Key differences between domestic and international legal systems

Published on: May 5, 2015

Filed Under: Commentary, New Zealand

International Law Challenges Specific to Climate Change

Climate Change affects Earth’s atmosphere – a space beyond the limits of both national jurisdiction and effective international law. In other words, it affects the global commons and is outside the realm of the traditional legal methods used to regulate behaviour.

Climate Change reveals a gap in international law’s ‘tool kit’ for accommodating the global commons problem – rights, responsibilities and obligations go unrecognised and the environment is left to absorb the problem. Yet, even though climate change operates in a legal vacuum, its impacts are and will continue to be very real.

The establishment of the UNFCCC in 1992 was international law’s first response to the climate change problem. The Paris 2015 conference at the end of the year will add an additional element to the ongoing development of legal architecture, aimed at plugging the legal vacuum outlined above. Unlike a domestic legal system, which has centralised legislative authority to react to a legal gap through statute, international law must plug the gap incrementally, either via the creation of a treaty or through the development of customary international law.

This short piece will seek to explain the key conceptual differences between international law and domestic law.

Simplified introduction to New Zealand legal system

Source of Law

The legislature is the key source of law in a domestic legal system, as it is the institution vested with law-making power that binds all subjects within the given sovereign territory. The law is absolute in its reach. Within New Zealand’s legal system, the legislature has a monopoly of power to make laws – it is hierarchical, authoritative, facilitative and top-down.

Key Creators of Law

In New Zealand, Cabinet is where the key policy decisions are decided. Cabinet consists of democratically elected ministers who maintain power so long as they have the support of the House of Representatives. In this way, the Government of the day can push through legislation and implement policy by maintaining a majority of party MP’s within the House of Representatives.

Simplified introduction to international law

Source of Law

There is no legislature in the international law system – this means that there is no core institution with centralised or binding law-making authority. Instead, the key sources of international law are detailed within ICJ Article 38:

  • (a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (Treaties)
  • (b) international custom, as evidence of a general practice accepted as law;
  • (c) the general principles of law recognised by civilised nations;
  • (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Currently there is no international customary law that applies to climate change, as outlined in 38(b). The key sources of international law concerning climate change are instead embodied within the frameworks of treaties, 38(a).

Treaties are creatures of state consent, only coming into operation when states bind themselves to the obligations, principles or approaches within the treaty. It is through the state consenting to be bound by the treaty that the ‘plane’ of international law gains legitimacy. The system of international law simultaneously operates through, and because of, each state recognising the treaty as binding on them domestically. International treaties operate primarily on the conditions of consent and state recognition.

Consent creates difficulties for enforcement as states are only bound to the treaties that they consent to be bound to. In order for international law to become operative, states must first grant the relevant institution with authority to act. In this way, international treaties are a much more horizontal processes than the hierarchical and top-down domestic systems of domestic law.

A treaty in itself does not solve the problem of consent; the ‘substance’ consented to in the treaty will determine the strength of state obligations and their effectiveness. In order to have a climate change agreement that binds all states as parties, all states must consent to its effective operation. This was the first hurdle overcome in the establishment of the UNFCCC. Following the UNFCCC’s inception, the most salient issue in resolving climate change is negotiating and outlining the formal, substantive and procedural criteria that should be included in further treaties.

Unfortunately however, there are many competing interests and challenges that are deeply ingrained in the problem of climate change.

Key Creators of Treaties

As stated above, international law becomes operative through state consent. The key actors in the international law system are states – in negotiating treaties, states chose ‘representatives’ to voice their different interests and position. Within these negotiations, these representatives will seek to avoid committing themselves to obligations that are contrary to their state’s negotiating position/interests.

State positions and interest vary dramatically on the issue of climate change. These varying positions include states who are negotiating for survival; states emphasizing historical emissions or the right to develop; states trying to maintain competitiveness and therefore arguing for effective markets and the protection of intellectual property rights; states seeking financing for adaptation and transfer of technology; states arguing for a higher value of carbon sinks; and lastly, climate-progressive states who are not dependent on fossil fuels and contend that international law climate obligations ought to be binding.

Given that state positions and interests vary widely, the challenge for climate negotiations is to overcome these differing interests and focus on common goals. This may mean, however, that some states’ interests are not accommodated.

The Role of Unanimous Consent in Treaty Creation

The process of treaty law is guided by ‘unanimous consent’ – for an element to be included in a treaty, no state can object. Unanimous consent does not however require full agreement; instead it requires no objection. Lack of objection, or unanimous consent, means all parties have consented to that element’s inclusion within the treaty.

Unanimous consent leads negotiating bodies to search for the lowest common denominator. If a single state objects to a specific element, their interest must be accommodated or the element will not be included in the treaty. Adding to the difficulty of negotiations, a single objecting state can resist the development of a common position, demanding concessions as the price of securing unanimous consent. Although this principle constrains ambition within a treaty, it reflects the idea that each sovereign state is equal and must consent in order to be bound.
The challenges of developing international treaties that meet the competing, and widely varying, pool of needs and interests from a diverse international community is a process fraught with difficulty. Yet, on the issue of climate change, it is a process that must be undertaken with urgency. At present, global greenhouse gas emissions remain unaccounted for and there are few mechanisms in place to control their output. A treaty with global scope must be agreed amongst the nations of the world soon and in a way that provides an effective means to monitor, control and allocate greenhouse gas emissions.

Overview

The challenges and impacts of climate change are diverse: this issue penetrates deeply into our producer and consumer supply chains; its impacts are felt both domestically and internationally; and its consequences will have effects on mankind well into the future.

Despite the necessity of a cohesive and collaborative response to climate change, the international governance system is paralysed with inaction. This is thanks in part to the requirement of unanimous consent as well as the differentiated positions of negotiating states. This paralysis has promulgated a significant gap between the purpose of an international agreement that addresses anthropogenic greenhouse gas emissions and what is scientifically necessary to stay below 2 degrees.

COP21 at Paris represents an opportunity to turn paralysis into action. It is a chance to negotiate an effective global instrument that is dynamic and durable. The NDC approach being adopted has the potential to overcome the stalemate of traditional international law and help initiate a globally binding international treaty which calls for strong, collective action on climate change.

Miles Lloyd

Image by Ashitaka San. |

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