The author examines the interplay between the individual and collective dimensions of treaty-based law-making and standard-setting processes in the United Nations climate regime. The reason why the author attempts to do so is that multilateral treaties have been the main anchors for international environmental law-making. In this context, State consent not only has individual effects, but also feeds into a collective process. The chapter begins by exploring the United Nations Framework Convention on Climate Change and the Kyoto Protocol. It then turns to the Paris Agreement and the shift to what has been described as a ‘bottom-up’ approach. The perhaps most striking feature of this approach is its reliance on non-binding, ‘nationally determined contributions’ (hereafter NDCs). From the vantage point of State consent, the most significant consequence of the Paris Agreement’s NDC approach is a shift away from the anchoring of consent to climate action in treaty-based processes, and hence from the linkages that adoption and entry-into-force requirements establish between multiple parties’ individual expressions of consent.

Over the last decade or so, a new dialogue has emerged between international relations (IR) theorists interested in the social creation of identity and who focus attention on the role of norms in international politics, and international law (IL) scholars for whom normative evolution is a stock-in-trade. These norm-interested IR thinkers have been labeled “constructivists.” Constructivists are interested in many questions, of which the social creation of norms is only one. However, because international law is, of its very nature, norm focused, it is a fascination with norm creation, evolution, and destruction that has proven to be the strongest bridging point between some IL theorists and the constructivists. This bridge will form the core of our analysis in this chapter.

Because we focus considerable attention on how international lawyers and constructivists understand and deal with norms, it is useful to specify at the outset that, in the most general terms, “norms” are standards of behavior created through mutual expectation in a social setting. Many social norms are never transformed into legal norms. Moreover, the category of “legal norm” is not fixed. What norms will be included in the category depends on one's concept of law. For legal theorists called “pluralists,” there may be no significant distinction, for example, between “law” produced by state authorities and norms created by voluntary associations: each may or may not be effective in shaping behavior. For other international lawyers, often called “positivists,” legal norms can only exist when they are produced through fixed hierarchies, usually state hierarchies. It is their formal pedigree that creates legal norms, according to positivists; therefore law exists regardless of its link to “social norms.” As we will see, other theoretical perspectives fall between these two points, or draw upon elements of each, to produce competing explanations of how international law works.

Preface

Our work on this volume began in 2008. At the time, like many other observers of the UN climate change regime, we were optimistic that the 2009 Copenhagen meetings would produce at least the basic framework of a post-2012 regime. We embarked on a book project that was intended to provide a comprehensive assessment of the climate regime’s existing compliance system, and an authoritative guide to the new elements of the system, which we were hoping would emerge from the Copenhagen meetings. We were not alone in our optimism about the future trajectory of the climate regime. In a remarkably short time we were able to assemble a first-rate group of authors, comprising leading scholars and practitioners with close knowledge of the climate regime. Our authors enthusiastically committed to a tight writing schedule, designed to produce a complete book manuscript within a few weeks of the Copenhagen meetings.

The rest is history, as the saying goes. It became clear in the summer and autumn of 2009 that Copenhagen was unlikely to produce the much anticipated breakthrough. Indeed, ‘Copenhagen’ has since come to be associated with fundamental shifts in the structure and approach of the global climate regime. The Copenhagen Accord, a non-binding policy instrument cobbled together in the dying hours of the meetings, signalled a departure from the prescriptive, internationally negotiated commitments and oversight mechanisms that had characterized the UN Framework Convention on Climate Change and its Kyoto Protocol and, indeed, the majority of multilateral environmental agreements. Instead of this centralized approach, the Copenhagen Accord heralded decentralization – a shift toward non-binding, self-selected, and nationally or regionally supervised commitments.

Introduction

Much theoretical debate and effort in practice has been devoted to the question how best to promote compliance with multilateral environmental agreements (MEAs). At the theoretical level, it seems fair to say that no compliance theory can claim universal validity. Indeed, the experience gained with MEA compliance systems over the last fifteen years or so makes clear that a range of approaches, both facilitative and enforcement-oriented, must be harnessed. Perhaps most importantly, for a compliance system to be effective, it has to be designed with the context and particular characteristics of a specific MEA in mind. The design parameters include the substance of the MEA, the parties involved, the past experience, and the political context within which the compliance system is negotiated.

The climate change regime is no exception. As it stands at the moment, the regime boasts one of the most elaborate and multifaceted compliance systems in any MEA. Under the convention, parties have extensive monitoring and reporting obligations. The United Nations Framework Convention on Climate Change (FCCC) also provides for a facilitative compliance assessment process, the multilateral consultative process. However, due to the negotiation of the Kyoto Protocol, this process was never activated. The Kyoto parties negotiated additional inventory and reporting commitments, along with an expert review process and procedures and mechanisms relating to compliance. The procedures and mechanisms, which have been in operation since 2006, feature a facilitative stream and an enforcement stream. This compliance system was developed with the particular features of the climate regime, as well as the context in which it operates, very much in mind. For example, the compliance system distinguishes between legally soft, procedural, and policy-oriented commitments and hard, target-related commitments. For the latter, the Kyoto Protocol’s compliance procedures and mechanisms provide an enforcement-oriented approach, intended to help level the competitive playing field among parties with onerous emission reduction commitments. The enforcement branch (EB) of the compliance procedure is also designed to help ensure the functioning of the Kyoto Protocol’s emissions trading mechanisms, a unique feature of the regime,