Global Warming: a Second Coming for International Law?

• Publication year: 2021

GLOBAL WARMING: A SECOND COMING FOR INTERNATIONAL LAW?

Deepa Badrinarayana(fn*)

"It makes out that both sides have the Greater Good of the Nation in mind-but merely disagree about the means by which to achieve it."

"Go on, Government, quibble. Bargain. Beat it down.

Say something.''"

-Arundhati Roy(fn1)

Abstract: Currently, there are no adequate mechanisms under international law to balance the competing tensions climate change presents to state sovereignty. On one hand, climate change threatens state sovereignty because the catastrophic loss of life and property of millions of people would deprive states of control over their domestic territories. Yet, other states rely on claims of their sovereignty to reject international legal obligations to mitigate climate change. This Article attributes the inadequacy of international law in the climate context to the evolution of the international community into an economic union that has historically privileged material interests over legal rights. It argues that given the high improbability of supplanting this economic union with a legal union that protects sovereign rights while also checking sovereign powers, an entirely innovative approach is necessary to redress climate change-related rights violations. It further argues that the focus of law and policy makers should shift away from inadequate explanations of the relevance of international law provided by current international legal theories toward normative-based solutions to address violations of both sovereignty and human rights.

INTRODUCTION................................................................................254

I. GLOBAL WARMING: OF SOVEREIGN RIGHTS AND WRONGS......................................................................................256

A. Climate Change and the Dark Side of Sovereignty..............256

B. Sovereignty in the Climate Change Context: A Domestic, Rational, and Moral Concept...............................................260

II. THE INTERNATIONAL ECONOMIC UNION LIMITS INTERNATIONAL CLIMATE ACTION....................................262

A. The International Community is a Product of Trade and Economic Relations ............................................................. 262

B. Climate Change and International Law: Tethered to an Economic Unity...................................................................270

III. A LEGAL UNION OF SOVEREIGN STATES: AN IMPROBABLE SOLUTION?.......................................................276

IV. CLIMATE CHANGE: THE UNMITIGATED CHALLENGE TO INTERNATIONAL LAW.......................................................280

A. Climate Change Demands a Different Approach.................280

B. Law- and Policy-Makers Should Focus on Normative Solutions and Consequences for Noncompliance ................ 282

1. Re-thinking International Law...................................282

2. Steps to Re-thinking International Law for Climate Action ......................................................................... 287

i. Acknowledging the Tough Questions in Treaty Negotiations .......................................... 288

ii. Recognizing Investment-Based Emissions Increases...........................................................289

iii. Understanding the Limits of Domestic Law.....289

iv. Reexamining International Legal Reform Projects with an Economic Lens....................... 290

CONCLUSION .................................................................................... 291

INTRODUCTION

Of the 190-plus nations in the international community, only about twenty core nations effectively control climate-change action(fn2)-even though climate change threatens the lives and property of millions of people. Current legal scholarship focuses on why, how, and to what extent these twenty countries must share the burdens of mitigation and adaptation, based on their historical levels of carbon emissions and their proportionately higher economic wealth.(fn3) Most of these analyses emphasize international legal and policy responses that would maintain the economic status quo of core countries while simultaneously reducing carbon emissions. Indeed, the thrust of international climate change negotiations has been on allocating varying costs to core nations.(fn4)

This Article examines a different issue: why international law does not provide adequate redress to about eighty percent of the world's population whose lives and property are threatened by climate change, and whose governments may thus effectively be denied sovereign control over their domestic affairs. It argues that state behavior in the context of climate change is currently consistent with historic international legal responses to rights violations generally, and thus, mitigating violations of sovereignty will require new approaches in international law.

This Article proceeds in four parts. Part I presents a case for treating climate change as a threat to sovereignty because it compromises a state's ability to protect its citizens' rights to life and property. This Part also contends that an absence of judicial mechanisms, notwithstanding the principle of the sovereign equality of nations, leads to differences in the abilities of nations to fully exercise and safeguard their sovereign interests. Part II argues that international law is limited in addressing threats to rights associated with climate change because the community of nations is an economic/trade/material union whose material needs take precedence over other rights. In making this argument, this Part provides a brief historical review of trade relations and international law, emphasizing the role and influence of empires. This Part also argues that this economic union permeates international law's response to climate change and concludes that the insufficiency of international institutional responses to climate change is an expected outgrowth of the prominence given to economic interests.

Part III demonstrates that establishing a legal union of sovereign states can overcome the limitations posed by the current economic union of sovereign states. This Part references the United States's federalism as a potential model. Despite disagreements between sovereign U.S. states and the federal government, the former can seek protection for their citizens through judicial mechanisms, a recourse unavailable in the international context. This protection is attributed to a union based on law-the U.S. Constitution-which grants rights and places checks on powers that affect sovereign rights. International law, on the other hand, lacks effective legal mechanisms to protect sovereign interests.

Part IV summarizes the challenges that climate change presents to international law and proposes several ways to rethink international climate action. Law- and policy-makers should shift their focus away from current legal theories and instead focus on finding solutions that provide consequences for noncompliance and protect threatened states' sovereign authority.

I. GLOBAL WARMING: OF SOVEREIGN RIGHTS AND WRONGS

Climate change threatens the sovereignty of nations in several geographic regions. However, sovereignty loss has not received due attention within current scholarship, which is still rooted in the notion that sovereignty gives states the right to reject international legal obligations.

A. Climate Change and the Dark Side of Sovereignty

The reach of international law depends on state consent.(fn5) Discussions about the principle of sovereignty usually center on the extent to which a state may be subject to international law absent its consent.(fn6) These contentions come to the fore in the context of climate change as well, not only in terms of state consent to mitigation treaties, but also because climate change can threaten traditional sovereign rights over domestic affairs.

Although there are several types of sovereignty,(fn7) the concept of sovereignty as the right of nations to manage their domestic affairs without external interference is most relevant here.(fn8) Sovereignty in this sense implies the co-equality of states, which have equal rights to choose when and to what extent they will cede their exclusive authority over domestic affairs to an external authority.(fn9) Coequal sovereignty ensures that all nations can protect their citizens' rights to life and property.(fn10)

Climate change is a threat to the land and life of people in several nations, particularly in vulnerable regions such as Asia, parts of Africa, and low-lying island nations.(fn11) Climate-change-related sea-level rise is projected to destroy property, endanger life, threaten livelihood, spread diseases, and displace massive numbers of people.(fn12) Its impact has already been observed in Tuvalu, Bangladesh, and Maldives.(fn13) These nations are effectively forced to relinquish their territories to the extent the rise in sea level sinks their land.(fn14) People in these countries stand to lose not only their political and economic personalities, but also their cultures.(fn15)

Furthermore, the threatened nations (affected states) cannot circumvent these threats because other nations (controlling states) control the anthropogenic emissions of greenhouse gases that accelerate climate change.(fn16) Affected...