Community Values and Legality under Challenge
The Example of International Climate Change Law
Summary
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the author
- About the book
- This eBook can be cited
- Acknowledgments
- Table of Contents
- List of Abbreviations
- Part A: Introduction
- I. A Decline of the International Law Established After the ‘Cold War’?
- II. International Climate Change Law – a Focal Point of Modern Developments in International Law
- 1. Current Signs of International Climate Law Being Under Pressure?
- 2. Indications of Both Rise and Decline in International Climate Change Law
- III. Approach of This Study
- 1. Rise or Decline?
- 2. Applying ‘Rise or Decline?’ on International Climate Change Law
- 3. Combination of a System-Oriented and a Historical Approach
- 4. Overview of This Study’s Structure
- Part B: Community Values and Legality in International Law
- I. From State Interests to Community Values?
- 1. The Notion and Role of Values in International Law
- (a) Values and Interests: A Distinction
- (b) Classical or ‘Bilateralist’ International Law and Its Relation to Values
- (c) A Turn to a Value-Based International Order in the Post-Cold War Era?
- (d) Values’ Need for Compatibility with Existing Legal Structures
- 2. An ‘International Community’?
- (a) Conceptual Arguments for the Existence of an International Community: Liberal Cosmopolitanism, Institutionalism, Constitutionalism
- (aa) Institutionalist Reasoning
- (bb) Liberal-Cosmopolitan Reasoning
- (cc) Overlap: Constitutionalist Perspectives
- (b) Reservations About the Notion of an International Community
- (c) The ‘International Community’ as an Analytical Tool to Identify Structural Developments in International Law
- II. Community Values, Law-Making and the Sources of International Law
- 1. Treaties
- 2. Customary International Law
- 3. Jus Cogens and Obligations Erga Omnes
- 4. The General Principles of International Law
- 5. Legal Bindingness and the Contentious Role of Soft Law
- 6. Conclusion Community Values, Law-Making and the Sources of International Law
- III. Conclusion Part B: Perspective on Community Values and Legality in International Law for the Empirical Analysis
- Part C: Historical Background of Climate Change as a Matter of Community Values and International Law
- I. Historical Background of International Climate Change Law
- 1. Early Forms of International Law on Environmental Protection (1941–1985)
- (a) Establishment of the No-Harm Rule: The Trail Smelter Arbitration
- (b) Stockholm 1972 – the Birth of Modern International Environmental Law
- 2. The ‘Agenda-Setting Phase’ and ‘Pre-Negotiation-Phase’ (1985–1991): Growing Awareness and the Struggle for Appropriate Legal Concepts
- (a) The Common Heritage Principle Informing the Process: ITLOS
- (b) Multilateralising Climate Law: The Vienna Convention 1985 as a Blueprint for the UNFCCC
- (c) An Increasing Emphasis on Legal Bindingness – the ‘Brundtland’ Commission
- II. Climate Change as a Community Issue
- 1. Community Value Orientation Regarding Climate Change (After 1990)
- (a) Climate Change as an Ethical Problem
- (b) Integrated Approach to Climate Change and Development Policies
- (c) Perception of Climate Change as a Community Value: Global Public Opinion
- 2. Interim Conclusion: Climate Change Established as a Value-Laden Community Issue
- Part D: Structural and Conceptual Analysis of the International Climate Regime Since 1992
- I. The Changing Structure of Modern International Climate Law: Community Values at the Heart of a Dynamic Field of Law
- 1. The Central Role of Principles and the Normative Force of the Overall Objective of Climate Protection
- 2. Strong on Legalization and Top-Down Organisation – from Rio to Kyoto
- 3. The Road to the Paris Agreement: Bottom-Up Approach and a New Dawn for Climate Change Policies with Legal Bindingness in Decline
- (a) Architecture
- (b) Open Questions and Potential Pitfalls
- (c) The Issue of Legal Bindingness
- 4. After the Paris Agreement
- 5. Interim Conclusion: A ‘Decline’ of Legal Form in the International Climate Change Regime
- II. Community Value Based Concepts and Legality in Contemporary Climate Change Law and Policy Since 1992
- 1. The Notion of ‘Common Concern’: Outset and Frame of the Debate
- (a) Conception, Development and Expectations in the 1990s
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 2. Common but Differentiated Responsibilities: Lynchpin of the Climate Regime
- (a) Conception, Development and Expectations in the 1990s
- (aa) ‘Taking the Lead’ by Developed Countries
- (bb) A Principle of ‘Co-Operation’?
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 3. Intra-generational and Inter-generational Equity: Bringing Justice into the Equation
- (a) Conception, Development and Expectations in the 1990s
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 4. Sustainable Development: Exemplary Debate About the Legal Status
- (a) Conception, Development and Expectations in the 1990s
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 5. Precaution and Prevention: Proceduralising Community Values
- (a) Conception, Development and Expectations in the 1990s
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 6. No-Harm Rule: Bilateralist Version of Community Obligations with Remaining Importance
- (a) Conception, Development and Expectations in the 1990s
- (b) Further Development: Post-Kyoto Until Today
- (c) Conclusion
- 7. Interim Conclusion: Relatively Stable, but Largely Extra-legal Community Value Orientation in the Climate Regime
- III. Putting Community Values into Legal Practice: Prospects and Problems
- 1. Advancing Community Values in Domestic Courts?
- (a) Using Legislative and Policy Commitments in Substantiating Legal Claims
- (b) Establishing Links Between Emissions and Impacts
- 2. Advancing Community Values in International Courts?
- (a) The International Court of Justice
- (b) Other International Bodies
- 3. Climate Change Advocacy by NGOs
- 4. Interim Conclusion
- IV. Conclusion Part D: Elements of Both ‘Rise’ and ‘Decline’ – Community Values and Legal Form Parting Ways in International Climate Law
- Part E: Conclusion
- I. Summary of Findings
- II. Prospects of Conceivable Reactions from Practice and Scholarship
- 1. More Law? The Plea for a Further Densification of International Law
- 2. Less Law? ‘Back to the Roots’ or ‘Elements of Classical International Law Revisited’
- 3. Other Law! A Move Towards ‘Proceduralisation’ and Community Values as Meta-norms
- III. Overall Concluding Remark: The Usefulness of Community Values and the Limits of Legal Practice Accommodating Them
- Bibliography
List of Abbreviations
AJIL |
American Journal of International Law |
Am. U. J. Int’l L. & Pol’y |
American University Journal of International Law and Policy |
ASEAN |
Association of South East Asian Nations |
BASIC |
Group of Brazil, South Africa, India and China |
B.C. Int’l & Comp. L. Rev. |
Boston College International and Comparative Law Review |
BYIL |
British Yearbook of International Law |
CBD |
Convention on Biological Diversity |
CBDR |
Common but Differentiated Responsibilities |
CDM |
Clean Development Mechanism |
CDP |
Carbon Disclosure Project |
CFC |
Chlorofluorocarbon |
CMA |
Meeting of the Parties to the Paris Agreement |
CMP |
Meeting of the Parties (to the Kyoto Protocol) |
COEJ |
Coalition on the Environment and Jewish Life |
COP |
Conference of the Parties (to the United Nations Framework Convention on Climate Change) |
CSD |
United Nations Commission on Sustainable Development |
CUP |
Cambridge University Press |
DSB |
(WTO) Dispute Settlement Body |
ECHR |
European Convention on Human Rights |
ECJ |
European Court of Justice |
ECtHR |
European Court of Human Rights |
EIA |
Environmental impact assessment |
EJIL |
European Journal of International Law |
Envtl. Pol’y & L. |
Environmental Policy and Law (Journal) |
EU |
European Union |
Fordham Int’l LJ |
Fordham International Law Journal |
GATT |
General Agreement on Tariffs and Trade |
GHG |
Greenhouse gas |
Harv. Int’l. LJ |
Harvard International Law Journal |
ICC |
|
ICCPR |
International Covenant on Civil and Political Rights |
ICJ |
International Court of Justice |
ICTY |
International Criminal Tribunal for the former Yugoslavia |
IDI |
Institut de Droit International |
IEL |
International Environmental Law |
IGO |
Inter-governmental organisation |
ILA |
International Law Association |
ILC |
International Law Commission |
INC |
Intergovernmental Negotiating Committee (for the UNFCCC) |
IPCC |
Intergovernmental Panel on Climate Change |
ISA |
International Seabed Authority |
ITLOS |
International Tribunal for the Law of the Sea |
J. Int’l L & Int’l Rel. |
Journal of International Law and International Relations |
MEA |
Multilateral environmental agreement |
Mich. J. Envtl. & Admin. L. |
Michigan Journal of Environmental and Administrative Law |
MPEPIL |
Max Planck Encyclopedia of Public International Law |
NDC(s) |
Nationally determined contribution(s) |
NGO |
Non-governmental organisation |
Notre Dame L. Rev. |
Notre Dame Law Review |
OECD |
Organisation for Economic Co-operation and Development |
OHCHR |
Office of the High Commissioner for Human Rights |
OIC |
Organisation of Islamic Cooperation |
OUP |
Oxford University Press |
PCIJ |
Permanent Court of International Justice |
QELROs |
Quantified emission limitation and reduction objectives |
RECIEL |
Review of European, Comparative & International Environmental Law |
RIAA |
United Nations Reports of International Arbitral Awards |
Stan. Envtl. LJ |
|
S. Afr. YB Int’l L. |
South African Yearbook of International Law |
TFEU |
Treaty on the Functioning of the European Union |
UDHR |
Universal Declaration of Human Rights |
UN |
United Nations |
UNCED |
United Nations Conference on Environment and Development |
UNCLOS |
United Nations Convention on the Law of the Sea |
UNEP |
United Nations Environment Programme |
UNFCCC or FCCC |
United Nations Framework Convention on Climate Change |
UNGA |
United Nations General Assembly |
UNTS |
United Nations Treaty Series |
VCLT |
Vienna Convention on the Law of Treaties |
WMO |
World Meteorological Organization |
WTO |
World Trade Organization |
YB Int’l Env. L. |
Yearbook of International Environmental Law |
Part A: Introduction
I. A Decline of the International Law Established After the ‘Cold War’?
The often-made claim that the international order established during and densified after the Cold War is facing challenges or even a crisis1 does not seem audacious or even particularly pessimistic at the beginning of the 2020s. Recent years have brought about major setbacks for this order and its fundamental elements which previously had seemed to be solidly established. Authoritarianism and human rights violations in different parts of the world put a bold question mark behind the 1990s-narrative of economic prosperity, democratic progress and human rights orientation. Withdrawals from the International Criminal Court by African countries and even more threats thereof are salient examples of the pressure under which key institutions are put when States disregard institutional authority and questioning their legitimacy. In Europe and North America, populism, nationalism and anti-multilateralism are on the rise in countries which used to be the origin, center and backbone of modern international law and international relations. The 2016 US presidential election brought to power a leader who questioned century-old alliances and actively promoted2 the abandonment of multilateral structures in favor of bilateral ‘deals’. Yet, this again is only one example that gained public attention. It has become conventional wisdom that ‘something’ is going on with the international order.
These developments are worrying in and of themselves for those in favor of peaceful international relations based on the rule of law. The reasonable suspicion that they are in fact parts of a broader erosion of the existing international order makes them even more alarming. But while being concerned or alarmed are understandable reactions, they do not replace the necessary and nuanced analysis of what exactly is and/or will be affected by these apparent political trends. Which parts of international law will prove resilient? Have certain ←19 | 20→elements of international law itself even contributed to the problem and hence, will come under even larger pressure?3 Are the occurring setbacks only a slight impediment in an overall progressive development or an actual sign of decline of international law?4 In short, the ‘something’ needs to be scrutinized to find out what it is about. These broader questions drive the research agenda of the larger project in connection to which the present analysis has been elaborated.5
What advocates6 and critics7 of the development of international law since the 1990s have in common is the role of values as a focal point in their debates and narratives. For some, the new political circumstances were an opportunity for international law to move from a formal order of “correlative rights and obligations running between States” towards one that “incorporates common interests of the international community as a whole, including not only States but all human beings.”8 This idea is neatly captured in the notion of ‘community values’. As will be elaborated, the idea that international law can accommodate and promote values transcending classical state ‘interests’ brings with it certain normative and structural implications. These include the questions of who is comprised in ‘the international community’, how its values are understood to be formed and by whom, and what the relationship between such values and legal norms should be.
←20 | 21→The centrality of values in the developments described above is the starting point of the present analysis. A study focusing on value-laden international law could be perceived as rather theoretical and of little practical use. But to the contrary, a focus on values in international law helps in understanding a significant general trend in the (recent) evolution of international law.9
II. International Climate Change Law – a Focal Point of Modern Developments in International Law
“Our collective responsibility to each other is nowhere
more evident
than in the huge challenge posed by climate change.”
British Foreign Secretary Margarets Beckett10
The field of climate change law is a key example for the phenomenon of value-orientation and the structural challenges for international law relating thereto. Established in the 1990s, the climate regime entails many examples for the ambition that international law promotes community values beyond state interests. Because of its historical and structural overlap with the general development of international law after 1990, the climate regime will be the case study for the present analysis.
Climate change is a fundamentally cross-cutting issue, with community value implications at its very core. It impacts almost every aspect of human life and societies, from economic development to social standards, from human health to basic nutrition and water supply, from global inequalities to newly arising reasons for conflict. It exacerbates existing problems like in the field of migration11 and is quickly creating new ones in almost every realm of human life. The crucial resource in avoiding hazardous climate change, namely, a stable atmosphere of the earth, shares the fate of all ‘commons’ famously discussed by Garret Hardin in his piece ‘tragedy of the commons’: In a system where a given resource ←21 | 22→is shared, individual users acting independently in their own self-interest behave contrary to the common good of all users by depleting or spoiling that resource through their collective action.12 The users, in this case mainly the acting States, profit from greenhouse gas (GHG)-producing activities individually and would gain only a fraction of the benefits from unilateral GHG reduction efforts. Moreover, “their sacrifice may be futile if other actors do not exhibit similar restraint”.13 Hence, climate change can rightfully be called “the prototype of the commons issue”.14
Details
- Pages
- 252
- Year
- 2021
- ISBN (PDF)
- 9783631871676
- ISBN (ePUB)
- 9783631871683
- ISBN (MOBI)
- 9783631871690
- ISBN (Softcover)
- 9783631852354
- DOI
- 10.3726/b19331
- DOI
- 10.3726/b19446
- Language
- German
- Publication date
- 2022 (January)
- Published
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021. 252 S.
