Climate Change and International Environmental Law: Musings on a Journey to Somewhere
The aim of this paper, published in the Journal of Environmental Law, is to explore what the international community's legal response to climate change tells us about the state of international environmental law more generally. The paper focuses on five core issues: the nature and extent of differentiation in favour of developing countries, the role of soft law, the dynamics of decision-making in multilateral negotiations, the contribution of dispute settlement, and the impact of scholarly work in this field.
The paper begins by describing how changing circumstances, i.e. the progress of developing countries and struggling developed economies, has driven a counter-swing from developed nations toward diluting and modifying the concept of differentiation in favour of developing countries. Another contentious issue is that of hard (legally binding) versus soft (non-binding) law, with many of the countries at most risk of climate change favouring the former. What has emerged is a mix of hard and soft that reflects to polycentric nature of the problem. Consensus based decision making and power dynamics are the subject of the following chapter, with an exploration of the challenges and constraints of attaining consensus. The paper then explores the question of dispute settlement in climate change, and a reflection of the legal scholarship available on climate change.
The paper concludes that much of climate change literature is analytical, informed, and connected to wider debates, with excellent and diverse literature on the effect of climate change on law, politics, and society. The prospect of a new agreement in 2015 provides opportunity for a more holistic and increasingly critical form of literature and comment. One concern would be if the disjoint between writings concerning the climate change regime, and those that look beyond the regime, were to widen. On issues such as consensus, the authors suggest that it would be wise for the international community to consider the consequences seriously before changing established norms. The final note is a reminder that given the clear scientific and moral case for action, it is important to recognise the incentive to believe in progress, and be realistic about the scale of what needs to be done.