International Environmental Law and Climate Change: Reflections on Structural Challenges in a kaleidoscopic World

International Environmental Law and Climate

Change: Ref‌lections on Structural Challenges in a

“Kaleidoscopic” World

JUTTA BRUNNE

´E*

ABSTRACT

Over the last decade or so, Professor Brown Weiss has drawn our attention to

the implications for the international order of what she calls the “kaleidoscopic

world.” International law, she argues, must transition from its origins as an exclu-

sively sovereignty-based system to a more globalized legal system that engages

state and non-state actors alike. In this ever-changing context, it must provide both

dynamic, adaptable approaches to lawmaking and universally accepted norms that

can promote, guide, and stabilize cooperation. Professor Brown Weiss identif‌ied

harm avoidance as one such fundamental norm for international law in the kalei-

doscopic world, and climate change as emblematic of the complex problems the

law must confront. In this short Article, I will show that the harm avoidance norm

does play a central role in general international law as well as in treaty-based

environmental regimes. However, as Professor Brown Weiss cautions, the sover-

eignty moorings of international law entail structural limitations that complicate

the pursuit of environmental harm avoidance. In the context of customary interna-

tional law, these limitations are enshrined in the very parameters of the founda-

tional harm prevention rule. The evolution of this rule beyond the sovereignty

paradigm has remained tentative. In the context of multilateral environmental

agreements, sovereignty-related constraints f‌low from the rules of treaty law. As

the experience in the climate regime serves to illustrate, rules pertaining to state

consent, entry-into-force, and treaty amendments have hampered the development

of a long-term commitment regime for all states. The Paris Agreement frees the cli-

mate regime from at least some of these sovereignty-driven constraints. Ironically,

it accomplishes this feat by giving pride of place to the sovereignty of states over

national policy choices.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

I. Climate Change, Complexity, and the Kaleidoscopic World . . . . . . . . . . 116

* University Professor and Metcalf Chair in Environmental Law, University of Toronto. © 2020,

Jutta Brunne

´e.

113

II. General International Law and Climate Change: The Limits

of Sovereignty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

III. The Paris Agreement: Towards a “more complex, globalized legal

system”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

The old order is in f‌lux, and the emerging order is complex and often chaotic.

1

[A]n international legal system based solely on sovereignty and rights of sov-

ereignty is no longer suff‌icient today.

2

We are transitioning to a much more complex globalized legal system.

3

INTRODUCTION

These three short quotes, taken from Edith Brown Weiss’ 2017 Hague

Lectures, provide an apt illustration of the range, insight, and foresight that are

the hallmarks of her scholarship. I was grateful to have had the opportunity to

speak at the November 2019 symposium in recognition of Professor Brown

Weiss’ remarkable scholarship, and I am delighted to contribute to this journal’s

series of articles in her honor. In that spirit, the three opening quotes will serve as

a set of jumping off points for the brief ref‌lections on international environmental

law and climate change that I am offering in this contribution.

The f‌irst proposition—about the changing international order—captures the

context in which international environmental law operates today. As Professor

Brown Weiss so evocatively puts it, ours is a “kaleidoscopic world.”

4

This world,

she tells us, is characterized by the globalization of the f‌inancial and economic

sectors; the development and widespread dispersion of information and commu-

nications technologies around the world, empowering people from the bottom up

while complicating control from the top down; and the dispersion of dangers.

Perhaps most importantly, the kaleidoscopic world is subject to “rapid and often

unforeseen changes with widespread effects,”

5

including unexpected events or

changes in the nature of problems or constellations of actors.

6

Professor Brown

Weiss identif‌ied climate change as emblematic of the “kaleidoscopic period” in

which we f‌ind ourselves.

7

1. Edith Brown Weiss, Establishing Norms in a Kaleidoscopic World, in 396 RECUEIL DES COURS 49,

51 (2018).

2. Id. at 52.

3. Id.

4. See, e.g., Edith Brown Weiss, International Law in a Kaleidoscopic World, 1 ASIAN J. INT’L L. 21,

21 (2011); Brown Weiss, supra note 1, at 154.

5. Brown Weiss, supra note 4, at 21.

6. Brown Weiss, supra note 1, at 54.

7. See Edith Brown Weiss, Intergenerational Equity in a Kaleidoscopic World, 49 ENV’T POL’Y & L.

3, 8 (2019).

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