This paper suggests some of the deeper implications of the climate change debate for both international law and the development of international institutions. The author’s views are based not only on material presented in the symposium, but on his own experience as a New Zealand Government minister and Prime Minister. His experience has convinced him not only that the problems faced today are grave, but also that the state of international law and the structure of international institutions are defective: both are incapable of dealing effectively with the problems of the biosphere. This article outlines some of the changes required in order to develop new ways of making international environmental law. The experience with the climate change negotiations, continuing at the time of writing, and those previously held concerning the ozone layer, suggests that a better way must be found to make and enforce global environmental law. Although it is agreed that a Framework Convention on Climate Change must be negotiated without delay, the critical issue surrounds the content of such a convention. Thus far, what has emerged from the IPCC and from the negotiations has lacked boldness, particularly on the question of what institutions may be necessary at the international level to deal with the problem. This paper argues that a different approach is needed. Present methods of negotiating multilateral conventions have serious structural deficiencies; they are virtually bound to produce weak responses to urgent problems. These poor results are due to the core weakness of international law and the way in which rules are made. The development of an effective regime to combat climate change will involve formidable scientific, political, economic, diplomatic, administrative, and legal problems. The traditional means for dealing with these problems are thoroughly inadequate. In order to have a reasonable prospect of success, it is necessary to provide new institutional and law-making mechanisms at the international level. The article reviews the development of international environmental law, and the machinery now available, as proof that new mechanisms are required. It considers a range of legal options: customary international law, the Stockholm Declaration, the International Law Commission, soft law, regional arrangements, and the United Nations Environment Programme, and finds all to be deficient in some way. At the international level, the blunt truth is that no coherent institutional mechanism exists to deal effectively with the biosphere or any of the other pressing global environmental issues. The institutional gap can be met only by the creation of an effective regime involving something many nation-States can be counted upon to resist: a diminution of State sovereignty and transfer of power to an international organization. A key problem in any attempt to deal with the jurisprudential basis of obligation in international law lies in the concept of sovereignty. The features of sovereignty pose an obstacle to the development of international law to deal effectively with the problems of the biosphere. Thus, the difficulty sovereignty poses for compulsory jurisdiction must be overcome through acceptance of an international set of rules established for this exclusive environmental purpose, which can then be applied universally. There have been some developments in treaty law and in the way in which international organisations create norms. These developments have led to instances in which unanimous consent is not required and nations who do not agree with a particular norm nevertheless will be bound by it. International norms gain legitimacy from the process by which they arrive. An enduring institutional framework in which the processes are thorough, based on a solid scientific base, and provide plenty of opportunity for discussion and refinement is likely to serve the world best in the long run. This paper suggests that the most useful model for a new environmental organisation is that which has been developed by the International Labour Organisation. Without it progress will be piecemeal, fitful, unsystematic, and even random; the transaction costs of international negotiations are high. It would be much better to have a coherent set of procedures and institutions for creating the norms
