Climate change and crises of international law: possibilities for geographic reenvisioning.

• Author: Osofsky, Hari M.
• Position: International Law in Crisis

Climate change poses a crisis for international law because addressing it requires many levels of government, types of law, and governmental and nongovernmental actors. (1) Moreover, this governance complexity involves scientific, technical, and legal uncertainty; simultaneously overlapping and fragmented legal regimes; difficulties of balancing inclusion and efficiency; and inequality and resulting injustice. (2) A myriad of strategies must be employed to address both mitigation and adaptation to impacts fairly and effectively* This thought piece explores how the combination of failures by nation-states to address this problem effectively and of efforts by a wider range of actors not generally counted in international lawmaking suggest a possible way forward for international law in responding to complexity.

1. THE INTERNATIONAL CLIMATE CHANGE REGIME IN CRISIS II. WHY GEOGRAPHY MATTERS IN ADDRESSING THIS CRISIS III. CONCLUSION I. THE INTERNATIONAL CLIMATE CHANGE REGIME IN CRISIS

   As a formal matter, international legal efforts to address climate change fit within a traditional model of international lawmaking. The dominant multilateral climate change regime consists of the United Nations Framework Convention on Climate Change (UNFCCC) (3) and agreements negotiated under that convention. The UNFCCC provides general commitments and a structure for achieving more specific targets and timetables. (4) Parties to the UNFCCC meet regularly in conferences under its auspices, most recently in Durban in 2011, to attempt to negotiate additional agreements. The 2011 Conference of the Parties (COP) in Durban resulted in an agreement to reach a universal agreement by 2015 and established an "Ad Hoc Working Group on the Durban Platform for Enhanced Action" to begin negotiating this towards this 2015 goal. (5) In addition, thirty-five of the parties to the Kyoto Protocol, the only agreement negotiated under the UNFCCC which provides binding targets and timetables, committed to a second commitment period, which will begin in January 2013, when the first one ends. (6)

   However, the international legal regime and this narrative of it are in crisis for two primary reasons. First, and least problematically for a traditional account, the existing regime and negotiations are struggling to achieve their goals. (7) Many nation-states are having difficulties meeting their Kyoto Protocol commitments, and those commitments do not go as far as scientific consensus suggests is needed to prevent the most severe risks of climate change. (8) Moreover, the United States, Canada, Japan, and Russia were not among the thirty-five countries committing to this second period, the United States never committed to the first one, and the potential 2015 universal agreement will not result in the reductions needed now. (9)

   These difficulties do not necessarily suggest the need for innovative theorizing about international law creation. A Westphalian (10) narrative of international law creation, in which international law arises from the consent of sovereign and equal nation-states, would likely acknowledge the regime as creating limited international legal obligations and assess it as not entirely successful in achieving its goals. (11) However, the substantive problem of addressing climate change effectively through international law would remain. A core question that this thought piece asks is whether current international legal efforts should focus primarily on achieving better agreements in negotiations among nation-state parties, or whether more inclusive conceptions of international law creation which shift that focus somewhat might actually serve as a tool in solving this problem.

   Second and more fundamentally, there is a great deal of activity with legal significance on climate change outside of the UNFCCC structure. Some of this activity includes a wide range of additional formal international legal agreements among nation-states, which, for completeness, should be included in even a traditional account of international law creation. (12) For example, the Montreal Protocol's (13) efforts to address ozone impact greenhouse gas emissions significantly. (14) In addition, and less acknowledged in most of the commentary on the UNFCCC, nations have crafted many bilateral and multilateral agreements (with fewer parties) on relevant issues such as alternative/renewable energy. (15) These agreements arguably should also be included in almost any account of the creation of international law relevant to climate change.

   The conceptual conundrum comes not from these additional formal agreements among nation-states--though they contribute to the simultaneous overlap and fragmentation of international law--but rather from the many other less formally binding agreements among nation-states and among a wider range of governmental and nongovernmental entities. The agreements reached among cities, states, and provinces during the Copenhagen COP in December 2009 exemplify this difficulty particularly well because they include subnational governments from nation-states which were having difficulty reaching agreement and the pledges within them represented massive quantities of emissions reductions. (16) More than fifty mayors from a wide range of nation-states, as well as some governors, signed Copenhagen Climate Communique, which summarizes the significant steps taken at a local level on climate change and calls for nation-state action. (17) In addition, local government leaders from fifty-nine countries registered 3,232 targets in the Copenhagen City Climate Catalogue, a transnational effort to compile local targets and achievements. (18) At a somewhat larger scale, leaders from states and provinces within Algeria, Canada, France, Nigeria, and the United States held a joint press conference to announce the planned launch of a Club of 20 Regions (R20) in September 2010, an arrangement which builds upon the October 2009 Governors' Climate Summit and the Global Climate Solutions Declaration signed there. (19) At more recent COPs, this trend continued, with local leaders signing the 2010 Mexico City Pact (20) and the Durban Adaptation Charter for Local Government. (21) Localities also have taken action through the World Mayors Council on Climate Change (22) and the carbonn Cities Climate Registry. (23)

   These agreements have no formal international legal significance under traditional notions of international law. They are formed among subnational actors who, as a matter of international law, are not subjects and objects of international law and could rescind their commitments at any time. The commitments themselves involve subnational, not international, legal action. Moreover, under the Statute of the International Court of Justice, they would not serve as sources of international law. They are not treaties, and are unlikely to be...