Federal Constitutions and Global Governance: The Case of Climate Change
Federal Constitutions and Global Governance: The Case of Climate Change / Blake Hudson, Indiana Law Journal, Volume 87 (forthcoming 2012).
working draft : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1801648
This article expands recent research published in the Colorado Law Review and applies similar analysis to other federal systems of government. The article is ultimately aimed at exploring the legal implications of federal constitutional law and structure on global resource governance. The article explores these implications through the lens of forest management law in federal systems of government (© Blake Hudson).
Abstract (© Blake Hudson) :
Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations – a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. At the same time, federal nations that grant subnational governments exclusive control over certain subject matters are seeking to maximize the benefits of decentralization in those regulatory areas. The difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. For example, recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems – Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The article concludes that federal systems that maintain three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that includes forests, successfully implementing that treaty on domestic scales, and doing so in a way that maintains the recognized benefits of decentralized forest management at the local level – 1. national constitutional primacy over forest management, 2. national sharing of constitutional forest management authority, and 3. adequate forest policy institutional enforcement capacity. The article also establishes the foundation for further research assessing how the constitutional structures of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.