Monday, June 3, 2019
Asselts Views of the Kyoto Protocol
Asselts Views of the Kyoto ProtocolAsselts ArticleThis paper aims to build upon the article by Asselt (xxxx) by re-examining this modeling of atomisation from an updated perspective. Asselts article principally discusses the Kyoto protocol, up to promptly this is to be replaced by the recently adopted Paris agreement which is expected to come into force in 2020 (Wilder, 2016) and is non conveyed in Asselts article. This dissertation will therefore consider the impact of the modified provisions on the divergences between the UNFCCC and CBD and will then go on to consider possible methods to address these. Differences in how the conflict would traditionally be addressed legally i.e. via the Vienna Convention and via scientific means will be considered in an attempt to inform possible solutions to the job of atomisation.Introduction In order to explore this specific topic it is first necessary to discuss the topic of fragmentation more customaryly, to do this certain questions need to be answered, namely how did the phenomenon of fragmentation come about? What is fragmentation? What military groups does it have? And how does it display itself in environmental law? Each of these questions will be answered in frolic.The Emergence of Fragmentation in International constabulary Wilfred Jenks was unity of the first to highlight the issue of the fragmentation of world(prenominal) law as early 1953, stating that In the absence of a world legislature with a general mandate, law making treaties atomic number 18 forethought to develop in a number of historical, functional and regional groups which atomic number 18 separate from each other and whose mutual relationships are in just about reckon analogous to those of separate systems of municipal law. Fragmentation is synonymous to the breeding of the outside(a) legal system, which has developed considerably in the post-war era with the formulation of the United Nations, of which approximately 200 natio ns are now members. Furthermore post-Cold War has put one overn an enormous expansion and transformation of the worldwide judicial system, with the number of judicial bodies almost doubling, coupled with an as remarkable expansion and transformation of the nature and competence of these international judicial organs. This means that it is meeting increased concern over recent years, including by bodies much(prenominal) as the International Law fit. Recently the ILC has focused on this subject through its Comission on the Fragmentation of International LawA1 considering the issue to have attained entailment through its proliferation. At its fifty-second session in 2000, the International Law Commission decided to include the topic Risks ensuing from the fragmentation of international law into its long-run programme of work. In the following year, the General Assembly requested the Commission to give promote consideration to the topics in that long-term programme. At its fifty -fourth session in 2002 the Commission decided to include the topic, renamed Fragmentation of international law difficulties arising from the diversification and expansion of international law, in its current work programme and to establish a Study Group. The Study Group adopted a number of recommendations on topics to be bring offt with and requested its then Chairman, Mr. Bruno Simma to prepare a study on the decease and scope of the lex specialis rule and the question of self-contained administrations. At its fifty-fifth session in 2003, the Commission appointed Mr. Martti Koskenniemi as Chairman of the Study Group. The Group in like manner set a tentative schedule for its work, distributed the studies decided in the previous year among its members and decided upon a methodology to be adopted for that work. A2Fragmentation as a Phenomenon According to some, Fragmentation is a term used to describe the inadequacy of certain corrective procedures in addressing an ever more cong ested ashes of international law.This is partly due to the emergence of a large number of international commandments over such a short period of time. These regulations now reach to an increasing number of interrelated subject areas and specialisations. According to Koskenniemi (2006) what once appeared to be governed by general international law has now become the field of military operation for such specialist systems as trade law, human rights law and environmental law. Most international treaties exist parallel to one another and are further developed without the benefit of consideration being given to potential conflicts with other agreements either during their negotiation or at a later stage of their existence, this has had the effect of, in some circumstances, creating a somewhat disharmonious medley of instruments, rife with overlapping and conflicting legal mandates (Hafner, 2004 Scott, 2011). Essentially he is saying that the lack of a general legislative body has res ulted in a decentralised system, with the possibility of conflict between treaty regimes. Much of the literature dealing with fragmentation of general international law focuses primarily on the effect of fragmentation on international judicial institutions and dispute settlement bodies, and the contribution, as a result of extension of these institutions, to fragmentation. However in this subject area the term conflict can be interpreted differently by different agents, with some arguing for a narrow definition and others for a wider definition. This means that there are different types of conflict that can occur, Jenks and a number of other legal scholars endorsed the narrow definition, stating that conflict in the strict sense of direct incompatibility arises only where a party to the two treaties cannot simultaneously comply with its obligations under both treaties although Jenks also adjudge that the narrow definition might not cover all divergences and in constituteencies be tween treaties. The narrow position is evermore being challenged by critics who argue that this position is peculiar(a) in that it does not include (among others) incompatibilities between obligations or permissions for example. Erich Vranes argues for a wider definition stating that if one of the norms is necessarily or potentially violated this should also be included, however some critics further assert that these wider definitions do not sufficiently cover all of the various incompatibilities that can occur between fragmented regimes. This has led some authors to consider fragmentation to also include elements of policy conflict, the International Law Commissions (ILC) definition of which is given as a situation where two rules or principles pop the question different ways of dealing with a problem and may be considered more appropriate, Asselt states further that this is provided that these different ways of dealing with a problem are contradictory rather than complimentary a s will be discussed an overlap in regime coverage may not necessarily produce nix outcomes.The Impacts of FragmentationHafner (2004) states that fragmentation may authorize to the erosion of general international law and its institutions, involving the loss of its believability and ultimately its authority. Others make similar points, that such disagreeable jurisdictions and institutions may contribute to a loss of perspective on international law, lead to its uncertain development and create a lack of synergy, with one author stating that with congestion comes collision, and often friction. To others, fragmentation challenges international laws stability, consistency and comprehensiveness. It has been described as leading to inefficiencies for example through the doubling of stews, which can diminish the effectiveness of international law because scarce financial, administrative or technical resources may be wasted. The effectiveness of international agreements can also be sign ificantly hampered if conflicts between the agreements lead to uncertainties over their interpretation and, consequently, their implementation and overall application. To draw a few of these criticisms down into an example, The MOX Plant case could be said to demonstrate inefficiencies and friction where the regime under the United Nations Convention on the law of the Sea of 1982 conflicted with the system under EC law. From a substantive perspective it requires complex arguments about which regulation to apply, which may lead to more conflicts. This demonstrates the difficulties in providing an answer, the problems of coherence raised by the MOX plant case, for example, have not already been resolved in some legal heaven so that the only task would be to try to find that pre-existing solution. However the impacts of fragmentation may be more prominent from a secondary law perspective. Major problems arise when a state could resort to different mechanisms of enforcement in resolvin g one problem. Answers to legal questions become dependent on whom you ask, what rule-system is your focus on. States may resort to the mechanism that best suits their interests (though this can be views as good or bad). Furthermore the settlements are only reached in one system. This could undermine the tendency towards homogenous international law and engender additional uncertainty of standards to be applied to a given case. While some see the large problems mentioned such as an overarching loss of legal security others see a mere technical problem. Fragmentation is also viewn in a verificatory light, as an inevitable symptom of the international communitys rapid response to a host of emerging and ever more complicated pressures. To this end its greater course of specialisation may present more opportunities to accommodate the unique needs of certain situations, through for example dispute settlement mechanisms, and this may in turn enhance a states likelihood of compliance. Ov erlaps also gives rise to the potential for improving synergy between obligations, making them more mutually supportive and enhancing their implementation (Scott, 2011). Though, check to others, fragmentation is not inherently negative and there are both positives and negative consequences that can be drawn from the phenomenon.Fragmentation in Environmental LawInternational environmental law is one of the fastest developing sub disciplines of international law, it serves to address all of the emerging global environmental challenges that are now being revealed according to modern science. Despite being less than 50 years old in 2017 (its basic framework being established in 1972 with the adoption of the United Nations Stockholm Conference on the Human Environment) it has now proliferated into over 200 multilateral treaties associated with a host of emerging environmental issues. In fact to date the greatest number of environmental agreements/protocols/amendments have emerged betwee n the years of 1990 and 1999, making them less than 27 years old (Kolari, 2002 Mitchell, 2016). Given its sexual congress infancy and the remarkable speed of its development, the IEL sub-discipline is particularly prone to examples of fragmentation. IEL may be distinguishable, or even unique in its interaction with fragmentation compared to other sub-sects of international law for certain reasons. For example as a sub-species and as a result of inter-disciplinary fragmentation IEL displays more examples of intra-disciplinary (or inter-sectoral) fragmentation. Intra-disciplinary fragmentation entails that each of the broader sub-disciplines of international law consist of various sectors. This manifestation of fragmentation is disciplinary-specific and essentially relates to fragmentation between the various sectors which form part of the IEL sub-discipline. IEL is further outstanding in that its nature has led to the proliferation of a number of soft law instruments and protocols, the more primary normative mechanisms of which include (among others) conventions, protocols, subsequent treaty institutions, competent authorities, rules, procedures and governance instruments. This means that it may better butt against examples of fragmentation that fit into the wider definitions discussed earlier, when compared to other forms of international law. However in the terms of these primary normative rules the more cumbersome, duplicative, conflict-ridden, and confusing the international environmental governance effort is. Collectively however these weaknesses may also be referred to as governance inefficiencies, which, in the environmental context, may not be conducive to sustainability. A aboriginal concern in this regard may be associated with IELs credibility, which fragmentation is likely to threaten. This is particularly concerning in the case of environmental law, because as Bailey (1999) states at the governmental level environmental agreements are often alre ady plagued with a number of credibility issues, including those related to its authority, such as those associated with a lack of enforceability. Thus any additional flaws in the credibility of environmental instruments created by fragmentation will only act to exacerbate this problem.Managing fragmentationGenerally, both the doubling of efforts and conflicts between environmental agreements require a imperious approach to harmonization and coordination in order to provide for greater coherence and, accordingly, enhanced efficiency of international law. Ultimately, regardless of the position taken, fragmentation needs to be examined and managed, such that any negative effects can be minimised, and any positive maximised. But if fragmentation is in this regard a natural development (indeed, international law was always relatively fragmented due to the diversity of national legal systems that participated in it) then it is not obvious why the Commission should deal with it. There ar e good reasons for concerns. As the international legal system has developed so far, it has had little experience with fragmentation, and its rules have not evolved to deal with fragmentation in a satisfying way. A3http//www.glogov.org/images/doc/WP30.pdfIt can be said that fragmentation reflects the high political salience of environmental issues and their particular problem structure, and should be regarded as a strength rather than a weakness of environmental co-operation(Oberthr and Gehring 2004 369). However, the multiplicity of institutional arrangements, and consequently the overlapping of regimes, could also cling a threat to the coherence of international environmental governance. In dealing with interactions, it is therefore important to aim at strengthening the overall coherence of international cooperation, by exploiting the synergies between different agreements, and minimising potential or actual conflicts.
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