The international rule of law, evaluation of its application to climate change by Team IRL project
Pitch
International rule of law need to be evaluated in its application to diminish the effect of the consequences of climate change
Description
Summary
International rule of law to be evaluated in its application, first formally later substantially, is a contribution to diminish the effects of the change of the climate to human beings and biological diversity.
This is a practical research in which the possibility to assess the accomplishments of application of international legal rules will bring to international and national agencies a new perspective on where to enact legal rules that might be of positive effects to the main goal of diminishing the effects of climate change. It is possible to begin with developed countries in which the legal system have been improved for decades and later with developing countries in which the legal systems need to be improved considering the main principle of a common but differentiated responsibilities translated to this area as a common but differentiated application of international legal rules.
In this case, application means not only the enactment of legal rules but its application into national legal system and in the life of people. Such improvement might help international legal rules, for example, new treaties on climate change or other elements that bring the possibility of such change.
Category of the Action
Integrated action plan for the world as a whole
What actions do you propose?
Actions will be the definition of main international rules of law (treaties, principles, customary law). Later, a second step is to define the application of these rules, by governments of States in its international relations and nationally. Third, the next step is to define exactly the kind of application (which kind of legal rules have been enacted to comply with defined international rule of law). Fourth, the next step is to define the kind of change of behavior in human beings as a result of the legal rule. Fifth, next step is to define exactly the consequences of this kind of new behavior by negative actions or positive action. Sixth, lessons learned to improve international legal rules.
Where will these actions be taken?
Developed and developing countries, starting with developed countries and specific countries with highly developed legal systems.
Who will take these actions?
Team of researchers invited to work on the assessement.
What are key benefits?
Desirable outcomes are:
1. Knowledge on the application of international legal rules into international and national law.
2. Relationship between legal rules and human behavior to diminish the effects of the change of the climate.
3. Direct improvement of international rules of law as a consequence of the measurement of application of international law and the costs
4. The possibility to learn on the best legal rules for creation of new conditions to diminish the effects of climate change.
5. In general research have been build up on this subject but the topic of the contribution of law to the achievement of the goal of diminishing the effects of climate change have been underestimated although a large amount of other policies have not been successful. Therefore, giving law a chance will be an opportunity to improve legal rules that are more related with behavioral measures than with command and control, in the first phase.
What are the proposal’s costs?
Economic costs will not be high as international and national legal rules are most of the time free available. On the change of behavior one source might be the jurisprudence of national courts and the results of national surveys on the change of behavior prepare by national institutes and national agencies related to environment. As well, another important source are international research like the one made by the Millennium Ecosystem Assessment and others.
Time line
The time line should be short, for example, two to five years in order to give the first lessons to international and national agencies related to the focus on mitigations and prevention of the effects of climate change.
Sub-proposals
How do these sub-proposals fit together?
I have read other proposals and they do not fit, in a first approach, together. However, considering the main achievement or goal, diminishing the effects of climate change, it is necessary to consider all projects as part of a big movement in favor of the main goal, as pointed out, diminishing the effects of climate change.
Explanation of model inputs
Key assumptions
1.- Law is the ultima ratio for the international and national social systems to be used and measures on their quality of changing the behavior of persons.
2.- Climate change effects might produced key changes to the environment therefore strong measures should be taken, the strongest one is in term of the rules of a legal system.
3.- The rules of a legal system should establish orders to be complied and sanctions for uncomplishment.
4.- A model to be used is the realist model of Alf Ross and Oliver Wendell Holmes as well as the positivist model of HLA HART and Hans Kelsen, R. Alexy and J. Raz and the iusnaturalist model of J. Finnis. The first is able to give us the insights for accomplishment and non-accomplishment of legal rules in a legal system, the second how rules are and how they work in a legal system and the third what rules should be in a legal system.
5.- All the actions pointed out before are part of these models, on one hand to decide which rules will be described and applied is related to the model of Ross and Holmes in relation to accomplishment of this international and national legal rules. The second is on the application of this international legal rules (either international national or national as such) and the third about the lessons related to the application of the rules and how these lessons might help to prepare new rules as well as to define the rules to be applicable considering values like Justice and Equity.
References
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Bridgman, Howard and Olivier, John, The Global Climate System: Patterns, Processes and Teleconnections, Oxford University Press, Oxford, 2006.
Burleson, Elisabeth and Huang, Jennifer, Antarctica and Climate Change, “Ocean and Law in the Climate Change Context: Domestic and International Regulatory Challenges (Abate et al ed. Oxford University Press, 2013).
Chagnon, Stanley, Economic impact of climate conditions in the United States, Bridgman, Howard and Olivier, John, The Global Climate System: Patterns, Processes and Teleconnections, Oxford University Press, Oxford, 2006, pp. 260-275.
Dessler, Andrew, Parson, Edward, The Science and politics of global climate change, A guide to the debate, Cambridge University Press, Cambridge, 2006,
Embrapa, El Estado del Arte de los recursos genéticos en las Américas: Conservación, caracterización y utilización, Brasilia, 2006.
Gunningham, Neil, Environmental Law, Regulation and Governance: Shifting architectures, Journal of Environmental Law 21:2 (2009), 179-212.
Hoffert, Martin, Climate sensitivity, climate feedbacks and Policy Implications, in Mintzer, Irving (ed.), Confronting climate change: Risk, implications and response, Stockholm Environment Institute-Cambridge University Press, Cambridge, 1992, pp. 55-64.
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Kim, Joy, Institutional interplay between Biodiversity and Climate Change: Toward Synergy Creation, UNU/IAS Working Paper No. 100, Tokyo, 2003.
Mintzer, Irving (ed.), Confronting climate change: Risk, implications and response, Stockholm Environment Institute-Cambridge University Press, Cambridge, 1992.
Mintzer, Irving, Living in a Warming World, in Mintzer, Irving (ed.), Confronting climate change: Risk, implications and response, Stockholm Environment Institute-Cambridge University Press, Cambridge, 1992, pp. 1-14.
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Peña Neira, Sergio, Hacia un Estado de Derecho internacional en Becerra, Manuel, González, Nuria, Estado de Derecho internacional, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, México, 2012
Peña Neira, Sergio, ¿El Derecho internacional público en crisis? En Becerra, Manuel, Müller-Uhlenbrok, Klaus, Soberanía y juridificación en las relaciones internacionales, Instituto de Investigaciones jurídicas de la Universidad Nacional Autónoma de México, México, 2010.
Wendler, Gerd, Essay: Artic Climate in Bridgman, Howard and Olivier, John, The Global Climate System: Patterns, Processes and Teleconections, Oxford University Press, Oxford, 2006, pp. 151-160.
Zakri, A. and Watson, Robert (eds.), Millenium Ecosystem Assessment, Island Press, 2004-2008,
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Team IRL project
