The geopolitics of climate justice: collective interest or raison de système?

Abstract

If we fail to coordinate a systemic decarbonisation of the global economy sufficient to prevent runaway climate change, no amount of effort put towards adaptation will be sufficient. Our attention to the task of mitigation, which by itself must negotiate enormous geopolitical obstacles, requires priority if we are truly concerned with alleviating the human costs of climate change. This choice of framing of the human challenges we face from climate change, however, is at odds with the standard conception of climate justice, which seeks to provide reforms to the international legal and political order to address increasing systemic inequities. What these two perspectives have in common is the recognition that climate change necessitates systemic reforms to the international order. To the extent that international law can facilitate these reforms, the question seems to be how can we better enforce equitable international obligations. This commentary asserts that the distribution of costs and benefits inherent to international regulatory standards will determine the effectiveness of any subsequent enforcement. The utility of a Climate Court, therefore, will be reflected in the ability of the operative climate treaty to produce sufficiently systemic voluntary commitments.

Notes

1 The Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) is a subsidiary body of the United Nations Framework Convention on Climate Change whose mandate is the negotiation of a post-Kyoto Protocol climate agreement. For more information on the Climate Justice Tribunal, see (2015) 12 (623) IISD Earth Negotiations Bulletin ADP 2-8 #4, 1, www.iisd.ca/download/pdf/enb12623e.pdf, last accessed 22 December 2015; and for a link to the 2010 submission by Bolivia delivered to the ADP Chair (p 29) http://unfccc.int/resource/docs/2010/awglca10/eng/misc02.pdf, last accessed 22 December 2015, which was the product of the 2010 Bolivian Conference on the Rights of Mother Earth https://pwccc.wordpress.com/2010/04/28/submission-by-the-plurinational-state-of-bolivia/, last accessed 22 December 2015.

2 The 58 Action Matrix recommendations in the IBA's report target four specific audiences: recommendations directed explicitly towards states total 29 of 58 (or 50 per cent); recommendations directed implicitly towards states through non-state actors total 14 of 58 (or 24 per cent), which combined equals 43 of 58 (or 74 per cent) of the IBA recommendations; recommendations to non-state actors, which will need state involvement to produce binding obligations, total nine of 58 (15 per cent), or a new combined total of 52 of 58 (89 per cent); the remaining recommendations (six of 58 or ten per cent) propose IBA research, reporting and facilitation efforts. While not constituting statistical precision, this does produce a useful heuristic with which to identify the importance of state consent in many reform proposals. International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, IBA Task Force Report (IBA 2014).

3 Pulp Mills on the River Uruguay (Argentina v Uruguay), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma ICJ Rep 2010 (20 April) 98–99.

4 The Pulp Mills case concerns a transboundary dispute between Uruguay and Argentina that centred on the nature of the obligation by Uruguay (the upstream party) to consult with Argentina (the downstream party) on the construction and operation of a wood pulp mill, which altered the quality of the shared watercourse. It is alleged that highly technical scientific evidence on hydrodynamic modelling or the cumulative effects of contaminated sediment on various organisms, for example, may be given diminished weight next to established general principles of international law.

5 Pulp Mills on the River Uruguay (Argentina v Uruguay), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, ICJ Rep 2010 (20 April) 100.

6 It seems likely that enforcement of a Climate Court would be linked to the Dispute Settlement Mechanism of the World Trade Organization, a regime that emphasises greater regulatory precision. The confirmation of non-implementation or non-compliance with climate treaty obligations by an individual state would then permit all states to retaliate against it under the WTO framework.

7 Or ‘false positives’ described in Beth A Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009) 18.

8 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, IBA Task Force Report (IBA 2014) 6.

9 The European Court of Justice and European Court of Human Rights are exceptional in this regard. Indeed, we might consider that international law produced between European states and by European institutions is sufficiently exceptional to distinguish it from public international law more generally.

10 The development of customary international law (CIL) is obviously more complex than this, but the great powers seem especially able to resist emerging CIL when it appears designed as a tool to impose obligations on them without their consent. The changed trajectory of emerging customary international environmental law at Rio is discussed in a later section.

11 Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2010) 254–56.

12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996 (8 July 1996) para 18.

13 Let us treat the possibility that nuclear weapons actively decrease the likelihood of world war as irrelevant for this hypothetical.

14 Deborah Saunders Davenport, Global Environmental Negotiations and US Interests (Palgrave Macmillan 2006) 29.

15 In The Evolution of International Society, Adam Watson proposed the idea of raison de système as a counterpoint to raison d’état. He argued that the incentive for hegemonic power cooperation was that ‘it pays to make the system work’. Watson, Adam. The Evolution of International Society: A comparative historical analysis. (Reissue with a new introduction by Barry Buzan and Richard Little) Routledge (2009) xxvi. As I use it, raison de système refers to those states willing and able to determine, and then secure, the direction of the international order to address collective action problems. This conception is merged with hegemonic stability theory and Mancur Olson's The Logic of Collective Action, which argue that the production of a public good requires an individual actor to supply it. For problems no single state can solve, the idea of supplying a global public good through a core/concert of states or K-Group is elaborated by Thomas Schelling, Russell Hardin, Duncan Snidal and others who argue that collective goods may be supplied through minilateral coordination. My conceptual contribution to the work of Stephen Krasner, James Fearon, Lloyd Gruber, as well as Gregory Shaffer and Mark Pollack is that the bargaining core includes not only who will supply the good, but also those who can prevent the supply of the global public good. Olson, Mancur. The Logic of Collective Action: Public Goods and the Theory of Groups. Cambridge, MA: Harvard University Press, 1971.

16 ‘In the face of the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread’. France, Anatole, The Red Lily. (2007 Reprint, Wildside Press) 75

17 Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harv Envtl L Rev 439, 451.

18 Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harv Envtl L Rev 439, 442.

19 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, IBA Task Force Report (IBA 2014) 2.

20 Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harv Envtl L Rev 439, 451.

21 Ibid.

22 The term ‘EU Bubble’ refers to the EU demand for a single Kyoto target for all of the states in the EU, rather than individual country targets. This allowed the UK and Germany, who had experienced significant emissions reductions since 1990, unrelated to climate change concerns, to distribute this windfall to states in the EU who wished to increase their emissions. By tying Kyoto emissions targets to a 1990 baseline rather than one from 1997, the target for the EU was much less onerous than that for the US.

23 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, IBA Task Force Report (IBA 2014) 3.

24 The US has so far refused to ratify the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the Declaration on the Right to Development. These all implicitly and explicitly refer to a duty to provide international support by states able to do so.

25 Siobhán McInerney-Lankford, Mac Darrow and Lavanya Rajamani, Human Rights and Climate Change, A Review of the International Legal Dimensions (The World Bank 2011) 7.

26 Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harv Envtl L Rev 439, 461.

27 Ex nunc denotes obligations ‘as from now on’ while ex tunc means ‘from the outset’.

28 Due to an emissions cap no one expected Russia to exceed.

29 Adil Najam, ‘The View From the South: Developing Countries in Global Environmental Politics’ in Regina Axelrod, Stacy VanDeveer and David Leonard Downie (eds), The Global Environment: Institutions, Law and Policy (3rd edn, CQ Press 2011) 247.

30 Anita M Halvorssen, ‘Common, but Differentiated Commitments in the Future Climate Change Regime – Amending the Kyoto Protocol to Include Annex C and the Annex C Mitigation Fund’ (2007) 18 Colo J Int'l Envtl L & Pol'y 247, 255.

31 Principle 2. Rio Declaration on Environment and Development (adopted 14 June 1992) UN Doc A/CONF.151/5/Rev 1 (1992).

32 Principle 15. Rio Declaration on Environment and Development (adopted 14 June 1992) UN Doc A/CONF.151/5/Rev 1 (1992).

33 Principle 16. Rio Declaration on Environment and Development (adopted 14 June 1992) UN Doc A/CONF.151/5/Rev 1 (1992).

34 David A Wirth, ‘The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa’ (1995) 29 Georgia Law Review 599, 628–29.

35 Ibid, 650.

36 Sabrina Safrin, ‘The Un-Exceptionalism of US Exceptionalism’ (2008) 41 Vanderbilt Journal of Transnational Law 1307, 1349.

37 William R Moomaw, ‘Can the International Treaty System Address Climate Change?’ (2013) 37 Fletcher F World Aff 105, 110.

38 Mark A Drumbl, ‘Northern Economic Obligation, Southern Moral Entitlement, and International Environmental Governance’ (2002) 27 Colum J Envtl L 363, 376–77.

39 This Conference represents the expression of a normative claim by the people of Bolivia that the environmental impact of clear intra- and inter-generational economic inequity creates a moral, and therefore legal, obligation for developed states to pay compensation to developing states.

40 ‘Facing the absence of an international legal framework to criminalize and punish all those crimes and climate crimes that attempt against the rights of Mother Earth and humanity, as indigenous peoples and social organizations of Bolivia, we demand the establishment of a Climate Justice Tribunal that has the binding capacity to judge and punish those states and companies that pollute and cause climate change.’ https://pwccc.wordpress.com/2010/04/16/working-group-5-climate-justice-tribunal/#more-1215.

41 See n 1 above, and Submission by the Plurinational State of Bolivia to the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (26 April 2010) https://pwccc.wordpress.com/2010/04/28/submission-by-the-plurinational-state-of-bolivia/.

42 Andres Schipani, ‘Bolivian Community Sees Its Future Melt’ http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/8629379.stm, last accessed 22 December 2015.

43 Section K. UN Doc FCCC/ADP/2015/1 (Version of 11 June 2015 at 16:45) 66.

44 Ibid 65.

45 Mark A Drumbl, ‘Northern Economic Obligation, Southern Moral Entitlement, and International Environmental Governance’ (2002) 27 Colum J Envtl L 363, 381–82.

46 It would be difficult to justify the cost-benefit of a number of recent US-led military engagements, but it is worth noting those were framed as addressing a dangerous foreign enemy. Climate Justice Tribunal enforcement of Rio-influenced climate obligations, on the other hand, clearly describes Americans as the enemy.

47 It should be noted that Executive Order 12291 (and subsequent revisions) forbids Congress from enacting major rules which result in an annual effect on the economy of over $100m, unless the potential benefits outweigh the potential costs. Military actions, not accidently, are exempt from this regulation.

48 Anita M Halvorssen, ‘Common, but Differentiated Commitments in the Future Climate Change Regime – Amending the Kyoto Protocol to Include Annex C and the Annex C Mitigation Fund’ (2007) 18 Colo J Int'l Envtl L & Pol'y 247, 255.

49 Robert D Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427.

50 United Nations General Assembly, ‘Scale of Assessments for the Apportionment of the Expenses of the United Nations’ (5 February 2010) A/Res/64/248.

51 Soft law, which gained new stature after the 1992 Rio Conference when clear actionable obligations seemed impossible, may be devalued as a source of law.

52 For this argument applied to both custom and treaty law, see Jack L Goldsmith and Eric A Posner, The Limits of International Law (Oxford University Press 2005).

53 Harald Winkler and Lavanya Rajamani, ‘CBDR&RC in a Regime Applicable to All’ (2014) 14 Climate Policy 102.

54 Remi Moncel, ‘Unconstructive Ambiguity in the Durban Climate Deal of COP 17/CMP 7’ (2012) 12(2) Sustainable Development Law & Policy 6, 10.

55 See text to nn 43 and 44 above.

56 For more information on the work of the ICE Coalition, visit: www.icecoalition.com; and www.policyinnovations.org/ideas/innovations/data/000240.

57 Paris Agreement, Paragraph 1 and 2, Article 15, FCCC/CP/2015/L.9 (12 December 2015) 28.

58 Space does not permit an evaluation of all of the IBA recommendations but, as noted previously, the US is unlikely to ratify treaties that commit it to broad extraterritorial economic responsibilities. This may limit the effectiveness of an international environmental rights-based route. Efforts to grant the WTO's Committee on Trade and the Environment the power to pre-emptively adjudicate on state party legislative conflicts with WTO law are likely to be resisted by numerous states (perhaps especially developing states). And regulation by the UNFCCC of global fossil fuel reserves based on a cumulative carbon budget is unlikely to go unchallenged (again by developing states) as it fundamentally overturns ‘the sovereign right [for states] to exploit their own resources pursuant to their own environmental and developmental policies’ found in Rio Principle 2. This latter proposal may also be interpreted as an attempt to ‘mess with Texas’, which is likely to be coolly received.