Federal Constitutions and Global Governance: The Case of Climate Change

Blake Hudson, Stetson University College of Law

Abstract

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. Recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands on that scholarship by undertaking a comparative constitutional analysis of five other federal systems—Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance. The article concludes that federal systems maintaining three key elements within their constitutional structure are most capable of agreeing to and successfully implementing an international climate agreement—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 on how the constitutional structures of federal systems lacking key elements may be strengthened to achieve more effective climate governance. Importantly, the framework here provided has implications well beyond the environmental context and may be applied to a variety of international negotiations among federal nations concerning subject matters constitutionally reserved to subnational governments.