Good Climate Governance: Only a Fragmented System of International Law Away?

Fragmentation is the hallmark of international environmental law—it is both the key to its success and the pathway to its unraveling. Recognizing that law is an essential component of systems of supranational climate governance, addressing gaps between international legal systems is fundamentally important to the legitimacy of international law and to on‐going attempts to use international law as a central component in efforts to address climate change. This article analyzes developments in international environmental law with a view towards suggesting how efforts to develop an international climate change legal regime—and a broader system of global climate governance—highlight the pressing need to look more closely at the linkages between climate change and other areas of international law and to begin thinking about ways to minimize gaps and maximize cooperation among international environmental institutions and between international environmental law and other spheres of international law.     

Trade Measures and Climate Compliance: Institutional Interplay Between WTO and the Marrakesh Accords

This article examines the potential of trade measures to induce more climate-friendly policies, focusing on the relationship between global trade rules and the Kyoto climate regime. At the core of this interplay is the normative consistency of trade-related rules in the two regimes and any hierarchical relationship between them. The stronger clout of the WTO and its compulsory dispute settlement system suggest that issues involving competing claims would be referred to WTO bodies. Such bodies have so far been restrictive regarding the exceptions in WTO agreements to the general ban on embargoes and discrimination. The normative compatibility of the two regimes will also depend on their participatory interplay, specifically how they differentiate groups of actors as to rights and obligations. Non-members of WTO receive the least protection, and their vulnerability to climate-related trade measures is largely determined by their interdependence with states that consider employment of such measures. Among WTO members, the findings of a dispute settlement body would presumably differ depending on the status of the target under the Kyoto Protocol. A non-complier with Kyoto commitments would be more shielded than a non-party, because by joining the Kyoto regime a non-complier has exposed itself to regime-internal and less trade intrusive measures that should be exhausted first. A third dimension of interplay is linkage, or efforts to influence the regime interplay. To date there has only been moderate cross-agency coordination, but considerable attention is paid within each regime, including in the Millennium Round of trade negotiations, to the desirability of avoiding conflict between them.     

Dispelling the Chimera of 'Self-Contained Regimes' International Law and the WTO

International lawyers have in recent years expressed much uneaseabout the perceived fragmentation of their legal system. Intruth, however, international law has always been fragmentedwithout losing its ability to operate. A threat, rather, arisesfrom the ongoing proliferation of special regimes endowed withstrong institutional frameworks and an ability to set new internationalnorms. This expansion begs an uncomfortable question: What ifsuch – seemingly independent – entities were toclaim autonomy and challenge the validity of general internationallaw? A salient feature of this debate is the preoccupation with‘self-contained regimes’ and their status underinternational law. In a recent report to the International LawCommission, for instance, Martti Koskenniemi concluded thatno such regime can be created outside the scope of general internationallaw. Drawing on a particularly controversial example, this articletherefore reviews the law and practice of the World Trade Organizationto determine how that body has positioned itself in the debate.While its judiciary has recognized that the rules on world tradedo not exist in isolation of general international law, a closerlook at actual case law unveils a far more ambivalent picture.The chimera of self-contained regimes, in other words, is noteasily dispelled.     

The progressive policy shift in the debate on the international tax challenges of the digital economy: A “Pretext” for overhaul of the international tax regime?

This contribution presents a critical overview of the policy and legal debate (primarily from a tax treaty law perspective) surrounding the challenges raised by the digitalisation of the economy for the international tax regime. The article addresses some key policy challenges inherent in the proposals for reform currently under consideration. It focuses in particular on the difficulties associated with fitting the concept of “value creation” within the pre-existing framework based on “source” and “residence”; a gradual transition from a primarily “supply” approach to a “supply and demand” approach in the understanding of “source”; and an implicit drift in the policy debate on the tax implications of the digitalised economy from a targeted analysis aimed at incrementally reforming the existing regime to a full-blown reconsideration of some of its fundamental tenets.     

The rational design of regional regimes: contrasting Amazonian,Central African and Pan-European Forest Governance

Forests have been an important issue in world politics at least since the UNCED conference in Rio in 1992. Since then the focus of academic attention has been on global forest governance by an international forest regime complex consisting of several forest-related regimes. This strong focus leaves a research gap regarding regional regimes addressing forests as an issue area, which recently greatly gained in empirical and academic relevance. It is particularly important to understand the institutional structures on the one hand, and the policies developed within such regimes on the other. In order to obtain a better understanding of this in the forest case, the aim of this article is to analyse the institutional design of three regional forest regimes and to develop fields and hypotheses for future research. We built upon the rational design of international institutions framework developed by Koremenos et al. (Int Organ 55(4):761–799, 2001), and based our findings on content analysis of key documents as well as participant observations and expert interviews in selected occasions. The regional regimes chosen for this study were Amazonian, the Central African and pan-European forest cooperation. The results indicate that the designs of the three regimes greatly differ regarding membership, scope, control, centralisation, and flexibility. This seems to be mainly due to differing degrees of formality of the regimes (from treaty to non-treaty to hybrid regimes) as well as different power structures amongst members and regional hegemons involved. Based on our findings, future research fields for the study of regional forest-related environmental, trade, commodity, and management regime structures as well as regime policies are identified. Such insights advance our understanding of international forest governance not only by global, but by regional forest regimes as well. This is particularly true for our understanding that similar issue-specific problems, such as sustainable forest management, in terms of regime structures and regime policies may be addressed quite differently, largely depending on the preferences of regional powers and hegemons and other potential region-specific factors. We conclude by questioning a hypothesised diffusion of international institutions and propose the more precise concept of institutional osmosis instead.     

Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellín and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values.     

Designing an International Liability Regime to Compensate Victims of Solar Radiation Management

Solar radiation management (SRM) is a geoengineering method that promises to forestall the devastating impacts of climate change by cooling the atmosphere. Although SRM could avert a climate disaster, it also carries the potential to cause numerous, grave, and unequally distributed harms. In fact, some of these harms are unavoidable. A carefully designed liability regime can resolve SRM-related disputes and compensate victims of SRM deployment. This article considers existing international liability regimes in the context of the practical and normative challenges posed by SRM to offer recommendations for an international liability regime to govern SRM.     

Climate Change and Global Citizenship

The international climate change regime has failed. Even the most optimistic assessment of action to limit greenhouse pollution in the coming few decades will not prevent calamitous changes in Earth's climate. Arguments for international—that is, interstate—justice that have permeated international negotiations on climate change have been insufficient in fostering robust action by states. Indeed, by diverting all responsibility to states, focusing on international justice has not addressed consumption and pollution by hundreds of millions of affluent people around the world, including many millions living within developing states that have no treaty obligations to limit nationwide pollution. Increasingly, however, it is these individuals that matter: more and more of them who are not now subject to any climate‐related legal obligations are able to afford lifestyles that lead to greenhouse gas emissions and more climate change. This is especially true given the very rapid increase in the numbers of affluent people in the developing world. Bearing this in mind, this article goes beyond the still important questions of international climate justice to explore cosmopolitan or global climate justice. Global justice demands that affluent individuals in both affluent and poor states do much more to limit their pollution of the atmosphere. By being good global citizens, capable persons can help states start the world on a path to reducing the severity of climate change.     

Reflecting on 'Linkage': Cognitive and Institutional Change in The International Trading System

Since the creation of the World Trade Organisation, the international trading system has lived through a decade of sustained and vocal public criticism. International trade lawyers have made significant efforts to engage, evaluate and respond to these critiques. This article assesses the adequacy of these responses, focusing on the so-called 'trade and' debate – or 'trade linkage' debate – in international trade law. While this debate has produced valuable insights, it tends to legitimate and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing on the insights of economic history, an alternative mode of scholarship is proposed – at once historical, critical, constructivist and institutionalist – to augment the current literature in the 'trade and' debate. Concrete lines of enquiry are proposed which, if followed, would help international trade lawyers to respond more productively and with greater legitimacy to contemporary public critiques of the international trading order.     

Mass Atrocity,Mass Testimony,and the Quantitative Turn in International Law

The article identifies and analyses the development it labels the “quantitative turn” in international criminal law. Addressing the cumulative effect of the large numbers of witnesses in international processes, the article considers quantity as an integral, and substantively beneficial, component of the law's response to atrocity crimes. The article develops a theorized understanding of the relationship between mass atrocity and mass testimony and provides a taxonomy of the functions that the quantity of testimonies fulfills in international trials: the evidentiary, didactic, epistemic, and restorative functions. Focusing on a recent case before the International Criminal Court in the matter of The Prosecutor v. Bemba, the article demonstrates how the different players in the international justice system—Prosecution, Defense, Victims, and the Court—employ the functions of quantity, while negotiating concerns over manageability and scale. The goal of this article is to prompt a debate and a more careful consideration of the potential benefits of a meaningful participation of witnesses and victims in post‐atrocity proceedings. This is particularly important given the dominance of the efficiency paradigm in international criminal law (ICL) discourse, which directly impacts the quantitative turn. The article forges new ways for ICL institutions to maintain a plurality of voices and their commitment to victims while safeguarding the rights of the accused.     

Making initiatives resonate: how can non-state initiatives advance national contributions under the UNFCCC?

The international governance landscape on climate change mitigation is increasingly complex across multiple governance levels. Climate change mitigation initiatives by non-state stakeholders can play an important role in governing global climate change. The article addresses the relationship between intergovernmental and transnational governance processes in global climate governance. Particularly, the article aims to complement existing research on the role of “orchestration” by and through the UNFCCC process by focusing on how successful transnational initiatives can resonate within the intergovernmental negotiation process in order to inspire more ambitious climate action also on the part of national governments. This issue is addressed by systematically analysing interdependencies between transnational and international governance. Building on a structurational regime model, the article develops a theory of change of how and through which structuration channels non-state initiatives can contribute to changing the politics of international climate policy, traces existing UNFCCC processes and the Paris Agreement with a view to identifying inroads for a more direct feedback from non-state initiatives and derives recommendations on how and under which agenda items positive experiences can resonate within the UNFCCC negotiation process.     

Mobilizing Market Forces to Combat Global Environmental Change: Lessons from UN–Private Sector Partnerships in China

While globalization has brought far-reaching benefits to communities around the world in the form of increasing foreign investment and trade, and reduced levels of poverty, the externalities of the global market have also taken on greater prominence. In particular, issues of global environmental change now stand as a central concern for governments around the world, with increasing threats to the sustainability of hard-won development gains. While international frameworks such as the United Nations conventions on climate change and biodiversity have been enacted to take joint action on issues of common concern, a major challenge has been to enact effective implementation regimes to achieve results on the ground. One hope lays in the forces of the market itself, engaging global market forces and the role of the private sector to facilitate a global shift to sustainable growth and business practices. This article analyses this challenge and emerging opportunities for market-based approaches to implement international environmental law through a case study of China and the innovative partnerships being forged there between the UN, governmental and private institutions.     

The Problem That Is Global Warming: Introduction

Global warming poses significant challenges to society at every level, evading easy definitions that would make the usual instrumental approaches to policymaking and regulation a relatively straightforward task. The embeddedness of the carbon economy in contemporary methods of industrialization and development means that climate protection is at once a problem of environment, the global economy, and human rights. It requires us to understand the strengths and limitations of a regulatory approach, to tease apart the intricacies of international law and governance to find ways to turn economic, legal, and cultural norms toward creating climate justice. Sector specific approaches to dealing with human rights and refugees, as well as international relations based on interstate relations, also have limitations. These include insufficient capacity to appreciate the differentiated responsibility of various actors in the creation of this ecological crisis as well as creating obstacles in finding appropriate ways to motivate those with the most ability to reduce our impact on the climate. Mutual reinforcement and “virtuous” arbitrage across fragmented regulatory regimes might create new synergies with potentially positive transformative effects for climate protection. To achieve this, the development and maintenance of legitimacy is central. The articles in this edition tackle these issues and, taken as a whole, provide a springboard for future scholarship.     

Misappropriation of Institutions: Some Lessons from the Environmental Dimension of the NAFTA Investor-State Dispute Settlement Process

Trade regimes at all levels have confronted the dual challenge of rapidly expanding foreign direct investment, and the vigorous growth of international environmental regimes. Attempts to develop a global investment regime have encountered resistance, not least from environmental interests. At the same time, regional trade regimes have sought to address both the environmental and the investment agenda but in a very different manner. This article looks at problems encountered with the investor-state dispute settlement process established by the North American Free Trade Agreement (NAFTA). The institutional dimension of this process is largely drawn from the General Agreement on Tariffs and Trade (GATT), and existing international institutions for commercial arbitration. The article traces some of the difficulties encountered in attempting to use institutions designed for a specific purpose and implemented in one organizational context, to achieve a different purpose in another organizational context. It discusses the problems that arise when institutions appropriate for settling commercial disputes between private actors are used as the basis for balancing private interests and public goods, the environment in particular. It highlights the importance of a more developed understanding of the interplay between institutions and organizations at the international level so as to avoid undesired outcomes.     

The interaction of international institutions from a social network perspective

The literature increasingly acknowledges that international institutions do not exist in isolation, but regularly interact with each other. This interplay might induce influence, affecting institutions’ development and performance. The following research adds to this debate by systematically analyzing the quantitative evidence on how institutional interaction drives institutional design from a network perspective. Using dyadic cross-sectional data on international environmental agreements in 1952–2000, the authors find support for their theoretical argument that regimes’ similarity in design as captured by their degree of legalization strongly depends on institutions’ interaction. However, while “soft law” disseminates between regimes that are well connected through direct or indirect links, this does not apply to “hard law.” The authors explain this divergence with states’ concerns about binding-law commitments and sovereignty costs associated with the latter. This research may have important implications for studies of international institutions and of network analysis in general.     

Japan’s position in international climate policy: navigating between Kyoto and the APP

The emergence of technology-oriented agreements such as the 2005 Asia-Pacific Partnership on Clean Development and Climate (APP) may have significant implications for the future of global climate governance, as these agreements could be perceived as an alternative for the existing international climate regime. It is, therefore, important to examine what has moved countries to be involved in these agreements alongside the UN climate regime. This article seeks to identify possible factors contributing to Japan’s participation in both the UN climate regime and the APP, looking at the position of domestic interest groups, the distribution of climate policy-making at the government level and varying international pressures. It concludes that Japan’s participation in both the APP and the UN climate regime flows from a policy-making process that tries to accommodate conflicting viewpoints at the domestic and international levels. To what extent Japan’s participation in both fora can be regarded as constructive will depend on the partnership’s ability to support the implementation of a future climate regime.

An agenda for change in U.S. climate policies? Presidential ambitions and congressional powers

The U.S. membership in the Asia-Pacific Partnership on Clean Development and Climate (APP) constituted an important element in the Bush administration’s voluntary and non-committing ‘soft-law’ approach to climate change. With the inauguration of President Barack Obama, the U.S. has embarked on a shift in its climate policy towards a legislative, ‘hard-law’ strategy. Obama’s approach implies that the distribution of interests in Congress becomes more significant. In this article, we assess the rules and procedures governing the relationship between the president and the Congress embedded in the U.S. Constitution and explore implications of a stronger congressional involvement in U.S. climate policies for President Obama’s ability to realise his climate policy ambitions at both the domestic and the international levels. We argue that the strong relationship between natural resource dependence (coal and oil) and opposition to climate policies is a constant feature of the U.S. climate policy debate. In order to succeed, Obama must break the enduring gridlock characterising congressional debate in this policy area by designing policies that, through compromise and compensation, can mobilise the support of oil- and coal-state representatives in Congress. The acceptability of an international climate treaty in Congress, moreover, depends inter alia on the resolution of the difficult issue of developing country participation. Success may be enhanced by using the APP and the Major Economies Initiative as informal arenas for negotiation and sector-based cooperation, thus providing a much-needed supplement to the UN-based negotiation process.

The ‘Commons’ Solution to Troubled Waters

The global commons are traditionally connected to ‘those parts of the planet that fall outside national jurisdictions and to which all nations have access’ such as the high seas, outer space, and the deep seabed. However, there is a trend to expand the reach of commons beyond the traditional perception to cover the environment and natural resources that are of common interest to the well-being of the community of nations, regardless of the sovereignty status over such environment and resources. In this context, this article aims to explore the interlinkage between the concept of (global) commons and disputed marine areas from the perspective of international law, which hitherto has been little explored in literature. In particular, this article discusses the applicability of the concept of commons to disputed marine areas by examining the changing relationship between commons and sovereignty over time. Through a comparative analysis of various legal regimes associated with the well-accepted commons in international law (i.e. the high seas, outer space, the deep seabed, Antarctica) as well as the climate system and biological diversity, the article concludes that a certain space or resource, irrespective of its sovereignty status, including a disputed marine area, can be protected as commons in view of the interdependence of ecological systems. It further analyzes the added values that the concept of commons can bring in addition to the existing regulatory framework governing disputed marine areas.

     

International Law as Language—Towards a “Neo” New Haven School

This paper examines the tension between the mainstream belief in international law as a source of objectivity distinct from politics and its new stream critics that question the validity of such a distinction. It is argued that, as a type of language, international law is not distinct from politics as a function of objectivity, but rather by the fact that it serves the international community’s thymos. The phenomena of global administrative law and NATO’s use of force in Kosovo are analyzed as examples of how the thymos drives international law. Building on feminist theories of international law, the article sets forth a vision of international law as the primary communicative device for the international community’s thymos.     

The self-selection of democracies into treaty design: insights from international environmental agreements

Generally, democratic regime type is positively associated with participating in international environmental agreements. In this context, this study focuses on the legal nature of an agreement, which is linked to audience costs primarily at the domestic level that occur in case of non-compliance and are felt especially by democracies. Eventually, more legalized (“hard-law”) treaties make compliance potentially more challenging and as democratic leaders may anticipate the corresponding audience costs, the likelihood that democracies select themselves into such treaties decreases. The empirical implication of our theory is that environmental agreements with a larger share of democratic members are less likely to be characterized by hard law. Results from quantitative analyses strongly support our argument, shed new light on the relationship between participation in international agreements and the form of government, and also have implications for the “words-deeds” debate in international environmental policy-making.