By Eric Vandenbroeck and co-workers

Unlike the norm of anticipatory intervention, in which there were many different interpretations concerning the meaning of the international law at issue in the case of the U.S. intervention in Iraq, the norm of sic utere tuo ut alienum non laedas is a norm of long-standing and generally widespread acceptance.1

From its modern inception in the Trail Smelter case, to reiteration in documents such as the Stockholm Declaration, the Rio Declaration, and the United Nations Framework Convention on Climate Change, state recognition of sic utere has been widespread and consistent. The most specific manifestation of the principle of sic utere to date has been the Kyoto Protocol, whose principles overtly infringe on state sovereignty through the creation of specific emissions targets and other actions which must be taken by state parties. For this reason, the Kyoto Protocol has been one of the most contentious international treaties to emerge in recent years, and although a majority of states are now parties to the Kyoto Protocol, there are some significant states missing from the treaty.2

This raises two sets of questions. First, can legal tradition explain why such a large number of states with divergent legal traditions have endorsed the legal principle of sic utere outlined in these climate change agreements? Why is it that in this case we see states with legal traditions in the civil and common law families, as well as the Islamic law and Asian law families adopting the same international principle. States with legal traditions as diverse as China, India, Russia, the entirety of the European Union, and most of the Middle East, Africa, and South America have signed on to the Protocol. Across both the developed and the developing world support for the treaty is widespread. Can legal tradition provide an explanation for this?

Second, can legal tradition explain why those remaining 24 states3 have been unwilling to sign on to the concrete manifestation of sic utere found in the Kyoto Protocol in order to address what is widely recognized as a growing global crisis? Why do Australia and the United States remain the hold-outs among the developed countries?

Why would any developing country not sign on to the Protocol, given the benefits to their development in this first stage of the climate change process are significant? Is there something within the historical approach these countries take to the law that can explain these hold-outs?

 

(A)    Definition and Development

Sic utere tuo ut alienum non laedas can be translated as “use your property so that the property of others is not damaged.”4 This principle dictates that one state may not engage in any action within its territory that will adversely impact the territory of another state or the common territory of all states.5 The modern understanding of the principle of sic utere stems from the Trail Smelter Arbitration, which was a case brought before the International Arbitration Association (IAA) by the United States and Canada in 1938. In the Trail Smelter case, the United States claimed that a smelter in Trail, British Columbia was damaging apple orchards and crops through the emission of sulfur dioxide, which crossed from Canada into the state of Washington. The IAA decided upon hearing both parties that, under international law, no state may use, or allow the use, of its territory in a manner that will cause injury or damage to the territory or people of another state.6 The panel stated that states are responsible for any transboundary environmental harm thatoriginates in their territory, whether the actions are those of the state, private citizens, or corporations.7

While not binding on any states but the U.S. and Canada, the Trail Smelter decision came to be seen as a principle of customary international law, applicable to all states. The principle tenets of the decision were incorporated into the Stockholm Declaration on the Human Environment issued by the United Nations in 1972. Principle 21 of the Stockholm Declaration declares that states have the “responsibility to ensure that activities within their own jurisdiction and control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”8

Principle 21 has been recognized in a number of other treaties and declarations, including the Law of the Sea Convention, the ASEAN Convention on the Conservation of Nature and Natural Resources, and the 1979 Geneva Convention on Long-Range Transboundary Air Pollution. This principle was also codified in the Rio Declaration on Environment and Development, which came out of the 1992 Earth Summit in Rio.

One of the primary mechanisms identified at the Rio Earth Summit to address interrelationship between sic utere, the environment, and development was the need to address climate change. Rio was one of the first instances in which the detrimental effects of climate change were discussed. The result was the adoption of the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC specifically addresses the reduction of greenhouse gas emissions as an essential component of combating climate change, and incorporates the principle of sic utere to accomplish the task.9 The Preamble to this convention asserts that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”10

Moreover recognizing that the environment is an essential “common” and environmental destruction is a “tragedy of the commons,” the Preamble also states the following: Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind …Concerned that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind….

Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions…

While identifying the need to address climate change resulting from greenhouse gases, the UNFCCC lacked specific methods by which to attain emissions reduction targets and timeframes. This was addressed by the creation of the Kyoto Protocol to the UNFCCC. The Kyoto Protocol sets specific targets for states to achieve the goals that are outlined in the UNFCCC.11 Specifically, the Kyoto Protocol calls on developed states (those listed in Annex I and Annex II12) to curb greenhouse gas emissions by 2012.

Each Annex I state has a specified target of reduction calculated based on their overall emissions. Annex II countries are also required to “provide financial resources to enable developing countries to meet their obligations under the Convention, and to help them adapt to the adverse effects of climate change … [and] ‘take all practicable steps’ to promote the development and transfer of environmentally-friendly technologies to both EITs and developing countries.”13 Developing states, on the other hand, do not have specific emissions reductions targets, but the Kyoto Protocol calls on these states to use the environmental technology to be made available to them to create environmentally responsible industries.

Taken together the entirety of the Kyoto Protocol and its attempts to reduce the greenhouse gas emissions that affect climate change, while at the same time allowing for environmentally-friendly development, re-codifies the international principle of sic utere in as concise a manner as have ever been done.14 State parties to the Kyoto Protocol who comply with their obligations under the treaty are adopting a traditional interpretation of the existing meaning of the principle of sic utere, recognizing the limits placed on state sovereignty by this norm and the affirmative action required of states to protect the norm.

States which do not sign on to the Kyoto Protocol, while not necessarily ignoring this long-standing principle, are choosing to interpret the meaning of the norm and what is required by the norm in a non-traditional way (either adopting a liberal, hierarchical, or unrestricted method of interpretation).

 

(B) Why look at this norm?

Given the long-standing historical recognition of the principle of sic utere and the widespread acceptance of this norm, why is this international legal principle a good case study for the theory that legal tradition can explain state interpretation of international law? The primary reason is that sic utere provides a good test of the theory of legal tradition vis-à-vis traditional IR theories. Given the high costs to some states of signing on to the Protocol in terms of increased costs to industry and consumers, traditional explanations focused on the protections and maximization of the material interests of the state fail to provide a sufficient explanation for why some states have become parties to Kyoto and other have not. Indeed, given the high costs to developed states in joining Kyoto, why would any state sign on? Correspondingly, given the benefits that developing countries stand to receive by joining Kyoto, why would a developing state not sign on?

The U.S. and Australia have not joined Kyoto, and many point to their refusal as evidence that state interests trump environmental concerns, following traditional IR theory. But the U.S. and Australia are the only two Annex I countries that have not signed on to the protocol. Other Annex I countries have the same burdens and costs the U.S. and Australia would have under Kyoto, yet they have signed on to the treaty. And where institutionalist explanations may arguably explain the adherence of the European Union states to Kyoto, this cannot explain why Canada, Japan, and Russia would sign on to the treaty. In fact, upon joining the Kyoto Protocol Russia specifically that it was doing so despite the fact that it was likely to harm Russian interests.15 Why? Moreover, given that Australia, a developed country, actually received an allotted increase in the amount of carbon the country could produce up to 2012, why wouldn’t the country join the protocol, particular if it could gain economic benefit through the emissions trading scheme under Kyoto?

On the other hand, given the potential benefits in terms of economic assistance and the ability to sell credits to the developed countries, why would any developing (i.e. non-Annex I) state not become a member to the Kyoto Protocol and adopt the treaty’s adherence to the principle of sic utere? Developing countries only stand to benefit from Kyoto; indeed this is one of the primary reasons that developed countries should, under tradition IR explanations, not adhere to the protocol. The short-term benefit seemingly accrues solely to the developing nations, who receive all the benefit of the protocol, including the ability to continue to industrialize without concern for carbon emissions, economic assistance in making their industry more environmentally friendly, and possibilities to make money selling carbon emission certificates to developed states. Yet, a number of developing states, including Cote d’Ivoire, have not become parties.

A second, more general reason that the international legal principle of sic utere is a good principle for a case study is that it is an increasingly important issue for the international community, and this importance is recognized by an increasing number of international agreements and actors. Global economic growth based on carbon fuels is anticipated to continue, particularly in rapidly developing areas such as China and India.

This will correspondingly have an effect on the level of greenhouse gases in the atmosphere. Estimates put forth by the Intergovernmental Panel on Climate Change – an organization established in 1988 by the World Meteorological Organization and the United Nations Environment Programme to investigate and report on global climate change – are for a two degree centigrade rise in average global temperature by 2100.16

This is likely to result in economic losses of between US$572 billion and US$762 billion annually.17 Global emissions of the three major greenhouse gases (carbon dioxide, methane, and nitrous oxide) are expected to rise to 41 billion tons by 2015, driven largely by high-emissions growth in developing states (whose total emissions are expected to overtake those of developed countries by 2010).18

Most climate scientists believe that the build-up of greenhouse gases in the atmosphere has caused at least part of the world’s warming trend, which could lead to drought, floods, and agricultural disruption.19 Each of the four countries in this part are in a position to be significantly affected by these changes. Germany is vulnerable to flooding. Cameroon is prone to coastal flooding, as well as drought which affects agriculture. Cote d’Ivoire is vulnerable to any temperature changes which will harm agriculture production. Australia is vulnerable to all manner of environmental catastrophe from drought, to floods and agricultural disruption, not to mention the damage being done to Australia’s unique ecosystem and the Great Barrier Reef.20 Given these potential dangers, each state would seem to benefit in the long term from participation in the Kyoto Protocol’s emissions reductions; yet only Germany and Cameroon do.

 

Alternative Theories

There are a growing number of studies in the international relations literature that consider state action concerning environmental norms and policy. Protection of the environment has become one of the foremost contemporary issues for debate among states along with concerns of peace and security, trade and economics, and human rights.

A number of theories have been developed seeking to explain state behavior in the environmental realm. At the same time, however, many of these theories have a difficult time explaining the widespread acceptance of the Kyoto Protocol by states, when for many of them, this requires relinquishing a certain amount of state sovereignty and costing significant amounts of money. This not only limits a state’s ability to act in any manner they see fit, but also has a secondary effect of materially affecting state interests.

The question therefore is why in the case of the principle of sic utere as codified in the Kyoto Protocol do we see some states become a party to the treaty – seemingly against their interests, whereas other states who stand to benefit from the treaty do not become a party?

Neo-realist approaches to the concept of state action in the environmental realm would suggest that states will adhere to their obligations under a treaty or in relation to the norm when it is in their interests to do so. Particularly if adhering to such an agreement serves to better position the state within the international community or preserve the national interest. In other words, states would adopt a traditional interpretation of the international legal principle of sic utere only if doing so will better their position. Since the late 1980s, there has been significant support for the notion that environmental degradation constitutes a security risk.21 There are a number of different veins of this research, each which has its own viability.22 The first looks at environmental degradation as a security threat because it erodes a fundamental basis necessary for the protection and sustenance of human life due to the ecological interdependence of humans with their environment.23 The second is a more traditional examination of how environmental degradation affects national security through direct physical threats.24 This literature provides that environmental degradation is a direct physical threat to a nation’s security interests when “environmental damage results directly in the significant loss of life or welfare of … citizens, or otherwise impairs …most important national values.”25 Global climate change has been recognized by scholars as this type of threat26 as the consequences of climate change (including sea level rise, erosion, wetlands loss, effects to agricultural productivity, effects to biodiversity, damage to air quality, adverse effects on human health, and damage to urban infrastructures) can result in a severe upheaval to domestic economies.27 Third, there is the question of indirect effects of environmental degradation on security.

Environmental degradation is certain areas may lead to civil strife, regional conflict, and mass migration,which could potentially affect the security of other countries (for example, as in the Australian case outlined below).28

This literature, however, does not explain two common patterns that exist in reference to the Kyoto protocol and the norm of sic utere. First, this treatment of state behavior cannot explain why states that have something to gain by signing on to the Kyoto Protocol do not sign on. This is the case with both Australia, which would be allowed an increase in emissions as well as the ability to engage in global emissions tradition, and the Cote d’Ivoire, which would gain the benefits of monetary and technical assistance to develop its industries in an environmentally-friendly way. Related to this, of course, is the argument that all states have something to gain by adhering to the Kyoto Protocol and the principle of sic utere because preventing climate change is in everyone’s interest, and therefore all states should sign on. Second, these explanations focused on securing power or relative position in the international system cannot explain why countries who may not gain by signing on to the Kyoto Protocol, such as Germany and Russia, do so anyway.

Answers to these questions are not easily found in the neo-realist literature. Even arguing that, as the world’s remaining superpower, the U.S. simply does what it wants doesn’t fit the neo-realist profile. According to this theory, if states participate in international regimes and/or adhere to international legal principles, these actions are simply additional tools the state uses to promote and protect its interests, and states will acknowledge neither if this is not the case. Given that the goals of Kyoto were arguably never going to be in the interests of the U.S., there is no reason the country ever should have participated in the process. Yet the United States, up until the point the Kyoto Protocol was open for ratification was actively participating in the drafting of the treaty.

The U.S. even agreed to emissions reduction levels which were higher then it originally wanted. Given the cost and effort required to engage in such negotiations, it is unlikely the U.S. was involved simply for the fun of it. I would suggest, rather, that the U.S., as a nation which has long recognized the principle of sic utere believes in the purpose of the Kyoto Protocol, but, as with the law discussed in chapter four, has its own ideas about the meaning of the law.

Moreover, as mentioned briefly above, given the effect the Kyoto Protocol has on developed states ability to emit carbon gases, why would any state sign on to the protocol and its focus on sic utere? Why would the entirety of the European Union – including coal producer Germany – and Canada sign on when their industries would be hardest hit by the required reductions? But at the same time, why would Australia, a developed country actually given a gain in emissions not sign on. Strategically, the allowed increase for Australia in emissions up to 2012 would put the country in an enviable position. Not only would Australia be able to increase its own industrial output and limit short-term expenditures on environmental upgrades, but should the country opt not to use all its carbon emissions, the country could sell them to other developed states for additional revenue.

Beyond the neo-realist approach, there are a number of institutionalist theories concerning state action in regards to environmental norms and environmental regimes such as the Kyoto Protocol. Following neo-liberal institutionalist understandings of regimes such as the Kyoto Protocol being developed to facilitate cooperation in reaching longer-term goals, the Kyoto Protocol might make sense. However, there a number of significant problems with the Kyoto Protocol which contrast with neo-liberal institutionalist theory. First, as described above, nor all states have the same responsibilities under the Protocol. Therefore, membership in the regime is not equal.

Given this, the potential for collective action problems loom large in the case of the emissions regime created by Kyoto, with non-Annex I states riding the coattails of the developed countries while they continue to build their own industries without regard to the environmental consequences. This is a common critique heard about China, a non-Annex I country, which will soon surpass the United States in terms of carbon emissions.29

Moreover, given that the principle of sic utere lends itself to a collective action problem, the UNFCCC and, in particular, the specific plan outlined in the Kyoto Protocol would seem especially well-tailored to help alleviate a collective action problem by providing a forum for information exchange and negotiation, as well as a clear set of targets and procedures for measuring progress to ensure compliance. In light of this, institutionalist theory would suggest that states would be more likely to joint the Kyoto adopting a traditional interpretation of their rights and obligations under sic utere because (in a game of prisoner’s dilemma) this will result in the most mutually beneficial result for all (particularly in the case of developing countries). But, this is not the case.

 

Explanations

As before, we suggest here that a better explanation of state behavior surrounding the norm of sic utere can be found in a theory that considers the nature of the role that law plays in the state decision-making process. To reiterate, the theory in this project is not that state interests play no role in the state decision-making process concerning the method of interpretation a state will adopt towards a principle of international law. Rather, the theory is that the legal tradition of a state, as a part of the foundational understandings decision-makers possess about the appropriate course of action, constitute the framework under which decision-makers make interpretations about international law. This framework not only shapes conceptions of the appropriate course of action according to understandings of law, but also determines the extent to which state interests can be considered in the process. A state in which there is virtually no rule of law or legal tradition that provides a limit on what is an acceptable course of action maintains a framework under which decision-makers are free to follow state interests virtually unconditionally. A state in which the legal tradition maintains a strong sense of protecting the general community and in which limitations on sovereignty have long been accepted for the benefit of the common good provides a more restrictive framework in which state interests cannot influence decision-makers to the point of veering off the accepted path of appropriate action to achieve the goals of law.

We would therefore expect those states in which the law is viewed as a tool for protecting the interests of society as a whole – the common good – to adopt a more traditional interpretation of sic utere, meaning these states would sign on to the Kyoto Protocol and recognize their responsibility to curb their carbon emissions for the good of everyone as the appropriate course of action under law. This is based on the fact that the norm of sic utere itself is a ‘universal good’ kind of principle. Slowing down climate change through reduction in green house gas emissions is something that benefits everyone. Doing one’s part is a classic example of the society-based component of international law, and thus those states which view law in this way domestically are more likely to participate by adhering to the Kyoto Protocol, whether or not this conflicts with their state interests by requiring them to forgo some economic or strategic benefit.

Related to this, is the expectation that those states which have a close relationship to international law will be more likely to adopt a traditional interpretation of sic utere.

Such a relationship could come in the form of a monist approach to incorporating international law into the domestic legal system, or it could come from a history of relinquishing sovereignty over certain areas of law to a supranational authority. In either case, the recognition of international legal principles as part of the legal tradition of the state, makes it more likely decision-makers will consider international law in making their policy decisions.

Correspondingly, therefore, policy-makers will be more likely to conform their actions, including adopting a method of interpretation of international law that recognizes the principle at issue and provides the strongest possible adherence to the existing tenets of the principle, whether or not these conflict with state interests.

On the contrary, those states in which the legal tradition is such that concern for the common good is minimized, either in favour of a more individualistic approach to law or because there is simply not a long tradition of law to limit reliance on state interests will view the principle of sic utere as outlined in the Kyoto Protocol as an infringement on their sovereign rights to use their resources as they see fit and maximize and protect their interests in any way possible. The understanding of the protection of the common good and the corresponding restrictions this places on state sovereignty will not be considered a justifiable infringement on state decision-makers and the existing understandings of the role of law and the appropriate course of action under the law will support these decisions. I would expect states such as these to adopt liberal interpretations of the international legal principle of sic utere, recognizing its existence, but not the authority as outlined in the Kyoto Protocol. In other cases, where the rule of law is simply absent, the expectation is that the method of interpretation is simply unrestricted with little attention afforded to the principle of sic utere at all.

In addition to the above generalized expectations, I would anticipate that those states in which scholarly opinion plays an important part in the creation and interpretation of law will be more likely to adopt a traditional interpretation of sic utere and sign on to the treaty. The role of the scholarly community is particularly important in this case because the basis of the norm of sic utere as outlined in the Kyoto Protocol is one of scientific evidence and scholarly reports. The opinion of scholars in this instance is vitally important. If the legal tradition of a state is used to relying on such scholarly opinions to form the basis of laws and legal interpretation, decision-makers will be more likely to accept the reports of scientists and scholars concerning the importance for the preservation of the planet’s environment in adhering to the principle of sic utere as outlined in the Kyoto Protocol.

 

Evidence

As with the previous case study of the international legal principle of anticipatory intervention, we will conduct two case studies comparing pairs of states with different legal traditions, similar interests, and different methods of interpretation concerning the international law at issue. Because Kyoto is essentially two separate agreements on how to reduce emissions – one providing for the rights and responsibilities of developed states and the other addressing the same for developing states – I have selected one pair of countries from each the developed and the developing categories. The pairs selected for examination in this chapter are Australia and Germany as developed states, and Cameroon and Cote d’Ivoire as developing states.

 

(B)    Developed States: Australia and Germany

Australia and Germany both meet the qualifications as Annex I countries under the Kyoto Protocol, and as members of the OECD are Annex II countries as well. This means that in addition to being assigned greenhouse gas emission targets, both countries are responsible for assisting developing countries to improve the environmental quality of their industries. There is a significant difference, however, between the requirements which would be assigned to Australia and those assigned to Germany. Germany, in conjunction with the rest of the member states of the European Union has an EU-wide target of an 8% reduction in greenhouse gas emissions. Australia on the other hand was allotted up to an 8% increase in emissions through 2012.30 Given these numbers, it would seem logical that if any state was going to interpret its obligations under the international principle of sic utere in a manner which did not require adherence to the Kyoto Protocol, it would be Germany. In reality, however, Germany was one of the first states to join the Kyoto Protocol and it is Australia, one of the few Annex I countries to be allowed an increase in emissions, who is not a member.

Germany and Australia have another similarity which makes a comparison of their interpretations of their international legal obligations under sic utere particularly interesting: both Germany and Australia maintain large percentages of industry that uses or produces greenhouse gas emissions of the kind identified in the Kyoto Protocol as most harmful to the Earth’s climate. Australia, for example, is the world’s largest coal exporter, and while the country is presently responsible for only 1.5 percent of global greenhouse gas emissions,31 Australia ranks the highest of any country in terms of greenhouse gas emitters per capita, with 4.85 tons per year.32 Despite this, however, in the negotiations of the Kyoto Protocol, Australia was actually awarded an eight percent increase in overall emissions in the period up to 2012. Germany, on the other hand, emits 2.8 tons of carbon per capita,33 and given a target of a 21% deduction in its greenhouse gas emissions.

So, what can explain then the adherence of Germany to the Kyoto Protocol and the refusal of Australia to become a member? Traditional international relations theories fail to provide a complete picture because, as outlined above, neither state seemingly acts in accordance with its own interests. Germany, arguably, should have not signed on to the Kyoto Protocol given the burden placed on the states and its industries by the emissions reduction requirements. Given that the types of industry which produce the prohibited gases are those heavy industries which use coal and are often those very industries which produce materials and objects required for national security and economic prosperity, Germany’s adherence to Kyoto does not fall in line with neo-realist explanations. On the other hand, Australia should, arguably, have no problem becoming a member of the Kyoto Protocol. Given the increase in emissions that Australia has been allowed, the country’s industries would not be adversely affected by being required to implement costly environmental modifications. Moreover, Australia, should it not opt to increase its own emissions output, would have the ability to sell emissions credits to other states.

We suggest that rather than explanations simply based on power or interest or even institutional pressures, the differing responses of Australia and Germany can be explained by an examination of the two countries legal traditions. The communal, scholarly oriented German tradition and the independent Australian tradition shape the attitudes decision makers in the two states have concerning what is required of them under the law.

Furthermore, these traditions influence how far the two states can succumb to their interests in making decisions concerning the appropriate interpretation of the international principle of sic utere.

 

Australia

Australia’s legal tradition shares many of the origins of United States’ tradition discussed in chapter four. In fact of all states in the world, Australia’s is the legal tradition most similar to that of the U.S., both in terms of historical development and in terms of modern institutions. Both states, as former colonies of Great Britain, maintain versions of the common law tradition. As described in chapter four, this has a profound impact on the view society has of the purpose of law, how law is made, interpreted and amended, and how easily international law is internalized into the domestic legal system.

Moreover, as particular types of colonies – nations founded by the outcast and populated by certain types of migrants – both Australia and the United States maintain a certain sense of freedom and independence in their legal traditions which carries over into how they view the role of law and the level of outside interference which is accepted in the law and legal process. Australia has been characterized as having an “independence of spirit” and a “streak of resentment” stemming from historical interference in its domestic business by others.34 And, like the U.S., Australia is expected to most often adopt a liberal interpretation of international legal principles.

A number of key historical events, however, have created a legal tradition in Australia that differs enough from that of the United States such that, while outcomes may often be similar in terms of interpretation of international law, the characteristics of the legal tradition which shape these outcomes are somewhat different.

These differences include a stronger historical tie to Great Britain, the geographical isolation of Australia,the absence of a Bill of Rights,35 and a greater role for the individual Australian states in the legal system. Each of these characteristics influences Australian decision-makers in terms of their interpretation of international law. And while the legal tradition’s primary characteristics – an individual purpose for the law coupled with a reluctance to accept outside interference with the law, a relatively strong judiciary in terms of creating law, the power of the states to make law as opposed to the federal government, the dualist approach to international law, and the recognition of case law and legislation as the primary sources of law – lead to an expectation that Australia will most often adopt a liberal interpretation of international law, the reasoning behind such interpretation may be different than that seen the case of the United States.

There are four primary influences which shaped the development of the Australian legal tradition. These include the particular characteristics of the Australian colonial period and the fact that Australia was largely a convict settlement for the first few decades of its existence; the geographic isolation of the country – both in terms of separation from other states and in terms of the distances between the settlements within the Australian continent;; and the method by which Australia became an independent state.

Although the Australian continent was long inhabited by aboriginal peoples and “discovered” in the 17th century by Portuguese and Dutch sailors, the British colony of Australia was established on April 20, 1770 with the arrival in Botany Bay of Captain James Cook and the subsequent founding of a settlement by Governor Arthur Phillip in Sydney Cove on January 25, 1788.36 Rather than being settled by free peoples or those escaping persecution in England, however, Australia was originally viewed as a penal colony.37 Although a number of free settlers did eventually arrive in Australia, the nature of the colony as an “open-air prison” led to the development of a rather authoritarian legal and political system under direct control of the colonial governor.38 Military law came to Australia with the arrival of the first fleet, and remained the primary method of law for many years.39 This history has had an influence on the development of the Australian legal tradition in a number of ways, including on the one hand the absence of a Bill of Rights, and on the other an aversion to a reappearance of any semblance of an authoritarian system of law today on the other.

This contributes to the independent spirit of Australian law, as well as the reluctance to allow outside interference with the domestic legal system. As Australia’s civilian (i.e. non-convict) population began to increase, a more regularized system of law was created in the country, with institutions and rules independent from those of the penal colony and the governor. Given the geographical isolation of Australia – both from other countries and between settlements within the territory – this development was relatively localized. The English, upon settling a territory such as Australia, one in which there was no existing legal system,40 imported the common law tradition of the mother country and applied the same law in Australia as that which was applied in England. However, given the incredible distance between England and the new colony, Australia was given significant leeway in governing itself, including setting up its own court system and its own laws. Moreover, although English law provided that the English legal tradition and laws travelled to the colonies with English settlers, English law also provided that the English laws were applicable only so far as possible to the new territory.41 New situations required new interpretations or new laws altogether. In the case of Australia, the conditions were so vastly different than those of England, that a new legal tradition began to develop almost immediately.42

In Australia, the local conditions significantly influenced the extent to which, and the manner in which, English law and institutions were established.43 The continual arrival of convicts, the geographic isolation, the small size of the population, and climatic conditions all had an effect on the development of the legal tradition in Australia.44

Moreover, Australia’s independence from the United Kingdom also came in a very different manner than that of the United States. Rather than through revolution, Australia achieved its independence through a gradual, peaceful process in which “the supervisory powers of the United Kingdom Parliament and government were gradually reduced and abandoned.”45 General independence from British influence was achieved on January 1, 1901, although Australia remained part of the British Commonwealth.46 It wasn’t until the 1986 passage of the Australia Acts that Australia gained full independence from the British Parliament.47

This history has created certain perceptions about the role of law in Australia. As a country that has experience with the controlling law of an authoritarian military regime, and a population descended from those whose freedom was limited, the appropriate role for law today is one in which the protection of individual freedom is valued above all. Moreover, as a country that was long part of the British Empire, preserving the state’s independence from outside influence remains important.

 

Origin and Purpose of Law

As with most Western countries, the origin of law in Australia is man. Although not a product of the Enlightenment in the way France and the United States are, as a British colony and a member of the Western alliance, the Australian legal tradition stems from the same origins as those of the other two states. Australia is a country founded on the rule of law, and abides by the rule of law, both domestically and internationally.

Unlike the United States, however, where the principles laid down in the founding documents of the Declaration of Independence and the Constitution were created by the sovereign will of the people on the basis of their perceived national identity, the Australian Constitution was created as “just another British Parliamentary Act.”48 This has the effect of minimizing the tie between the people and the law. In terms of the Australian approach to international law, this means that, unlike the U.S. where the principles of the Constitution and Bill of Rights are superior to all other forms of law, in Australia there is no such hierarchical source of law. This is likely to have an effect on the Australian treatment of international law, insofar as there is not the added burden of international law having to be in conformance with such documents.49.

In Australia, the purpose of law is primarily focused on the freedoms of the individual.50 Like the U.S., many of the early inhabitants of Australia maintained a certain sense of pioneering (or entrepreneurial spirit), one which has carried over into the understanding of the role of law. Moreover, given the early years of restrictive laws due to the convict population of the country, the Australian legal tradition post-penal colony has developed in such a way that it is not a state in which a great deal of outside influence with the individual’s freedoms is accepted. Years of living under the thumb of British rule have made such infringement undesirable from the Australian point of view.

However, this understanding about the purpose of law takes on a different form in Australia than in the United States. Whereas in the U.S., the focus of law on protections for the individual stems from the rights enumerated in the Declaration of Independence, the U.S. Constitution and its corollary Bill of Rights – all of which give a rather sacred character to the protection of individual rights – in Australia there are no similar documents. Australia has neither a declaration of independence, nor a bill of rights, and the Australian Constitution, rather than a document originating from a revolution was a parliamentary act approved in Great Britain.

Another characteristic of Australia’s history which has influence the development of the legal tradition, and corresponding the perception of the purpose of law is that throughout much of the country’s history there has been a minimal recognition of an Australian national identity among the population.51 In the case of Germany below, one of the key components of each of those legal traditions was the role of national identity in the development of the law.

What it means to be American, French, Turkish, Egyptian, or German has had a profound impact on the development of the legal traditions in those states in order that they can best serve that sense of nationality. Australia, for much of its history, has lacked a sense of nationality, and as a result, there has been no unifying understanding of “Australianness” to bind the population together behind a single legal purpose. This contributes to an understanding of the role of law as protecting the individual rather than the community, which in turn, influences the relationship Australia has with international law.

The origin and purpose of law in the Australian legal tradition create a perception of the law as a mechanism to order society, but with the minimal amount of interference with the actions of the individual members of that society as possible. In terms of interpretation of international law, this perception shapes the extent to which decision makers will view international law as binding on behaviour. Too much potential interference with the freedom of the state and it is likely the international legal principle at issue will be interpreted very liberally in order that interference with Australia’s state sovereignty or intrusion into the realm of domestic law will be minimized.

The institutions that have developed out of the Australian legal tradition are a cross between those of the United States, whose federal structure the framers of the Australian Constitution studied, and the British system from which they descended.52

The Australian legal tradition maintains a separation of powers and an independent judiciary whose decisions are considered binding sources of law. Like the case of the U.S. discussed in the precious chapter, this alters the perception within the Australian legal tradition as to the appropriate mechanisms for changing or amending the law. The Australian High Court – the equivalent of the U.S. Supreme Court – has been increasingly active in its decisions, re-interpreting old law and creating new law to meet new circumstances. This freedom of action by the courts influences the approach Australia takes towards international law.

 

Creation of Law

As the Australian system is largely predicated on the Westminster model, Parliament, under the Constitution, is considered the supreme branch of government.53 However, as a common law country, the judiciary plays a more significant role in the creation and adaptation of law in Australia than in countries with civil law or religious law foundations. In the early history of the Australian court system, the Courts had a wide latitude in hearing cases and rendering decisions54 and were considered, aside from the Governor, to be the most important sources of authority in the colony.55 Since independence, the Australian Constitution, like the U.S. Constitution, has endowed the High Court of Australia with extensive powers of judicial review, and the High Court is thus the final arbiter on the constitutionality of laws made by the Parliament. Therefore, the High Court may invalidate legislation, and these decisions become binding precedent on the appropriate interpretation of the law for not only the legislature, but also the lower courts.56

The role of the judiciary in the creation of Australian law is more limited, however, than that of the judiciary in the United States. While judicial precedent and stare decisis are key components of the Australian legal tradition,57 historically law was made as much by the legislature as by the courts. Much of basis for this stems from the circumstances surrounding Australia’s origins. Founded as a penal colony, the early governing of Australia still primarily took place in London. Given the difficulty of maintaining a body of judge-made law in two countries on opposite sides of the globe, the laws of Australia were primarily promulgated by the Parliament in England and sent to Australia as decrees. However, even with this extensive use of legislation, the Australian courts maintained the final word due to the foundations of the legal tradition in the common law.

Australia is a dualist state when it comes to the internalization of international law.58 Although the country is a great participator in the international legal regime, domestic Australian law does not mandate the country adhere to rules of international law without a specific binding mechanism.59 This means that should Australia choose to ignore an existing principle of international law there is no law against it doing so.60

According to Rosalyn Higgins, Chief Judge of the International Court of Justice, countries such as Australia deriving their legal systems from England adhere “resolutely to the dualist approach.”61 Correspondingly, this dualist approach to international law results in a “lack of detailed knowledge of international law and a (lack of) sympathy for its culture.”62 Instead, the perception of the binding nature of international law results in an approach that is “rather contemptuous of everything to do with international law, which (is) doggedly regard(ed) as unreal.”63 And, while not as definitive as it once was, this separation between the domestic law and international law in the Australian legal tradition does influence the extent to which international legal principles weigh in the minds of Australian decision-makers and in the understandings of the Australian society as a whole when considering the appropriate course of action under law.64

Under the Australian Constitution, treaties ratified by Australia are non-selfexecuting, meaning that in order for their provisions to be applicable within Australia they need to be enacted into domestic law by the Australian Parliament.65 This stems from the common law of Britain, and originated in the Case of Proclamations from 1611 in which it was held that the royal prerogative does not confer any legislative power on the executive, and that, therefore, any treaties which are signed by the executive under his allocated powers (sec. 61) are not part of the domestic law until enacted into it.66 This was reaffirmed by the Australian High Court in Kioa v. Webb (1985).67 As in the United States, until international treaties are not executed into domestic law by a legislative act, they are unable to be interpreted by the courts. Since Australia’s is a legal tradition founded on judicial decision, this has the potential to further hinder the internalization of international law.

As in the other common law countries, the primary source of law in Australia is judicial decisions, followed by legislative enactments.68 Although in Australia, as in England and Canada, the relationship between the judiciary and the legislature is more balanced than it arguably is in the United States.69 This relationship largely turns on adherence to the Common Law itself. The Common Law can be defined as “those rules of law which have been developed by the courts.”70 It had long been recognized that should a statute passed by parliament conflict with a long held principle of common law, the latter will prevail. This was highlighted by Lord Coke in Dr. Bonham’s case from 1610 in which he stated that if “an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void . . .”71 Moreover, because the appropriate interpretation and application of the Common Law in Australia is maintained through the judicial decisions of the High Court of Australia,72 the judiciary remains the primary source of law. This is similar in the United States to the judiciary’s role as the arbiter of constitutional issues.

Furthermore, like the United States, scholars and scholarly works are not considered relevant sources of law in Australia. While scholarly opinion may be considered by the courts – through the filing of amicus briefs, for example – scholarly opinions themselves are not looked upon as concrete statements as to the current state of the law or the appropriate interpretation of the law.73 This stems, in large part, from the greater role in the legal tradition played by the judiciary, who view their role as the ability to independently determine for themselves the appropriate interpretation of the law based on legal training and precedent, rather than having to rely on scholarly opinion as opposed to civil law judges who historically may have been closer to government bureaucrats than highly trained judges. This affects the method of interpretation a state may adopt, as described above, because the lack of recognition of scholars as a viable source of law often distances law-makers, and subsequently decision-makers, from a close connection with international law.

 

Germany

Germany’s legal tradition shares many of the same origins as the French tradition discussed in chapter four. A number of key historical events, however, have created a legal tradition in Germany perhaps even more focused on the symbiotic relationship between international law and domestic law than we see in the French case.

Correspondingly, Germany is expected to adopt a traditional interpretation of international law, focusing on the adherence to recognized norms rather than pushing for new understandings. The German understanding of law largely reflects the post-war reaction to the country’s role in World War II. Moreover, much of the modern system of international law and the modern international principles themselves, have their origins in the reaction by the international community to the atrocities committed by Germany and its allies during WWII. In a continual effort to atone for the past, Germany over the past 60 years has readily incorporated principles of international and regional law into its own legal system, and views international legal principles as binding on German actions as domestic law.74

Generally, Germany may be classified as a state with a civil law tradition which maintains certain indigenous concepts originating in the country’s unique history.75 There are a number of primary influences on the German conception of law. These include the Roman law, Germanic custom and the ius commune, the lack of unity in the legal tradition in its early stages of formation, the rejection of influence of the Catholic Church during the Reformation, and the reliance on detailed written codes, although markedly different in style in the German case than the Napoleonic codes of France.

More recent German history has also had a profound influence on the modern understandings of law and legal institutions. The primary historical influences in the development of the German tradition are similar to those in France and the country was strongly influenced by the Roman Law. The primary period of influence of Roman law in Germany, however, did not occur during the era of the Roman Empire, when only the southern portion of modern German came under Roman direct Roman control, but towards the end of the Middle Ages when the Glossators at Bologna created the jus commune.76 During the period of the Middle Ages, while the French legal tradition was either stalled or under the influence of the Canon law, Germany relied largely on its own customary law which existed within and among the numerous German tribes.77 As a result, the German legal tradition continued to develop, but in a diversified manner, with individual territories developing their own methods of law creation, implementation, and application. This historical individualism among the different regions of Germany is still echoed in the federal legal system present in Germany today.78

Beginning in the 11th century, Roman and canon law (in the form of the jus commune79) began to be received throughout German lands, largely by virtue of German scholars who studied abroad and returned with knowledge of such laws. In 1495, a central imperial court was established (under the auspices of the Holy Roman Emperor), and the judges were obliged to apply the law of the jus commune, unless a conflicting local custom or statute could be proven.80 However, given the level of difficulty in proving the existence of a customary law, Roman law, in essence, was the law that was applied and became the basis for the law in all regions of Germany.81 There were numerous reasons Roman law gained such a stronghold in Germany, including: there was no resistance to Roman law from a strong national legal profession (as their was in England, for example); there was no court system or common body of “German” law already in place; the imperial power claimed itself to be the successor of the Roman Empire, facilitating reception of Roman law; and practically speaking, Roman law solved the problems of inconvenience caused by the wide array of local customs in existence and the difficulties these posed for interactions among the small, independent entities that made up the German territory.82

Contrary to the development of the French tradition, however, one of the key characteristics of the historical development of the German legal tradition is that, despite in the common influence of the Roman law throughout all German territories, there was a lack of unity between the Germanic peoples. Throughout the Middle Ages Germany was made up of small fiefs, each under the control of a noble family. The German kings were not very successful in unifying or controlling these nobles.83 Up through the early 16thth century, therefore, the governing of Germany took place on two levels: a federal level which encompassed the imperial assemblies (Reichstag) made up of the emperor, princes, church administrators, knights, and representatives of imperial towns; and a local level in which territorial assemblies composed of the local prince and members of the privileged class ruled over their particular fief.84 Centralization of the legal and political systems finally began with the rise of nationalism in the wake of Napoleon’s defeat and the rise of Prussian power in the early 19th century.85 This culminated in the formation of the German state in 1871.86

Throughout this period, another key characteristic of the German legal tradition is the rejection of the influence of Canon law and the role the Reformation played in the development of German law. This, coupled with the minimal impact the 18th century Enlightenment had on German legal development,87 led to a more austere view of the law. The Pandectist group of legal scholars which were largely responsible for creating the German Civil Code in the latter half of the 19th century resisted modern legal developments occurring elsewhere in Europe and focused primarily on retaining elements of the jus commune. Prior to World War II this resulted in a legal tradition that was almost devoid of focus on individual rights and freedoms, and largely focused on the protection of the German nation. This was reflected in a number of the Constitutions which were put in place in Germany from the period 1871-1946.

The era of Nazi power, World War II and its aftermath have had a significant impact on the German legal tradition. Much of what existed in terms of both understandings of the purpose of law and legal institutions was destroyed by the realities of German action “under the law” during the 1930s and 1940s. The pre-WWII attitudes developed out of a scholarly and impartial view of the law as a tool to be used by the state gave way to concerns for the protections of individual rights and freedoms and the assurance the legal institutions would further the benefit of the community through law, rather than the benefit of the state. This is manifested in the new German Constitution, new powers granted to the judiciary, new rights afforded to the German people, new mechanisms by which individuals can seek to protect their rights, and new involvement by Germany in the creation of international law. Since the arrival of the Roman law, no other event has done as much to shape the German legal tradition than World War II.

These influences on the German legal tradition have led to a tradition focused on the good of the community, one in which protections of human rights are considered paramount. From this historical development, legal institutions in Germany have developed in a manner which focuses on providing clear direction as to actions that are allowable under law. This includes international law, which is readily incorporated into the German legal system. Finally, like most legal traditions which have their origins in the common law and codes, German focuses on detailed written sources of law, including the German Constitution and the codes. Moreover, stemming from the long-standing disunity of the German court system, the role of the scholar is prominent in the German legal tradition. Each of these characteristics, developed from Germany’s unique history, contributes to the approach Germany takes to international law.

As in France, the United States, and Australia, Germany is a country whose legal tradition is grounded in the understanding that law originates with the human race, and that law is a function of a human being’s reason and his ability to recognize the need for law to improve society. The purpose of law in Germany today is community-centered.

While through the course of German history, this notion of law serving the community has taken on different meanings, today the approach of the German legal tradition is one which seeks to protect the greater communal good, rather than promote individual good.

As with France, this does mean that Germany does not protect individual rights. Germany has a very strong adherence to the protection of individual rights, and in fact is one of the few countries where individuals can take complaints of violations of their rights directly to the Constitutional Court for resolution.88 However, the general understanding of the conception of justice is one which centers on maintaining harmony for the entire community – contrary to the legacy of singling out certain groups or individual within the community – and promoting good morals.89

This notion is furthered echoed in Germany’s present Constitution (called the Basic law), which entered into force on May 23, 1949. The Basic Law centers on a key distinction from historic German Law. Today, the German legal tradition understands the supremacy of the Constitution and the supremacy of the rule of law over the supremacy of the government. Today, Germany focuses on being a just state (Rechtstaat), rather than on state justice (Staatsrecht)90: a subtle distinction, but one which creates an understanding of the law as a protection force for the community, rather than a tool of power of the state as it was throughout much of Germany’s history.91

In furtherance of the post-WWII conception of the German Legal Tradition as one focused on a communal purpose for the law, is the modern German state as a social state; moreover, a social state with an affirmative obligation to intervene in society to promote social justice.92 An example of this, one particularly relevant to this chapter’s discussion of Germany’s approach to the international legal principle of sic utere, which of course is a law with a communal focus, can also be found in the German Basic Law. In 1994 the German legislature added article 20a to the Basic Law. Article 20a requires all branches of government to promote environmental protection as part of their “responsibility for future generations.”93

 

Creation of Law

The creation of law in Germany, as in most countries with origins in the Roman law and the ius commune, is largely the responsibility of the legislature. In the case of Germany, however, this is also the result of the long-standing disunified nature of theGerman legal tradition, rather than a response to an unjust judiciary as it was in France.

When the German Civil Code was created in the late 19^th century, it was written in such a way as to encompass every possible scenario that could arise, both to serve as a complete guide for legal practitioners, as well as to limit the role of judges.94 This idea of a detailed, centralized creation of law remains today.

The German judiciary, however, does play a somewhat greater role in the legal process than in France. This again, is largely the result of the post-WWII recreation of the German legal system with the intent to create a law that protected the common good of the German community. In furtherance of this goal, German courts – particularly the Federal Constitutional Court – have a limited power of judicial review, particular in instances when German law may conflict with the rights afforded to the German people in the Basic Law. This difference stems largely, not only from the German people’s own desire to prevent a repeat of the actions in the 1930s and 1940s, but also largely due to the influence of the United States in rebuilding the German institutions after WWII. This does not, however, the general method of law creation as one being done through the representatives of the people, either in the national legislature or at the state level.

Germany is a combination of a monist system and a dualist system. Some forms of international law require separate action to be taken by parliament for the law to become part of the domestic legal system, others do not. Examples of those treaties whose internalization must include a role for the parliament include: normative treaties and political treaties.95 All other treaties, including those that involve financial obligations, do not require legislative approval.96

Even when a principle of international law requires separate legislation to become part of the German legal system, however, recognition is relatively rapid and incorporation much smoother than in the United States and international law is easily internalized into the domestic legal system.97 This again largely stems from the German history and the German people’s desire to overcome that history.98 This trend towards monism is reflected in the special place international law enjoys a in the German Basic Law. Article 25 of the Basic Law states that international law has the force of federal law and specifically takes precedence over statutory law.99 Moreover, articles 23 and 24, specifically allow for the transfer of German sovereignty to the European Union and other international organizations, respectively.100 This naturally greatly facilitates the internationalization of international legal principles into the German legal system.

 

Sources of Law

Legislation, in the form of statutes, codes and special acts, is the primary source of law in Germany.101 The most important of these are the German Constitution of 1949, also called the Basic Law, and the German Civil Code (Buergerliches Gesetzbuch), which entered into force in 1900.102 Given the historical development of Germany’s legal tradition and its roots in the strong adherence to written and codified law adopted from Roman law and the influence of the French tradition, the German Basic Law is extremely detailed in its descriptions of not only the laws, but the legal and political systems of the country.103

Reflecting German history, customary law is also still considered, to a limited extent, a source of law in Germany.104 Today, the force of custom as a source of law is relevant in those situations in which there is no codified law or judicial decision to serve as a guide. Moreover, as only the decisions of the Federal Constitutional Court have precedential value, a consistent line of decisions of lower courts may be binding, not as precedent, but as customary law. Consistent decisions over time by lower courts on a provision of law will produce customary law, which is binding as a source of law in Germany.105 While of limited importance for the general day-to-day workings of the German legal system, the continued recognition of custom is significant when we consider the influence of legal tradition on Germany’s interpretation of international law. As customary international law is one of the principle forms of international law recognized by the international community, states which continue to recognize custom as a form of domestic law will have an easier time identifying customary international principles as authoritative. In the case of the principle of sic utere, much of the development of the legal principle comes from customary international law rather than codified treaty principles.

As with many civil law countries, particularly those closely linked to the Roman tradition, scholars are also considered a source of law in Germany.106 Germany was long thought of as a Professorenrecht or Professor’s law.107 From early in the historical development of the German legal tradition, judges “relied heavily on legal scholars for information and guidance concerning the local law as well as the received Roman law.”108 For example, in 16th century Germany, the organization of the German court structure was decentralized and disorderly, with over 2,000 individual courts in Saxony alone.109 In an attempt to render justice as fairly and uniformly as possible, the complete dossier of a court case would be sent to a university where a professor or group of professors would determine how the case should be decided.110 These scholarly opinions became like a body of case law in the United States, referred to by all courts to determine what the law is.111 German law does recognize the authority of treatises as well.112

These exist in all major fields of law, including international law, and cover in-depth what the law is, its principles, and its problems.113 Treatises are most often written by scholars and are read, not only by law students, but also read and cited by lawyers and judges as evidence of prevailing opinion on the law.114

 

Investigation

Based on the attributes of their respective legal traditions, what interpretations of international law would Germany and Australia be expected to adopt? Moreover, if we consider the respective interests of the two countries in terms of their obligations under the Kyoto Protocol, how would we expect them to understand their responsibilities under sic utere? Would it be expected that they would readily join the communal fight against global warming? Or would they seek to protect the interests of their national industries and rights of sovereignty?

In the case of Australia, the attributes of the state’s legal tradition – individual purpose, judicial creation of law, dualist approach to international law, judicial decisions as a key source of law with no reference to scholars – lead to the expectation the country would adopt a liberal interpretation of international law. This is because these attributes, coupled with the historical development of the Australian legal tradition discourage a close relationship between the Australian domestic legal tradition and international law.

As with the U.S. discussed in part four, the Australian legal tradition hinders the incorporation of international law into the domestic legal system, resulting in a sense among policy-makers that international law is binding, but the circumstances in which it is binding in its current form may vary.

On the contrary, an examination of the interests of Australia concerning the principle of sic utere as outlined in the Kyoto Protocol point to Australia adopting a traditional interpretation of its obligations under sic utere and the Kyoto Protocol. An examination of Australia’s interests in the matter – protecting the domestic economy and industry, allowing for future development, benefiting from the emissions trading scheme outlined in the Protocol, both buying and selling environmentally efficient technologies, and the reputational interests that come with participating in this endeavor – would lead to the expectation that Australia would sign on to the Kyoto Protocol and support the communal interpretation of sic utere in terms of greenhouse gas emissions; not because of an altruistic sense of the obligation, but to best protect Australian interests.

In the case of Germany expectations are opposite those of Australia. Given the attributes of the country’s legal tradition – strong communal purpose to the law, a legislative system of law creation, a largely monist approach to international law, and both written and scholarly sources serving as key sources of law – a traditional approach to the international legal principle of sic utere would be expected. This is because these attributes focus on law as the best method of supporting protections for the widest number of people, including the global community.

German interests, however, would seem to imply the opposite conclusion. An examination of German interests affect by Kyoto – limits placed on industries using fossil fuels, shouldering a large percentage of the communal EU reduction targets, pressure to create alternative energy sources, limited benefits to be derived from the emissions trading scheme, and responsibility to fund environmentally-friendly development projects in the developing world – would seem to indicate that Germany would adopt a liberal policy towards sic utere, interpreting its obligations under the law as not requiring the specific commitments outlined by Kyoto in order to protect its own industries and interests.

Given these tensions, which theory best explains the actual actions of Australia and Germany towards their obligation to sic utere under the Kyoto Protocol? I will discuss each state in turn. First, I will discuss the actual position taken by the state and its justifications for doing so. Second, I will discuss the expectations of traditional international relations theories, and why the action of the state is not explained by them. Finally, we will summarize how considering the role of legal tradition provides a much more complete explanation of each state’s actions.

 

Australia

Australia has not ratified the Kyoto Protocol and has indicated it has no intention of doing so. There are a number of reasons cited by Australia for this position. First, Australia argues against the failure to include developing countries in the emissions targets – particularly China and India – and the fact that the reduction efforts of Kyoto would only result in an overall one percent reduction in emissions from 1990 levels worldwide115. Second, Australia claims that it must protect its business interests116, and the obligations required under the Kyoto Protocol would be too detrimental to Australian industry which relies on fossil fuels. Correspondingly, Australia claims that its recent healthy growth rate would be stymied should the country undertake the obligations required by Kyoto.117 Australian Prime Minister John Howard stated, “For us to ratify the protocol would cost us jobs and damage our industry.”118 As summarized by the Australian government, “the Kyoto protocol does not provide the global community with a practical or effective means to address serious environmental concerns raised by greenhouse gas emissions.”119 And while the Australian government is “committed to an effective international process in curbing greenhouse gases … it must be one that is fair to all parties. . . .” 120

While these all appear to be reasonable justifications for not signing on to the Kyoto Protocol, the question becomes whether this justification provided is truly reflective of Australia’s interests, or is rather reflective of something else inherent in the Australian system, such as historical views about the role of law. I suggest that, in fact, the latter holds true in the Australia case. That in fact the justifications outlined above are really indicative of Australia’s understanding of law, including international law, rather than a rational calculation of interests. As discussed briefly above, traditional international relations explanations for Australia’s interpretation of sic utere under the Kyoto Protocol would focus on how Australia’s position furthers its interests and protects its position in the international system. While an initial reading of Australia’s justifications for its actions might appear to be a laundry list of interests to be protected, this is not the case. In fact, it has been suggested by a number of different parties that Australia is in fact harming its own interests and global position with its interpretation of its obligations under the Kyoto Protocol rather than protecting them. There are a number of reasons for this position.

First, in terms of the protection and development of Australia’s territory, people, and industry, there are a number of factors that make adherence to Kyoto a better alternative. For example, as Australia is the driest inhabited continent in the world, with a high level of susceptibility to drought, the country is particularly vulnerable to the effects of climate change.121 Moreover, as discussed here, climate change is a problem which requires a communal effort to find a solution because neither climate nor climate-altering emissions respect national borders. Given this, it would be in Australia’s best interest to join the communal efforts aimed at reducing climate change rather than promote an individual approach because, even if a country like Australia is capable of tackling the problem on its own, many other countries are not, and their failures will affect Australia too.

Second, in terms of position and reputation within the global community, Australia’s neighbors, allies, and trading partners are disgruntled by the state’s interpretation of its obligations under sic utere. Particularly upset are the Southeast Asian island nations that make up many of Australia’s nearest neighbors. Many of these states, such as Tuvalu, Kiribati, and the Marshall Islands are in danger of disappearing as a result of the rising sea levels attributed to global warming. Australia’s refusal to sign on to an international agreement that seeks to take steps to alleviate this destruction is an affront to these states.122 This not only harms Australia’s reputation with these states as a regional leader,123 but also has potential long-term consequences for Australia in terms of the possibility of an increased flow of refugees to Australia.124

Third, in terms of the economic effects of Australia’s adherence to the terms of the Kyoto Protocol, rather than supporting the position that Australian industry and development will suffer, leading to a slowdown in the economy, a number of studies actually demonstrate that the growth of the Australian economy will either be the same irrespective of the state’s position on sic utere,125 or will actually improve if the state adopts the traditional interpretation codified in the Kyoto Protocol. Figures compiled by the Australian Department of Environment and Heritage estimate that should Australia sign on to the Kyoto Protocol, there will be 0.05 percent reduction in the Australian GDP by 2010.126 The same report estimates that if Australia continues to address the problem of climate change on its own, there will be 0.07 percent reduction in GDP127 by 2010.

While these numbers are very similar, however, if Australia continues to act according to its own interpretation the report states the country will actually be worse off. This is because Australia will not have access to the emission trading scheme under the Kyoto Protocol, which will make the country’s industries less competitive internationally.128 This will lead to depreciation of the Australian dollar, increasing the cost of international debt payments and the cost to domestic investors of accessing international investment markets.129

According to Anthony Albanese, former Shadow Minister for the Environment and Heritage: Australian business is being left behind. … Because Australia has not ratified Kyoto, any work Australian companies do to reduce greenhouse emissions will have limited benefits for those companies. … Australia is giving the world a jump start in entry to a dynamic driving force of 21st century economics. The investment will simply go elsewhere.130

Moreover, as the global greenhouse gas emissions trading system is estimated to be worth as much as 100 billion dollars by 2016 for those countries that are part of the Kyoto mechanism,131 Australia could potentially lose a great deal of money. As one of the few developed countries who has been granted an allowable increase in emissions, Australia would be in a position to trade emissions to those countries who are having trouble meeting their targets.

Even groups generally expected to be opposed to Australia’s participation in the Kyoto Protocol recognize the reality of the detriments the state may face if it remains outside the regime. For example, the Business Council of Australia recently changed its position on Kyoto from negative to neutral, recognizing that any regulatory uncertainty that may come from Australia being outside the Kyoto norm may have a more significant influence on a company’s investment decision than regulation itself.132 Moreover, two studies by the Australian government provide results of economic modeling on how the Kyoto Protocol will affect Australian businesses, with results indicating that “there will be economic costs to Australia whether or not it becomes a signatory to the protocol.”133

The report also stated that the Kyoto Protocol could slow the global economy generally, which would result in less demand for Australian products, particularly coal and fossil fuels. By signing the protocol, however, Australia could benefit from trading emission credits, especially to countries such as Japan. The report further suggested that demand for Australian exports may fall because countries that have ratified the protocol would be more likely to trade among themselves, rather than with a country which has not taken on Kyoto obligations.134

It is evident, therefore, that there is significant disagreement as to whether Australia’s actions vis-a-vis the Kyoto Protocol are in the country’s best interests or, in fact, against those interests. At a minimum, it does seem clear that Australia’s interests do not provide a clear-cut explanation for the state’s adamant refusal to sign on to the Kyoto Protocol. Can an understanding of Australia’s legal tradition provide us with a better explanation?

The attributes Australia’s legal tradition – individual purpose, judicial creation of law, dualist approach to international law, judicial decisions as a key source of law with no reference to scholars – lead to the expectation the country would adopt a liberal interpretation of international law. Australia has, in fact, adopted a liberal interpretation of its obligations under the international legal principle of sic utere. Australia has recognized both the dangers of continued levels of greenhouse gas emissions and the need for states in the international community to take action to limit these emissions.

However, the approach Australia has adopted is one based not on the existing understanding of sic utere as outlined in the Kyoto Protocol, but one based on an interpretation largely consistent with the attributes of the country’s approach to law, and one reflective of its legal history.

The attributes of the Australian legal tradition, combined with the historical context from which they developed, have resulted in an approach to law – both domestic and international – which focuses on maintaining the least amount of outside interference, and the greatest amount of individual freedom, possible while still acting within the rule of law. Like the United States, this leads Australia to acknowledge the existence of the international legal principle of sic utere, but resist a communal effort to impose outside restrictions on activity within Australia’s territory. These attributes, moreover, make the recognition and internalization much more difficult in Australia.

This in turn creates less recognition of international law among decision-makers. Corresponding to this is the fact that the Australian courts, like courts in the United States, have decided very few cases interpreting international law as binding on Australian policy-makers. Those cases which have been decided, largely leave the authority for determining the binding nature of international law on Australia’s actions to the executive and legislative branches. As Australia is a country, like the U.S., which relies on judicial decisions for the creation and acknowledgement of law, this further influences the role that international law plays in the Australian policy process.

While Australia’s interpretation of international law closely mimics that made by the United States in chapter four, there are some minor differences in the historical development between the two countries that influences the explanation for their interpretations. For example, in Australia, the legal tradition is somewhat more community oriented and less judicially-decision based. They still have the same spirit of independence in the law, but the actual independence is more minimal given their much longer ties to Britain. However, as a relatively newly independent country, they are not desirous of foreign intervention in their domestic affairs. So, they do not believe that adherence to the principle of sic utere as outlined in the Kyoto Protocol is necessary.

However, the interests of the country are such that protection from climate change is not only good for them but for their neighbors and the globe, so they pledge to engage in such action on their own. In essence, the legal tradition does not require a multilateral approach to the problem.

Furthermore, the federal institutional structure in Australia has an effect on the country’s position on climate change policy.135 Overall, the Commonwealth government has limited constitutional power, whereas the state governments have extensive jurisdiction over land management, natural resources, urban planning and transport.136

The federal nature of Australia’s system has resulted in a significant amount of power remaining in the states, including a great deal of authority over environmental issues. Land management, for example, remains in state control. Land clearing, which is one of the largest sources of greenhouse gases, has no significant environmental program attached to it.137 The fact that significant authority is delegated to the states under the constitution makes it more difficult for the federal government to sign on to international agreements that will infringe on state authority.

The historical development of Australia’s legal tradition, and the attributes of the legal system which have developed from this history also allow policy-makers a wider ability to consider state interests in making their policy choices. Like the United States, the individualist nature of the legal tradition and the focus on protection of individual and state freedom from outside interference at the domestic level, can be expected to translate to the international level. As described above, Australia does justify its position on the international legal principle of sic utere largely in terms of its perceived interests.

Although, as also described above, there is a question as to whether the interests described by the Australian government are truly in its interests. Rather, we would suggest that the interests being used by Australia as justification for its positions are those viewed through the lens of the legal tradition. The real issue for Australia – the real interest to be protected – is the protection of the Australia view of the correct form of action under the law. The Australian legal tradition has created a perception of law reluctant to accept outside influence and interference with individual freedoms of actions. It is this interest – one constituted by the historical development of understandings of the law – which used to justify the Australian position on sic utere. None of the justifications provided by Australia are interests outside the law. All statements are made in reference to the law, and are corresponding constituted by the understandings of law which exist within the state.

By way of illustration, an interpretation of sic utere more in line with Australia’s legal tradition can actually be seen in the country’s recent collaboration on the Asia-Pacific Partnership on Clean Development and Climate (AP-6).138 AP-6 is a group designed to find an alternative acceptable strategy to combat greenhouse gas emissions that is less intrusive for states, and allows freedom of choice among states in terms of how they will combat global warming.139 The core principles of this group focus on assigning private enterprise the primary work of halting global warming through mechanisms of its own creation, rather than imposing requirements from an outside source. This plan is more in line with the tenets of the Australian legal tradition, focused on preserving individual freedoms, restricting outside interference with the law, but at the same time working to uphold global standards – but on a more individualized basis.

Given the compatibility of this plan with the Australian approach to law, it has even won the support of the Australian Labor Party opposition, which is normally opposed to Howard’s government’s conservative position on the environment.140 Given this plan to address climate change fits with the attributes of the Australian legal tradition, it lends further weight to the authority of legal tradition as the key explanatory factor for Australia’s interpretation of international law.

Germany also meets expectations in terms of acting in accordance with its legal tradition. Germany has adopted a traditional interpretation of its obligations under sic utere, signing on to the Kyoto Protocol and agreeing to undertake the obligations required of it by the international accord.141 As mentioned briefly above, this approach by Germany to this international legal principle is contrary to what would be expected if Germany were strictly adhering to its interests.

Germany is Europe’s largest economy and the fifth largest economy in the world.142 Germany, however, has become one of the slowest growing economies in Europe and improvement is not foreseeable in the near future.143 Largely this is due to the continued efforts to modernize and integrate the former East Germany,144 but Germany has also been affected by an aging population, high unemployment, an unbalanced social security system, and structural rigidities in the labor market.145

Germany’s store of natural resources includes coal, natural gas, and a number of ores and minerals.146 As a result, one of the primary environmental issues facing Germany today is emissions from coal-burning utilities and industries.147 Fossil fuels account for 61.8% of Germany’s electricity production,148 and Germany is among the world’s largest producers of iron, steel, and coal.149 Germany is relatively poor in natural resources and available land for agriculture, and therefore the majority of its exports also emphasize manufacturing and production, such as chemicals, steel and iron products, machinery, and motor vehicles.150 Germany remains the European Union’s biggest polluter,151 although the country is also a leader in the development of alternative energy sources, such as wind power.152

These factors would all logically point to Germany adopting a liberal interpretation of its obligations under the Kyoto Protocol to protect its interests. Under the Kyoto Framework, the European Union as a whole is required to meet an 8% reduction in greenhouse gas emissions by 2012. Germany, however, is expected to shoulder a significant portion of this burden and reduce its emissions by 21%.153 This has received a bitter reception in the German business sector, where German industries have indicated they feel they must shoulder too great a share of the burden for the overall emissions reductions in the EU region.154 In order to protect its industries, as well as not further hamper its troubled economy, an interests-based theory would expect Germany to not adhere to the Kyoto Protocol given the severe imposition the treaty makes on German industry.

A number of economic groups, such as the ICCF, believe that Germany’s adherence to the Kyoto protocol will have a “significant (negative) impact on the economic performance” of the country.155 This negative impact includes the imposition of additional energy taxes which would be imposed on all consumers and cause the price of home heating oil to rise by nearly 30%; an increase in gasoline and diesel prices of nine and twelve percent, respectively; and an increase of 30% in the amount industry will have to pay for natural gas and electricity.156 It is also possible that annual job losses will be over 300,000 by 2010, and over 500,000 by 2025 due to the negative effects on German industry.157 Moreover, real GDP in Germany could shrink by 18.5 billion euros (0.8%) below base levels during the 2008-2012 budget period.158 Given the large number of potential negative consequences for Germany, its industries and its peoples, an interest-based explanation would predict Germany would not adopt a traditional interpretation of its obligations under sic utere and would not sign on to the Kyoto Protocol. Rather, Germany would be expected to adopt a liberal interpretation of its obligations in order to protect its industries and consumers, and address any reductions in greenhouse gases in a less rigid manner.

Despite these numerous reasons for Germany not to adopt a traditional interpretation of sic utere and bind itself to the obligations of the international environmental regime, however, Germany is a member of both the UN Framework Convention on Climate Change and the Kyoto Protocol. Germany has adopted a tradition interpretation of its obligations under sic utere under the Kyoto regime. Given that interests-based theories cannot adequately explain this, as highlighted above, what accounts for Germany’s actions which are seemingly so detrimental to its own short-term economic interests? Again, it is Germany’s legal tradition that provides the link for understanding why Germany adopted the interpretation of international law that it did.

The attributes of Germany’s legal tradition – strong communal purpose to the law, a legislative system of law creation, a largely monist approach to international law, and both written and scholarly sources serving as key sources of law – create a strong belief in multinational dialogue on global concerns.159 This approach to international law is rooted in the belief that militarism, unilateralism, and the aggressive pursuit of nationalism and national interests rather than international cooperation will be devastating to the global community as a whole.160 This is highlighted by Wolfgang Biermann, a Social Democratic Party senior foreign-policy adviser, who identifies the difference between Germany and a country with a different legal tradition: “The feeling in Germany is that the Americans end up doing what they want with only their national interest counting, while the Germans don’t feel that only their national interest counts.”161

This view of protection for the good of the community, even if that means sacrificing one’s own short-term interests, is better for everyone in the long-term is reflective of the German legal tradition and the historical context from which this legal tradition developed.

With its focus on protecting the communal good, German was actually one of the first states to place the issue of climate change on its political agenda.162 Since the 1980s, Germany has been working to balance the concerns of its industries and citizens with its responsibilities to them, as well as to the global community at large.163 Particularly given the extremely close nature of the countries of the European continent, the recognition that anything done within the borders of one state will have repercussions for its neighbors, has been a strong incentive for Germany, a country which still lives with the memory of the impact some of the country’s past actions have had on its neighbors. These concerns are reflected in the development of the country’s legal tradition, and in turn shape the perceptions German policy-makers have about the appropriate course of action concerning the international law of sic utere, even if the course of action goes against some immediate interests.

There are three primary factors stemming from the German legal tradition which underlie the state’s approach to international. First, the precautionary principle has a central place in German law and policy.164 The precautionary principle is a customary principle of international law which posits that, in the absence of concrete scientific evidence demonstrating something will not harm the environment, steps must be taken to protect the environment. This principle was recently adopted by the European Union as part of its overall environmental policy,165 and plays a strong role in German law.

Indeed, the German Basic Law was amended in 1994 to require all branches of government to promote environmental protection as part of their “responsibility for future generations.”166 Second, green values are very strong in German public opinion, which means that environmental issues are an integral part of the political landscape in Germany.167

According to former German Minister of the Environment Juergen Tritten (and a member of the Green Party), “we have … a consensus in favor of climate protections. It is not just a Green position. It goes across the political spectrum, from conservative to liberals.”168 The fact that focus on environmental protections cuts across political ideologies in Germany is further indicative of the foundational nature of the beliefs upon which such environmental policy is rooted. The focus on the communal purpose of law that forms a core part of the German legal tradition is largely responsible for this, couple with the willingness of the German domestic legal system to incorporate international legal principles into domestic law.

The third factor which influencing both the German legal tradition and the country’s assessment of its responsibilities under the international legal principle of sic utere is Germany’s membership in the European Union. Germany is a founding member of the European Union, and remains one of the organizations strongest proponents.

Membership in the EU contributes to the development of member states’ legal traditions in a number of ways. One of the primary mechanisms by which EU membership shapes the legal traditions of member states is by causing member states to accept the relinquishment of some level of sovereignty over the laws that bind them. Over the past 50 years, this has resulted in not only a more monist position by Germany towards international law, but the acceptance of outside influence on the state’s domestic laws.169

This has become a natural part of the German legal tradition, which therefore makes acceptance of obligations, such as those under the Kyoto Protocol, much more acceptable to Germany policy-makers, even if this would go against the countries own interests.

Given these factors, it seems clear that the German legal tradition has a profound influence on the approach that Germany takes to international law. The communal focus of German law, and especially the particular circumstance of German history which led to this focus, is a key factor shaping all interpretations made by Germany of international law. This, coupled with the close relationship that exists between German domestic law and international law – due to Germany’s written tradition, reliance on scholars (including acceptance of the precautionary principle), a membership in the EU – creates a strong sense of recognition among German policy-makers as to the appropriate course of action under international law. This results in a traditional interpretation of the principle of sic utere and acceptance of the obligations enumerated in the Kyoto Protocol.

 

(C)    Developing States: Cameroon and Côte d’Ivoire

Unlike Australia and Germany, neither Cameroon nor the Cote d’Ivoire are listed under Annex I of the Kyoto Protocol. Both countries, therefore, are not subject to emissions limits under the protocol and have the possibility of benefiting from emissions trading arrangements and the technology transfer provisions outlined in the protocol.

Given the lack of obligations in terms of limiting emissions and the potential economic benefits in terms of increased revenue from emissions trading and technology transfer to build environmentally-friendly infrastructure, there should be no reason for Cameroon and Cote d’Ivoire not to adopt a traditional understanding of state obligations under the international legal principle of sic utere and sign on to the Kyoto Protocol. Yet, only on of them has, and the other has not.

Cameroon has joined the Kyoto Protocol, Cote d’Ivoire has not. Cameroon has adopted a traditional method of interpretation of the international legal principle of sic utere, viewing its obligations under this international legal principle as requiring adherence to the tenets of Kyoto. The Cote d’Ivoire, on the other hand, has an unrestricted interpretation of its international legal obligations of the principle of sic utere, which means, in other words, that the country has thus far chosen to ignore the existence of the norm and forgo considerations of what might be appropriate behaviour under the principle of sic utere. The question therefore is, why would this be so? Why would Cote d’Ivoire not sign on to the Kyoto Protocol when it only stands to benefit from membership? Again, the answer can be found in the general approach to law found within the state’s legal tradition.

Cameroon and Cote d’Ivoire provide an interesting comparison for this project because of the large number of similarities in the historical development of the two countries, and the divergent paths the two have taken in the past century. Historically, both Cameroon and the Cote d’Ivoire have legal traditions founded in customary (or tribal) legal systems, with minimal homogeneity among the different ethic groups in terms of their laws and legal institutions. Both states have been influenced, albeit to different degrees, by Islamic law, Canon law, and the common and civil legal traditions which accompanied European colonial powers. Both Cameroon and the Cote d’Ivoire have been heavily influenced by the French legal tradition in particular, with both countries gaining independence from France in the early 1960s. Both countries also have significant deposits of oil and a number of ores and minerals, making them desirable targets for development. At the same time, however, these are the very industries which are targeted by the Kyoto Protocol as violating the principle of sic utere as they contribute to the increase in greenhouse gas emissions.

Despite these numerous similarities, however, there are some key differences which have affected the development of the two countries. As in the comparison of Turkey and Egypt in chapter four, the history of these two countries runs parallel, until a split occurs which results in different legal traditions today. There are three primary differences in the development of the legal traditions of Cameroon and Cote d’Ivoire which are key explanatory factors in the resulting interpretations made by each state of international law. First, Cameroon was a trusteeship, whereas the Cote d’Ivoire was a French colony. The nature of the trusteeship left a great deal more power for its own governance in the hands of the Cameroon people themselves. The Cameroonians, for example, while still under the trusteeship arrangement, voluntarily united their French and British halves to form a single country. This level of involvement was not available in a colony such as Cote d’Ivoire, where government matters were still handled, for the most part, in Paris.

Second, Cameroon has a number of British influences, whereas Cote d’Ivoire has Islamic influences. The British influence allowed for the retention of a greater part of the traditional legal tradition of the state, and create less of a division between ethnic and religious groups through the creation of an imposed order. This meant that when the British withdrew from the territory, elements of a solid legal structure remained behind.

This was not often true with the French. The British presence had a mitigating effect on the destruction of traditional culture which benefited Cameroon in the long run. As a result of this, the third primary difference in the development of the legal traditions of the two countries is that they have experienced differing levels of national unity. This has, in turn, influenced their legal development and subsequently their approach to international law. These differences are fundamental to the development of each state’s legal tradition from its traditional roots, and explain to a greater extent than existing international relations theories, the position of each state on its interpretation of sic utere.

 

The Legal Traditions of Africa

The legal traditions of both Cameroon and the Cote d’Ivoire share a common heritage in the legal tradition of Africa, commonly described as a customary or tribal tradition. While each distinct country within the African continent has developed its own legal tradition, there are certain general commonalities among the countries of Africa that form part of the early development of the individual legal traditions. These will be described generally here, and each applies to the individual development of Cameroon and Côte d’Ivoire as described below; similar to the way that Islamic law forms a basis in a number of different countries, which have then developed individually from that basis, or the way that Roman law forms a basis in many countries of the civil law family although there are many different variations from this basis.

Those areas of Africa south of the Sahara were ruled for centuries by ancestral customary laws.170 The basic tenet of this customary tradition is that the notion of law stems from respect for the traditions of one’s ancestors and fear and respect of the supernatural. The binding nature of law in these societies came from the pressure of the group, and not wanting to act against the group for fear of shame and banishment.171

This was a social system of law, centered in each community, with communal methods for dispute resolution and the creation of new laws as needed by changing circumstances.172

The origin and purpose of traditional African laws centers on social groupings such as tribes, castes, villages and bloodlines.173 These social groupings are thought to endure through tine and therefore no laws can be considered which adversely affect either past or future generations. Because of this, certain Western conceptions of law designed to protect individuals do not have corresponding provisions or protections in the African tradition.174 The group is the basic unit in the traditional African legal tradition.175

Corresponding to this focus on the group, the law is ordered primarily based on individual obligations rather than individual rights, which is contrary to the way much law functions in the Western traditions, and legal obligations are not necessarily distinguished from moral obligations.176

The effects of colonialism on the historical legal traditions in Africa varied according to the colonizer. The French in Africa followed a policy they called “assimilation” which was centered on maintaining a single legal tradition within each state. Because French law was considered superior, should there be a conflict between more than one legal tradition in those areas the French colonized, the French legal tradition was adopted and French law applied.177 Moreover, the French relied only on French judges to resolve legal disputes, even in rural areas. Therefore, even in those cases where native rules would apply, the French judges often distorted the law due to their misunderstandings of the native legal tradition. This resulted in a blending of the indigenous legal tradition with the French tradition, although in most cases the French tradition remained in place and the native tradition was largely lost. In English Africa, on the other hand, the English colonizers had very little interest in the local legal traditions.

Following English tradition, English common law applied to the English colonizers themselves, local legal traditions remained in place for the indigenous populations, and the only instances in which the two intersected was when there was not a local law to cover a given situation.178 This policy of “indirect rule” allowed the native peoples to continue to apply their own legal traditions, according to their own customs.179

Whether French or English, however, colonization has a profound impact on the development of the legal traditions of states. The imposition of the European common and civil law traditions imposed a new social order on the traditional African societies; a “rigid and formalistic one, incomprehensible to the African.”180

The haphazard attention paid by colonial powers to how their importation and installation of a new legal tradition (or lack thereof) would affect the local tradition, “upset the old order in societies which were not ready to receive western legal ideas.”181 The African legal traditions were founded on a strong sense of community, respect for one’s ancestors and descendents, and a communal method of conflict resolution. These values were trampled by the European colonial powers, albeit not always consciously, and this contributed to the breaking-up of traditional tribal society. However, the artificial imposition of European style legal systems on these newly fragmented societies was not successful in creating a strong recognition of the law or a sense of legal order.182 When the colonial powers removed themselves from Africa, the legal order they imposed on their colonies often went with them. However, the traditional legal systems were also no longer viable due to the years of neglect under the colonial system. This left many of the African countries with no real legal tradition at all.

This history has had a lasting effect on all the individual states created within Africa, Cameroon and Cote d’Ivoire included. Depending on the combination of African legal traditions, colonial imposition, and religious influence, each African state developed from the common starting point of the tribal law tradition its own understandings of law and set of legal institutions. In some case, such as Cameroon, this has resulted in a relatively stable modern system of law and an understanding of the role of law in society.

In other cases, however, such as Cote d’Ivoire, no common sense of the law has developed and the country remains largely at the mercy of the legal rules imposed by its rulers. These differences have resulted in different approaches to international law as well. In Cameroon, international law is viewed largely as it is in the French tradition, with the state accepting international law as a valid source of law and adopting traditional interpretations of its obligations under international law. In Cote d’Ivoire on the other hand, given there is very little faith in the binding nature of law domestically, this has resulted in little respect for the law internationally. The state has been uneven in its approach to international law, a trait indicative of an unrestricted interpretation of international law in which interests play the determinative role in whether or not a state accepts a principle of international law as binding.

 

Cameroon

As with many of the countries of Africa, Cameroon has a mixed legal tradition incorporating a number of different elements. Particularly at the local levels, there is a divide in Cameroon between areas which have a legal system based on the French tradition and those which have a legal system based on the English tradition.183 The regions are separated geographically (the English region is in the West), and linguistically. Overall, the Cameroon tradition in its modern form is based largely on the colonial French law, but is heavily influenced by English common law theory,184 which is also relatively supportive of the customary law elements of the historical African tradition. Elements of the traditional customary, or tribal, law remain as well, with traditional forms of dispute resolution relied on in local communities and rural areas.185

In terms of the development of the legal tradition, there are three primary periods of influence in Cameroon: the pre-Colonial period, the trusteeship period, and the postindependence period.186 In the pre-Colonial period, the legal tradition of Cameroon followed very closely to the general depiction of the African tribal tradition described above. Different tribes maintained their own rules of law along ethnic and community lines, but there were many general similarities across tribes in the type of legal system they maintained.187 The only exception to this was in the northern part of the country, where the Foulbe tribes, which had migrated from North Africa in the early 19th century, maintained a system of Islamic laws.188

The first Europeans to arrive in the modern territory of Cameroon were the Portuguese in the 1500s.189 But it was not until the late 1870s that any conquest beyond the coast was made.190 At the Berlin Conference in 1884, the territory became the Germany colony of Kamerun, a presence which lasted until the end of World War I.191 In 1916, a joint British-French expeditionary force, upon defeating the Germans, divided the territory between them.192 This division was recognized by the League of Nations in 1919, which conferred mandates on Britain and France to administer the territories.193

These mandates were later superseded by trusteeship agreements under the auspices of the United Nations.During the trusteeship period, the Mandates Agreement gave the British and French each the right to apply their respective legal traditions in their mandate territory.194 However, just as there are significant differences between the British and French legal traditions, there were differences in the manner of application of laws the two countries used in their colonial territories.195 The British, as they did with most of their colonial territories in which a legal culture already existed, essentially operated a system of “indirect rule” in which the indigenous legal tradition was left in tact, and the British common law was applicable only to British citizens, to non-British citizens in those situations in which no traditional law existed, and in cases in which the indigenous laws were considered to be “repugnant to natural justice, equity, and good conscience.”196

France, on the other hand, maintained a policy of assimilation in which there were two classes of people: French nationals and those Cameroonians who were awarded the status of French nationals, and ordinary Cameroonians who were generally deemed inferior and referred to as French sujets.197 Each class had their own set of laws and legal system: French law for French nationals and indigenous laws for sujets. One key difference from the British method, however, is that even in the cases where the parties were indigenous peoples and the law to be applied was traditional Cameroonian laws, the cases were presided over by French judges using local chiefs or traditional judges only as assistants.198 This, of course, had the effect of altering the traditional laws as French Judges were not schooled in Cameroonian tribal traditions.

The trustee arrangement lasted until February 11, 1961, when under a UN-sponsored plebiscite, the Southern Cameroons (British territory) voted to join with French Cameroon and gain independence.199 Cameroon’s Constitution was approved by referendum on May 20, 1972 and formerly adopted on June 2 of the same year. The Constitution was revised in January 1996.200 The Constitution highlights a melding of the French and British traditions, although the legal institutions of the French tradition do dominate. The more adaptable British tradition, however, was able to exert some influence over the country’s legal tradition, but retaining the place of the traditional tribal law, and allowing the application of such law to local cases heard in community courts.

In addition to the legacy of the French and the British, one of the most influential characteristics which has contributed to the development of the Cameroonian legal tradition is the country’s ethic, linguistic, and religious diversity. There are six major ethnic groups accounting for approximately 86% of the population.201 Within this, there are approximately 250 tribes speaking about 280 different indigenous languages.202

Imposed over top of this is a “bicultural division between a minority Anglophone community from the former British trust territory of Southern Cameroon, who make up about 20% of the population and occupy two of the ten administrative provinces in the country, and a dominant Francophone community from the former French Cameroon, who make up 80 percent of the population and occupy the remaining eight administrative provinces.”203 In terms of religious diversity, Cameroon today is approximately 40% of the country maintains indigenous beliefs, 40% is Christian, and 20% is Muslim.204

Unlike Cote d’Ivoire, which is discussed below, the influence of Islamic law on the development of the Cameroonian legal tradition is minimal. This is due in some part to the British influence on the country in that under British control diverse groups within countries tended to be more unified. The voluntary nature of the union of the two halves of Cameroon (the French and the British), also played a great part in the smooth development of the countries laws, despite such diversity.

Today, the legal system of the country is generally based on the French civil law system, with common law influence.205 However, the legal system of Cameroon is somewhat unique in that it “consists of two distinct and often conflicting legal systems, the English common law and the French civil law, operating in some sort of tenuous coexistence.”206 This has resulted in a slightly different perception of the role of law, set of legal institutions, and approach to international law in Cameroon than in some other African countries.

As with many African countries, and as with Côte d’Ivoire, the origins of law in Cameroon are varied. While today, the legal system largely resembles that of France, there remain some traces of the British tradition, as well as historical influences such as the customary legal tradition. As with most countries in which the historical legal foundations stem from a customary tradition, the view of the purpose of law is largely community oriented. As described above, this strong sense of the communal nature of law comes from the historical origins of the African legal customs and the focus on the tribe as not only the maker of laws and traditions, but as the mechanism which encourages compliance with such laws and traditions. This is evident in the Preamble to the Constitution of the Republic of Cameroon (1996), which states:

We, the people of Cameroon, Proud of our linguistic and cultural diversity, an enriching feature of our national identity, but profoundly aware of the imperative need to further consolidate our unity, solemnly declare that we constitute one and the same Nation, bound by the same destiny, and assert our firm determination to build the Cameroonian Fatherland on the basis of the ideals of fraternity, justice and progress.

Jealous of out hard-one independence and resolved to preserve same; convinced that the salvation of Africa lies in forging ever-growing bonds of solidarity among African peoples, affirm our desire to contribute to the advent of a united and free Africa, while maintaining peaceful and brotherly relations with the other nations or the World in accordance with the principles enshrined in the Charter of the United Nations; …Declare that … all persons shall have equal rights and obligations … and (sic) freedom and security shall be guaranteed each individual, subject to respect for the rights of others and the higher interests of the State. …207

This wording in the Cameroonian Constitution is unique in that it creates a relationship between the historical understandings of tribal community and the modern sense of national community: a characteristic missing in many of the modern African nations including the Cote d’Ivoire. In Cameroon this has even resulted in provisions in the Cameroonian Constitution which protect the peoples’ right to a healthy environment.208

 

Creation of Law

As a legal tradition with its roots in the customary tradition of Africa and the civil law tradition of France, the creation of law in Cameroon is viewed as the purview of the legislature and the executive. And while part of the modern Republic of Cameroon was under British influence for a number of years, this was not sufficient to alter the historical path of the legal tradition towards recognition of judge-made law. In fact, in the case of many of its African colonies, the British were hands off when it came to the existing legal systems, preferring to let the local population govern themselves as they traditionally did, and applying British law only in those cases where local law did no exist, or to British citizens. Therefore, when the French and British Cameroons joined together, it was the French tradition which was dominant.

The government of Cameroon is a unitary republic, and the majority of power lies with the president.209 Given the disproportional amount of power held by the President in Cameroon, law is most often created via executive action with the support of the Parliament. While the 1997 revisions to the Constitution elevated the judiciary to the status of a “judicial power” on a par with the executive and legislative power, practically speaking, the role of the judiciary remains minimal, as in many countries which have adopted the French tradition.210

Moreover, as it is throughout much of post-Colonial Africa, confidence in the regular judiciary is undermined by corruption and inefficiency.211 This remains one of the primary reasons there is no judicial authority within the country, although traditional courts still play a very important role in settling disputes in the rural areas of the country.212 Given this, therefore, creation and amendment of law by the judiciary is not considered a valid method in Cameroon, despite some roots in the British legal tradition.

Internalization of International Law Cameroon has generally adopted a monist position towards international law.This stems from two factors. First, again, Cameroon maintains many characteristics of the French legal tradition, which as described in chapter four, adopts a monist position towards international law. Second, in drafting its Constitution, Cameroon followed the modern trend of clearly identifying the role of international law in its constitution. In Cameroon’s case, a great deal of binding authority is given to international law, even at the potential expense of the Cameroonian Constitution itself.

For example, Part VI, article 45 of the Cameroonian Constitution states that, “Duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement.”213 In conjunction with this, Article 43 states that legislative action is only necessary in certain cases, and then not to execute the treaty, but to give permission to ratify. Moreover, article 44 states, “where the Constitutional Council finds a provision of a treaty or of an international agreement unconstitutional … the ratification of said treaty or agreement shall be deferred until the Constitution is amended.” Taken together these three articles give a great deal of authority to international law within the domestic Cameroonian legal tradition. This is particularly true in the case of Article 43 which states that in the case of an international law which conflicts with a provision of the Constitution, it is not the international law which must be disregard, but rather the Constitution which must be amended so that the treaty can become law. This places recognition of and adherence to international law on a high level within the legal tradition of Cameroon.

There are a number of different recognized sources of law in Cameroon, and, as in much of Africa, customary (traditional) law continues to exist side by side with modern law.214 The primary source of law today, however, is written law, including the Constitution and the codes. Customary law can still be applied locally in accordance with tribal customs when it does not conflict with the national law.215 Judge-made law is recognized only to a very limited extent, and then only in those areas of southern Cameroon which were formerly part of the British territory.

Moreover, as with most civil law-influenced legal traditions, scholars do play some role in the panoply of sources of law in Cameroon. However, as is the case throughout much of Africa, the small number of legal scholars writing on the country’s laws limits the practical application of this rule, although reference may be made to European, particularly, French doctrinal writings.

The primary attributes of the Cameroonian legal tradition therefore are a communal purpose of law, a focus on written sources of law instituted by the executive and the legislature at the national level with a recognition of custom at the local level, a minimal role for the judiciary, and a monist approach to international law. Given these attributes, and the close relationship between the modern Cameroonian legal tradition and the French tradition, expectations would be that Cameroon would act very much like France in its approach to international law and adopt traditional interpretations of international legal principles.

 

Cote D’ivoire

Cameroon and Cote d’Ivoire have many similarities in terms of the historical development of their legal traditions. There are three primary differences between the two countries, however, which have resulted in a different perception of law in Cote d’Ivoire, and thus a different approach to international law. The first of these is lack of British influence in the development of the Cote d’Ivoire; or to put it another way, the exclusive influence of the French as a colonizer. Second, is the influence on the Ivorian legal tradition of Islamic law, which has existed to a much greater extent than in Cameroon. The third, which is connected to the first two, is the differences in political and legal development since independence. Cote d’Ivoire has been less successful than Cameroon in creating a stable national system. Largely, this is due to the effects of the Islamic and French traditions and the hindrance this placed on the creation of a national identity. This has led to a current legal system in which there is no cohesive understanding of the purpose of law, the role of law in society, and the binding nature of law. This correspondingly translates to a different view of the binding nature of international law than is found in Cameroon.

French missionaries first arrived in Cote d’Ivoire in 1637, and the country officially became a French colony in 1893.216 Until the end of WWII, government affairs in French West Africa were administered from Paris.217 This led to the development of French-influenced institutions within Cote d’Ivoire, but also led to the underdevelopment of stable, independent institutions that could survive upon French withdrawal.218 Cote d’Ivoire gained its independence from France in 1960, and was relatively stable from then until 1999, maintaining close ties to France and developing good relations with the West.219

This stability was largely an illusion, however, as the long reign of Felix Houphouet-Boigny disguised the levels of disunity and institutional underdevelopment that existed in Cote d’Ivoire. Houphouet-Boigny largely took over the functions of the French, ruling through his own power and charismatic nature, rather than by developing stable and political and legal institutions. Over time, however, this led to fractionalization of the population both in terms of politics and law, and has resulted in a largely non-functioning legal system which is not respected nor relied on by the Ivoirian public. This has created little recognition of the law as a means for ordering society, which in turn has translated into minimal concern for or adherence to principles of international law. Moreover, positive perceptions of the rule of law have been further weakened by the repeated coup attempts and government instability that has plagued Cote d’Ivoire since the end of Houphouet-Boigny’s reign.

In 1999, reductions in foreign aid due to government corruption and mismanagement, resulted in a coup attempt. After the 1999 coup, a new constitution was drafted and ratified by the population in the summer of 2000. However, this constitution retained a number of clauses which emphasize the ethnic, religious, and territorial divisions within the country.220 Elections were scheduled for Fall 2000, but the Supreme Court, which was composed of judges handpicked by the country’s military leader, disqualified all the candidates from the two major parties and Western election monitoring support was withdrawn.221 For the past few years, Cote d’Ivoire has been in a state of political upheaval after a failed coup attempt in September 2002. All of this has led to a general sense of lawlessness, and thus no sense of legal purpose, nor a common understanding of the role of law in society. Cote d’Ivoire would thus be expected to be an example of a state which is free to adopt an unrestricted interpretation of international law because there is no sense of binding authority, no sense of right and wrong to dictate otherwise.

One of the key problems in the Cote d’Ivoire, which serves as both a cause and effect of the lack of national legal tradition in the country, is the extreme diversity within the state. Cote d’Ivoire has more than 60 ethnic groups in a population of only approximately 19 million.222 There five primary ethnic groups in Cote d’Ivoire, as well as 130,000 Lebanese and around 15,000 French.223 The country is also split religiously, with 10 to 20 percent of the population practicing indigenous religions, 35 to 40 percent Muslims, 25 to 35 percent Christians.224 Moreover, among the non-indigenous people, the majority are Muslim (around 70%).225 The vast diversity in ethnicity and religion within the country has made the development of a cohesive legal tradition, and a cohesive understanding of the meaning of the rule of law, and correspondingly the appropriate action to take under the law, very difficult.

Unlike in Cameroon, which is also an extremely diverse state, Cote d’Ivoire has nothing in the historical development of its legal tradition which has sought to ameliorate the differences between the various ethnic and religious groups. In Cameroon, as described above, the influence of the British legal tradition, coupled with the peaceful joining of the British and French Cameroons, the creation of stable institutions, and the minimal influence of religious laws, has led to a modern understanding of, and respect for, law among the people of Cameroon.226 This has not occurred in Cote d’Ivoire.
There is a sense of lawlessness which pervades the country, both due to the continued existence of a myriad of diverse legal traditions, as well as a lack of stable legal institutions. This has resulted in a very different perspective on international law within Cote d’Ivoire.

The origins of law in Cote d’Ivoire are multifaceted, as they are in Cameroon. One key difference, however, between Cote d’Ivoire and Cameroon is that in Cote d’Ivoire there remains traces of Islamic law. As described in chapter four in the case of Egypt, Islamic law imparts a number of different characteristics to a legal tradition, which can vastly change the perceptions of law within a community, and thus subsequently change the methods of interpretation adopted by decision-makers. Historically, the purpose of law in Cote d’Ivoire was to protect the community.

As with Cameroon, this stems from the historical origins of the legal tradition in the customary or tribal law that was prevalent throughout Africa. This idea is reinforced by both the Islamic tradition and French tradition,227 each of which maintains a focus on the communal purpose of law, albeit a difference kind of focus.228 The influence of the Islamic legal tradition within the country creates a focus on the communal good centred on divine law and the preservation of morality. This conflicts with the secular nature of much international law. Moreover, in the case of the Cote d’Ivoire, the perception of law as the caretaker of the communal good has been interrupted by the turmoil which has plagued the country over the past decade, and the resulting underdevelopment of the legal system since independence in 1960.229 These factors have led to no real perception of the law as protecting either the communal good or individual rights. Rather it has resulted in a perception that law, at least law at the national level, provides no real protections for anyone.

 

Creation of Law

The Ivorian Constitution of 2000 creates a three-branch government with a very strong executive.230 There is a unicameral legislature whose members are elected by direct universal suffrage. The legislature most often passes only that legislation which has been introduced by the President, although it does have the power to introduce  legislation on its own. The judicial branch is made up of a number of courts, including the High Court of Justice, the Supreme Court, and the Constitutional Council.231 The Supreme Court, however, lacks the power of judicial review, although it is capable of acting as an advisory body for the president.232 The overall structure of the Ivorian legal system is also highly decentralized,233 with a great deal of power left to the individual territories. This remains both a contributing and a resulting factor in the disunified nature of the legal system in the Cote d’Ivoire, and thus the attitude of suspicion that exists towards the legal system.

The law in the Cote d’Ivoire, when it is created, may originate in either executive decree or legislative action. The President of Côte d’Ivoire may also establish a “rule”, which is another form of written law, as opposed to a statute or other legislation.

Presidential rules apply to the entire country and are of a regulatory character.234 Presidential rules may cover any subject matter which is not exclusively within the purview of the legislature, and these rules do not have to go through any form of voting process in the National Assembly.235 There is little room in the Ivorian tradition for judge-made law.

Cote d’Ivoire’s view of the relationship of international law to its domestic legal system is taken almost directly from the French system. Under articles 53-55 of the Ivorian Constitution, international treaties and agreements are of superior legal authority to the acts of the legislature, providing the other party is acting in conformance with the treaty provisions.236 However, given the general lack of confidence in the legal tradition of the state, there is little concern among the Ivorians for the adherence to and recognition of international law by the Ivorian government. This largely leaves the government free to engage in any approach they wish to international law.

The primary source of law in Côte d’Ivoire is the written law stemming from either executive decree or legislation. The Constitution is the pre-eminent domestic source of law.237 However, the Constitution has been revised more than half a dozen times since its inception,238 and as described above, has done little to create a unified sense of legal obligation among the diverse Ivorian population. In fact, more so than many of the other constitutions created in the 1990s in other African countries, Cote d’Ivoire’s constitution is “very much lacking in depth.”239 The detailed work of lawmaking is thus left to the legislature or the executive.

Typically, the abstract design of constitutions tends to make them flexible, so as to be conducive to changing circumstances over time. But given that the political system of Cote d’Ivoire is built on a strong presidency, as well as the president’s ability to influence constitutional interpretation, the flexible of nature of the Constitution’s language in the case of Cote d’Ivoire is more of hindrance to the acceptance of international law than a help. This also stems from the overall lack of a coherent legal tradition in Cote d’Ivoire, which in turn shapes the perceptions of the country’s appropriate actions under the law. The constitution also does not include a bill of rights, or such “new concerns” as the right to economic development, the right to social development, and the right to environmental protection which are found in many of the African constitutions promulgated in the 1990s.240 This is in contrast to the Cameroon Constitution which includes a right to a healthy environment in the Preamble and in article 24.

Moreover the role of scholars as a source of law in Cote d’Ivoire is minimal, both based on legal history and on the contemporary fact that there are not many legal scholars in the country. In the Ivorian legal tradition, both case law and scholarly doctrine have persuasive authority only.241 This limits the influence that scholarly opinion on the appropriate course of action under international law may have on Cote d’Ivoire’s policy of interpretation.

Given the difficult development which has faced the legal tradition of Cote d’Ivoire, particularly the diverse nature of the country’s ethnic and religious groups and the lack of national stability in terms of either political or legal institutions, it is difficult to classify any positive attributes of the Ivorian legal tradition. Based on the country’s history with the African tribal law and French civil law, Cote d’Ivoire would be expected to maintain a communal purpose of law, a focus on written sources of law instituted by the executive and the legislature at the national level with a recognition of custom at the local level, a minimal role for the judiciary, and a monist approach to international law.

Based on these attributed, Cote d’Ivoire would be expected to act like France and Cameroon and adopt a policy of traditional interpretation concerning its obligations under international law. However, given the instability of the Ivorian political and legal institutions, as well as the undefined role of Islamic law within the broader legal tradition of the state, it is not possible to identify these as the actual attributes of the Ivorian legal tradition. In fact, viewing law at the national level, it is difficult to say that Cote d’Ivoire currently maintains a legal tradition which creates a common understanding about the role and purpose of law within society. Based on this current situation, we would expect Cote d’Ivoire to maintain an unrestricted approach to international law, including the legal principle of sic utere.

 

Investigation 2

Africa is the continent least responsible for climate change, yet, at the same time, the countries of Africa are the most vulnerable to the effects of such change. Therefore, both Cameroon and Cote d’Ivoire, as developing countries would be likely to benefit from the requirements of the Kyoto Protocol. The two countries have similar histories and post-independence have developed in similar ways. Neither is significantly industrially-advanced and so production of greenhouse gas emissions at this stage is minimal. Cote d’Ivoire emits approximately .09 tons per capita and Cameroon approximately .06 tons.242 Both states have oil deposits, although Cameroon has more and is currently better able to reach them. Both could benefit for the development assistance that participation in Kyoto might provide. Both countries have also had political turmoil since independence. This has, in both cases, hindered the development of strong legal institutions and reliance on the rule of law in both traditions, but it has been significantly worse in Cote d’Ivoire than Cameroon over the past decade.

The historical nature of the African customary law tradition is not opposed to international law per se. In fact the two types of legal systems are in many ways very similar. Both focus on the communal purpose of law, and the inclusive method of creating new rules. Furthermore, both rely heavily on the concepts of community obligation and community shame to encourage compliance with the law. Given these similarities, it would not be surprising if countries retaining purely African traditions were readily adherent to international law, as long as the law was not contrary to their cultural beliefs. However, in the modern world, there are no longer any African countries which maintain a purely traditional legal system. The legal traditions of all of the modern African states have been altered through the influence of one or more outside legal traditions. The results vary depending on the number of different outside influences, the type of these influences, and the timing of these influences. In the same way that Turkey and Egypt have developed different approached to international law based on the different levels of influence of the Islamic law tradition, so do the different countries of Africa develop different approaches based on the differing influences that have changed their legal traditions. This is evident in the case of Cameroon and the Cote d’Ivoire.

This is an interesting comparison since the two countries seemingly should both have signed on to Kyoto given the benefits they could receive and the minimal burden they must undertake. Why would Cote d’Ivoire not do so? Traditional IR theory can not explain this since power position, material interests, and cooperative explanations would all point to Cote d’Ivoire acting in the same manner as Cameroon. Legal tradition, however, or in the case of the Cote d’Ivoire, lack of legal tradition, can explain the differing interpretations of these two countries of their rights and responsibilities under the international legal principle of sic utere. In the case of Cote d’Ivoire, the lack of a strong, cohesive rule of law has created an insubstantial tradition of law in which public perception of how government should act in accordance with the rule of law is minimal.

Policy-makers are then left to be guided by few legal rules and an unrestricted interpretive approach to international law has resulted. This explains why Core d’Ivoire has not signed on to the Kyoto Protocol, despite the benefits in doing so.

 

Cameroon

“Cameroon’s legal system, although comprehensive and slow (traits of the civil law tradition), remains, on the whole, workable, reliable and fair.”243 This, coupled with the attributes outlined above – communal purpose of law, primary authority for legal creation lying in the legislature, monist interpretation of international law, and written law as the primary source of law – lead to the potential for a relatively close relationship between international law and national law. As with most in which a traditional concept of the law is mixed with elements of a modern legal system, Cameroon’s position is not as solidified as, for example, that of France. However, the rule of law is “generally respected throughout Cameroon. …”, and this goes for international law as well as domestic law.244 This legal tradition would lead to the expectation that Cameroon would adopt a traditional interpretation of international law, and this is in fact what it has done in the case of the Kyoto Protocol. Contrary to the cases of Germany and Australia described above, or Cote d’Ivoire described below, Cameroon adopted an interpretation of international law in line with both its legal tradition and its interests. Illustration of the country’s position on the importance of upholding the principle of sic utere, however, demonstrates the importance of the legal to tradition to Cameroon’s position. Cameroon is one of the “most economically and politically stable countries in Africa,”245 yet it is also very vulnerable to the detrimental effects of climate change as the result of growth in greenhouse has emissions. In the late 1990s, however, the declining prices of certain commodities, including oil, coffee, and cocoa – three of Cameroon’s largest exports – hit the country very hard.246 This, coupled with the devaluation of the country’s currency caused the rural population to clear additional forest for subsistence farming, while at the same time encouraging the government to grant additional logging concessions. Each of these activities contributes to the growth of greenhouse gas emissions, which will ultimately be damaging to the country. Moreover, Cameroon has a variety of different ecosystems, from tropical forests, to semi-arid savannahs and the coastal zone.247 Given the predominant percentage of the country’s population and
infrastructure is concentrated along the coast, there are a number of possible effects that continued climate change could have, including sea level rise and salt water intrusion.248

Furthermore, in the semi-arid region where rainfall is highly variable, “climate change could threaten both humans and biodiversity.”249 Given the already tropical nature of Cameroon, climate change could also exacerbate the threat and spread of tropical diseases throughout the country.250 Current environmental issues include waterborne diseases, deforestation, overgrazing, desertification, and over-fishing.251

Given this, the benefits to Cameroon in adopting a traditional interpretation of its obligations under sic utere as a member of the Kyoto Protocol are significant.“Cameroon could net tens of millions of dollars under a carbon trading initiative proposed by a coalition of developing countries. …”252 .Moreover, developing countries like both Cameroon and Cote d’Ivoire stand to benefit from improved living standards, safeguarded biodiversity, and preserved ecosystems as a result of the influx of funds and assistance mandated under the Kyoto Protocol, as well as the long-term environmental benefits from the reduction in greenhouse gases. For example, money flowing into Cameroon could fund programs to stop deforestation, one of the leading emissions culprits.253 This, I turn could be worth tens of millions of dollars to Cameroon254 because, according to a World Bank study, land that is worth $200-$500 per hectare as pasture would be worth between $1,500 - $10,000 if left as intact forest and used to offset emissions in industrialized countries through the emissions trading system.255

At present, given there are not obligations for emissions reductions placed on developing countries, there is no downside for a developing country not to become part of the Kyoto Protocol and abide by the treaty’s conception of sic utere. Given this, however, and given the benefits to the Côte d’Ivoire would be the same as those to Cameroon, why hasn’t the former adopted the protocol and its conception of sic utere?

In terms of the country’s interests, adopting a traditional interpretation would seem to be the avenue of action in the country’s best interests. Adhering to the obligations of sic utere will not only gain the country the additional financial and technological resources that would be provided under the treaty’s provisions, but would also improve the reputation of the country among other states, encourage foreign investment in the country, and protect the country’s endangered environment in the long run.

 

Cote d’Ivoire

By African standards, Cote d’Ivoire has a good infrastructure for economic development, including an 8,000-mile network of paved roads, a public data communications network, cellular phones, internet access, two ports, rail links, regular regional and international air service, modern real estate developments, a good school system by regional standards, and a number of the most modern and livable cities in the region.256 However, the Côte d’Ivoire’s economy remains heavily reliant on agriculture, and primary products such as cocoa, coffee, and timber. The largest electricity production source is fossil fuels,257 and environmental problems include deforestation and water pollution.258 As mentioned above in the case of Cameroon, deforestation is of the major sources of greenhouse gas emissions, and Côte d’Ivoire releases 1.86 mm tons of carbon emissions per year (.050% of world carbon emissions). So, why does Cote d’Ivoire essentially ignore its obligations under sic utere as outlined in the Kyoto Protocol by not signing on the treaty? Again, this question can largely be answered in terms of the country’s legal tradition; or, in the case of Cote d’Ivoire, lack of legal tradition.

Participation by the public in civic life, particularly at the national level, is minimal, and is “confined to ritualistic voting for a single slate of candidates.”259 The primary political party in the Cote d’Ivoire, the PDIC (Parti Democratique de la Cote d’Ivoire), stresses “primordial ties” and the connections within the party are based on ethnic groups.. This maintenance of ethnic and religious divisions has prevented the country from developing a unified, national character, and with that a unified national law. As described in chapter 4, one of the key factors in the successful development of both the U.S. and the Turkish legal traditions is the ability to create a national law which encompasses all groups within a state. This creates a unified understanding of legal purpose, and clarifies understandings of the right way to make law, amend law, and apply law. This, in turn, creates a common societal understanding of the appropriate course of action under the law, which, in turn, is applied by policy-makers to the international realm as well as the domestic realm. This is missing in the development of the legal tradition of Cote d’Ivoire. The fact that the government and society itself, maintains cleavages across society, with each group maintaining its own system of law, leads to no identifiable modern legal tradition in the state. Policy-makers in Cote d’Ivoire are therefore free to adopt any interpretation of international law they wish, because there is no sense of what is appropriate behaviour on which to draw; and, there are no potential repercussions from the citizens. It is not surprising, therefore, that Cote d’Ivoire has not signed on to the Kyoto Protocol, despite the fact that up to 1960 the attributes of its legal tradition would indicate the state would adopt a traditional interpretation of international law, and that it would be in the country’s interests to do so.

As seen above, the investigations conducted in examination of the international legal principle of sic utere overall met expectations as to the constitutive role of legal tradition in shaping state interpretations of international law. Particularly in the cases of Australia, Germany, and Cote d’Ivoire where tradition international relations theories would predict the states would make one form of interpretation, and in fact they made the opposite, the explanatory power of legal tradition is illuminated. We do not think it is any surprise therefore, that the two states which have adopted a traditional interpretation of their obligations under the Kyoto Protocol and signed on to sic utere are the two states with constitutions that specifically call for the protection of the environment for the benefit of mankind. The Cameroon Constitution includes a right to a healthy environment in the Preamble and in article 24, and the German Basic Law Article 20a requires the government to take steps to protect the environment for the benefit of present and future generations. Neither Australia nor Cote d’Ivoire, the two countries which have adopted non-traditional interpretations of their obligations under sic utere have provisions in their domestic law protection the environment for the good of the community.260

In addition to the general addition to the explanatory power of the theory of legal tradition with the results from these case studies, there are a number of other interesting findings which came out of this research, and which help explain why sic utere is different than anticipatory intervention in self-defense in terms of the large number of states which have adopted a traditional interpretation of their obligations under this norm.

First, of the countries that are not party to the Kyoto Protocol, they divide into two general groups: those that follow the liberal interpretation based on an individual centred legal tradition, and those that follow the unrestricted method of interpretation based on the lack of legal tradition development. This explains why there are so few countries that have not interpreted sic utere in the Kyoto Protocol as being a binding obligation to which they must adhere. There are only a handful of countries with the individual-centered tradition, including the United States and Australia. Both countries have adopted a liberal interpretation of sic utere, and created their own mechanism for curing greenhouse gas emissions, as described above.261 And, while the number is slightly larger in terms of those states which have adopted an unrestricted interpretation in terms of sic utere, there are not that many countries in this category either. Those that are include: Afghanistan, Angola, Brunei, Central African Republic, Chad, Comoros, Gabon, Iraq, Kazakhstan, Lebanon, Libya, Bosnia, Zambia. Each of these states face many of the same obstacles as described in the case of Cote d’Ivoire; essentially the lack of definitive legal tradition which defines the appropriate course of action under the law.

Related to this, is the question of why states with predominantly religious legal traditions have signed on to the Kyoto Protocol, where their legal traditions, as described in the case of Egypt in chapter four, generally resist the influence of outside, nonreligious sources. We  suggest that in the case of sic utere, there are not the same restrictions on the policy-makers in acting in conformance with Shari’a as there might be with other legal principles because the scope of Islamic law does not specifically cover the reduction of emissions, and the generalities behind sic utere are in line with the general principles of Islam. Therefore, unlike anticipatory intervention which touches on some of the primary principles of Islam and thus results in differing interpretations depending on the way Islamic law is incorporated into the legal tradition, in terms of sic utere, the existence of Islamic law as the whole or partial basis of the legal tradition isn’t key.

Finally, the German case study provides initial evidence of how the existence of component of a legal tradition such as the EU can greatly affect the interpretation a state makes of international law. This can occur because it further facilitates the recognition of a state’s legal tradition of the relinquishment of sovereignty over the law to an outside entity. Thus while the theories of NLI may be right in that institutional pressures can cause a state to act in a manner that may be contrary to its material interests, this is not the only reasons that an institution such as the EU can have an effect. Legally-speaking an institutional like the EU alters the legal tradition of a state and the perspective citizens of that state have towards law and to the role of law in society, its creation, and its interpretation. The European Union is a highly legalized institution, one which in and of itself, has many laws. Many of theses laws cover areas that used to be within the realm of the sovereign state. Members of the EU have voluntarily given up sovereignty over these legal issue areas to the EU. Environmental regulations are one of the primary areas in which sovereignty over the law has been relinquished. What this has done is made citizens of EU countries used to the idea of outside influence and regulation of environmental matters. The idea that addressing climate change is something that happens from a supranational entity, which in turn imposes obligations on their states under the law, is hardly cause for concern. It is expected. This is very contrary to states like Australia, where there is no similar history with supranational legal authority.

Moreover, this is what makes this situation unique and not so easily explained by institutionalist theory. The European Union is unlike any other institution. Australia belongs to international institutions, and so does Cote d’Ivoire. Yet neither state succumbed to outside pressure or reputation concerns and signed on to the Kyoto Protocol. Both received pressure: Australia because it is supposed to be a ‘world leader’ as an Annex I country, and Cote d’Ivoire because it is a developing country which could stand to experience significant gains politically, economically, and reputationally by signing on to the Kyoto Protocol, yet neither country did. Why did they not succumb to institutional pressures? The EU is unique in this regard because of its high level of integration and legality. It is not something which can be elaborated to other regions and other states. This influence that membership in a regional organization like the EU can have on a state’s legal tradition is further discussed in chapter six in the case of the United Kingdom and the international legal principle of universal jurisdiction for prosecuting crimes against humanity in the case of the International Criminal Court.

 

State Behaviour in the International System P.1

State Behaviour in the International System P.2

State Behaviour in the International System P.3

State Behaviour in the International System P.5

State Behaviour in the International System P.6

 

 

1 Sic Utere is a Roman maxim meaning not to use what is yours to the detriment of others. The development and meaning of sic utere are developed more specifically in Part II of this part.

2 The UNFCCC has 186 state parties. The Kyoto Protocol, which is essentially an attachment to the UNFCCC has 168 state parties. Only 24 of the 192 members of the United Nations have not acceded to the Kyoto Protocol. See United Nations Framework Convention on Climate Change website, available at http://unfccc.int/kyoto_protocol/items/2830.php (accessed January 30, 2007) [hereinafter UNFCCC].

3 The UN member states which have not signed on to the Kyoto Protocol include the U.S., Australia, Cote d’Ivoire, Afghanistan Angola, Bosnia & Herzegovina, Brunei, Central African Republic, Chad, Comoros, Gabon, Iraq, Kazakhstan, Lebanon, Libya, Macedonia, and Moldova, among others.

4 Black’s Law Dictionary; see also Armin Rosencranz, “The Origin and Emergence of International Environmental Norms,” Hastings International and Comparative Law Review 26 (2003): 309-320, 309.

5 For a discussion of sic utere, see Grant Guthrie, “Nuclear Testing Rocks the Sub-Continent: Can International Law Halt the Impending Nuclear Conflict Between India and Pakistan?, ” Hastings International and Comparative Law Journal 23 (2000): 495-526, 518-519; Timothy J. Heverin, “Legality of the Threat or Use of Nuclear Weapons: Environmental and Humanitarian Limits on Self-Defense,” Notre Dame Law Review 72 (1997): 1277-1307, 1296.

6 Trail Smelter Arbitration (U.S. v. Can.), R.I.A.A. 1905 (1938), reprinted in 35 American Journal of International Law, 694 (1941).

7 Ibid.; see also Rosencranz, “The Origin and Emergence of International Environmental Norms,” 309.

8 Stockholm Declaration of the United Nations Conference on the Human Environment, G.A. Res.2997, U.N. GAOR, 27th Sess., U.N. Doc. A/CONF.48/14/Rev.1, reprinted n 11 I.L.M. 1416 (1972).

9 Hermann E. Ott and Sebastian Oberthür, “Breaking the Impasse: Forging an EU Leadership Initiative on Climate Change,” World Summit Papers of the Heinrich Böll Foundation, no. 3 (Berlin: Heinrich-Böll-Stiftung, 2001), available at http://www.boelle.de.

10 UNFCCC, Preamble

11 See Preamble to the Kyoto Protocol referring to Articles 2 and 3 of the UNFCCC.

12 Annex I countries are the industrialized countries, including members of the OECD and those countries designated as having economies in transition, such as the Russian Federation, the Baltic States, and several Central and Eastern European countries. Annex II countries are those OECD members listed in Annex I. The remaining states are designated as non-Annex I countries, and these are primarily developing countries.

13 Climate Change Secretariat. 2002. A Guide to the Climate Change Convention and its Kyoto Protocol (Bonn http://unfccc.int/resource/guideconvkp-p.pdf (accessed may 12, 2007).

14 Ibid. Discussing the importance of the Kyoto Protocol, the Secretariat states: “[T]he Kyoto protocol broke new ground with its legally-binding constraints on greenhouse gas emissions and its innovative “mechanisms” aimed at cutting the cost of curbing emissions.”

15 Steven Lee Myers, “Putin Ratifies Kyoto Protocol on Emissions,” New York Times, November 6, 2004, http://www.nytimes.com (accessed May 15, 2007). “The Kremlin announced that Mr. Putin had signed by issuing a brief statement early Friday morning with no fanfare. The statement echoed the main arguments against the treaty, saying it would have ‘serious consequences’ for Russia's ‘social and economic development.’ But it also noted the country's decisive position in determining the fate of the treaty. ‘The decision on ratification was passed taking into account the significance of the protocol for the development of international cooperation and, likewise, taking into account the protocol will take effect only under the condition of the Russian Federation's participation in it,’ the statement read.”

16 Colin Hunt, “Australia’s Greenhouse Policy,” Australian Journal of Environmental Management 11(2004): 156-64.

17 Ibid.

18 Australian Greenhouse Office, Department of Environment and Heritage, COP 7: The economic implications of the Kyoto Protocol for Australia (2002), http://www.greenhouse.gov.au/international/kyoto/pubs/cop7.pdf

19 Andrew C. Revkin, “Global Warming Impasse is Broken,” New York Times, November 11, 2001, http://www.westlaw.com (2001 WLNR 3342836.

20 Beatrice G., “En Ligne sur lemonade.fr, ” Le Monde, July 30, 2003, http://www.westlaw.com (2003 WLNR 10682483). Le rechauffement climatique menace l’ecosysteme des barrieres de corail et jusqu’ l’existence de certaines e les par la montee des eaux.”; Frederic T., “Aujord’hui Sicences: Le plus grand massif coralline de la planete est aujord’hui menace,” Le Monde, January 1, 2003, http://www.westlaw.com (2003 WLNR 10682459).

21 Marc A. Levy, “Is the Environment a National Security Issue?,” International Security 20 (1995): 35-62.

22 For a discussion of the literature of these three different propositions, see Ibid.

23 Ibid., 41-46.

24 Ibid., 46-54.

25 Ibid., 46.

26 Ibid., 51. “[C]limate change … does constitute a security threat because of the severity of the potential impacts… .”

27 Ibid., 51.

28 Ibid., 54-60.

29 “Taming King Coal,” New York Times, November 25, 2006, http://www.westlaw.com (2006 WLNR 20414157).

30 Climate Change Secretariat, Guide to the Climate Change Convention.

31 P. Pollard, Missing the Target: An analysis of Australian government greenhouse spending: Discussion Paper 51 (The Australian Institution, Canberra, 2003); Hunt, “Australia’s Greenhouse Policy.”

32 Pollard, Missing the Target; Hunt, “Australia’s Greenhouse Policy”; Edmund L. Andrews, “Frustrated Europeans Set to Battle U.S. on Climate,” New York Times, July 16, 2001, http://www.westlaw.com (2001 WLNR 3385618).

33 Andrews, “Frustrated Europeans.”

34 Jane Perlex, “The World: Here’s One Treaty That the Bush Team Loves, to Death,” New York Times, August 26, 2001, http://www.westlaw.com (2001 WLNR 3396380).

35 The effect of the absence of a Bill of Rights on the Australian legal tradition will be discussed in greater detail in the case of universal jurisdiction in part six.

36 Robert L. Maddox, Constitutions of the World, 2nd ed. (Washington, D.C.: CQ Press, 2001), 18.

37 Ibid.

38 Ibid.; Alex C. Castles, An Australian Legal History (Sydney, Australia: The Law Book Company, Ltd.,1982), 32. “For more than eighty years after the first British settlement at Sydney Cove the system of convict transportation was often a strong and sometimes a predominant influence in moulding the character of Australian society. From 1788 to 1868 more than 163,000 “exiles” were transported to various parts of Australia.”

39 Castles, An Australian Legal History, 39.

40 The English did not view the tribal laws of the aboriginal peoples as a viable legal system. This has been debated and criticized in the subsequent centuries, but this was the British position at the time of settlement of Australia.

41 This view was affirmed by both the Privy Council and in the writings of William Blackstone in his Commentaries on the Laws of England (“If an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force.”). See G.W. Paton, ed., The Commonwealth of Australia: The Development of its Laws and Constitution (London: Stevens & Sons, Ltd., 1852), 3; Richard Chisholm and Garth Nettheim, Understanding Law: An Introduction to Australia’s Legal System, 2nd ed. (Sydney, Australia: Butterworths Pty Limited, 1974), 7 et seq. There was actually a great deal of discussion surrounding the method of colonization (whether seeded, settled, or conquered) and what form of law would apply as a result. It was well established under the international law of the time, as well as British law, that in conquered territories the law of the conquerors was imposed.

42 See Maddox, Constitutions of the World, 18-19. For example, in 1865 the British Parliament passed the Colonial Laws Validity Act, which provided for the legality of Australian laws that deviated from the English norm.

43 Castles, An Australian Legal History, 18.

44 Ibid. For example, the dry inland plans and semi-arid lands throughout much of Western Australia have no counterpart in England. As such, it was necessary to alter the laws of land use and land holding to adapt to the Australian circumstances, as well as create laws regarding the use of water which would have been unheard of in lush and rainy England.

45 “National Reports: Australia,” International Encyclopedia of Comparative Law, A51.

46 “Australia,” in Legal Systems of the World: A Political, Social and Cultural Encyclopedia, ed. Herbert M. Kritzer (Santa Barbara, CA: ABC-CLIO, 2002), 84.

47 “Australia,” Legal Systems of the World, 84; Maddox, Constitutions of the World, 19. Australia’s legal system is now completely severed from the British tradition. In 1986, the Australia Act, enacted in both the United Kingdom and Australia, severed almost all remaining intergovernmental ties between the two countries, such as appeals to the Privy Council. The only facet remaining is that the Queen of England also remains the Queen of Australia. However, the lasting influence of the British legal tradition is strong, and indeed, even in some areas – such as human rights – Australia retains common law even where the law in the UK has developed.

48 Geoffrey Lindell, “Duty to Exercise Judicial Review,” in Commentaries on the Australian Constitution: A Tribute to Geoffrey Sawer, ed. Leslie Zines (Sydney, Australia: Butterworths Pty Limited, 1977), 165, quoting Kadish “Judicial Review in the High Court and the United States Supreme Court, ” Melbourne University Law Review 2 (1959), 5.

49 This will be discussed in greater detail in chapter six in reference to Australia’s interpretation of the international legal principle of universal jurisdiction in the context of the international criminal court.

50 Chisholm and Nettheim, Understanding Law, 107. “There are some countries, like … Australia, which claim to have an almost unbroken tradition of respect for individual freedom.”

51 John Williams, “The Emergence of the Commonwealth Constitution,” in Australian Constitutional Landmarks, ed. H.P. Lee and George Winterton (Cambridge, UK: Cambridge University Press, 2003), 8.

52 Paton, The Commonwealth of Australia, 3.

53 “Australia,” Legal Systems of the World, 85.

54 Castles, An Australian Legal History, 61. This was for two reasons. First, the Australian colony did not at first have its own Parliament and was thus dependent on the passage of laws in the English Parliament for new legislation. Given the distance between England and Australia, however, as well as the extreme differences in the legal needs of the Australian colony practically speaking reliance on the British parliament for the primary source of law was impossible. This leads to the second reason. The isolation of the early Australian legal system from that of England resulted as well in a well-honed experience of adaptability (originating in the early courts’ need to adapt existing English legal principles to Colonial conditions.

55 Ibid., 67.

56 “Australia,” Legal Systems of the World, 85.

57 “Australia,” Legal Systems of the World, 87. “[T]he central tenet of the Australian system is the doctrine of precedent. …”

58 Kirby, Michael, Honorable Justice, “Domestic Implementation of International Human Rights” (paper presented at the Australian National University Conference of Implementing International Rights, Canberra, Australia, 1997). “In Australia … we have followed the dualist theory of the relationship between international and national systems, existing side by side, within different spheres of action 0 the international plane and the domestic plane.” 59 Bede Harris, Essential Constitutional Law, 2nd ed. (London: Cavendish Publishing, 2004), 138.

60 Ibid.

61 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), 205.

62 Ibid., 206-207.

63 Ibid.

64 Kirby, “Domestic Implementation of International Human Rights,” citing Sir Anthony Mason, former Chief Justice of the High Court of Australian, regarding the gradual erosion of the strict theory of dualism which was an “over hang of the old culture n which international affairs and national affairs were regarded as disparate and separate elements that would give way based on the realization that there is an ongoing interaction between international and national affairs, including law.” Evidence of the developing nature of a monist/dualist position in the Australian context will be discuss in more detail in chapter 6 when Australia’s interpretation of the international legal principle of universal jurisdiction is examined in the context of the International Criminal Court.

65 Australia Constitution.

66 Harris, Essential Constitutional Law, 133.

67 Kioa v West [1985] HCA 81; (1985) 150 CLR 550. Chief Justice Gibbs stated, “treaties do not have the force of law unless they are given that effect by statute.”

68 “National Reports: Australia,” A55.

69 Castles, An Australian Legal History, 450. One key difference between the Australian and British courts, however, is that in Britain, the courts do not possess the ability to void legislation that has been passed by the British Parliament, while in Australia, as in the U.S., they do. While legislation is considered a key source of law, the Australian courts do retain the power to strike down legislation which conflicts with the Australian Constitution - the basis for this maybe found in the fact that in Britain there is no written constitution that can be contradicted. As in the United States, the Australian Constitution is the supreme law of the land, and the courts, as final arbiters of the Constitution, maintain power as the primary source of law.

70 Chisholm and Nettheim, Understanding Law, 17-18. The reason this law is called the common law is that in the early days of the British legal tradition, the royal judges “took over a body of rules derived from custom and applied them uniformly throughout the realm as law common to all.”

71 Dr. Bonham’s case (1610) 8 Co Rep 113b; 77 ER 646, at 652. Although an English decision, this case was influential throughout the common law countries and has been called by some the origin of judicial review, and while this notion diminished in Britain in the 19th century as Parliament’s power grew vis-a-vis the courts, this did not occur to such extent in either the U.S. or Australia. See Lindell, “Duty to Exercise Judicial Review,” 161, n. 23.

72 “National Reports: Australia,” A57.

73 Ibid., A58. “[P]rofessional and academic text books and commentaries are of low authority as sources of law, and are rarely cited in argument.”

74 Ton Fuss Kirkwood-Tucker, “Germany’s opposition to the Iraq war and its effects on U.S.-German relations,” Social Education 68 (2004). “Germany is a country that has been at the heart of the move toward European unity. Its policies since World War II have reflected a renunciation of militarism, a strong commitment to democracy and human rights, and support for the peaceful resolution of international conflicts. … Rising from the ashes of unconditional surrender of World War II, Germans have struggled to overcome extreme militarism, nationalism, and a NAZI past that seems incomprehensible to Germans today.”

75 CIA World Factbook: Germany, https://www.cia.gov/cia/publications/factbook/.

76 Law and Judicial Systems of Nations, 4th ed., ed. The World Jurist Association (Washington, DC: The World Jurist Association, 2002), 183; Helmuth Aldinger, 1984. “The Legal System of Germany,” Modern Legal Systems Cyclopedia, vol. 3. , ed. Kenneth Robert Redden and Linda L. Schlueter (Buffalo, NY: William S. Hein & Co., 1984), 3.110.8.

77 Law and Judicial Systems of Nations, 183; Maddox, Constitutions of the World,128. One of the differences between Roman law and the Germanic tribal law is that the latter applied to a person because of his or her tribe, and therefore went with that person wherever he or she went. The former, however, only applied in the Roman territory and therefore, upon leaving Roman territory, one was no longer bound by Roman law.

78 Maddox, Constitutions of the World, 128.

79 The jus commune is the name given to body of canon law and Roman law which formed the basis of a common system of legal thought in Western Europe after the rediscovery and reception of Justinian's Digest in the 12th and 13th centuries.

80 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 58.

81 Ibid.

82 Ibid.

83 Maddox, Constitutions of the World, 128.

84 Ibid.

85 Aldinger, “The Legal System of Germany,” 3.110.8.

86 Ibid.

87 “Germany,” Legal Systems of the World: A Social, Political and Cultural Encyclopedia, vol. II, ed. Herbert M. Kritzer (Santa Barbara, CA: ABC-CLIO, 2002), 582.

88 Basic Law for the Federal Republic of Germany (Publisher: German Bundestag– Administration – Public Relations section, Berlin, 2001), http://www.bundestag.de/htdocs_e/parliament/function/legal/germanbasiclaw.pdf (accessed May 13, 2007).

89 Basic Law for the Federal Republic Germany, Article 2. “Every person shall have right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”; German Civil Code, §826, http://www.law.ed.ac.uk/file_download/courses/handouts/LLM/119/1730_germancivilcode.pdf. “Whoever intentionally causes injury to another in a manner violating good morals is bound to repair the injury.”

90 Maddox, Constitutions of the World, 130.

91 Basic Law for the Federal Republic of Germany. See in particular Article 20 of the Constitution, which states: “(1) The Federal Republic of Germany shall be a democratic and social federal state. (2) All state authority shall emanate from the people. It shall be exercised by the people through elections and voting and by specific organs of the legislature, the executive power and the judiciary. (3) Legislation shall be subject to the constitutional order; the executive and the judiciary shall be bound by law and justice. (4) All Germans shall have the right to resist any person seeking to abolish the constitutional order, should no other remedy be possible.”

92 “Germany,” Legal Systems of the World, 583.

93 Ibid.

94 Glendon, Gordon, and Osakwe, Comparative Legal Traditions.

95 Hubert Beemelmans and Hans D. Treviranus, “National Treaty Law and Practice: Germany,” in National Treaty Law and Practice, ed. Monroe Leigh and Merritt R. Blakeslee (Washington, DC: The American Society of International Law, 1995), 324. “Normative treaties, which cannot attain binding effect within Germany without a special order by the legislature or which cannot be enforced without a legal basis because they affect federal legislation. This traditional category of agreements requiring consent corresponds to the legislature’s exclusive power. See Basic Law, article 59(2), 1st sentence, 2nd clause.; Political treaties are a category in which “German state practice is closely restricted to treaties of highly-political character.” Basic Law art. 59(2), 1st sentence, 1st clause. “As early as 1952, the Federal Constitutional Court laid down … the following guidelines which have since become authoritative: an agreement can only be determined to be a political treaty within the meaning of the Basic Law if it affects the existence of the state, its territorial integrity; its independence, its status, or its very role in the community of nations. This category includes above all treaties designed to assert, consolidate, or increase the power of a state in relation to other states.” See Judgment of July29, 1952, 1 BVerfG 372, at 394; see also Judgment of December 18, 1984, 68 BVerfG 1, at 85-89.)

96 Ibid., 324.

97 Ibid., 323. “Conflicts on treaties between the executive and legislative branches are therefore very
rare.”

98 Kirkwood-Tucker, “Germany’s opposition to the Iraq.” “In the deep layers of the contemporary German psyche is an awareness of the Nazi legacy Germany has not recovered from its crimes against humanity of World War I, a legacy that has created irreparable damage to its reputation.”

99 Dieter Medicus, “Federal Republic of Germany,” in National Reports, vol. I, ed. Viktor Knapp (Tuebingen: J.C.B. Mohr Press, 1973), F5.

100 “Germany,” Legal Systems of the World, 584.

101 Medicus “Federal Republic of Germany,” F4.

102 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 63. The German Civil Code “emerged from an intellectual and political background that differed in many ways from the Enlightenment and revolutionary through that informed the Code Civile” of France. One of the key factors in German legal development was that in Germany, unlike France where political unification was achieved long before legal unification, had not achieved political unity of its various component parts until shortly before the creation of the civil code. Bismark unified the country politically in 1871 and the German Civil Code appeared in 1900. The German Civil Code was the final result of a slow “renationalization” of the German law by German scholars throughout the 18th century, in which these scholars worked to adapt Roman law to contemporary conditions.

103 Aldinger, “The Legal System of Germany,” 3.110.10.

104 Medicus, “Federal Republic of Germany,” F4.

105 David and Brierley, Major Legal Systems in the World, 133.

106 Medicus, “Federal Republic of Germany,” F4.

107 David and Brierley, Major Legal Systems in the World, 116.

108 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 59.

109 David and Brierley, Major Legal Systems in the World, 52.

110 David and Brierley, Major Legal Systems in the World, 52. (“This practice of Aktenversendung, which continued until the 19th century, resulted in the accumulation of an extensive body of common doctrine that transcended the borders of the various German political entities.”

111 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 59, citing to Dawson, Oracles of Law, 231.

112 Aldinger, “The Legal System of Germany,” 3.110.40.

113 Ibid.

114 Ibid.

115 Hunt, “Australia’s Greenhouse Policy,” 156-64

116 Ibid. Australia largely relies on fossil fuels as its primary energy source, and maintains a heavy concentration of energy intensive industries such as metal smelting. Adhering to Kyoto would cost both consumers and industries more.

117 Dadi Zhou, Samuel Adejuwom, Milos Tichy, Matthew Everett, Amrita Achanta, and June Budhooram, “UNFCCC: Australia – Report on the in-depth review of the second national communication of Australia, ” United Nations Framework Convention on Climate Change, FCCC/IDR.2/AUS, October 18, 1999, http://www.unfccc.de. Compared to other Annex I countries, Australia has a rather significant reliance on fossil fuels, as well as strong population growth, and an economic emphasis on the utilization of natural resources.

118 BBC News, “Australia rejects Kyoto pact,” BBC News Online, June 5, 2002, http://news.bbc.co.uk/1/hi/world/asia-pacific/2026446.stm; Hunt, “Australia’s Greenhouse Policy,” 156-64. “Despite a seemingly favourable deal that enables it to increase its emissions by 8 per cent by 2008-2012, together with a provision that no forestry sinks be included in its baseline thus making the achievement of the 2008-2012 target easier, the Australian government has taken the position that Kyoto restrictions on emissions would make energy more expensive for both Australian industry and households.”

119 Alexander Downer, “2005 Sir Condor Laucke Oration by The Honorable Alexander Downer,” Minister for Foreign Affairs of Australia, Barossa Valley, Australia, September 1, 2005, http://www.foreignminister.gov.au/speeches/2005/050901_condor_laucke.html.

120 “Australia Refuses Kyoto Protocol,” Associated Press, July 6, 2001, http://www.climateark.org/articles/2001/3rd/arefkyop.htm, quoting Former Australian Environment Minister Robert Hill.

121 Downer, “2005 Sir Condor Laucke Oration.”

122 Craig Skehan, “PM turns back on Pacific forum,” Sydney Morning Herald, August 3, 2001, http://www.westlaw.com (2001 WLNR 9963160). “Island nations of the South Pacific have expressed bitter disappointment with the Australian Government. … The island nations are facing a myriad of problems and want leadership from Australia and New Zealand. They are bitterly disappointed that Australia will not ratify the Kyoto Protocol on global warming. Currently, obvious urgent political problems exist in Fiji, the Solomon Islands, Papua New Guinea and Irian Jaya.”

123 Therin F., “Le refus australien de signer le protocole de Kyoto inquiète les petites îles du Pacifique sud,” Le Monde, August 21, 2001, http://www.westlaw.com (2001 WLNR 7483003). Le desinteret de l’Australie pour ses voisins du Pacifique pourrait se retourner contre les interet de la grande puissance regionale. Le plupart de ces micro-Etats traversent une periode trouble.”

124 Ibid.

125 Australian Greenhouse Office, COP 7: The economic implications of the Kyoto Protocol for Australia.

126 Ibid.

127 Ibid.

128 Hunt, “Australia’s Greenhouse Policy.”

129 Australian Greenhouse Office, COP 7: The economic implications of the Kyoto Protocol for Australia.

130 “Australia Missing Out Over Kyoto Protocol”, Sydney Morning Herald, February 16, 2005, available at http://www.smh.com.au/news/National/Australia-missing-out-over--Kyoto-Protocol/2005/02/16/1108500110304.html

131 Stephen Leahy, “Climate Change: Kyoto Gets a Slap in the Face from Canada,” Inter- Press Service News Agency, December 9, 2006, http://www.ipsnews.net/news.asp?idnews=35785.

132 John Garnaut, “Business attacks PM’s climate stand,” Sydney Morning Herald, September 1, 2003, http://www.westlaw.com (2003 WLNR 13743421).

133 John Garnaut, “NSW’s livestock too flatulent for Kyoto; study,” Sydney Morning Herald, September 21, 2002, http://www.westlaw.com (2002 WLNR 11800879).

134 John Garnaut, “Kyoto snub will hit economy; report,” Sydney Morning Herald, September 16, 2002, http://www.westlaw.com (2002 WLNR 11836005).

135 Zhou, et al., “UNFCCC: Australia – Report on the in-depth review of the second national communication of Australia.”

136 Ibid.

137 Hunt, “Australia’s Greenhouse Policy.”

138 “Climate change plan takes heat off US, Australia,” Yahoo News Online, January 13, 2006, http://news.yahoo.com (accessed January 14, 2006). The countries involved are the U.S., Australia, China, India, South Korea, and Japan.

139 Ibid.

140 Ibid. Labor’s resources spokesman Martin Ferguson states, “It’s time to abandon the political correctness espoused by the green movement. Let’s be real: without getting business on board we cannot achieve anything. The environmentalists are simply attacking the coal industry for the sake of it.”

141 Report under the Kyoto Protocol to the United Nations Framework Convention on Climate Change 2006, Demonstrable Progress Report: Federal Republic of Germany, June 2006, http://www.unfccc.int/resource/docs/dpr/deu1.pdf. Germany signed the Kyoto Protocol on April 29, 1998.

142 Central Intelligence Agency, CIA World Factbook: Germany, http://www.osci.gov/cia/publications/factbook/print/gm/html (accessed June 26, 2006).

143 Ibid.

144 Ibid. Annual transfers from west to east still amount to roughly $70 billion.

145 Ibid.

146 Ibid.

147 Ibid. Additional environmental concerns include acid rain resulting from sulfur dioxide emissions; pollution in the Baltic Sea from raw sewage and industrial effluents from rivers in eastern Germany, and hazardous waste disposal.

148 Ibid.

149 Ibid.

150 Aldinger, “The Legal System of Germany,” 3.110.9.

151 Emma Daly, “Europeans Lagging in Greenhouse Gas Cuts,” New York Tines, May 7, 2003, http://www.westlaw.com (2003 WLNR 5184300).

152 Mark Landler, “China Pledges to Increase Use of Alternative Energy Sources,” New York Times, June 5, 2004, http://www.westlaw.com (2004 WLNR 5604656).

153 Edmund L. Andrews, “Frustrated Europeans Set to Battle U.S. on Climate,” New York Times, July 16, 2001, http://www.westlaw.com (2001 WLNR 3385618).

154 Ibid.

155 Mary H. Novak, Junya Tanizaki, and Raj Badiani, “Kyoto Protocol and Beyond: The Economic Cost to Germany,” International Council for Capital Formation (Brussels: Global Insight, 2005), http://www.iccfglobal.org/pdf/GermanStudy.pdf.

156 Ibid. The ICCF is a European think tank with a focus on public policies to promote saving and investment in the private sector.

157 Ibid.

158 Ibid.

159 Kirkwood-Tucker, “Germany’s opposition to the Iraq.”

160 Kirkwood-Tucker, “Germany’s opposition to the Iraq.”

161 Rochard Bernstein, “The German Question,” New York Times, May 2, 2004, http://www.westlaw.com (2004 WLNR 5546980).

162 Guri Bang, Jonas Vevatne, Michelle Twena, and Ho-Ching Lee, “Meeting Kyoto Commitments: European Union Influence on Norway and Germany,” CICERO Working Paper 12 (Oslo: Center for International Climate and Environmental Research, 2004), http://www.cicero.uio.no/media/3288.pdf.

163 Ibid. “With considerable focus on making environmentally efficient emissions reductions domestically, Germany has also been keen to play a leading role internationally, but at the same time defended the competitiveness of its large manufacturing industry.”

164 Ibid.

165 European Union, Commission Communication on the Precautionary Principle (2000): Treaty Establishing a Constitution for Europe, Art. III-233 (2004).

166 “Germany,” Legal Systems of the World, 583.

167 Bang et al., “Meeting Kyoto Commitments.”

168 Andrews, “Frustrated Europeans.”

169 Bang et al., “Meeting Kyoto Commitments.” Environmental policies, in particular, are increasingly coordinated at the EU level for all member countries.

170 David and Brierley, Major Legal Systems in the World, 505.

171 Ibid.

172 Ibid.

173 Ibid., 507.

174 Ibid. For example, land belongs to one’s ancestors and descendents just as much as it does to oneself during one’s lifetime, therefore, an individual does not have an inherent right to dispose of the land on his or her own.

175 Ibid.

176 Ibid.

177 Ibid., 512.

178 Ibid., 509.

179 Ibid., 512.

180 Ibid., 520.

181 Ibid.

182 Ibid., 520-524. “National unity will not be achieved when the cohesion of the tribe remains too strong; economic development requires that the individual be freed from too great a dependence upon his family or his ethnic group. African leaders therefore had to make a choice. Custom is the law of a group, the dimensions of which cannot be arbitrarily changed; by attempting to unify the law at the national level, custom was inevitable altered.”

183 Law and Judicial Systems of Nations, 4th ed., ed. The World Jurist Association (Washington, DC: The World Jurist Association, 2002), 85.

184 Ibid., 87.

185 Ibid.; see also CIA World Fact Book: Cameroon, http://www.cia.gov/cia/publications/factbook/index.html; U.S. State Department Background Note:
Cameroon (2002), http://www.state.gov/r/ei/bgn/2822.htm.

186 “Cameroon,” in Legal Systems of the World: A Political, Social and Cultural Encyclopedia, ed. Herbert M. Kritzer (Santa Barbara, CA: ABC-CLIO, 2002), 247.

187 Ibid. In Cameroon, the Germans attempted a study and codification of the different tribal systems of law. The project was interrupted by WWI, but the data from the six tribes that were studies indicated that “there were substantial similarities in basic concepts and practices” among the tribes. These similarities included the hierarchical nature of administration of law and the use of the ‘trial by ordeal’ (For example, making an individual drink poison or put their hands in boiling oil; if no harm came to the person, they were held to innocent.

188 Ibid.

189 Ibid.

190 Ibid.

191 Ibid.

192 Ibid.

193 Ibid.

194 Ibid.

195 Ibid.

196 Ibid.

197 Ibid.

198 Ibid.

199 Ibid. The British Northern Cameroons trust territory became part of Nigeria); CIA World Factbook: Cameroon.

200 CIA World Factbook: Cameroon.

201 Ibid. These are Cameroon Highlanders – 31%, Equatorial Bantu – 19%, Kirdi – 11%, Fulani – 10%, Northwestern Bantu – 8%, and Eastern Nigritic – 7%. The other 14% is composed of other African groups – 13% and non-Africans – 1%.

202 “Cameroon,” Legal Systems of the World, 246.

203 Ibid.

204 CIA World Factbook: Cameroon.

205 Ibid.

206 “Cameroon,” Legal Systems of the World, 246.

207 Constitution of the Republic of Cameroon (Library of Congress, 1996), http://www.loc.gov/law/guide/cameroon.html.

208 Ibid., Preamble, Art. 24.

209 CIA World Factbook: Cameroon. Opposition parties were legalized in 1990.

210 “Cameroon,” Legal Systems of the World, 248. Moreover, the president remains the guarantor of judicial power and correspondingly the independence of the judiciary is somewhat compromised by the president’s power to “appoint, promote, transfer, and dismiss judges and other judicial personnel”.

211 Ibid., 251.

212 Ibid.

213 Constitution of the Republic of Cameroon (1996).

214 P. Vergnaud and J.N. Monie, “Cameroon,” in National Reports, vol. I, ed. Wiktor Knapp (J.C.B.Mohr, 1979), C4.

215 Ibid.; “Cameroon,” Legal Systems of the World, 250. Many Cameroonians still prefer to resolve disputes at the local level, using traditional methods. “Disputes within the family are usually brought before the family head, and those within a village or clan before the chief or peer groups within the village or clan. In villages or towns in which clan or tribal links are weak or nonexistent, efforts to resolve disputes are often made through informal mediation by relatives, friends, neighbors, or quarter heads.”

216 U.S. Department of State Country Reports: Cote d’Ivoire, http://www.state.gov (accessed October 2006).

217 Ibid.

218 Christian P. Potholm, Four African Political Systems (Englewood Cliffs, NJ: Prentice-Hall, 1970), 219 U.S. Department of State Country Reports: Côte d’Ivoire.

220 Ibid.

221 Ibid.

222 Ibid.

223 CIA World Factbook: Côte d’Ivoire, http://www.cia.gov/cia/publications/factbook/index.html. These are the Akan – 42%, Voltaiwues or Gur – 17.5%, Northern Mandes – 16.5 %, Krous – 11%, and Southern Mandes – 10%. The remaining 3% is made up of foreigners – French and Lebanese primarily.

224 U.S. Department of State Country Reports: Côte d’Ivoire.

225 CIA World Factbook: Cote d’Ivoire

226 “Côte d’Ivoire,” Modern Legal Systems Cyclopedia, vol. 6, ed. Kenneth Robert Redden (Buffalo, NY: William S. Hein & Co., 1990), 6.100.18. “The rule of law is generally respected throughout Cameroon. …”

227 Constitution of the Côte d’Ivoire, as quoted in “Côte d’Ivoire,” Modern Legal Systems Cyclopedia, 6.250.8. In fact, the Preamble of the Ivorian Constitution incorporates the French ideas of rights protections. The Preamble declares “adherence to the principles of Democracy and the Rights of Man, as they have been defines by the Declaration of the Rights of Man and the Citizen of 1789, [and] by the Universal Declaration of 1948.”

228 The focus on the community within the French tradition is one based on ensuring the rights of everyone to be safe and engage in the actions of everyday life. It is a secular belief. The focus on the community in the Islamic tradition, however, is tied to preserving the moral good of the community and guiding all peoples to follow the tenets of the Shari’a in order to obtain the ultimate reward. The communal focus of the French tradition is closely related to that of international law. The communal purpose of the Islamic tradition is not.

229 “Côte d’Ivoire,” in Legal Systems of the World: A Political, Social and Cultural Encyclopedia, ed. Herbert M. Kritzer (Santa Barbara, CA: ABC-CLIO, 2002), 375. “The role of the courts and the law in the political and social life of Côte d’Ivoire is very difficult to assess. Obviously one cannot say that the law and the courts have not had an impact on the social and political life of the country, but such impact has been significantly compromised by the lack of respect for the various legal principles that are enshrined in the system’s basic laws.”

230 Potholm, Four African Political Systems, 236; U.S. Department of State Country Reports: “Côte d’Ivoire,” Modern Legal Systems Cyclopedia, 6.250.13. Article eight of the Constitution outlines the President’s role in government, stating, “The President of the Republic shall be the Head of State. He shall be the embodiment of national unity. He shall ensure that the Constitution is respected. He shall ensure the continuity of the State. He shall be responsible for national independence, territorial integrity, and the observance of treaties and international agreements.”

231 U.S. Department of State Country Reports: Côte d’Ivoire.

232 Potholm, Four African Political Systems, 236.

233 Ibid., 235.

234 “Cote d’Ivoire,” Modern Legal Systems Cyclopedia, 6.250.14.

235 Ibid., 6.250.13

236 “Ivory Coast,” in National Reports, ed. Viktor Knapp (Tübingen: J.C.B. Mohr Press, 1973), I-120.

237 Ibid.

238 “Cote d’Ivoire,” Legal Systems of the World, 373.

239 Ibid., 373-374.

240 Ibid., 374.

241 “Ivory Coast,” National Reports, I-120.

242 Andrews, “Frustrated Europeans,” New York Times, July 16, 2001, http://www.westlaw.com
(2001 WLNR 3385618).

243 “Cameroon,” Modern Legal Systems Cyclopedia, vol. 6, ed. Kenneth Robert Redden (Buffalo, NY: William S. Hein & Co., 1990), 6.100.18.

244 Ibid.

245 Ibid., 6.100.19.

246 “Cameroon could make millions of dollars under emissions deal,” November 6, 2006, http://news.mongabay.com/2006/1106-cameroon.html.

247 “Center for International Climate and Environmental Research – Oslo (CICERO),” Developing Strategies for Climate Change: The UNEP Country Studies on Climate Change Impacts and Adaptations Assessment, ed. Karen O’Brien, Report 2 (United Nations Environment Programme, Oslo, Norway, 2002),5.

248 Ibid.

249 Ibid.

250 Ibid.

251 CIA World Factbook: Cameroon

252 “Cameroon could make millions of dollars under emissions deal.”

253 Ibid.

254 Ibid.

255 Ibid.

259 Potholm, Four African Political Systems, 241.

260 Coincidentally, France, which has adopted a tradition method of interpretation concerning sic utere based on its legal tradition as discussed in part 4, has also amended its Constitution to include environmental protections. The U.S., which has adopted a liberal interpretation, has no such protections.

261 Canada also to some extent maintains a legal tradition with an individual purpose, however, the civil law/highly federalized component of the Canadian tradition has resulted in different perceptions of the role of law in Canada, and indeed, Canada, while wavering for quite some time on how to interpret sic utere (and recently backing down on its strict adherence to its obligations under the Kyoto Protocol) ultimately decided upon a tradition interpretation.

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