International Law’
[2006] 34 Georgia Journal of International and Comparative Law 2, 379–391; Harold
Hongju Koh, ‘Why do nations obey international law?’ [1997] 106 The Yale Law Journal,
2598–2659; Louis Henkin, How Nations Behave: Law and Foreign Policy (Columbia
University Press 1979).
1276 Ahmad (n 27).
1277 ibid 39.
1278 ibid.
1279 Cottier (ed) (n 21) 173.

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210 Chapter 5
Although common concern has found expression in several legal instru-

ments, it is conceptually ambiguous, because its normative implications are
not yet settled. Zooming in on two legal regimes that have adopted common
concern, namely, the climate change regime and the refugee regime, this chap-
ter has demonstrated that common concern implies international coopera-
tion in burden-and responsibility-sharing. However, as the analyses of both
regimes have shown, the voluntary and bottom-up commitments are not
strong enough to generate sufficient action to address the particular common
concerns in question. Constraints on State sovereignty must be adequately and
effectively placed, in order to achieve specific end goals.
In the author’s view, a convincing interpretation of common concern needs
to deploy legal effects that can effectively address shared problems. Borrowing
from the proposal by Cottier and others, this chapter has argued that com-
mon concern should invoke two legal implications: a novel duty to cooper-
ate and a novel duty to act.1280 Both dimensions call for the establishment of
a rule-based framework, which can define the specific rights and obligations
of States to address the common concern under a treaty regime. This chap-
ter has demonstrated that a novel duty to cooperate would require States to
accept principles such as the balance of interests, due process transparency,
and burden-sharing and differentiated responsibility, under a binding treaty
regime. The duty to act foresees that States will take domestic measures to
transpose their obligations under the treaty, as well as to secure compliance
to offset free-riding.
1280 ibid.

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Conclusion
Summary and Outlook
Climate change and disaster-related migration, displacement and planned

relocation are already a reality for many people around the world. There is a
growing body of evidence suggesting that, as climate change continues to take
its toll, the number of people affected will increase.1281 Countries have acknowl-
edged this reality, especially under the recently adopted Global Compact for
Migration, and have been calling for the development of coherent approaches
to address hmdcc.1282
In searching for coherency, the main goal of this book has been to propose
an international minimum standard for the treatment of pmdcc. It did so by
arguing for the international protection of pmdcc. In order to operationalise
this proposal, the book discussed the theories of community interests and the
common concern of humankind. The former theory laid the foundation for an
obligation erga omnes to protect pmdcc at the international level, whereas
the latter conceived a new treaty regime with novel duties to cooperate and to
act. This conclusion conveys the principal findings of the book and identifies
potential avenues for further research.
1 International Protection and Human Mobility in the Context of

Disasters and Climate Change
Conceptualising hmdcc as a complex planetary and intergenerational prob-

lem is one of the novel contributions of this book to the literature. In doing so,
the first chapter approached hmdcc as a problem situation which (i) emerges
from the actions and interactions of multiple actors, (ii) has multiple, dynamic
and interconnected variables, (iii) occurs in conditions of scientific uncer-
tainty and evolving scientific knowledge, and (iv) is planetary in scope and
intergenerational in impact.1283
1281 For an overview on estimations of ‘environmental migrants’, see Viviane Passos Gomes
and Diana Viveiros, Legal Protection for environmental migrants: current challenges and
ways forward (Punto Rojo Libros 2018) chapter 1.
1282 Global Compact for Migration (n 9) objective 2(l).
1283 For the definition of complex problems, see Brunnée (n 24) 211–232.
© Aylin Yildiz Noorda, 2022 | DOI:1 0.1163/9789004522367_008

This is an open access chapter distributed under the terms of the cc by-nc-nd 4.0 license.
Aylin Yildiz Noorda
- 978-90-04-52236-7
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212 Conclusion
The first chapter also introduced the notion of international protection,

based on the premise that, in order to effectively manage the complex problem
of hmdcc, all countries must cooperate in promoting an international mini-
mum standard. The author argued that the international protection of pmdcc
should be that standard. The international protection of pmdcc serves as a
golden thread woven throughout the book. It has three pillars: (i) granting pro-
tection against return to the country of origin (non-refoulement); (ii) prevent-
ing future displacement; (iii) facilitating safe, orderly, and regular migration in
the context of disasters and climate change.
In order to demonstrate the relevance and importance of each pillar, the
first chapter examined the relevant commitments made by States under the
recently adopted Global Compact on Refugees and the Global Compact for
Migration. The extensive legal stocktaking exercises in the second and third
chapters supported this analysis. Overall, the book makes a number of key
claims about the role of international protection in addressing hmdcc:
First, there can be no doubt about the immediate need of recognising the
international protection of pmdcc. This has been made more evident with the
increasing number of studies, projects and collaborations at the international
level on the legal implications of hmdcc. In addition, the case study of the pis
demonstrated the urgency of formulating an international response.
Second, despite this rising awareness, there are major legal blind spots,
since the current international legal infrastructure promotes fragmented and
largely voluntary responses to addressing hmdcc. These legal gaps exacerbate
the existing vulnerabilities and protection needs of pmdcc.
Third, effective and timely responses to hmdcc are not possible without
specific measures to prevent future displacement. Focusing on the conditions
that cause displacement in the context of disasters and climate change can
avert future harm. This, in turn, calls for reconsidering the global commit-
ments on climate change mitigation and disaster risk reduction.
Fourth, States must acknowledge the application of the prohibition of the
non-refoulement of pmdcc (although States may establish criteria with a view
to prohibiting the return of certain categories of pmdcc only). This recogni-
tion has an inseparable human rights aspect to it, which aims to provide inter-
national protection to all those who are unable to return home because of a
serious threat to their life and physical integrity in the context of disasters and
climate change.
Lastly, States must facilitate safe, orderly and regular migration in the con-
text of disasters and climate change. Facilitating migration can enable in situ
and ex situ adaptation. The former generally refers to internal relocation, while
the latter refers to the search for temporary or permanent opportunities across

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Conclusion 213
borders. If conducted in line with the International Labour Standards, labour

migration has the capacity to be an effective adaptive strategy to environmen-
tal changes. States have already emphasised the importance of this under the
Global Compact for Migration, which must now be matched in practice.
2 Lessons Learnt about Community Interests and Common Concerns
Operationalising the international protection of pmdcc was both the greatest

aspiration and the most difficult challenge of this book. The proposed formu-
lations of the theories of community interests and of the common concern of
humankind provided two different and non-contradictory pathways to opera-
tionalise the international protection of pmdcc.
The fourth chapter framed the international protection of pmdcc under
the theory of community interests. The role of the theory of community inter-
ests in international law is to establish and protect multilateral rights and
obligations in the interest of the ‘international community as a whole’.1284
Obligations erga omnes facilitate the integration of community interests into
international law, by designating those obligations of a State towards ‘the inter-
national community as a whole’.
The analysis of obligations erga omnes showed that these obligations mod-
ify: (i) the scope of a primary rule (by broadening the circle of States bound
by the rule); (ii) the right of standing according to secondary rules (by per-
mitting any State other than an injured State to protect the community inter-
est at stake); (iii) the content of the obligation in question (for instance, in
the Genocide case, the icj ruled that the obligation of each State to prevent
and punish the crime of genocide is not territorially limited by the Genocide
Convention).
It was also pointed out, however, that there is confusion surrounding obli-
gations erga omnes, particularly in relation to their identification, types of
effects, enforcement and relationship to obligations jus cogens.
Nonetheless, the concept erga omnes remains highly relevant, since the icj
has affirmed the existence of obligations erga omnes with reference to mul-
tilateral treaties and in customary international law, while commentators
continue to propose new candidates of obligations erga omnes in several legal
fields. The concept erga omnes is also highly significant, because it ensures that
1284 See Chapter 4.1.2 of this book for a discussion on the meaning of ‘international commu-
nity as a whole’.

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214 Conclusion
international law continues to address the old and emerging pressing concerns
of ‘the international community as a whole’.
To encourage the further development of erga omnes, the author pro-
posed the identification of the international protection of pmdcc as an obli-
gation erga omnes. The author structured her argument as follows: if (i) the
international protection of pmdcc derives from the principles and rules con-
cerning the basic rights of the human person and if (ii) it is a matter of com-
munity interest, it follows that (iii) the international protection of pmdcc is
an obligation erga omnes and all States can be held to have a legal interest in
its performance.
Next, the author provided a roadmap to promoting the performance of the
international protection of pmdcc as an obligation erga omnes. This roadmap
involves using the procedural aspects of the international human rights regime,
the international climate change regime, the international labour regime and
the international trade regime, more specifically: (i) the individual communi-
cation procedures under international human rights treaties; (ii) the Universal
Periodic Review process; (iii) the formulation of the Nationally Determined
Contributions; (iv) the work of the unfccc Task Force on Displacement;
(v) the tripartite structure of the ilo; (vi) the Trade Policy Review Mechanism
of the wto.
The roadmap also encourages the utilisation of the follow-up and review
mechanisms of the Global Compact for Migration, and the Global Compact
on Refugees, more specifically: (i) the International Migration Review Forum,
to be held in the first semester of 2022; (ii) the Migration Multi-Partner Trust
Fund; (iii) the Migration Network Hub; (iv) the Global Refugee Forum, to be
held in 2023; (v) the Global Academic Interdisciplinary Network.
Overall, relying on the theory of community interests has helped shape a
legally binding obligation imposed on all States to provide international pro-
tection the pmdcc. This solution is especially useful for inducing the cooper-
ation of States that would otherwise prefer to remain free from legal fetters.
However, the fact remains that ‘the best instrument to produce legal change’
in international law is the treaty.1285 Treaties have the advantage of creating
written law with which contracting States formally undertake to comply.
In order to ground a treaty solution, the fifth chapter discussed the interna-
tional protection of pmdcc as a common concern of humankind. The extensive
research on the theory of common concern of humankind has demonstrated
1285 See Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford
University Press 2012) 657–658.

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Conclusion 215
that common concern: (i) was conceptually developed 1980s onwards ‘as a way
out of the controversies’ resulting from the concept of the common heritage
of humankind; (ii) gives emphasis to international cooperation and equitable
burden-sharing to address transboundary problems; (iii) is devoid of proprie-
tary connotations; (iv) takes into account both present and future generations;
(v) has been adopted in several international instruments.
Even though common concern continues to inspire international law-
making, its content and legal effects are not yet settled. In order to further
clarify the concept, two international instruments were examined: the Paris
Agreement, which reiterates climate change as a common concern, and the
Global Compact on Refugees, which recognises the predicament of refugees
as a common concern.
The analysis has shown that, under both instruments, States remain largely
free to decide on their own contributions to addressing the relevant common
concern. This leads to ineffective problem solving. For instance, developing
countries continue to host an overwhelming majority (86% as of 2021) of the
world’s refugees, while in the case of climate change, we are heading for a
global temperature rise of 3 degrees Celsius, even if countries meet commit-
ments made under the Paris Agreement.
Hence, in order to facilitate genuine problem solving, the author proposed
employing common concern as a normative statement rather than a factual
one. Common concerns cannot be addressed by all States, if constraints on
State sovereignty are not adequately and effectively established.
Borrowing from the normative conceptualisation of common concern artic-
ulated by Cottier and others, the author also argued that the international pro-
tection of pmdcc as a common concern should involve a treaty regime which
incorporates a novel duty to cooperate and a novel duty to act.1286
The novel duty to cooperate justifies limiting sovereignty over immigration
matters in favour of the international protection of pmdcc. Furthermore, it
incorporates: (i) the interests of the people living in their countries of origin,
as well as of people on the move; (ii) due process transparency; (iii) a duty
to consult and negotiate; (iv) modalities on burden-sharing and differentiated
responsibility.1287
The novel duty to act envisages that States: (i) ‘do their homework’, in other
words, transpose the obligations deriving from the treaty domestically, and (ii)
secure compliance and enforce the rules of the treaty.


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216 Conclusion
The possibility of establishing a rule-based framework to protect pmdcc at

the international level is the chief advantage of the proposed common con-
cern approach. It also ensures the trickle-down effect of the international min-
imum standard on the treatment of pmdcc into domestic legal orders.
In conclusion, in order to operationalise the international protection of
pmdcc, the author searched for theories that supplied conceptions of inter-
national law which do not merely rest on the self-interests of States. The
theories of community interests and the common concern of humankind
transcend self-interests by taking into account ‘the international community
as a whole’, including the present and future generations. In the author’s view,
these theories are far from being utopian. In fact, they represent the function
of international law more realistically. International law is (and should be) well
equipped to address complex planetary and intergenerational problems, such
as hmdcc.
3 Outlook
Looking forward, the research carried out here can be taken further in at least
three respects. First, the notion of international protection in international
law could be fleshed out in more detail. International criminal law and pri-
vate international law, in particular, might provide valuable insights for this
purpose. Second, the complex problem of hmdcc could be understood bet-
ter. Primary research focusing on the local, national and regional impacts of
climate change and disasters is particularly important for informing future
legislation and policy-making. Third, the theories of community interests and
common concern of humankind can be taken further. The proposed formu-
lations of these theories can be applied to other problematic situations that
humanity is facing.
In the event that the reader was convinced by the arguments presented in
this book, they can look for ways to implement its proposals. There is much
work that needs to be done in order to achieve the recognition of the inter-
national protection of pmdcc as an obligation erga omnes and/or a common
concern of humankind. The good news is that there is space for everyone to
get involved.

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Index
Brunnée 8, 8n.24, 174n.1055, 185n.1119, 131n.786, 131n.787, 131n.788, 131n.789,

186n.1124, 188n.1139, 189n.1145, 131n.790, 132, 132n.791, 159, 159n.973,
209n.1275, 211n.1283, 217, 224 222, 225, 234, 236, 237, 239, 245
Cottier ii, xi, 5n.21, 62n.332, 62n.334, Guild 21n.97, 23n.104, 23n.105, 29n.136,
63n.335, 174, 174n.1058, 185, 185n.1118, 33n.150, 163n.1000, 199n.1206,
186, 186n.1127, 187n.1128, 194n.1181, 195, 204n.1239, 228, 230, 239, 240
195n.1185, 195n.1191, 196, 204, 204n.1242,
204n.1243, 205n.1245, 205n.1248, international community 4, 4n.18, 4n.20,
205n.1252, 206n.1256, 206n.1257, 10, 22n.102, 24, 29, 30, 51, 52, 58, 79,
207n.1264, 208n.1267, 208n.1273, 81n.460, 86, 96, 105, 116, 133, 134, 137,
209n.1279, 210, 215, 215n.1286, 215n.1287, 139, 142, 143, 144, 144n.881, 145n.882,
217, 226 145n.883, 146, 148, 154, 155, 183, 184,
Crépeau 3n.14, 43n.199, 44n.203, 45n.213, 195n.1191, 207, 208, 213, 213n.1284, 214,
45n.214, 54n.272, 69, 197n.1196, 216
197n.1198, 202, 203n.1231, 219, 224, 226, Ioane Teitiota xxii, 19n.82, 19n.83, 33,
233, 236 33n.154, 33n.155, 40n.180, 43n.199, 78,
78n.439, 79n.441, 79n.443, 79n.446,
displacement 1n.1, 2, 3n.15, 4, 4n.17, 9n.31, 80n.454, 80n.456, 95n.546, 157n.962
10, 14n.60, 18, 19, 28n.134, 30, 31, 32, 33,
35, 37, 37n.163, 39n.174, 43, 45n.210, Kälin xi, 7n.22, 16n.72, 16n.74, 33n.156,
45n.216, 46n.218, 46n.219, 48, 48n.229, 37n.167, 46n.219, 70n.399, 82n.465,
49, 49n.238, 50, 50n.243, 51, 62n.330, 83n.468, 157n.960, 218, 234
73, 81, 81n.460, 82n.461, 82n.464, 84,
84n.475, 85, 85n.477, 85n.478, 85n.479, McAdam 1n.1, 4n.16, 13n.56, 20n.93, 29n.139,
86, 86n.487, 87, 87n.490, 88n.497, 91, 31, 31n.143, 31n.144, 31n.145, 33, 33n.153,
94, 95, 97, 113, 115, 115n.667, 116, 117, 118, 39n.176, 40n.180, 43n.199, 43n.200,
119, 120, 121, 122, 128, 152, 154n.944, 155, 43n.202, 44n.205, 44n.208, 45n.211,
160, 161n.983, 167, 167n.1028, 170, 196, 45n.216, 46n.219, 47n.227, 79n.442,
198, 200, 205, 211, 212, 221, 231, 233, 234, 80n.458, 82n.463, 83n.469, 87n.488,
236, 238, 241, 244, 247, 251, 252 93n.523, 94n.537, 114, 115n.663, 117n.679,
154n.944, 161n.988, 166n.1021, 192n.1166,
facilitation 20, 32, 35, 62, 64, 70, 95, 112, 154, 194n.1180, 197n.1197, 204n.1244, 218, 219,
197, 204, 206, 209 221, 234, 236, 245
Fiji xi, xviii, xx, xxiv, 87n.489, 99n.558,
100, 101n.568, 101n.570, 102, 103n.581, Nansen Initiative xxiv, 14n.60, 45n.215,
103n.582, 103n.583, 104n.592, 104n.594, 82n.463, 85, 85n.480, 85n.481, 85n.482,
104n.595, 107, 108, 113, 114n.660, 87, 87n.493, 100n.564, 117, 117n.681,
118n.683, 119, 119n.693, 119n.694, 125, 118n.684, 228, 236
125n.732, 125n.735, 126, 126n.740,
126n.743, 126n.748, 126n.749, 127n.755, refugee definition 43, 44
127n.756, 127n.757, 128, 128n.758,
128n.761, 128n.762, 128n.763, 129, Vanuatu 28n.135, 99n.558, 100, 101n.568,
129n.764, 129n.765, 129n.771, 129n.773, 101n.570, 103n.581, 103n.582, 103n.583,
130, 130n.777, 130n.778, 130n.784, 131, 104n.592, 108, 110, 111n.640, 111n.645, 113,

via free access
254 Index
Vanuatu (cont.) 123n.723, 124, 124n.725, 124n.726, 132,

114n.660, 119, 120, 120n.697, 120n.698, 159, 159n.973, 167n.1028, 246
120n.700, 120n.702, 120n.703, 120n.704,
121, 121n.706, 121n.707, 121n.710, 121n.712, wto gats Mode 4 66, 68, 70, 111, 161,
123, 123n.719, 123n.721, 123n.722, 203n.1237

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152  Chapter 4

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

lopsided nature of them, “climate change” is a political term as well as a scien-

Aylin Yildiz Noorda - 978-90-04-52236-7

commitments under the compacts in multiple ways.948 Measures include

2.2 Pathways to Using the Existing Procedural Aspects of

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

compliance are not uniform.960 Nonetheless, individual communication pro-

Aylin Yildiz Noorda - 978-90-04-52236-7

guarantee that community interest norms are respected in priority thereaf-

965 See Besson (n 814) 60.

Aylin Yildiz Noorda - 978-90-04-52236-7

States to subject their human rights record to international scrutiny.971 The

Aylin Yildiz Noorda - 978-90-04-52236-7

to participate in the process of determining national climate ambition.976

Aylin Yildiz Noorda - 978-90-04-52236-7

similarly premised on the right to participation of all constituents.984 The

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

2.3 Pathways to Using the Follow-​up and Review Mechanisms of the

biodegradable, compostable and waste-​to-​energy. The analysis does not distinguish

Aylin Yildiz Noorda - 978-90-04-52236-7

degradation as drivers of human movement, the implementation of these

mean in International Law?’ [2020] 10 Global Community: Yearbook of International Law

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

1019 Global Compact for Migration (n 9) para 40–​44.

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

Authority on Development (igad) Ministers on Foreign Affairs adopted the

Aylin Yildiz Noorda - 978-90-04-52236-7

and published in July 2019.1033 However, the indicator framework focuses on

1033 unhcr, ‘Global Compact on Refugees: Indicator Framework’ (2019) <https://​www.unhcr

Aylin Yildiz Noorda - 978-90-04-52236-7

examples include: planning for environmentally conscious land use in refugee-​

Aylin Yildiz Noorda - 978-90-04-52236-7

national disaster and climate change policies; establishing national authori-

Aylin Yildiz Noorda - 978-90-04-52236-7

This chapter has discussed the international protection of pmdcc as a mat-

1050 Feichtner (n 796).

Aylin Yildiz Noorda - 978-90-04-52236-7

Aylin Yildiz Noorda - 978-90-04-52236-7

The International Protection of Persons Mobile

This chapter proposes the creation of an international treaty to protect

© Aylin Yildiz Noorda, 2022 | DOI:​1 0.1163/9789004522367_007

1 The Theory of the Common Concern of Humankind in

1.1 Emergence and Expressions

1059 Global Compact on Refugees (n 9) para 1.

Aylin Yildiz Noorda - 978-90-04-52236-7

period, common concern was recommended as ‘a way out of the controversies’

the establishment of an Inter-​American Tropical Tuna Commission [adopted 31 May 1949,

Aylin Yildiz Noorda - 978-90-04-52236-7

the ocean floor as a ‘common heritage of mankind’ within the framework of

Aylin Yildiz Noorda - 978-90-04-52236-7

extent –​Antarctica are governed by common heritage.1073 There were failed

Aylin Yildiz Noorda - 978-90-04-52236-7

to calls for stronger permanent sovereignty over resources in national juris-

152 Chapter 4

2.3 Pathways to Using the Follow-up and Review Mechanisms of the

biodegradable, compostable and waste-to-energy. The analysis does not distinguish

1019 Global Compact for Migration (n 9) para 40–44.

1033 unhcr, ‘Global Compact on Refugees: Indicator Framework’ (2019) <https://www.unhcr

examples include: planning for environmentally conscious land use in refugee-

© Aylin Yildiz Noorda, 2022 | DOI:1 0.1163/9789004522367_007

the establishment of an Inter-American Tropical Tuna Commission [adopted 31 May 1949,

extent –Antarctica are governed by common heritage.1073 There were failed

responsibilities, it first landed on a stark South-North differentiation under the

Technologies’ (Statements and Releases, 22 April 2021) <https://www.whitehouse.gov/

arrangements for burden-and responsibility-sharing, as well as the arrange-

of transparency, a duty to consult and negotiate, burden-sharing and differen-

multi-dimensional aspects of migration and development.1218 Its 2021 sum-

1224 iom, ‘Migration Governance Framework’ <https://www.iom.int/sites/default/files/about

of non-refoulement.1238 Furthermore, international human rights law offers a

1238 Thomas Gammeltoft-Hansen and James Hathaway, ‘Non-Refoulement in a World of

of enforcement, the self-interest of States and perceptions of the distribution