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Download the slides of Sandra Dennis and Christian Koenig[1]

Summary

Instantly emerging challenges like the world financial crisis in 2008 and 2009 provide evidence that the traditional international law principles of national jurisdiction and State sovereignty foster artificial barriers for necessary interventions directed instantly to the cause and effects of a crisis. The same is even true with regard to day to day phenomena of the internet world. For instance, the maintenance of the State monopoly on gambling provides strong evidence of failed regulation on the basis of national jurisdiction and State sovereignty in the online world while the attractive online offers on gambling or holdem poker are supplied by very professional providers acting from Gibraltar, Malta or the Caymans through powerful servers leaving the State monopoly as a toothless tiger behind. Examples of instantly emerging (environmental) challenges from outer space, the Arctica, Antarctica or the high seas enlighten the shortcomings of traditional international law as well.

International law should be construed more efficiently as a part of the solution of the challenges, and not as part of the problem. Therefore, law must neither be made nor be interpreted as a mere accumulated trend of past evaluations, conditionings, States' compromises and decisions. However, law is to be understood as a necessity driven to the present and future oriented process of decision making, in order to work out and to implement efficient remedies to instantly emerging challenges.

Christian Koenig elaborates on a utopie to free international law from its past oriented conditionings taking into account his practical and theoretical expertise on European supranational regulation without neglecting the shortcomings of regionalism.

Résumé

L´émergence de crises à échelle mondiale telles les crises financières de 2008 et 2009 ont mis en évidence l´incapacité d´un droit international basé sur les principes traditionnels du primat de la souveraineté des états et de la juridiction nationale à répondre efficacement a des challenges de dimension mondiale. Plus encore, ce droit constitue un obstacle supplémentaire, entravant des interventions nécessaires / une réaction efficace face a ces problèmes.

On retrouve cette même incapacité dans le domaine du monde internet, où notamment les politiques défendant sur la base de régulation a l´échelle nationale le maintien des monopoles d´état sur les jeux de hasard ont relégué ces monopoles au rang de tigres édentés face aux offres online de Hold´em poker ou de d´entreprises basées a Gibraltar, à Malte ou aux Iles Caïmans.

Dans le domaine de l´environnement également, le droit international traditionnel n´est pas en mesure de fournir de réponses efficaces à des problèmes d´envergure mondiale, qu´ils concernent l´espace, l´antarctique ou les océans.

Il est indispensable de repenser le droit international comme une partie de la solution et non plus comme une partie du problème. Pour cela, il faut nous éloigner d´une notion statique de droit qui serait une accumulation d´évaluations, de comportements et de décisions passées et de compromis entre les états. Il nous faut repenser le droit comme un processus dynamique de décisions Conduit par la nécessité de réagir de façon efficace a des challenges présents et futurs.

Christian Koenig nous présente son utopie d´un concept de droit international libéré du carcan de ses principes traditionnels. Il se base sur ses expériences théoriques et pratiques dans le cadre de la régulation supranationale européenne, tout en prenant en considération les éventuels déficits que présente le processus de régionalisation.

Text of the lecture :

Introduction

It is no surprise that the legal profession tends to be a conservative one.  One of the fundamental tenants of the rule of law is that legal rights, procedures, decisions and remedies should be predictable - certainty is highly valued.  However, there is a danger of this traditionalism, this predictability, existing for the wrong reasons.  It is correct that citizens of a legal system should know their rights and privileges, their boundaries and the consequences of breaking the social covenants which have been formalised in law.  Nonetheless, there is a risk that the legal philosophy can become entrenched in itself - a mere accumulated trend of past evaluations, conditions, states´ compromises and decisions.  The authors believe that law should be more than this rigid and self-perpetuating construct.  Legal systems should be oriented forwards, rather than backwards.  Indeed, it must be so, in order to address modern circumstances usefully.

Quite simply, the rules of the game have changed.  Moore´s Law predicts that the number of transistors on a computer chip will double every 18 - 24 months.  If technology can change that fast, is it any surprise that legal structures have not kept pace?  In 1969 humankind could for the first time look back at the Earth whilst standing on another celestial body.  The world the Apollo 11 astronauts looked back on is not one with broad red lines painted on it, yet this is how we have traditionally identified ourselves in law - as citizens of or visitors in geographically distinct states.  However, wind patterns and pollution do not respect these boundaries - global warming is global.  Nor can human constructs truly be contained within the artificial boundaries states seek to establish.  The internet belongs to everyone and to no one.  In spite of their (sometimes best) efforts, states are at the whim of the global whole, only able to sit back and watch as capital and culture travel the world.  Isn't it time that our legal conceptions adapted to the reality of our globe?

There are a great number of examples of modern circumstances which illustrate the need for a new approach in the coming century; this paper will focus in particular on two very different areas: (i) internet governance and regulation and (ii) large-scale transnational environmental issues.  In each section we will first describe briefly certain aspects of these topics which present particular challenges for the traditional international legal paradigm and then go on to consider whether alternative, creative approaches to those challenges might be more effective than the paths being taken by governments today.  We have tried to incorporate lessons from history, without being constrained by those experiences.  It is also our intention to provoke thoughtful debate, rather than to advocate specific rules and remedies.

Part 1:  Internet Governance and Regulation

Introduction

The language in which speak of "the internet" and its related aspects ("internet gambling", "internet commerce" or "internet governance") very much evokes our sense of the physical universe.  We speak of "visiting" websites as we visit stores and of "sending" email as we send parcels and letters.  However there is no one "internet", and what of it there is, is not a "thing".  The internet we all think of is really comprised of thousands upon thousands of internets - different networks of computers linked together, with those networks themselves linked together.  There is no single central point, no single central machine or network of machines to which all other networks must be connected, or through which internet surfing or email must pass.  The global internet is entirely decentralised - a "map"[2] of it, in so far as such a thing is possible, shows many clusters of lines each denoting a physical connection between computers (such as fibre optic or telephone cables).  It is continuously growing and changing, with no set path or structure.

The "internet" we think of is also quite simple, and purely functional.  The network itself simply moves data from one computer to another via traditional telephone cables, fibre-optic networks or wireless radio technology.  Any more "interesting" aspects of the internet - websites, online games, email accounts, etc, all exist in a physical computer sitting in a physical location somewhere.  The simplicity of the internet is easier to conceptualise when you consider that in December 1969 there were four host computers connected to each other through the internet (a network known as DARPANet, a project funded by the US Defence Department).  Over time, the number of computers connected to each has grown dramatically,[3] as have the number and kinds of activities we use the network to undertake, but the nature of the internet itself has stayed the same.

Naturally, as the internet has become a greater part of our lives, many of the "real world" issues that governments and legal systems regulate have crept up in the world of cyberspace.  In this section we will look at some of the difficulties in regulating something that is 'everywhere yet nowhere' and consider two points of view about the law of the internet.  One holds that the internet is a new forum for old laws, and while yes, laws need to be updated and modified to take account of the technical and transnational nature of the internet, fundamentally, it is still a place of commerce, communication, etc, which can be subject to typical state jurisdiction and regulation.  The other view is that the technology has given rise to a whole new realm, one not suited to the traditional concepts of national jurisdiction and state sovereignty.  In particular, we will analyse these issues within the context of nation states´ ability to control their citizens´ access to content on the internet.

Law is still related to land

The case can be made that discussions of the "law of the internet" are not really discussions about the internet at all.  As we have seen, the internet is not a "thing".  There is no one "internet" "located" somewhere, not even inside a computer or network of computers.  At most, it can be contemplated as a structure in which information travels from point A to point B, but what remains key is the nature of points A and B - those locations are capable of being discussed in the "real" (physical) world.  Thus discussions of the law of the internet are really discussions about the laws of A and B, and what those laws say in particular about commerce or communication undertaken through the means of data transfer on the internet.

Many legal discussions regarding the internet centre on a number of basic questions of law in different jurisdictions; such questions have already had to be dealt with in the past, as technology brought us the ship, railroad, telegraph, telephone and airplane.

• If two people in different countries enter into a contract, which country's law prevails?

 

• If a person in one country purchases an item from a company located in another country, and the item fails to arrive or is faulty, which country's law governs the matter?

 

• What if a person in, say, the US views an image posted online in Japan, the contents of which are illegal or prohibited in the US? Can the person posting the image in Japan be prosecuted under US law?

 

• Does the fundamental nature of the internet excuse it from having to comply with local laws in some cases? For example, does content on a webpage have to comply with the law of every single country in the world in which it can be viewed, even if those laws conflict? If not, why is content on the internet exempt from national laws when someone selling cars has to comply with the laws of every country in which it makes those sales?

Yahoo v France

Probably the best known case addressing some of these physical-world issues in the context of the internet is that of Yahoo and France.  Yahoo offered several auction services online (including a US-oriented site, and a French-oriented site), the websites of which were freely accessible worldwide.  Yahoo is a US corporation, incorporated and with its place of business in the US.  However, French law prohibits the display or sale of Nazi-related items or images, punishable by a fine and/or imprisonment. Yahoo´s US auction site contained a variety of Nazi memorabilia, which was accessed online by French internet users (though Yahoo France complied with French law and no such material was available on that site).  The question then became - was Yahoo the US company subject to French jurisdiction?   Did French law apply to a foreign company, to content generated outside of France?

The French courts clearly thought so, ordering that Yahoo take all necessary measures to dissuade and make impossible any access via yahoo.com to the auction service for the relevant material.  In practice this would have meant using IP addresses as well as possibly manual nationality confirmations from website users, which Yahoo argued were not technically practicable.  Yahoo contested the French court's jurisdiction and its claim that that judgement infringed the US First Amendment right to free speech was upheld in US courts. Thus the result was a legal stalemate, although in the end Yahoo voluntarily removed all Nazi-related listings from its auction sites, largely as a result of the negative publicity generated by the affair.

Of particular note in the Yahoo case is that two Yahoo entities were involved - Yahoo US and its subsidiary Yahoo France.  Yahoo France did not dispute the French court's jurisdiction and complied with the court order by inserting a notice on its auction sites warning French users they might be violating French law if they view certain web pages on the US site.  It is also likely that Yahoo was compelled to "voluntarily" remove the offending material as it had assets in France, and was facing daily fines for failure to comply with the French ruling.  However, assume for a moment that Yahoo France was not involved and that the French courts were asserting jurisdiction over a foreign company with no assets in France.  In that case, what power might the French government have to impose its authority over a foreign company?

Internet Service Providers

In technical terms, the most obvious way of controlling access to content is by requiring Internet Service Providers ("ISPs") to block certain content from reaching internet users.  Effectively this would be a large scale firewall, similar to what many companies use to restrict employees´ access to certain material through office computers.  A government could make it illegal for anyone (ISPs, network hosts, search engines, etc) to publish or distribute the offending content, thereby placing the burden on for example ISPs.  This approach could be used for any number of restrictions, for example restrictions on internet gambling, or access to file sharing websites which the state considers violate intellectual property protections.     However, this approach is not unproblematic.

First, it clearly counters the principle that ISPs are immune from liability as mere carriers or distributors of bits of data being transferred electronically.  This principle has been noted in Article 12 of the EU´s Electronic Commerce Directive, though importantly it is subject to qualifications.[4] Second, critics would argue that this approach encourages privatised censorship, not only restricting freedom of expression, but also doing so in a non-transparent, non-democratic and non-accountable way.[5] Third, such an approach is unconditional - blocked content would be blocked content and could not account for material that is legal for adults to view, but illegal for children to access.

Finally, it does not take account of the technical realities of the internet.  Given that ISP networks stretch across borders (epitomised in the European internal market), how could they deal with the fact that content is permitted in one location, but not permitted 100 meters away?  A French internet user could also simply circumvent the restrictions by making a telephone call to an ISP in another country and browsing via that ISP.  Additionally, if the obligations not to allow access to certain content extended to search engines as well, there are difficulties in always being able to accurately identify the geographic location of a particular IP address - it is possible already to download simple software from website which renders IP addresses anonymous.  Would search engines then be liable for providing illegal content to an internet user when they could not determine his location, or in good faith believed it to other than it was?

The Chinese Approach

If one is not concerned with the moral justifications of such controls, and the state is willing to put in enough time and money in controlling access to internet content, it is possible to make a very good go of it.  China is the obvious example and its controls over its citizens´ access to information operate on three primary bases.  First, it controls the physical access points through which the internet enters Chinese territory.  This means that the government can install proxy servers through which all email and internet traffic must pass at each access point.  It is a technology simple process to block access to certain IP addresses and to search email correspondence for certain key words (such a democracy or the Falun Gong religious movement) and then restrict their delivery to the internet user's computer.  Second, it compels companies (including Western companies, such as Yahoo, Microsoft and Google) operating in the realm of the internet to cooperate with the government's objectives. These companies basically agree to refuse access to website that "disseminate harmful information to protect the Internet uses of China from the adverse influences of the information".[6] They also cooperate with the Chinese government by providing personal information about the senders of emails or writers of blogs the government finds unacceptable.  Very often these individuals end up in prison.  Third, content on the internet is policed by both the government as well as censors employed by ISPs and other service providers who fear being held liable for violations of Chinese law by internet users.  Chat rooms, social networking sites and blogs can have comments removed, often almost immediately after being posted.

Code is law

In contrast to the traditional, state-based approach we have discussed so far, there is also another, very different perspective of the kind of law which governs, or relates to, the internet.  That perspective is that law can also be seen as a set of rules and regulations which govern various aspects of life - how we behave, the way in which business is conducted, what rights and obligations individuals and companies have in society, etc.  From that point of view, there is such a thing as the law of the internet, but it has little to do with national legislatures or governing monarchs.  Rather, the laws of the internet are those that that govern on, or within, or to operate the internet, rather than to traditional national laws which govern the behaviour of internet users in a physical location.  The distinction is important and can be summed up in the phrase "code is law":

[S]omething fundamental has changed ... Cyberspace presents something new for those who think about regulation and freedom.  It demands a new understanding of how regulation works and of what regulates life there.  It compels us to look beyond the traditional lawyer's scope - beyond laws, regulations and norms ... In cyberspace we must understand how code regulates - how the software and hardware that make cyberspace what it is regulate cyberspace as it is.  As William Mitchell puts it, this code is cyberspace´s "law."  Code is law.[7]

Lessig´s commentary refers to the fact that the "internet" exists only as code - "the instructions embedded in the software and hardware that make cyberspace work".[8] Cyberspace is a world of language and protocols, rather than a physical realm.  Lessig was not suggesting that code replaces "traditional" laws, but rather that it establishes the rules for what may and may not be done in cyberspace, similar to legal constraints placed upon a physical society.  This gives rise to a fundamentally new type of law-making - the rules and regulations that "govern" how cyberspace works.

IETF

So who governs cyberspace?  Who decides which protocols, in which form, are incorporated into common internet usage?  This power lies mostly with an organisation called the Internet Engineering Task Force ("IETF").  IETF is a large, open international community of network designers, operators, vendors, and researchers who collaborate to set "Internet Standards" which ensure the smooth operation of the internet. It is open to any individual who wishes to join, with no application or fees required.  Its authority rests on the fact that the internet community respects its Standards and broadly adheres to them.

IETF´s process of operation is something like this: any person can initiate a "Request for Comment" procedure, essentially a suggestion for a new internet standard, or a change to existing standards (known generally as TCP/IP after the two most important networking protocols that underpin the working of the internet).  A Working Group is then formed, which is open to anyone who has an email account and who wishes to join in the process. A proposal for a new or revised Standard must complete three circuits within IETF´s governing structure, each time becoming more refined, and being subject to more stringent criteria for approval.  By all accounts, reaching the final stage is a rigorous process.  A proposal becomes a Standard when there has been 'significant implementation and successful operational experience, characterised by a high degree of technical maturity and by a generally held belief that the specified protocol or service provides significant benefit to the Internet community'.

At each step, the decision whether to push on to the next stage is based on two straightforward criteria.  First, there needs to be "rough consensus" - essentially, that most people agree the proposal meets criteria for approval and that it should be approved.  Absolute consensus is not required, and not votes are take; at each stage (Working Group, the next step being Area Directors, and finally the governing body of the IEF (the IESG), there has been general agreement that the proposal is a good one.  The second criterion is that the protocol has to work.  It needs actually to be implemented, without interfering or conflicting with other Standard codes already operating on the internet (a requirement of inter-operability).  The process is transparent, with all information being made available on the internet, and completely open to discussion from anyone who wishes to join the party.

"Traditional lawyers" may argue that what IETF does is regulation rather than law-making, and balk at the notion that such rules and protocols carry "legal" weight.  In fairness, they do not carry weight in a court room - failure to comply with the set Standards is not a crime, and will result in no punishment by the state.  However in functional terms, the effects of non-compliance are probably more damaging than any punishment the state could hope to meet out.  To put it basically, the internet operates as a means of getting data from point A to point B.  If you ignore the Standards, your data may indeed make its way to its destination, but there is a significant chance that it will not, with this risk depending on how far you deviate from the Standards.  Thus you are not compelled to use the Standards, but you fail to do so at your own risk.

In terms of the legitimacy of the law-making process, the work of IETF may actually trump "traditional" legal methods.  Professor Michael Froomkin has drawn upon the work of legal philosopher Jürgen Habermas and argued that the IETF process has a kind of moral legitimacy that few government legal edicts can claim.  Froomkin [9] argues that IETF´s rule-making procedures go a long way to satisfying the criteria Habermas set out for determining whether a rule-making system can "claim legitimacy for its outputs": "(1) it is open to all who want to participate, (2) any participant can introduce any proposition into the discussion, or challenge any proposition previously introduced, (3) no speaker is prevent from excising the rights in (1) and (2) by any kind of coercion internal or external to the discourse, and (4) only the "unforced force of the better argument" determines the responses of the participants to any proposal".[10] Few other law-making organisations, and almost certainly no "traditional" legal fora, can claim to match these standards.

Let us set the example of IETF along side a more "traditional" approach to "the internet".  Our current internet is a product of organic, decentralised growth, functional in nature and efficient by need rather than by design.  Though often now forgotten, there was a previous attempt to "build" the internet by the United Nations in the late 1970s and early 1980s.  The "Open Systems Interconnection" ("OSI")[11] project attempted to implement a network architecture which resembled the then-existing centralised telephone networks (in contrast to the more successful TCP/IP approach which is decentralised, and which ultimately became the internet we know today).  The OSI envisaged one "internet" network per country - an internet based on the UN´s version of the map.  Each national internet system would then be linked with other national systems.  For a while, the OSI was the "official" internet.  Many governments mandated its use and it was actually illegal to use TCP/IP over German telephone lines.  Perhaps the worst aspect of the OSI project was it´s exclusiveness.  Anyone wishing to contribute to the development of OSI protocols had to have a seat at the UN - a rather different approach to that of TCP/IP and IETF.

ICANN

The internet boom which began in the 1990s brought with it a particular problem.  Almost overnight, demand for domain names skyrocketed.  As we all know, domain names have become highly valuable and much-used in e-commerce, communication and even our private lives (family blogs, for example).  Originally maintained by a small team at the Information Scientists Institute at the University of Southern California and certain IETF committees and working groups, and funded by the US government, the system of managing domain names on the internet (known as the Domain Name System, or "DNS") is now in the hands of a California-registered non-profit organisation called ICANN (the Internet Corporation for Assigned Names and Numbers).  ICANN was formed in October 2008 at the urging of the US government and tasked with oversight of the technical side of domain name management, determining what top-level domain names would exist and coordinating "the assignment of other Internet technical parameters as needed to maintain universal connectivity on the Internet"[12].  So, does this mean ICANN is "in charge"?

ICANN is certainly a unique kind of organisation - a hybrid of a regulatory institution which governs via its control over technical operations of the base structures that organise information on the internet.  Essentially, ICANN controls the basis of root domain names (.com, .co.uk, .org, etc) and can impose contractual and technical obligations on anyone who wants to use a top level domain (so basically everybody).  ICANN also deals with domain name disputes, including for example cybersquatting.  Following notification of a dispute, an arbitrator is appointed to hear the claims; enforcement of the arbitrator's judgement is done through amendments to the domain name database maintained by ICANN and its authorised operators (known as "Registries").  All of ICANN´s Registries are obliged to remove or modify the entries in their databases in accordance with the arbitrators´ decisions.  Such is the power of ICANN to determine which top level domain names exist, or do not.

In the traditional sovereign, national legal order, ie with a body or government which can set fines, seize property or imprison offenders, what ICANN is doing is not "law"; it does none of these traditional things that are contained in traditional legal systems.  However, it seems very much to operate as law: it defines the rights and obligations of real and legal persons, contains a binding dispute resolution process and possesses a means to enforce its judgements.  Indeed, ICANN is an excellent illustration of the way in which a body can govern a specific transnational field in a functional manner.  ICANN has no need for typical state methods of coercion, because it controls the very structure in which people and companies wish to participate.  Non-compliance with ICANN´s terms and conditions results in exclusion from top level domain names and no further enforcement mechanisms are necessary.  ICANN employs "electronic" rather than physical force.

Conclusions

We have seen that nation states can have more success in regulating their own citizens' access to material on the internet than they can controlling the functioning of the internet itself.  For all that we have discussed the potentially negative aspects of government control of ISPs, when the context of that control is altered, few would disagree that governments should be exercising these controls, at least in some areas.  We have seen that the Electronic Commerce Directive obliges ISPs in the EU to undertake monitoring obligations in certain cases.  These controls have been exercised in order to deny access to child pornography websites, or the in the case of the UK, illegal adoption websites.  China of course goes further, seeking to protect its citizens from what it perceives as harmful information, as does the government of Saudi Arabia, which blocks access to websites about pornography, gambling, drug abuse, and those containing information on how to circumvent the government's filtering and sites that promote religious dialog between Muslims and Christians.[13] However, these kinds of extensive controls require vast resources, in both financial terms as well as in terms of man-hours (not to mention being costly in terms of civil liberties).

The question should therefore be asked, whether organisations such as IETF and ICANN can be placed in the context of the traditional international law paradigm, in which states exercise control of their territory, claim national jurisdiction and state sovereignty, and perhaps offer up alternative approaches to the internet-related issues being dealt with by governments.  IETF and ICANN illustrate how an organisation, tasked with a specific role, can carry out that role (and enforce its decisions) in a functional manner, beyond the traditional structure of the nation state.  Rather than seeing these two realms as separate and distinct, it would seem that states might do well to take account of the approaches used by organisations such as IETF and ICANN, and adopt similarly specific, functional and technical approaches to issues of internet governance and regulation.

Part 2:  Global warming and other large-scale transnational environmental issues

Introduction

The recent United Nations ("UN") Climate Chance Conference held in Copenhagen in December 2009 made headlines for all the wrong reasons. The Conference was plagued by an inability to find consensus amongst developed and developing countries as to how best to tackle issues of climate change and, to put it bluntly, money - who should bear the costs of halting climate change.  Having hoped to reach a binding agreement that would succeed the Kyoto Protocol, the Copenhagen Conference produced only a non-binding accord, revitalising the debate over whether the Kyoto-style approach is best after all.

In this section we will review briefly the nature of the Kyoto approach to climate change and consider some of the major criticisms of that approach.  The majority of this section will be dedicated to considering some alternative perspectives on how best to tackle large-scale environmental problems.  If there are viable alternatives to the Kyoto approach, what might these entail, and are there any historical or modern examples of approaches to large-scale transnational issues which might illustrate better options?

Kyoto (and Copenhagen)

The Kyoto Protocol to the United Nations Framework on Climate Chance was adopted on 11 December 1997 and entered into force on 16 February 2005 following its ratification by the Russian Duma.[14] As of December 2009, 189 states have signed and ratified the Protocol, notably, not including the United States.[15] Under the Protocol, 37 "Annex I" countries (industrialised countries and economies in transition) commit to reducing their emissions of certain greenhouse gasses to targets set below (usually[16]) 1990 levels (a reduction of approximately 5.2%).  A sub-set of Annex I countries (the "Annex II" countries) are developed countries which pay for costs of "Developing Countries".  Developing Countries are not obliged to reduce emission levels unless developed countries supply enough funding and technology.  The Protocol allows for several "flexible mechanisms" such as emissions trading, the clean development mechanism and joint implementation to allow Annex I countries to meet their emission limitations by purchasing emission reductions credits from elsewhere, through financial exchanges, projects that reduce emissions in non-Annex I countries, from other Annex I countries, or from Annex I countries with excess allowances.

The Protocol is "binding" in that it contains measures to assess performance and progress as well as penalties for countries´ failure to meet their emissions targets by the end of the first commitment period (2012).  Such countries must make up the difference in emissions plus a penalty of 30 per cent in the second commitment period. Their ability to sell credits under emissions trading will also be suspended.

Much of the criticism around the Kyoto Protocol is over political realities and the limitations of the Protocol.  The world's largest producer of carbon emissions, the United States, signed the Protocol but never ratified it, citing the impact compliance with its emissions targets would have on its economy, particularly given that countries such as China and India were classed as "Developing Countries" and therefore not subject to the same kinds of reduction requirements as the US.  Other critics have said a five per cent cut in emissions of Annex I countries will accomplish little in terms of the massive scale of the problem.  They argue that climate change is vastly more complicated than simple emissions into the atmosphere and that a wholesale adjustment of human behaviour is needed.

Regardless of one's view on the usefulness of the Kyoto approach, there is at this point in time an opportunity to re-open the discussion on the best approach to deal with large-scale environmental issues, including climate change.  The Kyoto Protocol contains commitments only to the year 2012; thereafter a second set of emissions reduction commitments will need to be agreed (and was intended to be agreed in Copenhagen).  In Copenhagen certain general principles were agreed (eg restricting global temperature increases to 2°C above pre-industrial levels, measures to reduce deforestation, pledges of funding from developed nations) but with states not making binding commitments to emissions reductions.  Any binding commitments will have to be negotiated at the next Climate Change Summit, to be held in Mexico later this year.  However, the possibility also exists, that the international community could choose to take a different path.  For so long Kyoto has been "the only game in town", but given the entrenched disagreement between developed and developing countries over the sharing of costs and burdens of the Kyoto approach, perhaps the time is right to consider a radically different approach.

Need for a new approach

The spirit of the Kyoto approach is to look for a global solution to a global problem.  Under the auspices of the UN, it seeks to be globally inclusive - as all countries are affected by the issue of global warming, all countries should have a say in determining solutions.  However admirable this inclusive approach may be, it ignores a fundamentally important fact.  Not all countries are equally capable of having a real effect on large-scale, transnational environmental issues.  Not all countries produce emissions on the same scale and so any reductions necessarily need to come from those countries whose reductions might actually make an impact on the problem.  On a more complex level, economic imbalances in the global economy mean that any structural adjustments to how natural resources are used, or methods of production, or changes in the way of life of humans, need to come first and foremost from countries who are capable (if currently unwilling) to implement such changes.

It seems clear that an alternative, or at least additional, approach to large-scale transnational environmental issues is needed.  The question of how "radical" such approach should be, is a matter of opinion.  Certainly we would argue that a new approach would need to incorporate a number of fundamental characteristics.

• Firstly, it should be functional, rather than ideological. The time for grand statements of principle has passed; what is now needed is a more practical, pragmatic approach to specific issues or problems, capable of making a real impact on the problems at hand.

 

• Secondly, it should be in the style of contractual obligations, rather than value-based cooperation.

 

• Thirdly, it should not be afraid to discriminate. There is no escaping the reality that certain countries can have more of an impact on these problems, which means that any solutions to be implemented quite simply must be palatable to those countries.

 

• Fourthly, it should be innovative. Countries should resist the urge to throw good money after bad, and actually look for radical new technological approaches.

 

Each of these characteristics is considered in detail below.

1.  Functional rather than ideological

It seems certain that international cooperation in order to achieve specific aims is more fruitful than declarations of principles without concrete objectives and methods of achieving those objectives.  We identify below a few examples of functional transnational cooperation which have been effective in vastly differing areas.

Transnational cooperation

Firstly, environmental cooperation on a transnational basis makes sense, as regions of states often decide to that working together is the only way to protect a particular geographic feature common to all of them.  For example, the states bordering the Baltic Sea (Denmark, Germany, Sweden, Estonia, Finland, Latvia, Lithuania, Poland and Russia) agreed in 1974 that the best way to manage the resources of the Baltic Sea was to establish a joint commission to oversee regional cooperation.  The 1974 agreement was updated in 1992, with the specific aims of reducing pollution of the Baltic Sea area caused by discharges through rivers, estuaries, outfalls and pipelines, dumping and shipping operations as well as through airborne pollutants.  The parties to the Convention agree to undertake all appropriate measures and work together to control and minimise pollution from land-based sources, including adhering to a full ban on the use of several hazardous substances in the Baltic Sea area.[17] In this way, although one state must agree to restrict the behaviour of its citizens, it is safe in the knowledge that others states are doing the same, and the value of the particular geographic asset is being maintained.

Regional cooperation can also be more technical, in the sense of fulfilling specific operational aims as well as protecting resources.  For example, beginning in 1856 with the Treaty of Paris, the monarchies of France, Great Britain, Austria-Hungary, Russia and Turkey agreed on the need for international cooperation with regard to the Danube River.  These states established the "European Commission of the Danube" to administer the Danube and ensure free navigation on it for all countries.  Over time, wars and changing national boundaries have altered the form and composition of the Danube's international administrative structure, and changing technology and views on environmental issues have altered the aims of the participating states as well.  Now that the free use of the river is well established, the current primary objective of the Danube River Protection Convention is to ensure that surface waters and groundwater within the Danube River Basin are managed and used sustainably and equitably.[18]

It should be pointed out that examples of functional cooperation between governments also exist outside the environmental sector.  A particularly modern concern which has only really developed in the last 50 years or so is international terrorism.  A variety of treaties deal with aspects of terrorist activity, ranging from aircraft hijacking to hostage taking to terrorist bombings to financing of terrorism.  The general structure of these agreements is that each state party agrees to criminalise certain activities as set out in the treaties and that a set of rules is established relating to jurisdiction and prosecution of alleged criminal activity.  In this way, "a kind of treaty-based jurisdiction" is established amongst the parties to the relevant treaties[19].

The European Coal and Steel Community and European Union

Perhaps the pinnacle of functional international cooperation is the development of the European Union ("EU").  On that basis, we will devote a significant portion of this section to that topic.  The roots of the European Union lie in the European Coal and Steel Community ("ECSC") established after World War II to create a common market in coal and steel and assist in the rebuilding of the economies of certain European countries after the war.  In order to achieve its aims, the ECSC was made supranational in nature, with legal personality and common regulatory and judicial institutions.

Over time, and as the realities of the global economy have evolved, the European project has expanded from a free trade area to a customs union, to a single market, to a single market with (somewhat of a) single currency.  At each step of the way, all of its member states have agreed to the expansion and development of the EU´s ambit - such decisions are taken only unanimously[20].

Today, the responsibilities for policy areas and governance in the EU are split between different levels of government.  The treaties of the EU (which can be considered to amount to its "constitution") make clear the areas in which the EU has exclusive, shared, supporting or cooperative competence[21].  When responsibilities are shared between the EU level of government and the national governments of member states, the EU is also instructed to act only  "if and so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States . . . but can rather . . . be better achieved at Union level".[22] Additionally, the limits of EU competence are made quite clear: "competences not conferred upon the Union in the Treaties remain with the Member States"[23]. The EU is instructed to "respect [Member States´] essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security" and in particular, "national security remains the sole responsibility of each Member State"[24].

The EU focuses little on regulating or legislating on the basis of ideology (perhaps unsurprisingly given the diversity of the EU´s population).  It does not, for example, legislate on Ireland's abortion law, or on Spain's bullfighting.  To the extent that the EU deals with issues such as environmental protection, gender equality or age discrimination, it is within the context of maintaining the open and free functioning of the common market.   Indeed, it is within the context of market-building and -regulating policies that the EU has had its greatest success.

The EU´s brand of "negative integration" involves removing barriers to trade and carrying out regulatory reform.[25] From the time of the ECSC it has been easier to remove tariff barriers from trade than it has been to remove non-tariff barriers, so much of the EU´s work has related to this.  Goods, capital, services and persons can now all move freely with in the EU, and the Union possesses a single external tariff.  The European Commission is tasked with the majority of market regulation within the single European market, most particularly in the areas of competition law and state aid.

The EU Commission is responsible for investigating all competition law matters if the proposed merger exceeds a certain size, or if the alleged cartel or restraint of trade may affect trade between member states[26].  Member states of the EU have relinquished their right to be involved in the regulation of such cases.  They do, however, still have control over other mergers or alleged restrains of trade which have a predominantly national, rather than transnational, impact.  The Commission's capacities in the area of state aid are even more supranational.  Nominally, the Commission has jurisdiction over any state aid "which distorts or threatens to distort competition . . . in so far as it affects trade between Member States"[27].  However, the Court of Justice of the European Union has interpreted these requirements broadly, meaning that even a relatively small amount of state aid afforded to a relatively small undertaking in one member state falls within the Commission's competence[28].

The EU has always been a functional cooperation between European states.  It is a project, an on-going experiment which adapts to new circumstances, expanding into new policy areas as required, and does not have a clear finalité, or end-objective.  Over time, and as the realities of the global economy have evolved, the European project has expanded from a free trade area to a customs union, to a single market, to a single market with (somewhat of a) single currency.  It has grown from six members, to 27.

What the EU shows us in particular is that it is possible for sovereign states to decide to cooperate in certain matters, on such a scale and in such a manner that they cede their traditional rights to national sovereignty in specific areas, but not in others.  Such a form of international cooperation is particularly useful in areas in which a functional, rather than an ideological or philosophical, approach is needed and might serve as a structural model for potential new forms of international cooperation in the environmental sector.

2.  Contractual rather than voluntary

The structure of the ECSC was revolutionary in terms of the international legal paradigm, in that it created a truly supranational organisation with authority "above" that of the nation state.  The participating states took the decision to grant the ECSC specific powers that violated the traditional concepts of national jurisdiction and state sovereignty, though these powers were very specific and highly functional in nature - they related primarily to the power to regulate behaviours which would distort competition within the common market.[29] The High Authority (the predecessor to the European Commission) had the power to declare anti-competitive contracts void and request information and make checks of undertakings.  In the event that undertakings did not respect these powers, the High Authority could impose punishments such as fines and penalty payments. These powers were established through the Treaty of Paris, signed by the participating states in the "normal" international legal fashion.

Treaties as contracts

Traditionally there have been two "kinds" of treaties in international law, often described as "law-making treaties" (traits-lois) and "contract-treaties" (traits-contrat).  Law-making treaties are intended to conclude an agreement on universal substantive legal principles (for example, relating to human rights) and usually impose the same obligations on all parties to the treaty and seek to regulate the behaviour of the parties over a long period of time.  In contrast, contract treaties more closely resemble traditional legal transactions, ie one country agreeing to lend money to another.  The Treaty of Paris, though sui generis, much more resembles a contract treaty, than a law-making treaty.  As sovereign nation states, the parties to the Treaty of Paris all had legal competence to enter into the Treaty, as would be required of parties wishing to enter into a domestic contract. The Treaty also imposed rights and obligations only on the parties to the Treaty, again similar to a standard contract.

The ECSC was a project for a specific set of countries, at a specific point in history.  Such an endeavour would likely not have been successful had it been attempted at another point in time; the confluence of events in Europe - the devastations of war and the necessity of rebuilding, along with the political will to promote cooperation amongst certain European countries, resulted in this unique structure being developed.  Perhaps today's circumstances involving climate change are not really that different.  The set of countries involved is different - this time not geographically based, as were the countries of the ECSC, but rather based on a common circumstance - being economies responsible for the vast majority of emissions and also being the set of countries most capable through economic means of implementing real solutions to transnational environmental issues.  The issue at hand is also one best dealt with transnationally, and is related to a specific circumstance - today, the issue of emissions and global warming.

The ECSE and its development into the EU of today might therefore illustrate an alternative approach to the issue of emissions and global warming, and indeed other environmental issues.  The relevant states could set up an agency endowed with certain legal rights and responsibilities in specific areas, for example the development of a framework for cooperation in climate change matters, backed up by real, practical monitoring and enforcement mechanisms.  States could choose to cede sovereignty to this international agency to the extent that they are comfortable with - it would, after all, be empowered by the nation states themselves, in the way that the ECSC was, and the EU now is.  The extent of the agency's powers could be set out in the form of a treaty as an international contract - binding and enforceable on the transnational and national level.

The benefit of establishing obligations by contract can be considered in the context of the difficulties of enforcing international obligations absent a contractual structure; there have been a number of claims in international law on the principle of an ergo omnes (rights toward all) obligation.  The Barcelona Traction case concerned the Belgian government's attempt on behalf of Belgian shareholders to bring a claim against Spain in relation to that government's expropriation of a company incorporated in Canada.  The International Court of Justice commented that states have certain obligations to the international community as a whole, and given the importance of the rights involved with those obligations, they are of interest to all states, and therefore are obligations ergo omnes.  Notably, this comment was made obiter dicta and therefore is non-binding.  Barcelona Traction was followed shortly by the Nuclear Tests cases in which the Australian and New Zealand governments attempted to halt the French government's testing of nuclear weapons in the South Pacific on the basis of an ergo omnes right of all states to be free from nuclear tests generally or in violation of the freedom on the high seas.  The International Court of Justice determined that France was not bound by unilateral statements it had made regarding its intentions in the South Pacific and so held that the claim had no object and the court did not deliver a decision on the substance (including the ergo omnes aspect) of the case.

Notably, in the cases described above, the court was considering the ergo omnes rights in the context of customary international law.  When considering realms in which locus standi is granted to a party notwithstanding the fact that he or she is not directly and individually affected by an action, a circumstance which is more likely in the realm of global warming, a more "contractual" approach can be of use.

In the case of the S.S. Wimbledon, decided in 1923 by the Permanent Court of International Justice (the predecessor to the International Court of Justice), the French, British, Italian and Japanese governments brought an action against Germany for violation of Article 380 of the Treaty of Versailles.  That provision stated that Germany was required to provide free access to the Kiel Canal to the vessels of any country with whom Germany was not at war.  Notwithstanding the fact that none of the governments bringing the case had direct involvement with the vessel involved  (the S.S. Wimbledon was an English vessel, charted by a French company and hired by the Polish government) the Court found that the applicant governments had locus standi on two grounds: (i) that they had a general, if not pecuniary, interest in the case as they had a clear interest in the execution of the provisions relating to the Kiel Canal and (more importantly) (ii) on the basis of Article 386 of the Treaty of Versailles, which permitted any "interested Power" ("Power" being a defined term in the Treaty) to appeal to the Court as regarded any violation or disputes relating to Articles 380-386.  The fact that the applicant governments as well as the respondent government were all party to the Treaty made the issue much clearer than it might otherwise have been.

A more recent example of a treaty structured in this way is the 1987 Montreal Protocol, under which any party to the Protocol which believes that another party is in breach of its obligations may bring enforcement proceedings against that party by invoking the non-compliance or dispute resolution mechanisms provided for in the Protocol.  Significantly, the claimant party may bring such enforcement actions without having to show that it suffered damage as a result of the alleged breach.

The European Union as contract

Of course, the most developed system of universal enforceability under a international law comes from the EU example.  The European Commission can bring a member state which fails to comply with its obligations under European law (both environmental as well as other obligations) before the Court of Justice of the European Union.[30] Member states can also bring actions against other member states.[31] In both scenarios, there are administrative procedures to be followed which includes the Commission giving a reasoned opinion on the matter and providing the member states concerned the opportunity to respond to the allegations.   Should the Court find against that a member state has indeed fallen foul of European law, that state will be obliged to take the necessary measures to comply with the judgement of the Court.  Should it continue to fail to do so, the court may impose a lump sum fine or penalty payment on the member state for non-compliance.[32]

The difficulties involved in identifying an ergo omnes principle in customary international law lead us to consider a quasi-contractual basis of universal enforcement