Week 1 Climate Change and its governance through treaties

sources, states and consent

• international law’s authority is considered to derive from the consent of states: thus, it is only pursuant to state consent that international legal rules can be developed

• states often give consent for specific laws to be enacted however, states also have specific bodies or organs to consent to laws coming from non-state institutions

• one key distinction for the framework through which sources are commonly understood is between the formal and material sources of international law

formal sources

• laws which are legally binding due to the consent of parties and of general application

• e.g. treaties, customary law, general principles

material sources

• laws that are not legally binding but may provide evidence that sheds light on the existence of a legally binding law

• e.g. judgements in int. courts, ILC study, textbook of int. law

• material sources can only gather or compile evidence of a binding legal rule

Article 38 ICJ

• the article lays out the sources of lex arbitri (applicable laws) that can be used in the ICJ, however in practice, it has long been regarded as an authoritative, complete statement as to the sources of int. law

• focal point for international lawyers

• sources applicable: treaties, general or particular, international custom (general practices accepted by law), general principles, subsidiary means (judicial decisions, teachings)

customary international law

• laws that are not written down but arise due to interactions and expectations individuals have in groups

• has two elements: material and subjective

• customary international law entails the recognition that the practices of states on the international plane can create new legal rules

Material Element (State Practice)

• The actual practise of States in their relations (eg. through treaties and diplomatic communications) 

  • State practice happens after states have engaged with one another for a long period of time.

• the notion of state practice encompasses the action or inaction of States in their relations with each other, or in relation to recognized international actors such as international organisations

• actions can be accepted, rejected or tolerated by other actors

• can be found in the judgements of national courts, the national legislation, and the claims advanced by these states before foreign courts, as well as the statements they have made

• can range from the signing of a treaty to any number of internal executive act, the passing of legislation and even court decisions

Subjective Element (opinion juris)

The belief that a law is obligatory to be followed regardless of tradition or norms. States believe the custom law should be followed internationally. - opinio juris sive necessitatis

• is the legal belief that an action was carried out as a binding obligation

• a matter of ascertaining belief of a state

• it is hard to determine behind the reasoning of a state’s opinio juris, and whether abstaining from customary law is valid

• conduct inconsistent with an existing customary rule might breach the existing rule and serve as evidence that a new rule has emerged simultaneously- this duels the concern that “law breaking is an essential methos of law making”

• this is why opinio juris is fundamental in the formation of a custom, and why mere practice does not lead to the creation of a custom

• it helps justify state behavior, allowing customary rules to develop in a coherent way

• determining opinion jurisdiction is challenging, because it requires identifying what states believe

the relativity of custom

• implied unilateral recognition of a new customary norm demonstrated by a state through its conduct, is a form of consent to the emergence of a custom

• a new general rule of customary law will bind all states

• however, there are 3 situations where the application of customary legal rules is not universal, does not mean states can’t apply in law: persistent objection, subsequent objection, particular/localized forms of customs

• both persistent and subsequent objections show the asymmetrical application of customary international law, since some states dont have to apply it while other states apply it

persistent objection

• often implemented in practice

• a state does not have to implement a customary law if it has shown explicit, persistent objection to this law

• e.g. USA and Japan in the 1970s to accept territorial sea claims

subsequent objection

• often implemented in practice

• a state accepts an original rule but objects to changes of the rule

• this state will not be bound to apply the law

particular/localized forms of customs

• customary law that only applies to certain states

• bilateral custom - customary law binding for only two states

• customary law cannot be binding if only one state agrees to it

subsidiary sources

• other sources of international law are judicial decisions and the writings of the most eminent publicists

• these two are considered material sources of law, as judges and publicists will use the formal sources of law (treaties, customary law and general principles) when making a judgement on a certain topic

other sources beyond article 38

• unilateral acts of a state: a legal act resulting solely from the will of the party offering it, and does not require consent from anyone other than the offering part

• for an unilateral act to be binding it must be accepted, recognized or acknowledged by another state

• resolutions of the General Assembly: it has no formal power to create resolutions which are binding to the State, however resolutions in GA have had an influence on opinio juris of states

• resolutions of the security council: all decisions made by the security council will be carried out by all of its members

• obligations created by the council will prevail over obligations under any other international agreement in the case of a conflict

• soft law: body of standards, etc. that are not legally binding obligations on states

expressing consent to be bound

• adoption of a treaty

• the negotiations of a treaty have finished, and the negotiating parties must give consent to be bound

• consenting to be bound can be done through a signature, ratification, acceptance, approval or accession

• accepting a treaty does not make the legal obligation binding

consent by signature

• signatures are usually a first step towards ratifying, accepting or approving a treaty under domestic law

• signatures may be done to show that it is the first stage of the treaty making process, and shows equal constent to be bound

consent by ratification

• the process through which the competent authorities within a state express their consent to be bound to an international agreement

• when a treaty is ratified, it is considered binding

consent by accession

• consent by accession is when a state gives consent to a treaty after the treaty was created

• this may be due to a state being created after the treaty or when a state joins an existing international organization

• accession is only possible if the treaty is open to non-parties, and certain conditions are imposed

amendment and modification of treaties

• article 39, 40 and 41 of the VCLT shows how a state can modify a treaty

• stages to amend a multilateral treaty: all parties that signed the original treaty must consent to amend the treaty

• stages to modify a multilateral treaty:

• at least two parties consent to modify the treaty. the parties that want to modify the treaty will follow different terms to the treaty than the ones that want to follow the original

• If the treaty doesn’t mention anything about modification, the parties can do it as long as it does not affect the rights and obligations of the other party, and doesn’t contradict with the purpose of the treaty. `

reservation

• Unilateral acts by which a State purports to exclude or alter a legal effect of certain provisions of the treaty in their application to that State (Article 19-23 of the VCLT)

• Reservations allow States to only comply with obligations of multilateral treaties that they want to comply with.

• A reservation can only be enacted if it has been accepted expressly or by tested consent.

• If the other parties are silent and do not say anything about the reservation, the reservation is assumed applicable.

pacta sunt servanda principle

this principle states that States must respect treaties, and act in good faith

because of the states intentions, there is no reason to make laws binding

3 aims to treaty interpretation

• article 31 VCLT

• objective approach: understanding the objective meaning of the treaty

• subjective approach: deciphering the intentions of the parties when agreeing to this treaty

• teleological/purposive approach: object and purpose of the treaty

principle of effectiveness

• all provisions of treaties are assumed to fulfill its intended meaning

• all provisions of the treaty are the treaty as a whole must serve some purpose

• interpretation of the treaty that does not fulfill the purpose is incorrect

• assumes that the interpretation must relate to the intentions of the parties

invalidity of treaties

treaties are deemed invalid if they follow one of the principles: relative grounds for invalidity and absolute grounds for inablidity

relative grounds of invalidity

• The treaty becomes nullified due to the lack of competence to bind the State or a procedural defect.

• Reasons for the treaty to no be longer be valid:

  • Violation of a rule of the internal law of a party which was of fundamental importance 

  • The State was put under a situation where they could not bind the treaty

  • A State committed a type of error

  • A State was consented due to fraud/bribery

  • A corrupted state agreed to consent with a negotiating State

absolute grounds for invalidity

• all parties are released from the legal obligation of following it and the treaty is regarded as never existing

• the treaty becomes nullified

• reasons for the treaty to no longer be valid: a state was forced to sign a treaty (coercion)

termination and suspension of treaties

• If a treaty is terminated, it no longer generates legal effect. Parties no longer follow the legal obligations of the treaty (Article 54 - 91 of the VCLT). 

• If a treaty is suspended, the parties of the treaty do not have legal obligations from the time of suspense(Article 54 - 91 of the VCLT).

• material breach is another ground of termination

material breach

A treaty may be terminated or suspended if a State is not exercising their legal obligation to follow the treaty.

force majeure

• act of god

• very rare

• no party can be held accountable for the event as it is impossible to fulfill to prevent

climate change as an intractable policy challenge

• it is too difficult to solve through international cooperation as climate change is a collective action problem and even though reducing emissions benefits all countries, each state will have to bear its own costs

• international law has weak inforcement mechanisms and states have different priorities, interests, capacities and perspectives making an agreement even harder

• if not all states act, then climate change wont be dealt with

climate change as an environmental problem

• european countries and small island states (theyre most affected)

• the goal of international climate policy is to prevent dangerous anthropogenic (originating from human activity) climate change by reducing net GHG emissions

• Will eventually require completely eliminating net emissions, as the Paris Agreement recognizes

• in the Paris Agreement, states agreed to the goal of limiting temperature increase to well below 2 degrees and also to pursue efforts to limit global warming to 1.5 degrees

• We are not currently close to achieving those goals

• The more stringent the commitments, the better, but environmental effectiveness is a function not only of the stringency of commitments, but also of the levels of participation and compliance by states

Climate change as an economic problem

• many non European developed countries, US

• the goal of climate policy is to achieve the ‘efficient’ outcome - that is, the outcome with the highest net benefits

•  we should reduce emissions only so long as the benefits of further reductions outweigh the costs

• Τo the extent adaptation is cheaper than mitigation, then that should be the preferred policy

• The economic perspective focuses on the means of achieving that goal, namely, by reducing emissions as cost-effectively as possible.

Climate change as an ethical problem

• developing countries

• The ethical perspective focuses on issues of distributive and corrective justice, including how to equitably distribute the burdens of mitigating and adapting to climate change and who is ethically responsible for the damages caused by climate change

• Little consensus about what equity and climate justice entails: Some focus on historical responsibility, others on duties to future generations, others on a fair division of burdens based on current capabilities, and yet others on the egalitarian principle that people have an equal right to the ‘atmospheric space’

• developed countries account for the majority of cumulative CO2 emissions, suggesting that they bear greater historical responsibility for the climate change problem

• However, total emissions from developing countries have overtaken those from industrialized countries, and emissions from large developing countries are projected to continue to rise sharply (China)

• Climate justice issues are also raised by the fact that the countries most vulnerable to climate change, such as small island states, have contributed the least to causing it. Climate change is likely to disproportionately affect developing countries, many of which are acutely vulnerable.

IPCC

• Is an intergovernmental organization (established by treaties under int. law)

• Composed by scientists who self-select themselves to become authors of IPCC reports

• These reports happen every 5 years

• Consists all existing science on climate change

• Lawyers rely a lot on the reports

GHG

• Carbon dioxide is the main gas creating anthropogenic effects (CO2)- can stay up in the atmosphere longer up to thousands of years

• Methane

• Nitrous Oxide (known as fertilizer in industrial agriculture)

• These gases do it at different levels

• Temporal issue of climate change