Search Results

The chapter highlights the main features of climate change as a complex policy challenge. Drawing on the interactional account of international law it sets out the key traits of legality and the rule of law in the international context. It focuses primarily on how treaty-based law has evolved to grapple with complexity on the one hand, and meeting the demands of the rule of law on the other. The 2015 Paris Agreement, which was adopted under the auspices of the FCCC and employs an unprecedented range of legal ‘modes’, is taken as the key example. It is argued that the ‘hard’ vs ‘soft’ law distinction is not the most informative metric when it comes to exploring the trajectory of the international rule of law. Analytic attention is most fruitfully directed to the distinctive traits of legal norms and practices; traits that transcend traditional conceptions of formality and informality.

The international climate change regime has evolved over time to include a wider spectrum of obligations—substantive and procedural, as well as obligations of conduct and result. The increasing salience of obligations of conduct, privileging greater flexibility and autonomy for all Parties and permitting increased dynamism in the regime, has created greater scope for ‘due diligence’ to play a role in international climate change law. This chapter identifies the central obligations of conduct (fleshing out due diligence requirements of states) and of result in international climate change law. It analyses the nature and extent of due diligence required of states and highlights the numerous factors, such as the expectation of good faith or common but differentiated responsibilities, influencing it. The chapter concludes with reflections on the promise and perils of relying on norms of due diligence to deliver on the ambition of the climate change regime.

Climate change is a particularly difficult policy problem, being long term and multifaceted. This chapter explores the proposition that well-crafted laws make it easier to make climate change policy that is coordinated, systematic, durable, and likely to encourage suitable energy innovation. Without dictating content, it identifies five elements for such legislation: greenhouse gas targets that have legal significance; instruments such as carbon budgets that impel early action towards long-term targets; requirements to identify the policies and measures that will reach those targets; requirements for decision makers in different sectors to pursue climate change targets; and rules for the information base. It concludes that laws reflecting these elements can improve the process of climate change policy making.

This chapter is a comment on the capacity of international law to address complex problems such as climate change, as a complement and response to Jutta Brunnée’s preceding chapter. The comment first questions whether complexity is in fact a special case or rather an all-pervading characteristic of international relations, and by extension, of international law. Second, the comment questions—notwithstanding the current angst that internationalist lawyers feel and express due to what seems like a tidal-scale assault on international law—whether the international rule-of-law management of complexity is a particularly contemporary issue, or just another iteration of recurrent, resurgent, occasionally even refreshing, frictions that characterize international law. Third, the comment asks whether the challenges of complexity maintain a special relationship with international law, or whether these are substantially the same as the interactions of these issues with domestic legal systems.