Climate Justice

A Voice for the Future

T. Thorp

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137394644
• Topic: Social Sciences
• Subtopic: Global Development Studies
• Index: Social Sciences

Part I

Unifying the Parameters of Climate Justice

1

Scope of the Work

Chapter 1 investigates the scope of the problem and establishes a bespoke Terms of Reference for inquiry.

1.1 Main purpose

1.1.1 Governing legal complexity

The book’s main purpose is to develop a unified and universal approach to “constitutionalise” international law in the global commons. International law does not regulate human behaviour at random or in some haphazard way. It is not just a system of norms. It is a canonical normative system of legal norms. Constituted by its elements, international law forms the spine of a logical architectural order. Regional and domestic law are its vertebrae.

Riveting through this axis is the legal norm, justice and the supposition that Parties to the UNFCCC may somehow, sometime, logically govern complexity and advance climate justice.⁹³ At Durban in 2011,⁹⁴ Doha in 2012 and again at Warsaw in 2013,⁹⁵ the UNFCCC COP reiterated that the foundational element governing climate change centres on the Convention’s principles. The UNFCCC COP decided in Durban (2011) that a shared vision for long-term cooperation “should be guided by the principles of equity and common but differentiated responsibilities and respective capabilities”, an Article 3(1) UNFCCC provision.⁹⁶

Notwithstanding, the interrelationships between the UNFCCC and consequential legal norms that regulate human behaviour governed by that architecture are far from clear. There is a dearth of adequate substance. Indecision even persists as to reaching consensus on the fundamental legal principles of international climate law, let alone giving effect to them.

A multitude of State and non-State actors, competition between common and civil law traditions and overlapping jurisdictions intensify complexity. In turn, the absence of a robust theory and recognisable process applicable to all leads to contradictions and controversy. The informalities of spreading tasks over a broad number of actors in the absence of a unified process are protracted and costly for governments, companies, public interest groups and future generations.

1.1.2 Framing climate change as a constitutional issue

A single statement wraps up these shortcomings: the failure to comprehend a unified constitutional framework of legal principles impinges on the quality of the legal system and leads to injustice. The findings of the inquiry concur. Not only is it advisable for the UNFCCC COP to survey the fundamental lex lata principles of international climate law, but it may also benefit in at least two other significant ways. First, the UNFCCC COP could start to develop a unified law of peoples applicable to all (a new jus gentium) by developing a constitutional fons principalis of international climate law.⁹⁷ Second, the UNFCCC COP could work on fulfilling the prescribed constitutional order.

Stalemate is an alternative, but the absence of a recognisable and coherent normative constitutionalism by which to govern international climate law may continue to stir up animosity and ill will. It is likely to constrain the rule of law in its substantive interpretation and procedural operation. It will hinder climate negotiations. At a more localised level, adaptation, risk management, loss and damage, compensation, cooperative development and technological and infrastructure decisions are only a few of the issues amongst the wide raft of disconnections. A first principles approach should tackle these types of deficiencies in the legal system by addressing them from a constitutional perspective.

Adger and others,⁹⁸ Hansson⁹⁹ and Keohane and Victor also identify with the problem of “complex regimes”.¹⁰⁰ The inquiry does not set out on the impossible mission of trying to identify all possible norms or institutions that may influence international climate law. The inquiry sets out an approach. It establishes an analytical process by which to make decisions about normative interactions.

The approach can facilitate bringing new norms into the system. It can reject others and it can make decisions that revolve around a normative nexus. Other approaches are likely to evolve but are yet to do so. In the meantime, this inquiry puts a stake in the ground. It provides a type of constitutional guidebook to develop a unified and universal process/approach/doctrine/theory.

Framing climate change as a constitutional issue has its underpinnings in legal theory and jurisprudence. As such, the inquiry hopes to attain a better understanding of international climate law, the system in which it resides and the legal reasoning that applies. Legal theory helps to develop a deep comprehension of the philosophical foundation of how different bodies interact. It provides a basis for examining legal guarantees and fulfilling complex normative interactions. The legal philosophy that underpins this universal constitutional framework needs to be robust enough to stand up to legal scrutiny but flexible enough to address temporal issues. Issues of posterity, in particular, but not only, those of intra- and intergenerational equity, require some form of “inter-connected” governance solution. Besides this theoretical value, the inquiry also seeks a certain sense of practicality. I hope that society, policy makers, arbitrators and guardians of future generations will find it useful for decision-making and for addressing climate change problems as they relate to the broader socio-legal context.¹⁰¹

1.2 A fiduciary theory of governing the global commons

1.2.1 On the proper motives of beneficiaries

Society is at one time the perpetrator of the moral ethic, at another time its victim. Individuals shape society. Individuals are the architects of the norm but individuals do not necessarily believe in the same norm at the same time. The conscience is the instigator of the transcendent norm but the conscience requires a mechanism by which to champion a collective norm and thereby serve society: what the inquiry calls “social justice”.

Policy makers are frequently concerned with social justice. However, policy makers and jurists do not always have the same understanding of social justice. (For varying perspectives on social justice, see Cançado Trindade,¹⁰² Viljoen and Louw,¹⁰³ Nowak,¹⁰⁴ Miller,¹⁰⁵ Barry¹⁰⁶ and Parks and Roberts.)¹⁰⁷

Cançado Trindade discusses the links between conscience, poverty and social injustice.¹⁰⁸ Viljoen and Louw consider the broader context of people’s justice.¹⁰⁹ Nowak sets out a normative and institutional approach.¹¹⁰

For Miller, social justice situates in political discourse. Miller claims that his theory of social justice is not a “distribution theory”. Miller’s model includes “distributive processes”. Distribution is somehow different if it partitions the good from the bad, the advantaged from the disadvantaged. As a “distribution theory”, arguing about the distinction between developed and developing countries, which has major implications for trade aid, preferences and a host of other privileges, has frequently resulted in a deadlock in both trade and climate negotiations. For some academics, distribution theories of this nature may reflect the temptation to oversimplify international law as competition between subjects and objects or as easily resolvable binary conflicts: one norm is superior to another or one country deserves favours and others do not. This latter approach, when framed as a so-called “conflict of norms”, refuses to reckon with a jus gentium or fails to understand it.

It is only a matter of time, as to when society will contest extending unfettered privileges to larger developing countries, like Brazil, China and India. At the national level, a mounting awareness of the extent of public and private debt in many western economies may trigger part of the backlash, especially if debt leads to running down health services, education and pensions. Querying the benefit of binary differentiation, as in supporting flood victims elsewhere as opposed to aiding neighbours at home, may trigger another part of the backlash. In brief, binary methods of normative “segmentation” to a fictitious “conflict of norms” are often rudimentary, discriminatory and unfair.

Extending umbrella privileges to all States making a self-declaration to be “developing” is not convincing. What are the alternatives? In the future, justice ought to incentivise beneficiaries of the global norm by improving the quality of the legal system. Future benchmarks for differentiation may consider psychographic factors (normative subjectivity that reflects the required behaviour to realise a legal norm). Advancing “legal equity” globally may trigger this new approach to alter the existing one.

The inquiry also introduces Barry’s perspective on justice for the first time. In one part of Justice as Impartiality (1996), Barry aims to demonstrate that there are certain fundamental principles applicable to all humankind. While using the political economy as his vehicle for discourse, Barry essentially returns to first principles to justify the need for a type of root consensus. He suggests that social justice is associated with worldwide equality. In 1996, Barry seems to be on the verge of identifying equality of first principles as a key social reformer. Later, in 2005, he veers away from this discussion. Barry suggests that the lack of theory is the real problem. He then suggests the need for some type of social justice theory due to the inability to decide whether social justice resides in global equality or whether it is simply that poverty is bad. From a position of Why Social Justice Matters, Barry embraces institutional reform and the idea that collective institutions will solve social injustice. He thereby averts addressing systematic failure.¹¹¹ Parks and Roberts do a similar thing. They also suggest that the lack of consensus on climate change has arisen from global inequalities but they use the North-South divide as their vehicle for discourse.¹¹² Varying perspectives on social justice influence policy makers.

At times, policy makers enter into collective undertakings as Competent Authorities but legal justice may not necessarily frame their decisions. (Votes may drive political decisions.) Political acts only become legal when they enter the legal system. Unless process mechanisms are in place, the quality of the legal system may move far afield from negotiating a collective consensus.

The term “Competent Authority” requires explanation. For our purposes, a Competent Authority refers to those authorities that introduce climate norms to the legal system, authenticate them and oversee their employ. Competent Authorities may withdraw existing legal norms or replace them with others. They may confer obligations on others. They discuss, negotiate and make decisions that determine normative legitimacy and effect.

Competent Authorities engaged in international climate decision-making processes struggle to reach normative consensus but failure is not necessarily due to a lack of motivation. Negotiated consensus only catapults forwards if it functions under certain conditions. Bereft of a unified frame of reference, and absent an agreed process, Competent Authorities will continue to distance themselves from their entrusted duties and the people they are to serve.

Arbitrators’ motives are different. Arbitrators hold the judicial conscience of the normative legal value. They probably do not always know whether they are pronouncing on the causes or the consequences of a legal climate norm. Some international adjudicators may even say that constitutional order has no real use to them in practice or that this does not even matter; but it does matter. Posterity matters. Justice matters.

1.2.2 An entrusted duty to protect humanity in the global commons

Irrespective as to whether there is consensus on the meaning of social justice, when society empowers organisations with a quest for legal justice, it also confers on them a type of entrusted duty. An entrusted duty is a type of fiduciary duty.¹¹³ A fiduciary duty often arises when there is an entrusted relationship. In the context of this book, humanity (present and future generations) is a type of beneficiary of the global commons. A fiduciary theory of peremptory norms entails a compelling duty applicable to all.

States and non-State actors owe people an entrusted duty. According to McGoldrick, Feaver and Maver, “political action on climate change is not a discretionary decision; politicians have a positive legal obligation to act. The notion of a fiduciary obligation in this context amounts to a ‘sort of guardianship for social purposes’ whereby governments exercise a ‘fiduciary trust’ on behalf of their people.”¹¹⁴ Non-State actors are also empowered with a fiduciary trust on behalf of their constituent members.

Reaching a normative consensus not only has an inherent link to social justice, but it also requires positive endeavours to act on entrusted legal duties. Guardianship of the global commons thereby extends beyond institutional imperialism and spats about burden sharing. Attention needs to extend to negotiate the legitimacy and effect of legal norms, a unified constitutionalism of the jus gentium and a new architecture for international law as a collective law of humanity.

By the very fact of being human, all participants in the international climate system owe a type of entrusted duty of care to present and future generations. The idea of having to prove causation in order to share responsibility evaporates. A duty of care extends to constitutional unification, interpretation and application instead. To achieve social justice and uphold entrusted duties, society, policy makers, arbitrators and guardians of present and future generations owe fiduciary duties to each other and to the future of humankind. In this sense, they are all fiduciaries.

From these findings, the discourse fastens into a new context concerning the constitutionalism of international climate law. A fiduciary acting under its remit as a party to the UNFCCC COP owes an obligation to guarantee and fulfil the constituent elements of the UNFCCC treaty. The UNFCCC constitutes a special constitutional instrument and the UNFCCC COP owes an entrusted duty, a type of fiduciary duty, to its constituents. When the UNFCCC COP empowers non-State actors, those actors also owe a type of fiduciary duty to their constituents. Again, the duty extends to constitutional unification, interpretation and application. These dynamics create a network of normative fiduciary obligations. The fiduciary has a duty to protect the climate system for present and future generations and it has an entrusted obligation to interpret and apply international law, including the UNFCCC, to achieve this end. In brief, there is an entrusted networked duty to protect humanity i...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Preface
• List of Abbreviations
• Introduction
• Part I: Unifying the Parameters of Climate Justice
• Part II: Launching a Process Applicable to All
• Part III: Reflections on the Constitutionalism of International Law
• Notes
• Selected Bibliography
• Index