Academic journal article Washington Law Review

Global Warming: A Second Coming for International Law?

Academic journal article Washington Law Review

Global Warming: A Second Coming for International Law?

Article excerpt

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.

"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 Roy1


Of the 190-plus nations in the international community, only about twenty core nations effectively control climate-change action2 - 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.3 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.4

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. …

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