Abstract
A rationale is a reasoned narrative used to justify a norm or set of norms; in turn, it determines the expectations that one holds from the law and provides a framework in which complementary norms are bargained. This article proposes a reflection on the elusive rationale for international climate law. Its first, analytical claim is that there is currently no consensus on such a rationale—an absence likely to impede climate negotiations. References to “equity,” “common but differentiated responsibilities” and “respective capabilities” in existing climate law provide insufficient guidance to ongoing negotiations, reflecting an agreement to disagree rather than a common vision. The construction of a rationale is prevented by protracted disputes regarding the ethical grounds relevant to climate law and by the ambivalence of national interests, which are essentially social constructs. A second, normative claim of this article is that the rationale for climate law should be construed as a hybrid narrative reconciling moral aspirations with pragmatic constraints. Thus, it is submitted that the concept of complex interdependence could be applied to climate change to emphasize existing national interests in fostering global sustainable development. Although important debates remain, complex interdependence provides essential guidance by calling states to take moral arguments into account, in their own interest—when such arguments are widely accepted by civil societies—in order to avoid human destitution and resentment and to preclude the possibility of disastrous consequences on international peace and security.
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Notes
Thus, the “object and purpose” of a treaty provide support for interpretation of a norm (1969 Vienna Convention on the Law of Treaties, art. 31.1).
From the “inherent dignity and … the equal and inalienable rights of all members of the human family” (1948 Universal Declaration of Human Rights, 1st recital) to the “interdependence of all the members of the world community” (1974 Declaration on the Establishment of a New International Economic Order, ¶3).
See for instance EU Comission (2001), 2, describing the EU emission trading scheme as “an environmental policy instrument to lower the costs of reducing greenhouse gas emissions.”
Such a consensus is instrumental to the application of international law generally, absent enforcement mechanisms. While states are already bound by certain laws, including the law on state responsibility and the no harm principle, even the application of such laws remains, in practical terms, subject to the goodwill of the states under specific obligations (e.g. responsible states).
References
Akhavan P (2005) Justice, power, and the realities of interdependence: lessons from the Milosevic and Hussein trials. Cornell Int Law J 38:973–982
AWG-LCA (Ad Hoc Working Group on Long-term Cooperative Action under the Convention) (2012) Report on the workshop on equitable access to sustainable development. FCCC/AWGLCA/2012/INF.3/Rev.1
Beitz C (1975) Justice and international relations. Philos Public Aff 4:360–389
Buchner B et al (2011) The landscape of climate finance. Clim Pol Initiative
Caney S (2005) Cosmopolitan justice, responsibility, and global climate change. Leiden J Int Law 18:747–775
Crawford N (2009) Homo politicus and argument (nearly) all the way down: persuasion in politics. Perspect Polit 7:103–124
Dalby S (2013) Climate change as an issue of human security. In: Grasso M, Redclift M (eds) Handbook on climate change and human security. Edward Elgar, Cheltenham, pp 21–40
EU Commission (2001) Proposal for a Directive of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC. COM(2001)581 final
EU Council (1998) Outcomes of the proceedings of the Environment Council of 16–17 June 1998. 9702/98
Fassin D (2012) Humanitarian reason: a moral history of the present. University of California Press, Berkeley
Gardiner S (2011) A perfect moral storm: the ethical tragedy of climate change. Oxford University Press, New York
Hulme M (2009) Why we disagree about climate change: understanding controversy, inaction and opportunity. Cambridge University Press, Cambridge
Humphreys S (2010) Competing claims: human rights and climate harms. In: Humphreys S (ed) Human rights and climate change. Cambridge University Press, Cambridge, pp 37–68
ILC (International Law Commission) (2001) Draft articles on responsibility of States for internationally wrongful acts. A/56/10
INC (International Negotiating Committee for a Framework Convention on Climate Change) (1991) Report of the third session (Nairobi, 9–20 September 1991). A/AC.237/12
Kaswan A (2011) Reconciling justice and efficiency: integrating environmental justice into domestic cap-and-trade programs for controlling greenhouse gases. In: Arnold D (ed) The ethics of global climate change. Cambridge University Press, Cambridge, pp 232–254
Keohane R, Nye J (2012) Power and interdependence, 4th edn. Pearson, London
Keohane R, Victor D (2011) The regime complex for climate change. Perspect Polit 9:7–23
Koskenniemi M (2005) From apology to utopia: the structure of international legal argument. Cambridge University Press, New York
Mayer B (2013) Climate change and international law in the grim days. Eur J Int Law 24:947–970
Mayer B (2014) State responsibility and climate change governance. Chinese J Int Law 13 (forthcoming)
Pogge T (2002) World poverty and human rights: cosmopolitan responsibilities and reforms. Blackwell Publishers, Malden
Posner E, Sunstein C (2007) Climate change justice. Georget Law J 96:1565–1612
Posner E, Weisbach D (2010) Climate change justice. Princeton University Press, Princeton
Rajamani L (2006) Differential treatment in international environmental law. Oxford University Press, Oxford
Rawls J (1999) The law of peoples. Harvard University Press, Cambridge
Sands P, Peel J (2012) Principles of international environmental law. Cambridge University Press, Cambridge
Scott J, Rajamani L (2012) EU climate change unilateralism. Eur J Int Law 23:469–494
Singer P (2004) One world: the ethics of globalization. Yale University Press, New Haven
Singer P, Singer R (1988) The ethics of refugee policy. In: Gibney M (ed) Open borders? Closed societies? The ethical and political issues. Greenwood Press, New York, pp 111–130
UN (2001) Report of the high-level panel on financing for development. A/55/1000
UNCED (UN Conference on Environment and Development) (1992) Report. A/CONF.151/26 (Vol. I–III)
UNESCO (2000) Earth charter (29 June)
UN Secretary General (2009) Implementing the responsibility to protect. A/63/677
US Congress (1997) 143 Cong Rec (daily ed. 25 July) S8113–8139
Acknowledgments
Insightful comments were provided by the participants to a NUS Law doctoral seminar and to the Como workshop on Multi-disciplinary Perspectives on Climate Ethics, and by four anonymous reviewers.
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This article is part of a special issue on “Multidisciplinary perspectives on climate ethics” with guest editors Marco Grasso and Ezra M. Markowitz
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Mayer, B. Conceiving the rationale for international climate law. Climatic Change 130, 371–382 (2015). https://doi.org/10.1007/s10584-014-1271-4
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DOI: https://doi.org/10.1007/s10584-014-1271-4