Global Environnental Change and International Law
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GLOBAL ENVIRONNENTAL CHANGE AND INTERNATIONAL LAW: PROSPECTS FOR PROGRESS IN THE LEGAL ORDER Lynne Jurgielewicz PhD Thesis University of London The London School of Economics and Political Science Department of Law 19tLj BIBL LONDON UNIV To My Parents, For Keeping The Faith 3 ABSTRACT This thesis argues that international regimes exist within the international legal order. The use of regime theory to explain international regulation of an issue-area, although first introduced as a legal concept, has been primarily explored in the discipline of international relations. That discipline has for the most part, however, under-emphasised international law. In an effort to promote interdisciplinary research on the nature of the international legal order, this thesis explores the concept of international regimes within the international legal order, using examples of global environmental change. A discussion of the schools of thought within international law is undertaken, with the policy-oriented approach to be utilised in this thesis. The policy-oriented school, which views international law as a process, can incorporate the process of regime formation and development within its framework. An examination of the general international law applicable to climate change and ozone layer depletion is then undertaken, to help explain the need for regime formation in those areas. A discussion of the role of regimes within international law follows, including their formation, maintenance, source of legal obligation, and compliance mechanisms. The strength of a regime's normative or shared expectations, or norms and rules, depends on the shaping of cognitive expectations, or knowledge. These cognitive expectations are in turn dependent on the degree to which uncertainty regarding issues critical to the particular regime has been overcome. An examination of the critical issues particular to climate change and ozone layer depletion is made, as well as how regimes can overcome uncertainty. This is followed by a discussion of regime catalysts. Analyses of the ozone layer depletion and climate change regimes are then made, and an argument for their inclusion as law within the policy-oriented school is made. The thesis concludes that regimes are present within the international legal order and play a vital role in maintaining that order. Thus, this thesis aims to make an original contribution to the discipline of international law through the study of regimes, which signal the presence of the international legal order where it has previously been ignored or deemed nonexistent. 4 TABLE OF CONTENTS ABSTRACT 3 ABBREVIATIONS 12 CHAPTER 1: AN INTRODUCTION TO THE THESIS 14 1.1 Introduction 14 1.2 Scientific Background on Global 19 Environmental Change 1.2.1 Climate Change Resulting from 19 Enhanced Global Warming 1.2.2 Ozone Layer Depletion 35 1.3 Conclusion 40 CHAPTER 2: THE INTERNATIONAL LEGAL ORDER 44 AND GLOBAL ENVIRONMENTAL CHANGE 2.1 Schools of Thought 45 2.1.1 Naturalists 46 2.1.2 Positivists 48 2.1.3 Policy-Oriented School 52 2.2 The Sources of International Law 67 2.2.1 International Conventions or 67 Treaties 2.2.2 Customary Law 72 2.2.3 General Principles of Law 83 2.2.4 Subsidiary Sources 84 2.2.5 Soft Law 87 2.3 Policy-Oriented Lawmaking 94 2.4 International Law Applicable to Global 99 Environmental Change 2.4.1 Prevention of Environmental Harm 100 5 2.4.2 Liability for Environmental Harm: 111 Due Diligence or Strict Liability 2.4.3 International Cooperation 116 2.4.3.1 Duty to Inform 117 2.4.3.2 Duty to Consult 119 2.4.3.3 Duty to Assess 122 2.5 "New Concepts" in International Law 124 2.5.1 Precautionary Principle 124 2.5.2 Intergenerational Equity 130 2.5.3 Common Heritage, Shared Resources 131 and Common Concern 2.5.4 Polluter Pays Principle 135 2.6 Conclusion 139 CHAPTER 3: INTERNATIONAL REGIMES 141 3.1 Introduction to International Regimes 141 3.2 Definition of Regimes 148 3.3 Formation of Regimes 160 3.4 Maintenance or Development of Regimes 165 3.5 The Legal Status of Regimes 167 3.6 Effectiveness of Regimes: Prospects for 170 Compliance 3.6.1 Evolution of Norms and Rules 171 3.6.2 Dispute Settlement Mechanisms 174 3.6.3 Accountability and Transparency 175 3.6.4 Conditional Cooperation 178 and Exclusion 3.7 Conclusion 182 6 CHAPTER 4: CRITICAL ISSUES AND CATALYSTS FOR 184 EFFECTIVE CLIMATE CHANGE AND OZONE LAYER DEPLETION REGIMES IN THE INTERNATIONAL LEGAL ORDER 4.1 Critical Issues 184 4.1.1 The Critical Issue of Science 185 4.1.1.1 Scientific Uncertainty 185 4.1.1.2 Overcoming Scientific 190 Uncertainty 4.1.2 The Critical Issue of Economics 195 4.1.2.1 Economic Uncertainty 195 4.1.2.1.1 Climate Change 195 Economics 4.1.2.1.2 Abatement vs. 198 "No Regrets" 4.1.2.1.3 Methods to 202 Control Greenhouse Gas Emissions: Carbon Taxes or a Quota System? 4.1.2.1.4 Ozone Layer 206 Depletion Economics 4.1.2.2 Overcoming Economic 207 Uncertainty 4.1.3 The Critical Issue of Development 209 4.1.3.1 Development Uncertainty 209 4.1.3.2 Overcoming Development 211 Uncertainty 4.1.4 Critical Issues Summary 214 4.2 Catalysts for Climate Change and Ozone 215 Layer Depletion Regimes 4.2.1 Leadership 215 4.2.2 International Non-state Actors 216 7 4.2.2.1 International/ 216 Intergovernmental Organi sat ions 4.2.2.2 Non-governmental 222 Organisations (NGOs) 4.2.2.3 Transnational 225 Corporations 4.2.3 Domestic Regulations 227 4.2.4 Crisis 227 4.3 Conclusion 227 CHAPTER 5: ANALYSIS OF THE OZONE LAYER DEPLETION 229 REGIME 5.1 International Action Regarding Ozone 229 Layer Depletion 5.2 Formation of the Ozone Layer Depletion 241 Regime 5.3 Maintenance of the Ozone Layer Depletion 241 Regime 5.3.1 Scientific Uncertainty 242 5.3.2 Economic Uncertainty 245 5.3.3 Development Uncertainty 249 5.4 Catalysts in the Ozone Layer Depletion 251 Regime 5.4.1 Leadership 251 5.4.2 International Non-state Actors 253 5.4.3 Domestic Regulations 255 5.4.4 Crisis 256 5.5 Compliance in the Ozone Layer Depletion 258 Regime 5.6 The Legal Status of the Ozone Layer 260 Depletion Regime 5.6.1 Participants 261 8 5.6.2 Subjectivities 263 5.6.3 Situations 264 5.6.4 Resources or Bases of Power 265 5.6.5 Strategies 265 5.6.6 Outcome 266 5.7 An Evaluation of the Ozone Layer Depletion 270 Regime CHAPTER 6: ANALYSIS OF THE CLIMATE CHANGE REGIME 272 6.1 International Action Regarding Climate 272 Change 6.2 Formation of the Climate Change Regime 291 6.3 Maintenance of the Climate Change Regime 292 6.3.1 Scientific Uncertainty 292 6.3.2 Economic Uncertainty 294 6.3.3 Development Uncertainty 297 6.4 Catalysts in the Climate Change Regime 300 6.4.1 Leadership 300 6.4.2 International Non-state Actors 307 6.4.3 Domestic Regulations 311 6.4.4 Crisis 312 6.5 Compliance in the Climate Change Regime 312 6.5.1 Evolution of Norms and Rules 313 6.5.2 Dispute Settlement Mechanisms 314 6.5.3 Accountability and Transparency 316 6.5.4 Exclusion and Conditional 316 Cooperation 6.6 The Legal Status of the Climate Change 318 Regime 9 6.6.1 Participants 319 6.6.2 Subjectivities 319 6.6.3 Situations 320 6.6.4 Resources or Bases of Power 321 6.6.5 Strategies 322 6.6.6 Outcome 322 6.7 Evaluation of the Climate Change Regime 326 CHAPTER 7: THE FUTURE OF REGIMES IN THE INTERNATIONAL 328 LEGAL ORDER 7.1 The Limitations of Traditional 328 International Legal Theory 7.2 The Concept of Regimes as Part of the 330 International Legal Order 7.3 Climate Change and Ozone Layer Depletion 333 Regimes 7.4 Prospects for Progress in the Legal Order 334 7.5 Incorporating Regimes into International 338 Legal Studies BIBLIOGRAPHY: BOOKS AND ARTICLES 342 LEGAL DOCUMENTS 392 CASE LAW 397 SCIENTIFIC PAPERS 399 NEWSPAPERS 401 INTERVIEWS 402 APPENDIX: Vienna Convention for the Protection of 403 the Ozone Layer United Nations Framework Convention on 408 Climate Change 10 ACKNOWLEDGMENTS One of the protagonists in the film The Black Robe proclaimed, "I wish I were a Jesuit, then I'd have an answer for everything." Having attended a Jesuit university as an undergraduate, I can vouch for the authenticity of that remark. Not having an answer for everything, however, has meant that I have had to rely on the help of others in order to complete this thesis. The amount of time devoted to the scripting of this acknowledgement section is woefully inadequate in comparison to the time spent on the rest of the thesis, considering that those accounted for in this section are the reason the rest of this thesis exists. Nevertheless, in this brief space I will attempt to shed some light on those persons without whose help I would never have succeeded. My thesis supervisors, Dr. Glen Plant of the LSE Law Department, and Mr. Mark Hoffman of the LSE International Relations Department, provided me with valuable guidance and constructive criticism every step of the way. The interdisciplinary aspect of my thesis did not make their jobs any easier, yet both were willing to travel this uncertain road between two disciplines. I am especially appreciative in this respect of Mark's help since international law does not exactly maintain at present a high profile role within the discipline of international relations.