Disentangling Climate Change Governance: A Legal Perspective

• DOI: http://doi.org/10.1111/j.1467-9388.2012.00752.x
• Author: Ottavio Quirico
• Date: 01 July 2012
• Published date: 01 July 2012

Disentangling Climate Change Governance:

A Legal Perspective

Ottavio Quirico

Climate change is by definition a global problem

that is subject to a variety of regulatory initiatives.

Besides the comprehensive framework established

under the United Nations Framework Convention on

Climate Change and the Kyoto Protocol, as strength-

ened by the recent Durban negotiations, a wide array

of regulatory measures have been set up by public

and private actors, either alone or via partnerships.

This article aims to provide a brief overview and legal

assessment of transnational regulatory networks for

climate change, including both established regulators

and rules. Indeed, the ‘regulatory proliferation’ in the

field pushes to disentangle not only the reciprocal

relationship between rules directly targeting climate

change, but also the relationship between them and

‘external’ rules only indirectly relating to climate

change. Mapping the existing climate change regula-

tory framework is essential for spotting potential

loopholes and inconsistencies, correctly interpreting

existing norms and eventually undertaking further

regulatory action. Overall, the article concludes that

within the context of a generally ‘complex’ regulatory

regime, a gap currently exists between primary rules

which gather an array of intertwined public–private

regulatory initiatives and enforced secondary rules

which encompass mainly obligations established

by public actors only indirectly targeting climate

change.

INTRODUCTION

Climate change – that is, the alteration of the atmo-

sphere’s composition that provokes an increase in

global average temperatures due to, among other

factors, anthropogenic greenhouse gas (GHG) emis-

sions1– is an actual and urgent problem which requires

a quick and targeted response. A considerable amount

of legal scholarly works have been devoted to the issue,

mostly approaching the problem from the standpoint of

the classical inter-State relationships – namely under

the United Nations Framework Convention on Climate

Change (UNFCCC) and the Kyoto Protocol.2By

contrast, far less legal research has been devoted to

non-inter-State regulatory regimes for climate change,

which may have both a governmental and non-

governmental nature.3This article aims to shed light on

such initiatives and the way in which they interact with

the UNFCCC and the Kyoto regime. The enquiry is

grounded on two basic assumptions. First, as a global

phenomenon, climate change can be understood more

correctly from the perspective of the emerging concept

of ‘transnational governance’ rather than from the tra-

ditional viewpoint of international law. Second, optimal

regulatory initiatives may be undertaken only if the

UNFCCC and the Kyoto Protocol are understood within

the broader context of their interaction with other exist-

ing regulatory regimes addressing climate change.

Transnational governance occurs when subjects oper-

ating in the global sphere authoritatively act towards

common goals.4In this realm, governance is primarily

organized through cross-border networks involving dif-

ferent configurations of public and private actors,

which has been labelled a form of ‘cosmopolitanism’.5

As a result, various transnational regulatory systems

come into existence through formal and informal gov-

ernmental and non-governmental relationships, shift-

ing many decisions from the national to the global level,

1United Nations Framework Convention on Climate Change (New

York, 9 May 1992) (‘UNFCCC’), Article 1.

2See, e.g., F. Yamin and J. Depledge, The International Climate

Change Regime: A Guide to Rules, Institutions and Procedures

(Cambridge University Press, 2004); S. Oberthür and H. Ott, The

Kyoto Protocol. International Climate Policy for the Twenty-f‌irst

Century (Springer, 1999); D. Bodansky, ‘The United Nations Frame-

work Convention on Climate Change: A Commentary’, 18:2 Yale

Journal of International Law (1993), 451.

3C.P. Carlarne, ‘Good Climate Governance: Only a Fragmented

System of International Law Away?’, 30:4 Law and Policy (2008),

450, at 456. For a political analysis see H. Bulkeley and S.C. Moser,

‘Responding to Climate Change: Governance and Social Action

beyond Kyoto’, 7:2 Global Environmental Politics (2007), 1.

4See F. Cafaggi, New Foundations of Transnational Private

Regulation, EUI WP 2010/53, (European University Institute, 2010);

S.P. Huntington, ‘Transnational Organizations in World Politics’, 25:3

World Politics (1973), 333; R.O. Keohane and J. Nye, Transnational

Relations and World Politics (Harvard University Press, 1971).

5See L.B. Andonova, M.M. Betsill and H. Bulkeley, ‘Transnational

Climate Governance’, 9:2 Global Environmental Politics (2009),

52, at 56; see also B. Kingsbury, R.B. Stewart and N. Krisch, ‘The

Emergence of Global Administrative Law’, 68:3 Law and Contempo-

rary Problems (2005), 15, at 43.

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Review of European Community & International Environmental Law

RECIEL 21 (2) 2012. ISSN 0962 8797

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