Managing Institutional Complexity: Regime Interplay and Global Environmental Change

3. Legal and Political Approaches in Interplay Management: Dealing with the Fragmentation of Global Climate Governance

3 Legal and Political Approaches in Interplay Management Dealing with the Fragmentation of Global Climate Governance Harro van Asselt This chapter focuses on ways of dealing with the fragmentation of international regimes on climate change and the subsequent interactions among them. It assesses various means of interplay management with a view to enhancing synergy and mitigating conflict between regimes in this issue area. Whereas other authors have focused mainly on the political aspects of interplay management (e.g., Stokke 2001; Gehring and Oberthür 2006), I employ a slightly wider angle by including the role of international law. Although international law by itself cannot deal comprehensively with the fragmentation of global climate governance, it offers some relevant avenues for addressing conflicts between environmental and nonenvironmental treaties. However, there is a need to complement these approaches with political efforts aimed at enhancing coordination and cooperation between environmental regimes. Anthropogenic climate change has many wide-ranging impacts on the natural environment and society, and various human activities and sectors of society contribute to increased concentrations of greenhouse gases in the atmosphere. Because of the intricate connections between climate change and other issue areas, there are interrelationships between the global climate regime and other areas of international law. Notwithstanding the relevance of these other areas, the lion’s share of international law on climate change is still to be found in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and its 1997 Kyoto Protocol, and in decisions made by the Conference of the Parties (COP) to the UNFCCC and the Conference of the Parties serving as the Meeting of the Parties (COP/MOP) to the Kyoto Protocol. Issue coverage of the treaties in question frequently overlaps, sometimes to a large extent, causing “treaty congestion” (Brown Weiss 1993, 679; Hicks 1999), with potential consequences for their effectiveness. To give but a few examples: climate change is affecting and will continue to affect flora 60 Harro van Asselt and fauna protected under various biodiversity-related treaties (IPCC 2002; SCBD 2003); substitutes for ozone-depleting substances promoted under the Montreal Protocol may increase greenhouse gas emissions (Oberthür 2001; Oberthür, Dupont, and Matsumoto in this volume); certain forms of oceanic carbon sequestration, a potential form of climate change mitigation, may be in violation of the law of the sea (Scott 2005); bilateral or regional investment agreements may prohibit the kind of conditioning of investments promoted by the Kyoto Protocol’s flexibility mechanisms (Werksman, Baumert, and Dubash 2003); and so on. In short, the very nature of climate change as an issue of sustainable development makes it almost impossible to capture all relevant aspects under a single legal regime, necessitating the consideration of interactions with other regimes (van Asselt, Gupta, and Biermann 2005). This fragmentation of global climate governance poses a significant challenge, as different international norms may have a bearing on any given situation. By “fragmentation” I refer to the increased specialization and diversification in international governance arrangements, including the overlap of substantive rules and jurisdictions. The implications of this fragmentation may take the form of conflicts between treaties, but they may also take the form of synergies. These conflicts and synergies between regimes are not always apparent from the rules agreed on at the international level. Tensions below the surface could lead to divergences in the implementation of different treaties. Similarly, it is not always necessary for two treaties to state their mutual supportiveness in order for states to implement them in a synergetic fashion. One might argue 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” (Oberthür and Gehring 2004, 369). However, the multiplicity of institutional arrangements, and consequently the overlapping of regimes, could also pose a threat to the coherence of international environmental governance. For interplay management, it is therefore important to strengthen the overall coherence of international cooperation by exploiting synergies between different agreements while minimizing potential or actual conflicts. The scope of this chapter is limited to horizontal interactions between the climate regime and other multilateral regimes. It does not examine vertical interactions between, for instance, the climate regime and EU policies (see Oberthür 2006). Nor does the chapter deal with all political approaches in interplay management: it focuses on cooperation and Legal and Political...