Master Thesis:
Fight about Legal Qualification:
The Pluralization of Legal Identification Process
in the light of the Paris Agreement
Under the supervision of Professor Jean d’Aspremont
Maiko Meguro
Amsterdam Law School
I. Introduction ... 2 II. Towards COP21 & Paris Agreement. - Interaction and recognition of business role in the international forum- ... 5
1. Options for the nature of the Paris Agreement and continuing debate ... 5 2.The decision making process of Japan in international law making ... 9 3.The voice of industrial actors in the eve of the Paris Agreement
... 12
4.Issue of the Form of the Paris Agreement ... 19 5. Concluding Section II ... 21 III. Theoretical evaluation of pluralizing process for international law identification. ... 21 1.Redefining project of international law under different approaches of international law ... 21 2.The pluralization of legal identification - “Who” identify the international law? ... 26 Conclusion – A remark towards future ... 29
I. Introduction
This thesis grapples with the questions on the identification of the legal character of international instruments in the light of the recent debates regarding the legal nature of the Paris Agreement on climate change by shedding the light to the actors who identify such legal character.
What makes international law “law” - this fundamental question has long been struggled by the precedent scholars who have tried to convince the state centric international system is governed, at least to some extent, by international law. The inquiry is now almost abandoned as you see the mainstream scholastic focus has moved on to the substance of rules that changes the behavior of actors rather than determination of legal qualification.1
As a matter of legal theory, the rule of law requires the pre-existing standard of legal identification that distinguishes the legal norms from the non-legal
norms.2 Despite the importance of the recent achievement by ‘the substance
1 See Section III of this thesis.
2 H.L.A Hart, The Concept of Law, (2nd ed, OUP 1994), see his concept of “the rules of recognition”.
3 For example, F. Johns, Non-Legality in International Law Unruly Law, (CUP 2013)
4 H.L.A Hart, supra note. 2, pp.115-116.
2 H.L.A Hart, The Concept of Law, (2nd ed, OUP 1994), see his concept of “the rules of recognition”.
focused’ scholarship since an order is not only consists of legal rules but also various non-legal rules3, the distinction of the law and the non-law based on the predefined standard is the fundamental requirement of the rule of law so that no one may arbitrarily declare existence of law at his own convenience. Thus, the issue of legal identification or qualification is the starting point for the further evolution of legal theories.
H.L.A Hart described that the standard of legal identification is found in the determination of members of a society that accept certain norms as a standard of conduct in their “internal point of view”.4 Following Hart’s formulation, the thesis rephrases the fundamental question above as “who is ‘the members of a society’ whose determination matters in identifying norms of international law.” In international law, one of the most common forms that hosts legal norms is a treaty. In case of a treaty, the legal identification standard is typically found in the practice of actors that identify certain norms as legally binding during drafting. While it is recognized that various private actors have increasing role in the process of international norm generation, the black letter law provides the decision to allow such norms to have binding power under international law still belongs to the limited subjects of international law such as States5 and International Organizations.6
However, as rules of international law increasingly cover the issues, which directly influence the domestic policies and legislation, the legal scholarship came to recognize that the classical divide between the national sphere and the international sphere is gradually undermined. J. Nijman and A. Nollkeamper described this phenomenon as “no longer can we speak of The Divide; it rather becomes a more fluid set of continuities and discontinuities between national and international law.”7 This vanishing divide has been also promoting a structural change in the decision making process for the legal qualification of the norms.
3 For example, F. Johns, Non-Legality in International Law Unruly Law, (CUP 2013)
4 H.L.A Hart, supra note. 2, pp.115-116.
5 Article 1 of the Vienna Convention of Law of Treaties (1969)
6 Article 1 of the Vienna Convention of Law of Treaties between States and International Organizations or between International Organizations (1985) 7 J.Nijman&A.Nollkaemper, Beyond the Divide, in J. Nijman & A.
Nollkaemper eds, New Perspectives on the Divide Between National and International Law (OUP, 2007), p.350
In order to capture the effect of transforming structure of the international law, this thesis offers an empirical study on the membership in identifying legal qualification by studying the drafting process of the Paris Agreement under the United Nations Framework Convention on Climate Change (hereafter
‘UNFCCC’) to reduce the greenhouse gas (hereafter ‘GHG’). The field of climate change is an issue in which this vanishing divide between international and national spheres is apparent since the obligation of emission reduction directly concerns with the economic activities of nationals within the territory of Parties. When the negotiation of the Paris Agreement was formally established in 2011, almost 70% of historical GHG emission was originated from fossil fuel
combustion and cement production.8 Because the fossil fuels are comparably cheap and readily available energy source compared to renewables and nuclear,9 reduction of emission directly influences the overall economy through limitation of available energy sources and rise of electric price at national level. Among the all, the biggest consumer of electricity and energy is industrial actors. For the industry, reducing emissions directly limits the economically favorable means of production that would directly affect the competitive power in the global
market.
In the earliest period of the UNFCCC, the tension between the industrial
interest and the emission reduction was mainly raised by the developing States, which have higher technological barriers to access the renewables and the nuclear powers than the developed States. The developing States insisted that the burden of emission reduction should be bored proportionately based on the stage of development,10 and such voice resulted in the principle of “common but differentiated responsibility” under the UNFCCC in 1992, later materialized as the solid distinction between the developed countries (Annex I countries) with legally binding emission reduction target, and the developing countries (Non-Annex I countries) without such obligation under the Kyoto Protocol.
8 IPCC 5th Assessment Report WG1 Summary for Policy Makers, p. 12 9 For example, an evaluation in 2014, the electricity generation cost per 1kWh by solar is approximately 24~30 yen, while 12.3 yen by coal, 13. 7 by LNG for Japan in 2013. In UK, power generation by combined cycle gas turbine costs 7.5 pounds per 1kWh, solar costs 15.8 per 1kWh for UK in 2013.
10 For the issue of equity and justice in climate change, see in general: S.M.Gardiner, Ethics and Global Climate Change, 114 Ethics (2004)
Although the contestation was often articulated in the context of sustainable development and eradiation of poverty, it was the industrial interest that has defined the dynamics of such binary contestation. Nowadays, the task of the legal scheme to level the uneven cost among the different industrial
environments is increasing its complexity as the diversity in the developing stage and the developing course increases. In this sense, the traditional State centered framework is not a sufficient starting point for the UNFCCC law making that must reflect the present complex condition.
Based on the above view, the focus of the analysis in the thesis is the decision-making process that stems from the domestic level regarding the legal
qualifications of the Paris Agreement. The thesis examines the sample of Japan, which is an Annex I country under the Kyoto Protocol and a member of the umbrella group consists of the industrialized non-EU countries such as the United States (hereafter ‘the U.S.’). Japan provides an ideal example for the analysis since it is a highly industrialized country, with stable democracy, and with a longstanding tradition of adherence to international law.
In the section II, the thesis conduct an empirical analysis on the decision making process of Japan. In the section III, the thesis will revisit the existing studies to overcome the State dependent law making theory, and compare them with the new-positivist framework that this thesis proposes.
II. Towards COP21 & Paris Agreement. - Interaction and
recognition of business role in the international forum-
1. Options for the nature of the Paris Agreement and continuing debate
On December 12th 2015,COP21 closed its negotiation round in Paris with the adoption of the text of “Paris Agreement” to establish the new emission
reduction scheme after the Kyoto Protocol expires in 2020. The Paris agreement contains aspirational long-term temperature goals (“well below 2°C” and to aspire to 1.5°C), and “Nationally Determined Contribution” under which the Parties register the self defined target and efforts with various perspectives set out in the Paris Agreement.
The negotiation of the Paris Agreement was the process to establish the rule of conduct under the 1992 UNFCCC to stabilize “greenhouse gas concentrations in
the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”11. The drafting process was conduced under the Ad Hoc Working Group on the Durban Platform for Enhanced Action (hereafter, ADP12), within the mandate to develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015. 13
Among the three options of the Durban mandate to develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”, the third option was the result of compromise between the EU, which has insisted to establish a legally binding agreement comparable to the Kyoto Protocol, and India, which resisted a legally binding form. As a result, the meaning of the third option left the space of interpretation for a non-legal form, for example, India, in its submission to the ADP, stated “agreed outcome” does not necessarily have the legal form, and may include
“aspirational COP decisions and binding COP decisions that derives its legal force from national or international law”. 14 On the other hand, the EU
interprets “with legal force” as equivalent to “internationally legally binding”. 15 As to the nature of the 2015 Agreement, among other developing countries, China stated it would accept a legally binding form of emission reduction scheme, which is effective after 2020.16 Meanwhile, the United States at COP17 conditioned acceptance of the Durban mandate to negotiate a new scheme of a
11 Article 2, the United Nation Framework Convention on Climate Change 12 Established at COP17 (Durban, South Africa) in 2011
13 Decision 1/CP.17, para.2
14 The submission by India (9 March 2013), para 5.24
15 A comment by A. Runge-Metzger, DG Environment of the European Commission, in conference with Keidanren, Japan (28 February 2012); Also the submission by Cyprus on behalf of the EU (17 October 2012) states “the commitment Parties made in Durban to adopt a legally binding agreement in 2015”.
16 The Chinese chief negotiator Su Wei (Director General of Department of Climate Change, NDRC) stated that “China do not rule out the possibility of legally binding. It is possible for us, but it depends on the negotiations” in the media briefing of 2 December 2011. Also see D. Bodansky, The Durban Platform Negotiations: Goals and Options, Policy Brief, Harvard Project on Climate Agreements, Belfer Center for Science and International Affairs, Harvard Kennedy School (2012) available at
http://belfercenter.ksg.harvard.edu/publication/22196/durban_platform_neg otiations.html (accessed 31st of July, 2016)
legal nature only if the mandate includes developing and developed countries under the symmetrical scheme.17 Japan, as will be explained in the following, generally accepted the 2015 Agreement could be something legal on the condition that it is participated by “all the major economies.”
Although the debate over the nature of the 2015 Agreement accelerated after COP19, COP21 started with all three options, and adapted the text of the Agreement without clearly announcing its nature. American scholar
A.M.Slaughter stated that the nature of the Paris Agreement “ is essentially a statement of good intentions, setting forth aspirational goals” under the traditional international legal standards since the Paris Agreement lacks “codified, enforceable rules, along with sanctions for non‐compliance” which generally materialized by “ratification by national parliaments, so that they become a part of domestic law”.18 Slaughter further expressed the Paris
Agreement as “new global governance” that sets cooperative facilitative scheme to address a shared problem consists of “sprawling, rolling, and overlapping set of national commitments brought about by a broad conglomeration of parties and stakeholders”. On the contrary, Bodansky summarized the argument to deny the legal characteristic of Paris Agreement as "(c)onfusion about the legal character of the Paris Agreement is widespread, and reflects a failure to
distinguish” among related but distinct issues.19 For example, Bodansky criticized the argument by Slaughter as confusing the issues of legal form with enforceability, and domestic acceptance, stating enforceability and domestic acceptance that “are not the tests of whether an international agreement qualifies as a treaty.”20
Since there was an intense debate about the nature of the instrument from the beginning of the negotiation, the Paris Agreement was carefully drafted to
17 Id.
18 A.M.Slaughter, The Paris Approach to Global Governance, Project- Syndicate (28 December 2015) at
https://www.project- syndicate.org/print/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12 (Accessed 31st of July 2016); Also R.Falk,
Voluntary International Law and the Paris Agreement available at: https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-andthe-paris-agreement/ (Accessed 31st of July 2016)
19 D. Bodansky, The Legal Character of the Paris Agreement, Review of European, Comparative, and International Environmental Law, also available at: http://ssrn.com/abstract=2735252, p. 2 (Accessed 31st of July) 20 Id, p.3
define the nature and the content of obligations. This effort is apparent, for example, in article 4.2 of the Paris Agreement that provides:
Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.
The significance of this article is that all the Parties without the categorical distinction between developed and developing are bound to communicate the respective nationally determined contribution, and to take domestic mitigation measures underthe mandatory term of “shall”.21 From the technically point of view, the Paris Agreement is a legally binding instrument since only a legal form can host the mandatory obligations under international law.22As Bodansky pointed out whether the content of obligation is procedural or domestically enforceable does not matter to the identification of the binding nature of instruments since the international legal obligation can exists regardless of the need for additional legislation as a matter of domestic law.23 The form of adaption is also notable. The Paris Agreement was not adapted as a COP
decision, which is a readily available political document for the drafters, but was put to the independent procedure to come into effect.
When Japan was identifying the legal nature of the Agreement, as already stated, its position was strongly connected to “participation by all the major economies” in order to secure the fair competitive environment in the global market. The path to universal participation during the negotiation was difficult
21 For example, J.Pauwelyn & L.Andonova point out that the decision on which commitments within the Paris treaty will be legally binding was expressed by using the word “shall”. See A “Legally Binding Treaty” or Not? The Wrong Question for Paris Climate Summit, at http://www.ejiltalk.org/a-legally-binding-treaty-or-not-the-wrong-question-for-paris-climate-summit/
(Accessed 31st of July 2016). As a matter of general international legal practice, Aust points out the intension on the legal form is expressed in the mandatory terminology including “shall”. See A. Aust, Modern Treaty Law and Practice (3rd ed, CUP 2013), p.30
22 A.Aust, supra note.5. Aust states that the meaning of “treaty” under VCLT, Art. 2(1)(a) embrace “the element of an intension to create legal obligations under international law”, and he finds the terminology is the way to indicate the intention of drafters to distinguish the form of t a treaty. See pp. 29-30
given the contestation among the major economies, for example, the US made it clear that it was impossible for the US to accept a new legal ceiling for emission under the Agreement while the EU could not take the political document as the result of 5 years negotiations for new international scheme of emission reduction. In this situation, the fact that the Paris Agreement did not refer to “achievement of emission reduction target” was crucial for Japan in accepting the legal nature of the Paris Agreement. This elaboration made it possible for all the major economies to make the compromise to establish the Paris Agreement as an instrument to host mandatory obligations participated by the all.
In the following section, the thesis will observe the decision making process to define Japanese position in identifying the nature of the Paris Agreement. The thesis specially grapples with the role of the different actors in determining the legal character through the continuous cycle of domestic coordination and the international negotiation under the annual COP process.
2.The decision making process of Japan in international law making
This section, by analyzing Japanese practice in the UNFCCC process, will clarify a State is not autonomous from the interest of relevant stakeholders in
determining the legal character of the international instruments.
It must, as a preliminary point, be made clear that the decision making process for the international legislation varies among States in how and to what extent the crude interest of relevant actors are taken into account. However, legislation for public interest is often suffered by “rent seeking” of the specific actors on which the cost of legislation concentrate.24 This theory provides, in other words, the group of actors with opposing interest to the legislation for public interest structurally has the disproportional power in decision-making process because of the nature of legislators to avoid conflicts with the potential voters under the desire to be reelected.25 In the decision making process for public
24 In contrary, P.F. Cowhey argued the two party system of the U.S. tend to reward politicians for the production of collective goods, while Japanese system tends to reward the private goods. However the major empirical works on “the failure of government” in legislating public goods are reported based on the U.S. practice as seen in footnote 26. See P.F. Cowhey, Domestic Institutions and the Credibility of International Commitments: Japan and the United States, International Organization, Vol. 47, No. 2 (1993)(For detailed studies.; A.Lijphart, Democracies, (YUP 1984); R.Taagepeta & M.Shugart, Seats and Votes: The Effects and Determinants of Electoral Systems, (YUP 1989)
interest legislation, the cost burdened actors tend to make an organized interest group to effectively lobby their interest while the supply side of public interests do not have specific interest groups to support since the benefit of legislation is distributed to the wide public.26 Thus, the interest of the opposing actors often has disproportional influence in legislation process. Furthermore, this structure is sharpened by bureaucratic tendency to share the same professional values with the stakeholders who they are supposed to regulate, and have a cordial tie with them over a time. (This phenomenon is often explained as “regulatory capture”.27)
In Japan, the large part of decision making process for the UNFCCC climate change legislation is occupied by the interaction among following three
ministries; Ministry of Environment (MOE), Ministry of Economy, Trade and Industries (METI) and Ministry of Foreign Affairs (MOFA). Among three, METI, whose raison d'etre is to increase the wealth of nation by the economic development, inevitably shares the same interest with the industrial interest groups in the UNFCCC negotiation28 since the rules on emission reduction Choice Theory and Its Normative Implications, in Buchanan & R. Tollison eds, The Theory of Public Choice-II (the University of Michigan Press 1984), pp.11-13; G.Kirchgässner & W.W. Pommerehne, Low-cost decisions as a challenge to public choice, 77 Public Choice 107(1993), pp.107-108; P.A.Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 University of Chicago Law Review 263(1982), pp.265-268; R.Tollison, Public Choice and Legislation, 74 Virginia Law Review
339(1988) pp.341-344, also in general, D. Farber, A.Public Choice Theory and Legal Institutions (2014). UC Berkeley Public Law Research Paper No. 2396056. Available at SSRN: http://ssrn.com/abstract=2396056 (Accessed 31st of July 2016)
26 P.J. Buchanan & G. Tullock, The Calculus of Consent: Logical
Foundations of Constitutional Democracy,(the University of Michigan Press 1962), pp.284-286
27 A classical study on the regulatory capture is A. Downs, Inside
Bureaucracy (Little Brown 1967). Also B.G.Peters, Insiders and Outsiders: The Politics of Pressure Group Influence on Bureaucracy, 9 Administration & Society 191(1977), especially p.193; K.A. Shepsle. Analyzing Politics: Rationality, Behavior,and Institutions (2nd ed, W.W.Norton&Co 2010), p.357; P.J. Buchanan, supra note.25, p. 19 , etc
28 The close relationship between the industrial actors and METI(,which used to be called “MITI”) is often observed by the studies by the western scholars in the field of international trade and investment. For example, C. Johnson, MITI and the Japanese Miracle: The Growth of Industrial Policy,
under the UNFCCC define the industrial environment in the global competition. Among the industrial actors, the most influential actor is Keidanren (the Japan Federation of Economic Organizations), the largest business association
consists of more than 100 major industrial associations and nearly 1000 individual companies. Keidanren established a section specially concern the industrial interest in relation to the environmental policies and legislations in 1995, and has been actively lobbying to the governing party and the ministries. Meanwhile, it is also notable that the role of environmental NGOs in Japan was significantly limited compared to the NGOs in the European countries,
especially at the early stage of UNFCCC negotiations. A number of sources refer to Japan’s NGO as having weak position in decision-making process in Japan for global environmental issue.29
In observing the decision making process of Japan, there are three factors that determine the extraordinary influence of the industrial actors in relation to the climate change legislations. First of all, the industry as the cost burden actor had organized the interest groups (i.e. Keidanren) that influence the decision
making process in forming Japanese position in global climate change issues. Secondary, the contribution by the industrial actors was essential in
implementing the UNFCCC commitment since 87% of emission was CO2 from fossil fuel combustion in Japan.30 Third, the Kyoto Protocol practically left the possibility for large emitters to move out from Annex I countries to the non-Annex I countries with no ceiling for GHG emission. (The issue of “carbon leakage”) Since the restriction of using fossil fuel result in a rapid raise of the production cost that create a disadvantage in global competition, the non-Annex I countries could be attractive options as the potential industrial production base together with other elements such as cheap labor. This “the howling out” – 42 the Journal of Asian Studies 42(2) (1983); D.J. Encarnation & M.Mason, Neither MITI nor America: The Political Economy of Capital Liberalization in Japan, International Organization 44 (1990), pp.25-54.; P.F. Cowhey, supra note. 24
29 M.A. Schreurs, Japan and global environmental governance, in G.D.Hook ed, Contested Governance in Japan: Sites and Issues, (Routledge 2005), p.134; L.P.Broadbent, From Heat to Light?: Japan’s Changing Response to Global Warming, in J. Montgomery and N.Glazer ed, Sovereignty Under Challenge: How Governments Respond (Transaction Publishers 2002), p.117; L.N.Yu-Jose, Global Environmental Issues, Japanese Journal of Political Science (2004), pp.23-50; R.T. Mason, Whither Japan’s
Environmental Movement?, Pacific Affairs(1999), pp.178-207 30 Ministry of Environment, the report of emission (2014)
the phenomenon which the core elements of Japan’s economic competitive power including employment, tax income, and the basis of innovation would move out to the developing countries- was taken for Japanese government as the worst scenario that must be prevented at any rate.31 As economic
development and employment have been always top-priority policies of Japan in the long economic stagnation after the bubble collapse in early 1990s, maintenance of an amicable relationship with the industries was essential for the government in decision-making regarding the legislation in global climate change.
3.The voice of industrial actors in the eve of the Paris Agreement
For Japan, the condition to accept the legal form of the Paris Agreement was securing “fair allocation of the burden of emission reduction” which can be achieved through participation by all the major economies (rejection of the binary structure of Kyoto Protocol).32 This position had been established in the ashes of the bitter experience of COP3 – in which Kyoto Protocol was adapted under the chairmanship of Japan.
In COP3, Japan was under a strong pressure as the host state to lead the Conference to a successful closure with adaption of the text of Kyoto Protocol under “the Berlin mandate”.33 Tanabe, who attended COP3 as Ambassador for
31 The concern of the hollowing out by rise of energy cost has been repeatedly referred in the energy strategy of Japanese government.
Especially after the rise of electricity price following the Fukushima nuclear power plant accident in 2011, the concern of the hollowing out by additional rise of the electricity and energy cost intensified. For example, National Policy Unit (Cabinet Secretariat), Options for Energy and Environmental Policies (29 June 2012). Also Keidanren, the Japan Chamber of Commerce and Industry, and Japan Association of Corporate Executives together issued their position that the hollowing out is unavoidable if the electricity and energy cost raise more. (12 June 2014) available at
http://www.jcci.or.jp/260612_energykyuujyou.pdf (Accessed 31st of July 2016)
32 See the submissions to the ADP by Japan available at http://unfccc.int/bodies/awg/items/6656.php and
http://unfccc.int/bodies/awg/items/7398.php (Accessed 31st of July 2016) 33 Decision 1/CP.1. The Berlin mandate set the mandate for the COP to adopt either a protocol or another legal instrument that materialize the principles set out in the 1992 UNFCCC including the responsibility of developed countries to “take the lead in combating climate change and the adverse effects thereof.”
Global Environmental Affairs of Japan witnessed a remarkable momentum at COP3 to create the international legal scheme to be participated by more than 150 States. He recalled in his book that the participants to COP3 were
fascinated, but at the same time pressured to prove that the global community can truly function to protect the global public interest by establishing the international legal instrument.34 Given the international situation, COP3 was held under the auspices of Prime Minister Hashimoto to show Japan’s
diplomatic leadership in global issues. Closing COP3 successfully was, for the ministries, also important from each perspective35 – for MOFA, it provides a diplomatic fame in global environmental issues, for MOE, it paves the ground for domestic regulation in emission reduction, which had always been prevented by fierce opposition of METI and the industry.
Under this international and domestic situation surrounding COP3, Japan promised to commit 6% emission reduction during the first commitment period of Kyoto Protocol (The United States: 7%, the European Union: 8 %36) despite the opposition by METI and the industry. For Japanese industry, Kyoto
Protocol to set the base year to 1990 was taken as an unfair deal because the reduction potential for Japan was not much left in 1990 after a series of policy measures to improve energy efficiency during 1980s.37 The additional 6% legal emission cap besides the efforts taken before 1990 was considered to undermine Japanese industrial competitiveness significantly since such reduction was only possible by drastically increasing expensive energy sources such as the
renewables.38
34 T. Tanabe, Global Warming Issues and Environmental Diplomacy – negotiation of COP3 and aftermath (「地球温暖化と環境外交 -京都会議の攻 防とその後の展開」), (Jiji-Tsuhin 1999) especially Chapter 4.
35 I.Sakaguchi, Environmental diplomacy of Japan(日本の環境外交), Kokusaiseiji(International Politics)166 (2011)
36 15 member states of European Union at the time.
37 J. Arima, Reminiscence of Kyoto Protocol(1)(有馬純「私的京都議定書始末
記（その1）」、国際環境経済研究所ウェブサイト内), available at
http://ieei.or.jp/ (Accessed 31st of July);Keidanren, Press Release, Position on COP3 and the Global Warming(経団連「ＣＯＰ３ならびに地球温暖化対策に 関する見解」) (26 September 1997) available at
https://www.keidanren.or.jp/japanese/policy/pol148.html (only in Japanese, accessed 31st of July 2016)
38 By 1997, 17 nuclear power stations with 51-generation units had been under operation.
Despite the above opposition, as a result of the intense domestic coordination, METI made a compromise to accept legal 6% emission cap under the Kyoto Protocol on the assumption that participation by the major economies including the US, and agreement on adapting the rules to provide flexibility such as the Kyoto mechanism through the emission credit market and inclusion of the carbon offset by forestry as a part of the implementation rules.39 However, the negotiation for the detailed rules was left for the subsequent COPs.
After COP3, the criticism to Kyoto Protocol by the industry intensified as many factors that had not been clear to the industry were gradually revealed. First of all, the various economic model analyses conducted after COP3 suggested that
Japan bore the highest marginal cost to reduce emission among the major economies under Annex I.40 Since the obligation of emission reduction has
39 In 1997, Japanese government established “Joint Council regarding the domestic measures for tacking global warming” to discuss the governmental position at COP3. In the Council, METI(at the time, MITI) and MOE was fiercely confronted about the emission reduction target to be proposed at COP3. In the end, under the initiative of the Prime Minister Hashimoto, the target was set along with the proposal of MOE. See S.Kawamura and H. Takeda, Summary of History of Trade Policy in Japan(5), RIETI Policy Discussion Paper Series 14-P-012, pp.17-18 ; J. Arima, Reminiscence of Kyoto Protocol(2)(有馬純「私的京都議定書始末記（その 2）」、国際環境経済研 究所ウェブサイト内) p.2, available at http://ieei.or.jp/ (Accessed 31st of July 2016). In the COP3 negotiation, decision to include the carbon sink by the forestry and Kyoto mechanism (the flexibility mechanism to lower the overall cost of emission reduction by enabling the purchase of emission credits) functioned as catalyst for a compromise between the EU and the other developed countries. From the start of the discussion over the Kyoto Protocol, the EU had focused on an agreement with strong and advanced internal measures aimed at the reduction of greenhouse gas emissions, while non-EU developed countries aimed for an agreement with less focus on domestic actions in order to avoid potential high costs for the national economies in the implementation of the Kyoto Protocol. See M. Grubb, C.Vrolijk, D. Brack, The Kyoto Protocol: A Guide and Assessment, (Earthscan, 1999), p. 87,
40 Several economic model analyses provide Japan’s marginal emission reduction cost is highest of major economies. For example, without the market mechanism, ITEA model supposes the marginal cost for the major economies; the EU 1.20$/tC, the US 1.00$/tC, Japan 1,40$/tC. See
M.Grubb, C. Vrolijk, D. Black, id, p.173 . Keidanren continuously referred to this issue by stating Japanese per capita emission as the smallest among the major economies at the time of COP3. For example, see the position
direct influence on the cost of production, this fact was more than enough to upset the industries that were under fierce competitions with the U.S. industry. Secondary, the emerging economies such as China were increasing its economic competitiveness in the global market at rapid rate while those economies are not obliged to reduce emission. Finally, the criticism hit its peak when it turned out that the U.S. under Bush administration refused to ratify Kyoto Protocol on the reason that it harms the economic growth of the U.S. and is flawed by the
lack of emission reduction by China and India.41
Given the above situation, Keidanren issued its position paper Basic Thinking on the Problem of Global Warming42 to urge the government to reconsider ratification of Kyoto Protocol in May 2001. In this Basic Thinking, Keidanren emphasized, first of all, the need for the global community to act together in tackling climate change including the developing countries, otherwise it will end up the emitters move to the developing countries from the Annex I countries. After the Basic Thinking, during 2001, several position papers repeatedly proposed that Japan should not to ratify the Protocol since the obligatory emission reduction scheme is not participated by “all major economies”.
In order to consider the effective measures against global warming, it must begin with the recognition that Japan was already the most energy efficient per capita country (60.2 CO2 ton per capita. Per capita emission for the US is 3.5 times more, for the EU is 1.5 times more, and for China is 27.3 times more than that of Japan) in 1990.(…) This uneven allocation of burden, namely unfairness is the fundamental problem of the present global emission reduction scheme. (Provisional translation by the author)43
paper of 8 August 2001.
41 Press Release by White House, President Bush Discusses Global Climate Change (11 June 2001) available at
https://georgewbush-whitehouse.archives.gov/news/releases/2001/06/20010611-2.html (Accessed 31st of July 2016)
42 Press Release by Keidanren, Basic Thinking on the Problem of Global Warming (経団連「温暖化問題に対する経団連の基本的考え方」)(22 May 2001) available at
https://www.keidanren.or.jp/japanese/policy/2001/025/ondanka.html (Only in Japanese, accessed 31st of July 2016)
43 Press Release by Keidanren, Proposal for Effective Measures against Global Warming. (経団連「実効ある温暖化対策実施の申し入れ」)(8 August 2001) available at
Global Warming is a long-term global issue that represents significant challenges to which the international community must act together. If Japan haste to ratify Kyoto Protocol in this current negotiation, only Japan will suffer a serious effect among the global competitors in the global market. Keidanren proposes that Japan should strive to create the international system that all the major economies participate including the US without persisting to bring the Protocol into effect by 2002. (Provisional translation by the author)44
The above position was taken up to the Industrial Structure Council, which was placed within the formal decision making process of the government in 2001. In 6 meetings of the Council until COP7, representatives of the industry emphasized emission reduction must be based on the economic principles referring to competition with the global rivals such as the US, the EU in the global market.45 The representatives commented that Kyoto Protocol was an unfair treaty that was going to impair the economic competitiveness of Japanese industry and Japan should consider not ratifying Kyoto Protocol if Kyoto Protocol does not include all the major economies.46 In confirming the above position, Mr. Hiranuma, Minister of METI publicly stated that the ratification without the US “is not considered at this moment”47 in the press conference right before COP6 was resumed in Bonn. COP6 held in Hague was failed by the confrontation between the EU and the other Parties such as Japan, the U.S., and Russia on inclusion of carbon offset by forestry and rules on usage of credits through the Kyoto mechanism.
The above position was in a sharp contrast with the Central Environmental Council, which was also a formal Council hosted by MOE. The discussion in the Central Environmental Council supported the adaption of Kyoto Protocol, and criticized the government for delaying the ratification and causing the failure of COP6 in Hague by contending the carbon offset and the unconditional usage of https://www.keidanren.or.jp/japanese/policy/2001/034.html (Only in
Japanese, accessed 31st of July 2016)
44 Press Release by Keidanren, Comment on Japanese Position to Global Warming(経団連「地球温暖化問題へのわが国の対応について」)(9 September 2001) available at
https://www.keidanren.or.jp/japanese/policy/2001/043.html (Only in Japanese, accessed 31st of July 2016)
45 Industrial Structure Council, May 30th, July 4th, September 17th, October 24th, 2001.
46 Industrial Structure Council, October 24th
47 The press conference by Minister of Economy, Trade and Industry (12. June, 2001)
the emission credits in implementation of the Kyoto Protocol.48 The same criticism was raised from the politics, including the members of environmental committee of the House of Representatives.49
Given the above domestic situation, Japanese government was pressed to steer a difficult coordination between the pressure from the industry not to ratify the Protocol and the international and internal pressure to ratify the Kyoto Protocol to make it legal. At the time, ratification by Japan and Russia was essential for the Kyoto Protocol to enter into force by fulfilling the coverage at least 55% of the total CO2 emissions for 1990 of the Annex I countries.50 After the U.S. declared its withdrawal, Japan’s non-participation meant literally killing the Kyoto Protocol. Secondary, withdrawal from Kyoto Protocol that Japan itself adopted as the Chair would impair the credibility of global emission reduction scheme under the UNFCCC, and it would eventually lead to impairing Japan’s credibility in international relations.51 Reflecting this internal agony, Prime Minister Koizumi expressed the view that Japan will not decide whether Japan ratify the Kyoto Protocol as the result of the resumed COP6 in Bonn 2001. He emphasized Japan will keep negotiating the United States to ratify the Kyoto Protocol. 52
48 Central Environmental Council, 8th July, 21st September, 2001
49 See House of Representatives, Environmental Committee (31.10.2000) available at
http://www.shugiin.go.jp/internet/itdb_kaigiroku.nsf/html/kaigiroku/001715 020001031002.htm; for (28. 11. 2000) at
http://www.shugiin.go.jp/internet/itdb_kaigiroku.nsf/html/kaigiroku/001715 020001128005.htm(Accessed 31st of July 2016); Central Environmental Council, February 16th, June 8th (the round table conference), July
9thCentral Environmental Council, 16th February, 8th June, 9th July, 21st September, 2001.
50 Article 25 of Kyoto Protocol.
51 J. Arima, the former representative of Japan to AWG-KP recalls that the prevailing opinion within the government was that non-ratification of Kyoto Protocol would impair Japan’s diplomatic credibility. In Reminiscence of Kyoto Protocol(7)(有馬純「私的京都議定書始末記（その 7）」、国際環境経済研 究所ウェブサイト内), available at http://ieei.or.jp/. It is also witnessed by Y.Kano, the former director of climate division of MOFA. See Y.Kano, Environmental Diplomacy: The negotiation for climate change and global governance(1), p.10(加納雄大「環境外交:気候変動交渉とグローバルガバナン ス 第 1 話」国際環境経済研究所ウェブサイト内), available at http://ieei.or.jp/. 52 The press conference by Prime Minister (2 July 2001)
Finally, Japanese government fought the way thorough to ratify the Kyoto Protocol by reducing the burden of the industry through the unconditional use of carbon credits and inclusion of carbon sink by forestry as much as possible to mitigate the competitive disadvantages. At the resumed COP6 and COP7 in 2001, the EU made compromise on the usage of Kyoto mechanism and 3.8 % offset by forestry for Japan.53 The reaction of Keidanren to the compromise was published immediately after COP7, 54 while it re-emphasized that the emission reduction scheme must be participated by all the major economies including the U.S. and other emerging economies, the issue of ratification was not anymore referred in the position paper. The Kyoto Protocol finally came into effect in 2005, 3 years before the first commitment period (2008-2012) started.
In 2010, Japan formally announced its non-participation to the Kyoto Protocol second commitment period55 on the reason that the Kyoto system lost its “effectiveness” in emission reduction with less than 25% coverage of the global emission without participation by the U.S. and China.56 By this announcement, Japan clarified its position that Japan would not take any international legal instrument that cannot secure the fair competitive condition by participation by the major economies in the coming negotiation for the post Kyoto Protocol instrument.
53 Press Release by MOFA (23 July 2000), Press Release by MOFA(10.11.2001)
54 Press Release by Keidanren, Calling for Rational Decisions for the Future Direction on the Global Warming(経団連「今後の地球温暖化対策に冷静な判 断を望む」) (19.11. 2001) Available at
https://www.keidanren.or.jp/japanese/policy/2001/053.html (Accessed 31st of July 2016)
55 Mr. Matsumoto, Minister of Environment that it is essential to “establish a new, fair and effective legal framework with the participation of all major economies all over the world” at the opening plenary of Ministerial Meeting of COP 16. Statement by Minister of the Environment of Japan, the Opening Session of Ministerial Conference at the COP 16 (9 December 2010)
available at
https://unfccc.int/files/meetings/cop_16/statements/application/pdf/101209_c op16_hls_japan.pdf (Accessed 31st of July 2016)
56 IEA, CO2 emissions from fuel combustion (2012). Japanese government also refer to the effectiveness of the Kyoto Protocol in Japan's position regarding the Kyoto Protocol.(December 2010) available at
http://www.mofa.go.jp/policy/environment/warm/cop/kp_pos_1012.html
4.Issue of the Form of the Paris Agreement
Tracing back the negotiation history of Japan, the decision on the nature of the rules under the Kyoto Protocol was largely shaped by the industrial demand for the fair competitive condition in the global market. The government of Japan once accepted 6% legal commitment without fully taking into account the interest of industrial actors. However, it had been forced to make considerable efforts to reduce the substantial amount of emission after COP3 in order to persuade the industry to agree with ratification of the Kyoto Protocol without participation by the U.S. and other major economic players. Through the long history of intense internal and international coordination before 2011, the position of Japan towards the nature of the 2015 Agreement was firmly
established based on the domestic consensus on the fundamental condition of “participation by all the economies”.
During 2012 and 2013, Japanese position to the ADP was mainly focused on the content of the rules rather than settling the nature of the rules.57After COP19 in November 2013 invited the Parties to initiate and prepare for the self
determined Intended Nationally Determined Contribution (‘INDC’)“without prejudice to the legal nature”,58 Japan moved onto its focus on the issue of form in the submission of 14 May 2014:
The legal nature of the 2015 agreement should be reflected taking into consideration universal participation and encouragement of ambitious actions.
As already stated in the previous section, the priority for Japan has been always “participation by all the major economies” in order to secure the fair
competitive condition for the industry. While Japan was generally supporting the legal form of the Paris Agreement,59 Japanese position was different from the EU position to pursue the strong legally binding instruments by establishing the emission ceiling. For Japan, it was unlikely that such position could be
57 The submission of 12 March 2013 states “…Japan does not intend to dwell on discussions on the formality of the 2015 agreement at this stage as it believes that what we can agree on is much more essential than which form we can agree on” at p.3
58 Decision 1/CP.19, para. 2(b)
59 The submission of 12 March 2013 states “It is important that the future framework is something “legal,” as clearly stated in the Durban decision” at p. 3
supported universally including the other major economies such as the U.S., China and India.
In considering the participation by the other major economies, the position of the US was critical for Japan in its final decision on the legal form of the Paris Agreement as the US was an apparent and powerful opponent against having the legal form to the Paris Agreement. At the beginning of the negotiation, the US was not yet an opponent to the legal form as its submission stated that it is open to the any international legal form of the instrument.60 However, its position slightly changed in the submission of the first half of 2014, in which it proposed the mitigation commitment registered by the Parties might not have to be of legal nature while it was still leaving the possibility of agreeing the protocol and other legal instruments.61 Then, the position of the U.S. critically changed in the latter half of 2014 after the Republicans won the election for both Houses in November 2014. For the Obama administration, establishment of new legally binding target was not anymore an agreeable option for the post Kyoto instrument since concluding additional legally binding commitment requires the approval of two thirds of “hostile” Senators present under the Constitution.62
As it became clear that the U.S. does not accept the emission reduction target as being legal, Japan also clarified its position not to support the legal form if the Paris Agreement was to set the emission ceiling substantially. In 2015, Japanese submission defined the scope of the agreement that possibly comes up with legal form as: i) submission of nationally determined target, ii) pursuit of the domestic measures aiming at the target, iii) the transparency mechanism on evaluation and review of the performance”. 63 In this scoping, “the achievement of the self-determined target” was carefully excluded. For Japan, as already stated in the submission of 14 May 2014, it was universal participation that matters in the decision on the form of the Paris Agreement.
The above position was reminded by Keidanren right before the COP 21 in 2015, stating that achievement of nationally determined target should not be legally binding since “rigid legally binding target will not be participated by the major emitters such as the U.S., China and India that are required for the effective
60 The submission by the United States (11 March 2013) 61 The submission by the United States (2 February 2014)
62 Article II, Section 2, the Constitution of the United States of America 63 Press Release of MOFA (16 February, 2015)(9 September, 2015)(27 October, 2015)
international framework”.64 At COP21, Ms. Marukawa, Minister of Environment confirmed Japanese formal position on “applicable to all” together with “effective (ness)”, which is the key term to include all the major emitters to the framework at the opening statement of COP21 at Ministerial level. 65
5. Concluding Section II
The dynamics of international legislation in the field of public goods is, namely, the fight about distribution of cost. Despite the pervasive support for international legislation of the public goods, the practice of Japan suggests that a democratic government cannot identify the legal qualification of the legislation or instruments without persuading the cost burdened stakeholders.66 In the light of the process towards the Paris Agreement, the demand of the industries to secure the fair competitive condition in the global market was the critical element in identifying the legal characteristic of the Paris Agreement for Japan. The practice of Japan evidenced that a State is not an autonomous actor from the stakeholders behind a State in identifying the rules of international law. The decision making process for the Paris Agreement was a continuous interaction between national and international legal orders where multilayered actors such as the industry, governmental organs, and other Parties have fought to press their position in identifying and not identifying the legal rules.
III. Theoretical evaluation of pluralizing process for
international law identification.
1.Redefining project of international law under different approaches of international law
The observation of law making process under the UNFCCC evidence increasing interdependence between “international” and “national” orders wavers the boundaries in the decision-making process. As the issues regulated by the international law increasingly intervene with the domestic policies that directly influence non-state actors, making of international law cannot be pursued without taking into account the non-State actors.
For the most of international legal scholarship, it is self-evident that the process of international “rule” making has undergone pluralization in its actors and its
64 See Keidanren, Press Release, “Proposal for the New International Framework for Global Climate Change” (11 September, 2015)
65 Statement by Tamayo Marukawa, Minister of the Environment of Japan, at COP 21 (7 December 2015) available at
http://www.env.go.jp/annai/kaiken/h27/s1208/Statement_at_COP21_en.pdf (Accesses 31st of July 2016)
66 Also the U.S. eventually refused to ratify Kyoto protocol after it signed the Kyoto Protocol despite unanimous adaption of Bird-Hegel resolution by Senator to oppose signatory of Kyoto Protocol.
instruments.67 There are extensive works produced on the role of non-state actors in “informal” international process,68 domestic processes to accept the international norms by non-state actors69, or the content of norm that secures the compliance or distinct legitimacy elements of legal rules.70
67 N. Krisch, Beyond Constitutionalism—The Pluralist Structure of Postnational Law (OUP, Oxford, 2010); C.Schreuer, The Waning of the Sovereign State—Towards a New Paradigm for International Law? ,4 European Journal International Law(1993); D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford Monographs in International Law 2007); J.Nijman&A.Nollkaemper, supra note.14; C.Walter, International Law in a Process of Constitutionalization, in J.Nijman&A.Nollkaemper ed, New Perspectives on the Divide between National and International Law; A.Fischer-Lescano & G.Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Michigan Journal of International Law 999 (2004); N. Walker, The Idea of Constitutional Pluralism, 65 The Modern Law Review 317 (2002); P.S.Berman A Pluralist Approach to International Law , Yale Journal of International Law 301 (2007); J.d’Asperemont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (OUP 2011), introduction chapter available at SSRN:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1969795 (Accessed 31st of July 2016)
68 P.M.Dupuy,Soft law and the international law of the environment, 12 Michigan Journal of International Law(1990), C. M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38
International and Comparative Law Quarterly(1989), A.M.Slaughter, A New World Order, (PUP 2004),
69 H.Koh, Transnational Legal Process, Faculty Scholarship Series. Paper 2096. Available at http://digitalcommons.law.yale.edu/fss_papers/2096
(Accessed 31st of July 2016); see also the project on Global Administrative Law. B. Kingsbury, N. Krisch, and R. Steward, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems3&4(2005); C. Harlow, Global Administrative Law: The Quest for Principles and Values (2006) 17 European Journal of International Law; B. Kingsbury, The Concept of Law in Global Administrative Law (2009) 20 European Journal of International Law 23; Also the recent studies focus on the interaction between the domestic and international level, A.Nollkaemper &
M.Kanatake, The application of informal international instruments before domestic courts, 46 George Washington International Law Review(2014) 70 A.T. Guzman, A Compliance-Based Theory of International Law, 90 California Law Review 1823 (2002); H. Koh, Why Do Nations Obey International Law?, 106 Yale Law Journal 2599 (1997); J.Alvarez, Why Nations Behave, 19 Michigan Journal of International Law 303 (1998); M.
In attempting to provide a theory to explain changing dynamics of international law making, overall, the focus of the international legal scholarship moved on to the substantial impact of the rules to change behavior of actors rather than the qualification whether the rules constitute the rules of international law.71 For example, the scholars have sought to understand the decision making process that provides authorative power to the rules (the process based approach72) while others have studied the content and function of object norms that
underlies the rules (the norms based approach73). Although the both approaches Kumm, The Legitimacy of International Law: A Constitutionalist
Framework of Analysis, 15 European Journal of International Law 907 (2004); T. M. Franck, Legitimacy in the International System, 82 American Journal of International Law (1988)
71 T. Frank, Fairness in International law and Institutions, Oxford
University Press (1998), p.6 ; J.Klabbers, Constitutionalism and the making of international law Fuller’s procedural natural law(2008), available at
http://www.helsinki.fi/nofo/NoFo5, p.89(Accessed 31st of July 2016) ; J. d’Aspremont, supra note. 67, p.1.
72 The arguments under this framework are generally on the presumption of a plurilateral and multi-layered world where a diverse array of governmental institutions and private groups continuously interact and produce the various kinds of rules that change the behavior of participants in the process. See R. Higgins, Problems and Process, (OUP 1995); H.D. Lasswell & M.S.
McDougal, Jurisprudence for a Free Society: Studies in Law, Science, and Policy(Springer Netherlands 1992); M.S.McDougal, The Identification and Appraisal of Diverse Systems of Public Order, 53 American Journal of International Law 1(1959);M.S. McDougal, International Law, Power and Policy, 83 Recueil des Cours (1952); M.S. McDougal, H. Lasswell and W.M. Reisman, Theories about International Law: Prologue to a Configurative Jurisprudence, 8 Virginia Journal of International Law (1968). Also for the institutionalist perspective, A.M.Slaughter, International Law in a World of Liberal States, 6 European Journal of International Law (1995); also the studies transnational legal process and the global administrative law provides example of process based frameworks, supra note. 74.
73 The most common norm focused approach is the constitutionalism. As to the basic features of constitutionalism, see C. Schwobel, The Appeal of the Project of Global Constitutionalism to Public International Lawyer, 13 German Law Journal 2012, J.G.van Mulligen, Global Constitutionalism and the Objective Purport of the International Legal Order, 24 Leiden Journal of International Law (2011); A. Peters, The Merits of Global
Constitutionalism, 16 Indiana Journal of Global Legal Studies (2009); E. de Wet, The Constitutionalization of Public International Law, in M Rosenfeld & A Sajo eds, Oxford Handbook of Comparative Constitutional Law, (2012); B. Fassbender, The United Nations Charter as the Constitution of the
were developed in the attempt to fill the gap between the actuality of
international relations and deadlock observation of the finality of State consent, these involve the risk of disguised “power politics” by conscious or unconscious circumvention the issue of legal identification, especially the question on “who” identify the international law.
As to the process based approach, while it provides a descriptive framework to observe the reality of complex decision-making process that thrust the domestic sphere to the international sphere, its practical application has been criticized as merely a mean to defend the contested international initiatives of the powerful States- especially the US.74 As a result of conceptualizing law and non-law as a continuum in the decision making process, identification of international law was conflated with “apology” for State power by losing its least formality of pacta sunta servanda. If the distinction between the law and non-law are in flux, eventually only powerful states could declare the existence of certain rules of international law at their convenience. In this sense, the process-based approach leaves the issue of “who make the law” out of the legal question. As to the norm-based approach, while a particular structure of regulatory governance may vary, it is the fundamental norm that underpins the nature of the obligations. Identification of international law is given independence from the exclusive state governance, and the degree of supremacy of the certain international obligations over the others is defined by the characteristics of the norms. This “objective” framework enables the scholars to provide a single theoretical framework to include all the actors from the different layers by
International Community (Martinus Nijhoff Publishers 2009). For the other norm focused approach, see H. Cohen, Finding International Law:
Rethinking the Doctrine of Sources, 93 Iowa Law Review 65 (2007),
especially pp. 108-129; B. Kingsbury, Brunnee and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (Cambridge University Press, 2010) 46; M.Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 The European Journal of International Law 907 (2004); T.M. Frank, The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 The American Journal of International Law (2006);
73 J.Klabbers, The Concept of Treaty in International Law, Kluwer(1996), especially ; J.Klabbers, Not Revisiting the Concept of Treaty, in
A.Orakhelashvili and S.Williams ed, 40 Years of the Vienna Convention on the Law of Treaties; British Institute of International and Comparative Law(2010).
74 Falk, Casting the Spell: The New Haven School of International Law, 104 Yale Law Journal (1995), p.2006; J. Hathaway, America, Defender of
moving its focus to the norm underlying the rules regardless of the form of international rules.
However, even if the objective purport of international legal order is a
functionable description of reality, identification of norms leaves the room for the mindset of people who has privilege to identify what is qualified as a legal rule and should be protected more than other rules.75 In short, the identification of the norms eventually comes back to the issue of “membership” of
identification community. If the legal qualification is based on the nature of norm, the identification of the norm is not as a matter of law. The identification of such norms is political, eventually at the hand of an exclusive club of the powerful actors who could decide what nature of obligations is, and which obligation is hierarchically higher than the rest.
As briefly noted above, under either approach, the issue of legal qualification is structurally translated as a synonym of “reflection of the thoughts of the
powerful.” This “deformalization” of international legal identification is, in a nutshell, observed by J. d’ Aspremont that “a growing number of scholars and lawyers, drawing on a disconnect between the international rules identified by formal law-ascertainment mechanisms and commands actually relied upon by actors, have decided to revamp their law-ascertaining criteria by shifting from source-based to effect- (or impact-) based.“76
By this shift, the membership of legal identification is intentionally or unintentionally overlooked. If the law does not rule the identification of law anymore, eventually the international law fall under the expediency of the powerful actors who can freely decide “what is the law”. It must be reminded that the rigid distinction between law and non-law based on the standard of law is the essential requirement for the rule of law so that the law function as an instrument to control political power.77
Bering in mind the need to redefine the traditional Westphalian legal order in the growing complexity of the world, the thesis proposes the third way to
75 M. Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes about International law and Globalization, 8 Theoretical Inquiries in Law (2007)
76 J. d’Aspremont, supra note.67, p.4
77 H.L.A Hart, supra note. 2. On the other hand, Friedmann criticized having the clear distinction between the law and non-law(i.e. morals) obscures the nature of law as the social products. W. Friedman, Legal Theory, (5th ed, Columbia University Press,1967), also L. Fuller, The Morality of Law, (YUP 1969)
proceed with the question, “who” identify the legal characteristic of the international instruments.
2.The pluralization of legal identification - “Who” identify the international law?
With regard to legal identification, H.L.A Hart in his the Concept of Law, asserted that the existence of law is provided in “the rule of recognition” that sets forth rules for creating law.78 Unlike his precedents, Kelsen, who asserted the hypothetical fundamental “ground norm” as only criteria in identifying law79 or Austin, who turned its focus to the forcible mechanism,80 Hart had based his conception of legal identification on social practice.81
According to Hart, the existence of a legal rule is determined by the social fact that members of a society accept it as a standard of conduct in their “internal point of view”.82 In other words, the critical criterion in legal identification (the rule of recognition) is “the internal point of view” of the members.83 Here the question of “who” comes in84 – to what extent of actors should be taken into account in identifying the existence of a legal rule?
Although the importance of “who” in his theory, strangely Hart remained vague in qualification of such identifying actors.85 In his monograph, he refers to “the officials” who accept the rules of law as their official behavior, however, he does not explain the reason why he specified “the officials” as such actors.
There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be
78 H.L.A.Hart, supra note.2, pp. 92-94
79 The academic focus of Kelsen was the entire validity of legal order
including the identification of legality at the beginning. See H.Kelsen, Law, State and Justice in the Pure Theory of Law, 57 Yale Law Journal (1948) and On the Basic Norm, 47 California Law Review (1959)
80 For his “command theory”, refer to J.Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (MI : Scholarly Press 1977)
81 Ibid, p.92 82 Id, pp.115-116.
83 J. d’Aspremont, supra note.67, p.54
84 The other question also remains here is whether the rule of recognition is power conferring or duty imposing to the law identifying actors. However this thesis only focus on the question of “who”.
effectively accepted as common public standards of official behavior by its officials.86
In this point, B.Tamanaha later attempted to refine the term “official” as the “legal” officials.87 However, as J.d’ Aspremont rightly pointed out in his monograph Formalism and the Source of International Law, that the actors whose practice constitute the criteria of legal identification do not necessarily limited to legal officers that apply and interpret the law (i.e. judges and
governmental executives.).88 As a matter of theory, there is no qualification that narrows down the scope of the social actors that participate in legal
identification.
As seen in section II, Japanese practice provides an example where the interaction among the multi-layered and pluralized actors identifies
international law. The assertion by the non-State actors is the fundamental element not only in norm identification but also in legal identification of international law. Section II furthermore depicted that the control in decision-making stayed in the side of the non-State actors.
In querying further development of the legal identification framework, the perspective of interaction among the pluralized actors provides a totally
different meaning to the facts that have been already in front of the scholars. If you observe the recent practice of the UNFCCC bureau from the lens of the multilayered interaction, interesting insights can be achieved as follows.
In the negotiation for the post Kyoto framework, the UNFCCC bureau was increasingly asking the involvement of the business in the UNFCCC process. At COP19 in 2013, the representatives of business were formally participated as non-state actors for the first time in history of the UNFCCC to the pre-COP, which has strong influence for the direction of incoming COP. In the pre-COP, the representatives of the business contended the necessity to pay attention to a perspective of level playing field of economic competition in negotiating the global regulatory framework under the UNFCCC.89
With view to the legal identification, it is important to look at what made the UNFCCC bureau to formally invite the business and initiate various dialogues to bridge the UNFCCC and the business sectors in the context of the negotiation at the time.
86 Hart, supra note.2, pp.115-116
87 B. Tamanaha, A general Jurisprudence of Law and Society(OUP 2001), p.142. Also J. d’ Aspremont refers this definition in Formality, supra note. 67, p. 203.
88 J.d’Aspremont, supra note. 67, p.204.
89 The President’s Conclusions, High level Informal Consultations (pre COP) at Warsaw 2-4th October 2013
