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Climate Change Mitigation as an Obligation under Customary International Law
Mayer, Benoit
Mayer, Benoit
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YJIL 48_3.pdf
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Abstract
Climate treaties impose few substantive obligations with respect to climate
change mitigation. This Article explores customary international law as an
alternative source of such obligations. Such a task faces considerable
methodological difficulties due to the tension between ascending and descending
reasoning in the identification of customary international law. This Article
argues that the methodology typically followed by international courts would
likely lead to the identification of a customary obligation of climate change
mitigation, though only one which requires states to comply with the standard of
care that most of them generally follow—rather than the ambition suggested by
global mitigation objectives. Although it could be difficult to assess a state’s
requisite level of mitigation action, compliance with customary law could be
tested by breaking down the customary mitigation obligation into implied duties
that reflect the measures that states would generally be expected to take when
exercising due diligence.