Research Handbook on Global Climate Constitutionalism
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Research Handbook on Global Climate Constitutionalism

Edited by Jordi Jaria-Manzano and Susana Borrás

Climate change is causing traditional political and legal concepts to be revisited. The emergence of a global polity through physical, economic and social interaction demands global responses which should be founded upon new principles and which cannot simply be modelled on traditional constitutionalism centred on the nation-state. This Research Handbook explores how to build this climate constitutionalism at a global level, starting from the narrative of Anthropocene and its implications for law. It provides a critical approach to global environmental constitutionalism, analysing the problems of sustainability and global equity which are entwined with the causes and consequences of climate change. The Handbook explores how to develop constitutional discourses and strategies to address these issues, and thereby tackle the negative effects of climate change whilst also advancing a more sustainable, equitable and responsible global society.
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Chapter 10: Climate change as a common concern of humankind: some reflections on the international law-making process

Bharat H. Desai and Balraj K. Sidhu

Abstract

Climate change has emerged as one of the pre-eminent environmental challenges at a global level. Its characterization as a ‘common concern’ of humankind by the United Nations General Assembly (Res A/RES/43/53 of 1988) has brought it to special attention in the international law-making process. Endeavours over the past three decades provide us with some lessons in normative process at work to address this crucial issue. The incorporation of criteria of ‘differentiation’ in the regulatory technique enshrined in the 1992 UN Framework Convention on Climate Change is significant in the climate context. But has the 2015 Paris Agreement diluted this key characteristic of the climate change regime? The uniqueness of the climate change challenge raises questions as regards the largely ‘transboundary’ context in which inter-governmental negotiations on environmental issues take place. The processes at work, as well as the tools, techniques and terminology used and the institutional framework within which these processes take place, provide lessons for the development of a larger corpus of multilateral environmental agreements designed in the ‘framework convention’ mode, and for their utility and effectiveness in achieving their objectives. Can any specific pattern in the international law-making process be discerned? It is in this context that the chapter seeks to examine some legal issues.

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