A new paper by the Finnish Institute of International Affairs would be an excellent reading for a law school course or graduate course in international affairs, as it does an excellent job of addressing the interface of procedural questions and institutional legitimacy within the UNFCCC, as well as the nexus of effectiveness and legitimacy.
Among the paper’s take-aways:
- Given the fact that the current political climate militates against the establishment of a binding successor protocol to Kyoto, there’s been increasing focus on the possibility of developing at least an interstitial response through resolutions of the COP. However, there is a serious question about whether such decisions are legally binding on the parties to the UNFCCC;
- The consensus of international law scholars is that COP resolutions are not binding in a formal sense, but it’s difficult to generalize between regimes given different salience accorded such decisions in different regimes;
- Due to Saudi Arabia’s position, the COP of the UNFCCC has never adopted its proposed Rules of Procedure; thus, it has operated under draft rules without procedures for voting, agreeing that decisions are to be take by “consensus;” but even this term is vague, as the UNFCC has adopted decisions before even with limited opposition, e.g. in 1997 when Saudi Arabia lodged objections;
- If the legitimacy of a regime is not to be derived from consensus, an alternative basis for legitimacy must exist; the other loci of legitimacy in regimes such as the UNFCCC are: 1. science; 2. procedural sources, i.e. “how many governments are allowed at the table, how equal the terms will be;’ and 3. the actual impact of the regimes’ norms, i.e. social judgments about “acceptable performance.” Thus, while the legitimacy of a regime contributes (or detracts) from its effectiveness, so also may the effectiveness of a regime. The perceived ineffectiveness of the climate regime, including the failure at Copenhagen to develop a binding regime, has undermined the legitimacy of the regime;
- The decision at the 16th COP to adopt a decision on longer term responses to climate change despite the objection of Bolivia, thus re-interpreting the meaning of the term “consensus” may stimulate the parties to address decision making procedures with renewed urgency. This may be particularly important because the UNFCCC in the future may have to make decisions that respond to the work in other fora, e.g. the G-20;
- It’s important to maintain the role of the UNFCCC in the climate policy process, as it provides a voice and some leverage to the most vulnerable States of the world that other fora, e.g. the G-20 do not.