Reversing the devastating effects of climate change will require a more coherent and orchestrated international regime, as well as cooperation between states and other stakeholders, writes Professor Oliver C. Ruppel.
There seems to be growing scientific consensus that the increased number and intensity of climate change induced natural disasters, such as earthquakes, volcano eruptions, tsunamis and hurricanes, is of alarming concern. Recent incidents include among others the Indian Ocean tsunami (2004), Hurricanes Katrina (2005) and Sandy (2012), Typhoon Bopha in the Phillipines (2012), the earthquakes in Pakistan (2005), Haiti (2010) and Fukushima (2011). The World Bank, in a report published in 2012, warned of “cataclysmic consequences” if climate change was not reined in.
Climate change has the potential to impose pressures on various aspects of human security, including water stress, land use and food security, health security and environmentally induced migration. Climate change damage may also significantly affect economic growth. Climate extremes exert substantial stress on low-income populations in particular, and the poor are most vulnerable to dimensions of climate change such as heat waves, sea level rise, the destruction of coastal zones and water shortages due to drought.
In 2011, Achim Steiner, Executive Director of the United Nations Environment Programme (UNEP), asserted that climate change is a “threat multiplier” that has fundamental implications for weather, settlements, infrastructure, food insecurity, livelihoods and development. Competition over scarce water and land, exacerbated by regional changes in climate, was already a key factor in local conflicts in Darfur, the Central African Republic, northern Kenya and Chad. More effective regulation may be needed to help prevent the aforementioned situations from worsening.
So far, however, there is no clearly defined term, nor a marked branch of the law, which would cover all legal implications of climate change. Subsuming climate change under any legal structure is a challenging task due to its endless ramifications and particularly due to its interdisciplinary nature and its impacts on various segments of our planet.
Efforts to curb climate change have given rise to the evolution of some new principles and concepts of international law, including among others the principle of common but differentiated responsibilities, the notion of common concern of humankind and the need for protection of the most vulnerable. Climate change permeates the law in many ways creating intersections of law in its diverse fields. If one brands a new discipline “climate change law”, this is both international and domestic in nature and includes (at least) two complementary dimensions: procedural and substantive.
The procedural dimension is related to the right to information, the right to participate in decision-making, and the right of access to justice. The substantive dimension of climate change law is far reaching and incorporates among others constitutional law, administrative law, environmental law, water law, criminal law, the law of nuisance, the law of delict, insurance law and even tax law. The intersections of international climate change law and multiple overlapping regulatory bodies reflect the fragmentation of global climate change governance in the absence of a universal climate change regime. This makes international climate change law extremely complex and global climate governance not very orchestrated.
This overlapping complexity in the different climate change (related) regimes can be observed in various United Nations Conventions, the international human rights regime, the world trade order (WTO), Multilateral Environmental Agreements (MEAs) and other international legal instruments that (directly or indirectly) deal with climate change, such as the Vienna Convention on Ozone Depletion, the Montreal Protocol, the Convention on Biodiversity, the London Dumping Convention, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the RAMSAR Convention on Wetlands of International Importance and the Convention on the Conservation of Migratory Species of Wild Animals among others. The same applies for Geoengineering, Nuclear Technology, Intellectual Property, International Investment and Finance Regimes.
Reflecting on climate regimes around the United Nations Framework Convention on Climate Change (UNFCCC), the role of the United Nations Security Council, the international human rights regime, international refugee law, the law of the sea regime (UNCLOS) and the world trade order (WTO), it seems that there is a need for international cooperation on the rule of law and the duty to cooperate in international dispute settlement.
Yet, it becomes clear that still several independent international legal regimes exist, which are in way or another relevant in the context of climate change. These international regimes largely rest on intergovernmental agreement. There are intersections between these regimes although they are fragmented. While there are some regimes dedicated exclusively to climate change (UNFCCC), others impact deeply on climate change, yet have a primary focus dealing with quite different subjects (human rights, humanitarian aspects, world trade, the oceans framework etc.).
An international regime dealing with climate change will have to go far beyond the capacity of governments and will need support from non-state actors as well, creating a multi-stakeholder regime. For local and national action to be effective in future, such a global regime must aim at cooperation and solidarity, be supportive and well designed.
In no area of law should the common interests of mankind be clearer than when addressing climate change and the challenges in the current age where we already know that the impacts of human activities will have and already have severe consequences for present and future generations.
With this in mind one should reasonably think that it is possible to identify and agree upon the necessary regulatory reforms in response to the changing climate and for the survival of mankind.
By Oliver C. Ruppel
Oliver C. Ruppel (pictured) is a Professor of Law in the Department of Mercantile Law at Stellenbosch University.