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International Legal Framework


This chapter will analyze the regulation of climate change within the existing international legal framework. There are three main sources of international climate change law: treaties, customary international law, and general principles of law.[1] In addition, international jurisprudence has become an increasingly important source of international law and plays an important role in the interpretation of treaties, the recognition of customary international law, and the clarification of general principles of law. International climate change regulation involves many different fields of international law, including international environmental law and international economic law; it also involves rules of customary international law, but it is not always clear which rules have attained the status of custom. International climate change regulation further involves general principles of law that may be vague or that may appear to be irreconcilable. Thus, while many bemoan the lack ofprogress towards international agreements (treaties) on how to address climate change, the reality is that there are multiple sources of international climate change regulation and this makes the process of interpreting and applying international climate change law particularly complex.

Our approach in this chapter is to analyze the existing international agreements on climate change, principally the UNFCCC, according to the customary rules of interpretation of treaties set out in the Vienna Convention on the Law of Treaties.[2] However, this does not mean that treaty law is the only source of law being analyzed. The UNFCCC contains a lengthy preamble, sets out an objective, incorporates a series of principles, and establishes obligations. The preamble, objective, and principles do not establish binding obligations, but they are relevant to the interpretation of the obligations set out in the treaty. In addition to the text of the treaty, the interpretative context must be considered, including agreements and instruments relating to the treaty. In addition, the treaty interpreter must take into account any subsequent agreement or subsequent practice regarding the interpretation of the treaty or the application of its provisions and the relevant rules of international law. Finally, we can use supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, and consider how the treaty terms are expressed in different languages. In other words, we must consider what the UNFCCC says, what it does not say, and what it does or does not say in Arabic, Chinese, English, French, Russian, and Spanish.

Regarding what the UNFCCC does not say, we will consider “agreements” and “instruments” relating to the treaty and “relevant rules of international law.” Any agreement that we consider as relating to the treaty must have been made between all the parties in connection with the conclusion of the treaty. Any instrument must have been made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Any relevant rules of international law must be applicable in the relations between the UNFCCC parties, but not necessarily all of them. The UNFCCC was concluded at the UN Conference on Environment and Development in Rio de Janeiro in 1992, as was the Rio Declaration and Agenda 21.[3] We will consider provisions in the latter documents in our interpretation of the UNFCCC, as related instruments, sources of relevant rules or supplementary means of interpretation, depending on the provision. In addition, the Uruguay Round of Multilateral Trade Negotiations was well under way in 1992, the results of which now apply to 159 States (as of March 2013). Therefore, we will consider WTO law to be a source of relevant rules of international law applicable in the relations between the UNFCCC parties or, at the very least, part of the circumstances of the conclusion of the UNFCCC.

General international law can sometimes be used to fill in the gaps in treaties. However, general principles cannot displace clear treaty language. Moreover, while some principles have been recognized as forming part of customary international law, others have not. A treaty interpreter must take care not to exaggerate the importance of non-binding principles, which can guide actions without obligating governments, and to carefully consider the role that they might play in the interpretative process. At the same time, a treaty interpreter must avoid conflicting interpretations of obligations in different fields of international law, and general principles may prove useful in this regard. We will structure our analysis of the UNFCCC in this chapter according to a series of general principles, since this will facilitate an analysis of the UNFCCC that takes into consideration its relation to other instruments and agreements and notes both what it does and does not say.

Several principles of international environmental law are relevant to climate change. The 1992 Rio Declaration sets out 27 principles regarding sustainable development and related international environmental principles and norms, including the precautionary principle, common but differentiated responsibility (CDR), polluter pays, environmental assessment, responsibility for transboundary environmental damage, and the duty to cooperate to address transboundary and global environmental problems. All are relevant to the international law of climate change and have a role to play in defining the relationship between international climate change law and various aspects of international economic law that we address in subsequent chapters.

  • [1] Statute of the International Court of Justice, Art. 38 (accessed April 19, 2013).
  • [2] Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331(entered into force January 27, 1980) Arts. 31—3.
  • [3] Agenda 21, in Report of the United Nations Conference on Environment and Development, Rio de Janeiro, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Annex II (1992).
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