Basic questions on transnational environmental law

• Published in: Archiv des Völkerrechts 2012-12, Vol.50 (4), p.377-419
• Main Author: Boysen, Sigrid
• Format: Article
• Language: ger
• Subjects: Climate; Climate change; Environmental law; Global warming; Governance; Kyoto Protocol; Transnationalism; United Nations
• ISSN: 0003-892X

Few issues demonstrate the value of a transnational approach better than climate change. Climate change is a global challenge, and yet the responsibility for a warming planet, and the capacity to ultimately control the process through mitigation action, differs between regions and countries. The level of impact, and consequently the vulnerability of nations, differs, too. This dissonance explains, at least partly, the very challenge climate change presents to the traditional concepts of public international law. It not only puts the viability, let alone desirability, of a coherent corpus of environmental law and regulation into question, but also law's capacities as an instrument for climate protection. In this context, the concept of transnational law provides a valuable analytical framework for exploring the lines between law and governance, between state, regional and international institutions. At the same time, it bridges the traditional public-private divide in international law and recognizes the ever growing importance of civil society in shaping global climate governance. Against this background, the article attempts to identify the capacity and the limits of international law in the production of global public goods and globally binding rules as represented by the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. While the UNFCCC has so far failed to reverse the worrying trend of rising global greenhouse gas emissions and while policy-makers across the globe are increasingly embracing inter- and transnational initiatives outside the UNFCCC scope, many hope that a broader approach, which would effectively coordinate and combine the UNFCCC with such initiatives will offer opportunities for effective mitigation action in the future. The phenomenon of diversification is insufficiently captured by the traditional discussion of 'fragmented versus universal regimes'. Instead, the co-existence of a multitude of different regimes, institutions and initiatives raises the question of successful interaction to ensure that international climate change policy becomes effective. Reprinted by permission of J.C.B. Mohr (Paul Siebeck)