Is the Crisis of Climate Change a Crisis for International Law: Is International Law Too Democratic, Too Capitalist and Too Fearful to Cope with the Crisis of Climate Change?

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Abstract

This article goes beyond the international law of climate change to pose some bigger picture questions regarding the relationship of climate change and international law First, is that as to whether international law has some responsibility for the climate change crisis through its promotion of a capitalist oil-based global economy. Accepting that this is the case, the article then asks whether international law can extricate itself from that past in order to facilitate changes on the scale and in the time-frame required to avoid worst-case scenarios. International law may be constrained in this regard by its methods of law-making and enforcement and by the political context in which it functions Although international lawyers are currently exploring the possibility of malting international law more democratic, the domestic experience of leading democracies would suggest that this may not help international law meet the climate change challenge. The article concludes by asking whether international law is too capitalist, too democratic, and too fearful to cope with the crisis of climate change.

Introduction

Climate change has come to be regarded as one of the key global challenges of our time. In policy terms, it is no longer thought of as an environmental issue only, but as a challenge with potentially far-reaching implications for virtually all areas of planning, from health care, to transport, to taxation. The root cause of the crisis--the burning of fossil fuels for energy--goes to the very heart of contemporary developed economies and while it is projected that some of those worst affected will be in the poorest countries, every society is likely to be affected to some degree. International law, and in particular the United Nations Framework Convention on Climate Change ('UNFCCC') (1) and the Kyoto Protocol to the United Nations Framework Convention on Climate Change ('Kyoto Protocol'), (2) have been central to attempts to address the crisis at a global level. But, just as the policy implications of climate change extend beyond environmental policy so climate change poses challenges for international law beyond the design and implementation of mitigation measures. This article poses two fundamental questions for international lawyers regarding climate change: does international law carry any responsibility for the crisis and does international law have adequate mechanisms for effecting far-reaching changes in a relatively short time-span? The article concludes by considering whether international law is too democratic, too capitalist, and too fearful to rise to the challenges ahead.

I. The Crisis of Climate Change

The title of this article is premised on the assumption that it is appropriate to use the language of 'crisis' in referring to climate change. Before considering whether the crisis of climate change constitutes a crisis for international law, it is worth reflecting on whether the problems we are facing in respect of a changing climate do in fact warrant use of the term 'crisis'. Some have suggested that the increasingly dramatic language we are encountering in relation to climate change means that the left and the green movement are simply drawing on the same politics of fear drawn on by the right during fear of crime campaigns and the war on terror. According to Frank Furedi, we are witnessing a

  [C]onstant inflation of the danger and problems which people face
  today, coupled with a lack of belief in humanity having the ability
  to tackle any difficulties we might come up against ... [W] hat's
  different today is not the number of problems we face, nor the scale
  of the dangers confronting us. It is the fatalistic spirit with which
  they are approached." (3)

According to Furedi, the culture of fear has led to a culture of limits. 'We are told that there is no alternative but to ... cut down on the consumption of resources to avert climate change, or that there is no alternative but to reorganize our way of life in order to survive the threat of terrorism'. …