Is the crisis of climate change a crisis for international law: is international law too democratic, too capitalist and too fearful to cope with the crisis of climate change?

• Author: Scott, Shirley V.

Abstract

This article goes beyond the international law of climate change to pose some bigger picture questions regarding the relationship of climate change and international law First, is that as to whether international law has some responsibility for the climate change crisis through its promotion of a capitalist oil-based global economy. Accepting that this is the case, the article then asks whether international law can extricate itself from that past in order to facilitate changes on the scale and in the time-frame required to avoid worst-case scenarios. International law may be constrained in this regard by its methods of law-making and enforcement and by the political context in which it functions Although international lawyers are currently exploring the possibility of malting international law more democratic, the domestic experience of leading democracies would suggest that this may not help international law meet the climate change challenge. The article concludes by asking whether international law is too capitalist, too democratic, and too fearful to cope with the crisis of climate change.

Introduction

Climate change has come to be regarded as one of the key global challenges of our time. In policy terms, it is no longer thought of as an environmental issue only, but as a challenge with potentially far-reaching implications for virtually all areas of planning, from health care, to transport, to taxation. The root cause of the crisis--the burning of fossil fuels for energy--goes to the very heart of contemporary developed economies and while it is projected that some of those worst affected will be in the poorest countries, every society is likely to be affected to some degree. International law, and in particular the United Nations Framework Convention on Climate Change ('UNFCCC') (1) and the Kyoto Protocol to the United Nations Framework Convention on Climate Change ('Kyoto Protocol'), (2) have been central to attempts to address the crisis at a global level. But, just as the policy implications of climate change extend beyond environmental policy so climate change poses challenges for international law beyond the design and implementation of mitigation measures. This article poses two fundamental questions for international lawyers regarding climate change: does international law carry any responsibility for the crisis and does international law have adequate mechanisms for effecting far-reaching changes in a relatively short time-span? The article concludes by considering whether international law is too democratic, too capitalist, and too fearful to rise to the challenges ahead.

1. The Crisis of Climate Change

The title of this article is premised on the assumption that it is appropriate to use the language of 'crisis' in referring to climate change. Before considering whether the crisis of climate change constitutes a crisis for international law, it is worth reflecting on whether the problems we are facing in respect of a changing climate do in fact warrant use of the term 'crisis'. Some have suggested that the increasingly dramatic language we are encountering in relation to climate change means that the left and the green movement are simply drawing on the same politics of fear drawn on by the right during fear of crime campaigns and the war on terror. According to Frank Furedi, we are witnessing a

[C]onstant inflation of the danger and problems which people face today, coupled with a lack of belief in humanity having the ability to tackle any difficulties we might come up against ... [W] hat's different today is not the number of problems we face, nor the scale of the dangers confronting us. It is the fatalistic spirit with which they are approached." (3) According to Furedi, the culture of fear has led to a culture of limits. 'We are told that there is no alternative but to ... cut down on the consumption of resources to avert climate change, or that there is no alternative but to reorganize our way of life in order to survive the threat of terrorism'. (4) Mike Hulme has argued that climate has always carried a precarious and ambiguous meaning for humans and that current climate fears--as with those during the early-modern era--will in the end be dissipated, reconfigured or transformed. (5) According to Hulme, 'an emerging discourse of climate catastrophe reveals more about the struggle for ascendancy between the institutions of science, government, business and civil society than it does about a physical reality waiting to strike'. (6)

Having recently been chastised for focusing too heavily on 'crises' at the expense of developing an international law of the 'everyday,' (7) international lawyers sensitive to criticism might reasonably be expected to shy away from alarmism. And it is true that certain sections of the scientific community and pro-fossil fuel lobby groups continue to suggest that the problem is being exaggerated. But in a recent study, James Risbey concluded that use of the term 'crisis' is broadly consistent with the science and not unduly alarmist. He demonstrated that the alarming terms and phrases being used in relation on climate change--'catastrophic, 'rapid', 'urgent', 'irreversible', and 'worse than we thought'--all seem reasonable descriptors of the phenomenon of climate change and some of its key impacts. (8)

2. Questions for International Law

   The science of climate change has become much more certain over the years and the challenge of climate is now in large measure a challenge of governance: how to bring about needed changes in the time available. Given that the object of concern is the atmosphere, climate change is quintessentially a global issue. It is the thesis of this article that if it is accepted that climate change is of the nature of a crisis for global governance, including legal governance, the crisis is one not only for international environmental law but for the international legal system more generally. To explore the validity of this proposition, this article considers three questions linking international law and climate change. It may not at this stage be possible to provide comprehensive answers to any of them, but it is important that the question are raised, and it is hoped that doing so might encourage debate by others.

   1. Does International Law Have a Measure of Responsibility for the Climate Crisis?

      The roots of modern international law lie in Europe. As time passes and history is reviewed, often in a critical light, international lawyers agonise over causes--colonialism, patriarchy, or globalization, for example--that international law appears to have served. Is climate change yet another phenomenon for which international lawyers should feel some degree of collective responsibility? At first glance the answer is a clear 'no'. International law certainly has no direct responsibility for climate change. On the contrary, the international legal instruments that address climate change--the UNFCCC and Kyoto Protocol--are part of the body of international environmental law that has evolved in an effort to protect the environment from the damage done by humankind. In the case of greenhouse gas emissions, the anthropogenic causes have been clearly established. According to the Fourth Assessment Report of the Intergovernmental Panel Climate Change ('IPCC"), greenhouse gas forcing has 'very likely' caused most of the observed warming over the last 50 years. (9) Fossil fuel combustion (plus a smaller contribution from cement manufacture) is responsible for more than 75 per cent of human-caused carbon dioxide emission, with land use change responsible for the remainder. (10) The IPCC describes recent atmospheric change as 'dramatic and unprecedented'. (11) Degradation of the atmosphere has come about through the burning of fossil fuels in the operation of an oil based economy. The greatest historical responsibility for greenhouse gas emissions lies with those countries that industrialized first, although with China experiencing rapid industrialization, urbanization and economic growth, China's level of emission has now overtaken that of the United States. (12)

      If international law has not caused climate change, could it be said to have facilitated, or to be currently facililating, human behaviours that have been, or are currently, exacerbating anthropogenic climate change? Asked in this, way, the answer would seem to be in the affirmative. To take one example, the aviation industry has been one of the fastest growing sources of carbon dioxide emissions. Although there is some disagreement over modelling and difficulties in assessing the future impact of new technologies, one study has forecast an increase in carbon dioxide emissions by the aviation industry from 572 million tonnes in 2000 to 1229 million by 2025. (13) There is, similarly, increasing concern at the contribution of the shipping industry to the climate problem. While it was previously believed that shipping was relatively environmentally-friendly mode of transport, a recent report has suggested that shipping emits up to six per cent of world greenhouse gases, double that of aviation. Indeed, only six countries in the world are emitting at higher levels. (14) This sizeable contribution is attributable in large measure to the considerable growth that has been experienced by the industry in recent years.

      The success of the international transport industries is obviously not attributable solely to international law, but international law has arguably enabled their...