87 Indiana Law Journal 1455 (2012)
Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. Recent scholarship demonstrates that U.S. federalism, for example, may jeopardize international negotiations seeking to utilize certain mechanisms of global forest management to combat climate change, since subnational forest management is a regulatory responsibility reserved for state governments under current constitutional jurisprudence. This Article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems—Australia, Brazil, Canada, India, and Russia. These nations, along with the United States, are crucial to climate and forest negotiations since they account for 54% of the world’s total forest cover. This Article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The Article concludes that federal systems maintaining three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that incorporates forests in a consequential manner—elements that facilitate successful implementation of a treaty on domestic scales while maintaining the recognized benefits of decentralized forest management at the local level: (1) national constitutional primacy over forest management, (2) national sharing of constitutional forest management authority, and (3) adequate forest policy institutional enforcement capacity. The Article also establishes the foundation for further research assessing how the constitutional status quo of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.
"Federal Constitutions, Global Governance, and the Role of Forests in Regulating Climate Change,"
Indiana Law Journal:
4, Article 3.
Available at: http://www.repository.law.indiana.edu/ilj/vol87/iss4/3