Climate: The Changing International Response

The inclusion of environmentalism to mainstream international diplomacy has been a process that has finally gained momentum. Over the past decade, green groups have gone from being mere special interest groups to virtually becoming churches of a ‘post-modernist religion' sparking the imagination of nations and their governments all over the world. The global ecological crisis, pre-eminent in conditions such as global warming, forms a major concern in political, legal and economic affairs of the world today. With the increasing amount of scientific data on the issue of climate change, it is not too difficult to understand the urgency that surrounds this nagging threat to the global environment. However, the creation of a unified climate agenda in the global community requires more than just the acceptance of scientific fact. The institutionalized cooperation on climate change is shrouded in the politics of development and the economic repercussion of this global ecological drive.

Even a cursory examination of the some of the major environmental issues affecting the world today indicates that these problems are insoluble outside the realm of the international politico-legal structure. What then constitutes the philosophical basis for a system of international justice in this area? History has shown us that attempts to create viable machinery of international law to prevent war or end genocide have often been laughed out of court, made ineffectual in practice, or simply ignored. In Hobbesian terms, the "war of each against all", of rational self-interest of nations blunts the pragmatic effectiveness of these international mechanisms. However, even with Hobbesian insight, the case of global environmental concerns envisages a pragmatic rationale behind a nation's cooperation on an international scale. In the case of climate change, the leitmotif of the entire debate is the global nature of such a concern. Unlike, in the case of human rights violations or civil wars, with the over-heating of our planet- everyone loses (or might lose) if these concerns are not addressed. That is to say, if one nation loses its fight against the environmental problem or simply does not address it, any other nation could and in many cases would be likely to suffer as well. Therefore, the creation of a viable system of international justice, going beyond the restrictions of local sovereignty, to deal with our environmental ethical concerns is a functional necessity.

The assertion that global environmental problems need global solutions has provided a window for these issues to be perceived as the ‘common concerns of mankind' as accepted by the UN General Assembly in 1988. The notion of common concern caters to the interests of the international community as a mutually beneficial resource in contrast to limited national responsibilities, allowing concerted action for issues that cannot be grappled in bilateral or regional frameworks.

Building Bridges: Global environmental law

According to some, Multilateral Environmental Agreements (MEAs) constitute the "predominant legal method" for addressing global environmental problems. However, MEA's are a part of a broader landscape of legal mechanisms in the form of international treaties, conventions and agreements that entail a continuous process of law-making in the face of scientific evidence, economic and technological changes. This vibrancy of this process of law-making is clearly reflected when one notes that in the past forty odd years more than 300 conventions related to environment have been negotiated. The increasing reliance on international institutions for tackling environmental problems has been able to provide international co-operation on a large scale, a development that has had a far-reaching impact on the equity of international law. B.H Desai argues that the creation of common institutional networks have emphasized the sovereign equality of states and the emergence of consensual decision making (as opposed to weighted voting or simple majoritarianism) has provided a "transparency in the problem solving techniques as well as proliferation of international institutions as a response to emerging challenges", thereby adding to the quality of law-making.

The method of building international law on environmental issues has been facilitated primarily by treaties, mostly because of the urgency of the issues and the flexibility of such a mechanism wherein traditional customary norms are deemed irrelevant. States have regarded their treaties as "frameworks" which could be shaped with an in-built law, making apparatus that allow specific concerns to be dealt with. This process manifests a ‘state centric institutionalized cooperation' (Desai) allowing the participation of a number of other non state participants such as lobbyists with environmental or business interests and scholars as ‘observers'. Therefore, most MEA's depend critically on the political resolve and economic considerations of the nations entering legal instruments.

The ‘Framework Convention' approach in the making of international environmental law allows states to avoid taking substantive decisions in a short period, by contracting participant states in broad policy outlines (framework) and leaving details to be chalked out later, usually in the form of protocols.

The United Nation's steps in

The creation of a ‘collective consciousness' for the sustainable use of the planet's resources entered the realm of international diplomacy only in the late 1960's. It was in 1968, that the United Nations General Assembly first recognized the need to engage into environmental issues of global concern. The subject of global climate change came onto the international agenda twenty years later, when, in 1988, the UN General Assembly (UNGA) recognized that climate change is a "common concern of mankind" and urged governmental and nongovernmental organizations to collaborate in an effort to prepare a framework convention on climate change. The Intergovernmental Panel on Climate Change (IPCC), a panel of leading scientists, in their Second Assessment Report, that a gradual warming of the atmosphere was occurring and that the "balance of evidence now suggests that there is a discernible human influence on climate".

The UNGA recognized this warning in 1990 following the IPCC Report, and established an Intergovernmental Negotiation Committee (INC) which was given the responsibility of negotiating an effective treaty containing appropriate commitments. The INC finally adopted the United Nations Framework Convention on Climate Change (FCCC) at its last session in New York 1992. At the Rio Earth Summit, the almost 154 states, along with the European Union signed the Convention with the objective of stabilization of green house gas (GHG) concentration to 1990 levels of emissions, whilst admitting the "common but differentiated responsibilities and respective capabilities" of the states. Effectively, this stated the division between the developed and developing countries on the issue of climate change, whereby special consideration was given to developing nations that would have to bear an unequal burden on their economic growth.

The commitments of the Convention were called "soft" or "vague" by environmental groups, which they argued indicates the preference for a weak convention on the part of the negotiators. There was no legal obligation in the convention that specified the exact targets to time-tables for the purpose. However, the FCCC being a Framework Convention needed a subsequent protocol (as per Article 17) for achieving its long-term objective of preventing ‘interference with the climatic system.' The first meeting of the Conference of Parties (COP 1) of the FCCC was held in Berlin in March 1995, in order to strengthen the commitments of developed countries. The Berlin Mandate reiterated that the developed countries should ‘take the lead in combating climate change and the adverse effects thereof".

The Kyoto Protocol

The third Conference of Parties (COP 3) was held in Kyoto, Japan where a consensus decision to adopt a Protocol under which only the industrialized nations were to reduce their quantified GHG emission by 5.2 percent at 1990 levels by the period 2008-12. The Kyoto Protocol became the first step in the direction towards laying down international legal restrictions upon the environmental behaviour of states. The Protocol adopted at Kyoto was also significant because it only called on the industrialized states to reduce their GHG emission, citing the criteria of ‘differentiated' responsibility on the issue.

Several aspects of the Kyoto Protocol have been considered controversial by environmentalists and politicians alike. To begin with, the modest level of 5.2 percent reduction with a grace period till 2008 was disappointing figure for many. The ‘flexibility mechanisms' incorporated in the Kyoto accord, were believed to ‘assist' the developed countries in warding off any potential political and economic fall out while meeting their commitments.

The main political debate that surrounded the Kyoto protocol went beyond the structure of the accord; it concerned itself with its workability. The three mechanisms i.e. the international emissions trading regime, the clean development mechanism and the joint implementation mechanism were debated in the COP 4 held at Buenos Aires, November 1998. The European Union opposed the market-based instruments like carbon emissions trading tooth and nail. Mechanisms like the CDM were regarded as attempts to commodify the atmosphere. The meeting also raised the questions on the differences between the developing and developed countries in tackling the question of climate change. States having "primary responsibility" were concerned more with shifting the burden of the climate problem on to others." Developing countries like India and China opposed the introduction of ‘voluntary commitments' for countries like Argentina and Kazakhstan. They argued that the pretext of ‘meaningful participation' would amount to their involvement in the commitment of emissions reduction through the back door, since these voluntary commitments would not remain voluntary when performed.
The political and economic worries of the participant nations proved to have a crippling effect on the Kyoto protocol. While, scientists and green groups have stated repeatedly that the Kyoto targets are far lower than what is required to actually tackle the problem-- the Kyoto protocol itself has been unable to take off in the manner it was expected to. The largest single emitter of GHG's, the United States (along with Australia) has not ratified the protocol, jeopardizing the delicately crafted agreement and the future of its institutionalization. The non-participation of developing nations like India and China has was seen by critics as trying to pass on their responsibility towards global warming onto the rich countries.
The Way Forward

Recently, Micheal Liebreich of New Energy Finance has used game theory to explain the international response to the issue of climate change . He argues that the phenomena termed as "prisoner's dilemma" in game theory, explains why rational leaders will neglect the problem at hand, and wait for other nations to act, allowing their country to avoid the economic costs of the problem and enjoy the benefits of a safe environment at the same time. Liebreich believes that the trend of the prisoner's dilemma can be altered once the negotiators know that the treaties are become a part of a process that is repeated through successor treaties. This strategy will ensure that the successor treaties will persuade more countries to join in, by providing incentives for those who join and sanctions for those who do not. Thus instead of trying to create a treaty that will be agreeable to all parties, Liebreich argues for pushing parties to ratify existing ones through political and economic pressure.

In light of the given problem, one wonders whether the role of the ‘trigger events' (Desai) will give birth to MEA's to regulate state behaviour, that is to say when the public outcry over environmental changes reaches a boiling point or the controversies around scientific evidence finally is resolved. Nobel Laureate Paul Crutzen notes on the issue of climate change that ‘no dramatic action will be taken in the political world before there is an unpleasant surprise.' Such trigger events may set the regulatory process in motion which can later chart its course shaped by the priorities and interests of participant states.

Noted American environmentalists Michael Shellenberger and Ted Nordhaus complain that the environmental movement has failed to deliver progress on global warming for philosophical and structural reasons. They argue that the narrow definition of ‘self-interest' that motivates most green groups fails to provide an incentive for other social sectors, like big businesses. However, to provide economic incentive for groups such as big businesses, some argue that the greatest push to constrain carbon must come from the government. Incentives such as subsidies are popular with both governments and recipient companies, and have been advocated for specific technologies. Government policies like the setting a carbon price through either a tax or a cap and-trade system (being implemented in Europe) are also significant methods to cut carbon emissions in business. The IPCC estimates in it Fourth Assessment Report, that the carbon price required to stabilize carbon dioxide levels will range from $20-50 per tonne by 2020 and the impact of this on the world GDP by 2050 will be at an average 1.3% less. These figures will come into effect assuming that the entire world adopts carbon price. The Economist states- ‘it cannot be done unless the all rich countries take the first step. They need to set an effective carbon price, and show the developing world that they can do so without ruining their economies.'

To string together a solution that can address the global ecological crisis that the world is currently facing is clearly a multi-layered process. As mentioned earlier, the process of law-making in the form of MEA's have emerged as the predominant method to grasp with environmental challenges that are threatening humanity. However, the functioning of these MEA's depend on the practicalities of the economic and political climate in the participant nations. The larger debate on international environmental governance requires these issues to be addressed for a new environmental order to find its place in international affairs.

Bibliography

1. Steven Luper Foy (ed.)- The Problems of International Justice
2. Richard A. Falk- This Endangered Planet: Prospects and Proposals for Human Survival
3. U.N (1988) - Protection of Global Climate for Present and Future Generations of Mankind. GA Resolutiion 43/53. UN.
4. Bharat H. Desai- Creeping Institutionalization: Multilateral Environmental Agreements and Human Security
5. Bharat H. Desai- Global Accords and Quest for a New International Ecological Order: From Law of Indifference to Common Concern in Business and the Contemporary World Vol. IX(3), 1997

6. Bharat H. Desai- Institutionalizing the Kyoto Climate Accord in Environmental Policy and Law Vol. 29(4), 1999

7. Prodipto Ghosh- Climate Change and India Presentation to India-EU Round table, 2007

8. Michael Shellenberger and Ted Nordhaus: The Death of Environmentalism

9. Harvard Law Review(1991) Developments in the Law: International Environmental Law in Harvard Law Review Vol. 104, No.3, 1991

10. The Economist (2005) Rescuing Environmentalism (and the planet) in The Economist Vol. 375 No.8423

11. The Economist (2007) Cleaning Up (A Special Report on Business and Climate Change) in The Economist Vol. 383 No.8531

12. The Economist (2007) Playing Games with the Planet at
http://www.economist.com/finance/economicsfocus/displaystory.cfm?story_id=9867020

Note: This article was written in 2007 as a contribution to International Legal Studies Journal, School of International Studies, Jawaharlal Nehru University, India